86 Neb. 17 | Neb. | 1910
The Western Union Telegraph 'Company, hereafter t called the defendant, was prosecuted under the provis- * ions of subdivision c, sec. 15, ch. 90, laws 1907, being subdivision c, sec. 15, art. VIII, ch. 72, Comp. St. 1909, commonly known as the “State Railway Commission Law”, for a violation of the provisions of that chapter. The trial resulted in a conviction, and from a judgment imposing a fine the defendant has prosecuted error.
It is first contended that the court erred in holding that the proceeding was properly instituted by criminal prosecution. In support of this contention defendant cites Mitchell v. State, 12 Neb. 538; State v. Sinnott, 15 Neb. 472; State v. Standard Oil Co., 61 Neb. 28; State v. Missouri P. R. Co., 64 Neb. 679. We are of opinion that these authorities do not support defendant’s contention. In State v. Sinnott and State v. Missouri P. R. Co., supra. the court held that criminal prosecutions were properly brought. State v. Standard Oil Co., supra, was a case where the statute specifically provided for an action by injunction, and, of course, it was there held that the proper procedure was by civil action. In Mitchell v. State, supra, it appears that the amount of forefeiture sought to be recovered was fixed by the statute at a definite sum, while in the instant case the statutory provision is that any one convicted of the offense, of which the defendant has been found guilty, “shall be fined in any sum not exceeding ten thousand, dollars.”
It is argued, however, that where the statute declares the doing.of an act to be unlawful, and prescribes a penalty therefor, the intention of the legislature as to whether the penalty is to be enforced by a civil or criminal action is to be ascertained by the terms used and the procedure provided. That this proposition is sound cannot be questioned, but it would seem that the legislature intended that violations of the act should be punished by criminal prosecutions for the following reasons. That part of the act which includes the matter of procedure reads as follows: “When the railway commission has reason to believe that any railway company, or common carrier, or any officer, agent or employee thereof, subject to the provisions of this act, has been guilty of any misdemeanor, or misdemeanors, as herein defined, said commission shall
From the foregoing it appears that no form of procedure is specifically prescribed by the terms of the act. It will be further' observed that the actions mentioned in the statute are to be brought in the name of the state, and in case of a misdemeanor on the part of any officer, agent or employee the action must be brought in the county
Again, there seems to be another and very cogent reason why a civil action to recover the penalties for violations of the act cannot be maintained. Section 92 of the code provides that the petition in a civil action must contain: “First. The name of the court and county in which the action is brought, and the names of the parties, plaintiff and defendant. Second. A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition. Third. A demand of the relief to which the party supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated; and if interest thereon be claimed the time from which interest is to be computed shall also be stated.” In view of these provisions it is difficult for us to see how a petition could be framed to recover a penalty, the amount of which is not fixed or determined. Here the amount of the fine which the court shall impose in case of a conviction could not be known
It is also argued that a criminal prosecution cannot be maintained because of the following language contained in the act: “Such actions shall have precedence to all - other business, except criminal cases, cases of similar nature, and such other actions as are herein provided for.” Comp. St. 1909, ch. 72, art. VIII, sec. 15. It is evident that the sole purpose of this provision was to expedite suits to enforce thp provisions of the act; but it was not intended that such suits should take precedence over other criminal cases, and the language above quoted will be so construed.
It is further urged that the provision that “ 'suits thereon shall be brought in the name of the state in the proper court having jurisdiction thereof in any county in this state to or through which said' railway company or common carrier may be operating a road’ indicates a purpose to prosecute by civil action, and is inconsistent with a criminal proceeding, and that to adopt any other view we must assume that either the legislature intended to violate the constitutional rights of the employees of the offending common carrier by compelling them- to be taken, perhaps, to a remote corner of the state for a trial for an offense alleged to have been committed in the
The constitutionality of the provision that the corporation or company may be prosecuted in any county through which or into which its line or business extends is not involved in this proceeding, and that question will not be decided until it is properly before the court.
So we are of opinion that the statute contains nothing which would prohibit its enforcement by criminal prosecutions, and that it was the intention of the legislature that such prosecutions should be resorted to for violations of its provisions. To support this opinion we are not without authority. In State v. Missouri P. R. Co., 64 Neb. 679, we held: “When the legislative thought is cast in the mould of the criminal law, it will be presumed, nothing appearing to the contrary, that the remedies contemplated were those generally used in courts exercising criminal jurisdiction.” In State v. Marshall, 64 N. H. 549, it was said: “In the absence of any special provision as to the mode of procedure, the use of the word ‘fine’ determines the form of the remedy.” To the same effect is State v. Horgan, 55 Minn. 183. The district court did not err in entertaining the criminal prosecution herein.
As a second ground for a reversal of the judgment complained of, it is claimed that “the provisions of subdivision c, sec. 15, rightly construed in connection with other portions of the act, have no application to the business of telegraph companies.” This contention is supported by a ■well-written and instructive brief, and was , urged
Finally, it is contended that the part- of section 4 of the act which defines common carriei’s to include telegraph companies is not within the title of the act, and is therefore unconstitutional and void. It was admitted by the defendant upon the argument that the bill does not cover a double subject, and it is conceded in defendant’s brief that there are general terms contained in the title which would be broad enough to include regulations concerning telegraph companies if they were not restricted by other portions of the title. In other words, that the legislature, in attempting to make an elaborate title, has in effect restricted the scope of the act to railway companies and common carriers engaged in the business of transporting freight and passengers only. As above stated, we are convinced that, in drafting the act, it was the intention of the legislature to include telegraph companies in its provisions, to prevent abuses, discriminations and extortions, and to that end required such companies to file a schedule of their rates with the state railway commission, and prohibited a change or increase of such rates without the consent of that tribunal. It is true that the main and more specific portions of the act refer to railway companies as common carriers of goods and passengers. But those provisions, which in their very nature could alone apply to telegraph companies, are not thereby excluded. The title to the act reads as follows: “An act, creating and defining the powers, duties and qualifications of the state railway commission and the secretary thereof and fixing their compensation; defining railway companies and common carriers, regulating the same, and providing the method of fixing, establishing, publishing rates, charges
Having thus disposed of defendant’s assignments, and finding no error in the record, the judgment of the district court is
Affirmed.