State ex rel. Board of Transportation v. Fremont, Elkhorn & Valley R. R.

Maxwell, Ch. J. On the 24th day of September, 1887, the board of transportation of this state served notice upon the respondent, requiring it to reduce its freight charges 33J per cent on all its lines within the state of Nebraska, on or before October 1st, 1887, a schedule of the charges to be made as reduced for freight on said lines of road within the state being furnished to the respondent. The respondent neglected to comply with the order of the board, and on the 4th day of October, 1887,- the board, through the attorney general of the state, applied for an alternative writ of mandamus to compel the respondent to comply with said order. The writ was returnable on the 5th of that month, when the respondent, by its attorney, appeared and prayed for additional time in which to plead to the writ, which time was granted. The respondent demurred to the complaint, and also to the alternative writ, and the case was set for hearing on the 17th day of October, 1887. On that date the attorney for the respondent not appearing, and the attorney general being absent at Washington on business pertaining to his office, the case was passed until his return. On his return, the case was set for hearing on the 31st day of October, 1887. At that date the attorney for the respondent appeared and filed a statement of an alleged compromise with the board of transportation of the state, except the attorney general, and also a resolution of said board, except said attorney general, asking the court to continue the case until the January term. This the attorney general resists, and insists that the case shall proceed, in order that the authority of the board over the subject-matter may be determined. The first question presented, therefore, is the. authority of the — 318 — attorney general to proceed with the prosecution of the case against the protest of a majority of the board of transportation. Section la of article V., chapter 83 of the Compiled Statutes, 1887, provides that, “The attorney general shall appear for the state, and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested, or a party, and shall also, when requested by the governor, or either branch of the legislature, appear for the state, and prosecute and defend in any court, or before any officer, any cause or matter, civil or criminal, in which the state may be a party or interested.” The attorney general is thus the law officer of the state, and intrusted by law with the management and control of all cases in which the state is a party or interested. The majority of the state board of transportation, therefore, cannot control his action in the premises, and the motion to continue the cause must be overruled. 2d. Upon the overruling of the.motion for continuance, the attoi’ney for the respondent asked leave to withdraw the demurrer, and for time in which to prepare and file an answer. This, however, cannot be permitted. The respondent denies the authority of the state board to regulate and control the rates of freight upon its lines of railway. The question of power is fully raised by the demurrer, and should be decided before entering upon the consideration of questions of fact. It is important, too, that if such power should be found to exist, that the question be determined, so that parties aggrieved may apply to the board for relief. , The motion for leave to withdraw the demurrer and file an answer is therefore overruled. If, however, the court shall decide that the board of transportation has the power to regulate rates as contended for in the petition and alternative writ, the demurrer will be overruled, and upon proper application the defendant will have leave to answer. — 319 — 3d. It is a matter of the public history of the state that for a number of years prior to the 31st day of March, 1887, it was generally claimed that some or all the railroads of the state had granted secret rebates to favorite shippers over their lines; that the effect of such rebates was to charge a party not thus favored a larger sum for the same service than was charged to the favorite shippers; that equal facilities, in many cases, were not furnished to all who desired to ship either goods, grain, or stock, and business, as far as possible, was thrown into the hands of favorite parties. It was also claimed that certain prominent competing points in the state which had paid large sums as donations to secure competing lines, had actually been discriminated against by the increase in rates, and that charges generally throughout the state were much higher than those of other slates having the same amount of business. Other wrongs were claimed which need'not be noticed here. To correct these wrongs, the legislature at its last session passed “ An act to regulate railroads, prevent unjust discrimination, provide for a board of transportation, and define its duties, and repeal articles 5 and 8 of chapter 72, entitled 'Railroads/ of the Revised Statutes, and all acts and parts' of acts in conflict therewith” — Compiled Statutes of 1887, pp. 563-570. The first section of the act provides that it shall apply to any common carrier or carriers engaged in the transportation of passengers or property by railroad under a common control, management, or arrangement for continuous carriage or shipment from any point in the state of Nebraska to any other point in said state, and requires that all charges made for any service rendered or to be rendered in the transportation of passengers or property shall be reasonable and just, and prohibits unjust and unreasonable charges, and declares them to be unlawful. The second section declares that no common carrier subject .to the provisions of the act shall, directly or indirectly, by any special rate, rebate, drawback, — 320 — or other device, charge, demand, collect, or receive from any person or persons a greater compensation for any service rendered or to be rendered in the-transportation of passengers or property than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions. The third section declares it to be unlawful for any such common carrier to' give any preference or advantage to any particular person, company, firm, corporation, or locality, or [on] any particular description of traffic, in any respect whatever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic to any prejudice or disadvantage in any respect whatsoever, and also declares that a railway connecting with other lines shall not discriminate in its rates and charges between such connecting lines. The fifth section prohibits the pooling of earnings of railways. The sixth section requires such railways to print and keep for public inspection, schedules showing the rates and fares and charges “for the transportation of passengers and property which any common carrier has established, and which are in force at the time upon its railroad, as defined by the first section of this act. The schedules printed as aforesaid by any such common carrier shall plainly state the places upon its railroad between which property and passengers will be carried, and shall contain the classification of freight in force upon such railroad, and shall also state separately the terminal charges and any rules or regulations which in anywise change, affect, or determine any part of the aggregate of such aforesaid rates and fares and charges. Such schedules shall be printed in large type, of at least the size of ordinary pica, and copies for the use of the public shall be kept in every depot or station upon any such railroad, [in] such places and in such form that they may be conveniently in — 321 — spected. No advance shall be made in the rates, fares, and charges which have been established and. published as aforesaid by any common carrier, in compliance with the requirements of this section, except after ten days’ public notice, which shall plainly state the changes proposed to be made in the schedule then in force, and the time made in the schedule then in force, and the time when the increased rates, fares, or charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules then in force at the time and kept for public inspection. Eeductions in such published rates, fares, or charges may be made without previous public notice; but whenever any such reduction is made notice of the same shall be publicly posted, and the changes made shall immediately be made public by printing new schedules, or shall immediately be plainly indicated upon the schedule at the time in force and kept for public inspection. And when any such common carrier shall have established and published its rates, fares, and charges in compliance with the provisions of this section, it shall be unlawful for such common carrier to charge, de- • mand, collect, or receive from any person or persons a greater compensation for the transportation of passengers or property, or for any services in connection therewith, than is specified in such published schedule of rates, fares, and charges as may at the time be in force.” It is contended by the attorneys for the respondent that without a charge actually made in reference to somespecific freight and against some particular person, the statute is not and cannot be violated, and it is said, p. 6 of the respondent’s brief, “ A charge cannot be made when there is no property transported, and when there is no person for whom such property has been or is to be transported. There must be both a specific person and specific property, and the charge must be made for such specific property and against such specific person; and it must be for such serv — 322 — ice rendered or to be rendered.” The respondent’s attorneys seem to ignore the remedy given by the statute, and place the claim for relief entirely upon the ground that there must be a charge actually made for services rendered before the question of the unlawful charges can be determined. The statute, however, requires the railway company to establish and publish its rates, fares, and charges before rendering the ■ service. Suppose A, residing at Columbus, or other point in the interior of the state, wishes to ship goods-to Omaha or Lincoln, but deems the charges excessive, the statute .gives him the right to complain of such charges as being excessive, and ask that they shall be fixed at such sum as shall be reasonable and just, as provided in the first and sixth sections of the act. The first section declares that every unjust and unreasonable charge is prohibited and declared to be unlawful. The board of transportation, therefore, is clothed with power to determine what is a just and reasonable charge on all the lines of railway within the state, and this may be done in advance of the rendition of the service. The seventh section requires such railway company to file with the board copies of its schedules of its rates, fares, and charges, which have been established and published in compliance with the statute, and promptly to notify said board of all changes made in the same, and, also, to file with said board copies of all contracts, agreements, or arrangements with other common carriers in relation to any traffic affected by the provisions of this act to which it may be a party, and in cases where passengers and freight pass over continuous lines or routes operated by more than one common carrier, and the several common carriers operating such lines or routes establish joint tariffs of rates, or fares, or charges, for such continuous lines or routes, copies of such joint tariffs shall also in like manner be filed with said board, such continuous lines shall publish the joint rates, fares, and charges thereon, — 323 — when so directed by the board, and may be compelled to publish the same, if on such request they neglect or refuse to do so. The eighth section makes it unlawful for such common carrier to enter into any combination, contract, or agreement, express or implied, to prevent by change of time schedule, carriage in different cars, or by other means or devices, the carriage of freight being continuous from the place of shipment to the place of destination. The ninth section authorizes a recovery against any such carrier as shall do, cause to be done, or permit to be done, any act, matter, or thing, in this act prohibited, or declared to be unlawful, or shall omit to do any act, matter, of thing in this act required to be done. The tenth section provides the procedure by any person claiming to be damaged. The twelfth section authorizes the board to inquire into the management of the business of all common carriers subject to the provisions of the act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from such common carriers full and complete information necessary to enable the board to perform the duties and carry out the object for which it was created, and it is clothed with power to require the attendance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements, and documents, relating to any matter under investigation, and it may invoke the aid of either the district or supreme court to require the production of the required witnesses or documents. The thirteenth section provides that any person, firm, corporation, or association, or any mercantile, agricultural, or manufacturing society, or any politic or municipal organization, complaining of anything done, or omitted to be done, by any common carrier subject to the provisions of the act, in contravention of the provisions thereof, may apply to said board by petition, which shall briefly state the facts; whereupon a statement of the charges thus made shall be forwarded — 324 — by the board to such common carrier, who shall be called upon to satisfy the complaint, or to answer the same in writing within a reasonable time, to be specified by the board. If such common carrier, within the time specified, shall make reparation for the injury alleged to have been done, said carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the board to investigate the matters complained of in such manner and by such means as it shall deem proper. No complaint shall at any time be dismissed because of absence of direct damage to the complainant. That is, railroads being public ways, and subject to legislative control, any violation of the statute by them is a matter of public right and to procure the enforcement of a public duty it is sufficient for the complainant to show that he is a citizen, and as such, is interested in the execution of the laws. State v. Shropshire, 4 Neb., 413-14. Hall v. The People, ex rel., 57 Ill., 313. State, ex rel., v. Judge, 7 Iowa, 202. Hamilton v. State, 3 Ind., 458. The People v. Halsey, 37 N. Y., 348. The State v. Stearns, 11 Neb., 106. The fourteenth section requires the board to make a report in writing in respect to any investigation which they have made, which shall include the findings of fdet together with a recommendation as to what reparation, if any, can be'made by the common carrier to the party injured, and such findings shall be deemed prima facie evidence of every such fact found. The fifteenth section declares that if it be made to appear to the satisfaction of the board, either by the testimony of witnesses, or other evidence, that anything has been done, or permitted to be done, in violation of the provisions of this act, or any law-cognizable by said board by any common carrier, or that — 325 — injury or damage has been sustained by the party or parties, complaining, or other parties aggrieved, in consequence of any such violation, it shall be the duty of the board to forthwith cause a copy of its report in respect thereto to be delivered to such common carrier, together with a notice to such common carrier to cease and desist from such violation, or to make reparation for the injury so found to have been done, or both, within a reasonable time, to be specified by the board. The sixteenth section declares that if such railway companies “ shall violate, or refuse, or neglect to obey, any lawful order or requirement of the board in this act named, it shall be the duty of the board, and lawful for any company or person interested in such order or requirement, to apply in a summary way, by petition filed in the judicial district in which the common carrier complained of has its principal office, or in the district in which the violation or disobedience of such order •or requirements shall happen, alleging such violation or disobedience, as the case. may be, and the said court shall have power to hear and determine the matter on such short notice to the common carrier complained of, as the court shall deem reasonable, and said court shall proceed to hear and determine the matter speedily as a court of equity, but in such manner as to do justice in the premises; and to this end the court shall have, if it think fit, [power] to direct and prosecute in such mode and by such persons as it may appoint; and such inquiries as the court may think needful to enable it to form a just judgment in the matter of such petition; and on such hearing the report of said board shall be prima facie evidence of the matters therein stated; and if it be made to appear to such court on such hearing, or on report of any such person or persons, that the lawful order or requirement of said board drawn in question has been violated or disobeyed, it shall be lawful for such court to issue a writ of injunction, or other proper process, mandatory or otherwise, to restrain such common — 326 — carrier from further continuing such violation or disobedience of such order or requirement of said board, and enjoining obedience to the same; and in case of any disobedience of any such writ of injunction or other proper process, mandatory or otherwise, it shall be lawful for such court to issue writs of attachment, or any other process of said court incident or applicable to writs of injunction or other proper process, mandatory or otherwise, against such common carrier, .and, if a corporation, against one or more of the directors, officers, or agents of the same, or against any owner, lessee, trustee, receive!’, or any other person failing to obey such writ of injunction, or other proper process, mandatory or otherwise; and said court may, if it- shall think fit, make án order, directing such common carrier, or other person so disobeying such writ of injunction, or other proper process, mandatory or otherwise, to pay such sum of money, not exceeding for each carrier or person in default the sum of five hundred dollars for every day, after a day to be named in the order, that such carrier, or other person, shall fail to obey such injunction, or other proper process, mandatory or otherwise.” The mention of the district court in the above section does not exclude the supreme court from hearing any case in which it has original jurisdiction. Section seventeen provides that “ said board shall have the general supervision of all railroads operated by steam in the state, and shall inquire into any neglect of duty or violation of any of the laws of this state by railroad corporations doing business in this state, or by any officer, agent, or employe of any railroad corporation doing business in this state; and shall, from time to time, carefully examine and inspect the condition of each railroad in this state, and its equipments and manner of the conduct and management of the same, with reference to the public safety, interest, and convenience. It shall carefully investigate any com — 327 — plaint made in writing and under oath, concerning'any lack of facilities, or ¿ccommodations, furnished by any railroad corporation doing business in this state, for the comfort, convenience, and accommodation of individuals and the public; or any unjust discrimination against either any person, firm, or corporation, or locality, either in rates, facilities furnished, or otherwise; and whenever, in the judgment of said board, any repairs are necessary upon any portion of the road, or upon any stations, depots, station-houses, or warehouses, or upon any of the rolling stock of any railroad doing business in this state, or additions to, or any changes in its rolling stock, stations, depots, station-houses, or warehouses are necessary, in order to secure the safety, comfort, accommodation, and convenience of the public and individuals, or any change in the mode of conducting its business, or operating its road, is reasonable and expedient, in order to promote the security and accommodation of the public, or in order to prevent unjust discriminations against either persons or places, it shall make a finding of the facts, and an order requiring said railroad corporation to make such repairs, improvements, or addition to its rolling stock, road, stations, depots, or warehouses, or to make such changes, either in the manner of conducting its business, or in the manner of operating its road, as such board shall deem proper, reasonable, and expedient.” It will thus be seen that the board is clothed with the “general supervision of all railroads operated by steam in the state.” * * * * * And it is made its duty to “ carefully investigate any complaint in writing and under oath, concerning ***** any unjust discrimination against either any person, firm, or corporation, or locality, either in rates, facilities furnished, or otherwise, ********* ^ orc]er prevent unjust discriminations against either pe?'sons or places; it shall make a finding of the facts and an order requiring said — 328 — railroad corporation * * * * to make such changes * * in the manner of conducting its business as such board shall deem proper, reasonable, and expedient.” Webster defines the word “ supervision” to be “ The act of overseeing; inspection, superintendence.” The board, therefore, is clothed with the power of overseeing, inspecting, and superintending the railways within the state, for the purposes of carrying into effect the provisions of this act, and they are clothed with power to prevent unjust discriminations against either persons or places. The attorneys for the respondent contend that the act is to receive a strict construction. No satisfactory reason, however, was given for the adoption of such rule. The act is remedial in its nature, and is designed to prevent and punish abuses in the management of some or all of the railways of the state, and in construing remedial statutes, there are three points to be considered, viz., the old law, the mischief, and the remedy; that is, how the law stood at the making of the act, what the mischief was for which the former law did not provide, and what remedy the legislature has provided to cure this mischief, and it is the business of courts so to construe the act as to suppress the mischief and advance the remedy. 1 Bl. Com., 87. Rogers v. Omaha Hotel Co., 4 Neb., 58. Here is an act which declares that all charges shall be just and reasonable, prohibits and declares unlawful all unjust and unreasonable charges ; which requires schedules of such just and reasonable charges to be posted for the use of the public, and prohibits an advance in rates except upon certain conditions; which prohibits any preference in favor of or against any person or place; which requires the board to investigate all complaints against any railway corporation doing business within the state, and gives such board power to call for persons and papers in order that their investigations may be thorough and the report thereof based upon facts, and also makes their finding of fact prima — 329 — fade evidence thereof, and requires said board to investigate and prevent any unjust, discrimination against either any person, firm, corporation, or locality. These are broad powers. They are not to be restricted. Such powers were conferred for the express and declared purpose of fixing ■charges which shall be reasonable and just, and prohibiting unjust and unreasonable charges and unjust discrimination. The court has no authority to li mit the board in any respect, in that regard. Such, board is to determine, in the first instance, at least, what are reasonable and just charges, what unreasonable and unjust, and when any person, firm, ■corporation, or locality is unjustly discriminated against. There can be no restriction of the word “ locality f it may refer to a village, city, county, or portion of the state, the meaning in each case to be determined by the territory which the board shall find to be unjustly discriminated against. If there is discrimination against any person, firm, or corporation, it is the duty of the board so to find, and to require the railway company to cease its discrimination. To do so such board has the authority to require such railway company to reduce its rates to a reasonable and just standard. The power to fix a reasonable and just rate is ■clearly conferred on the board, as also the power to determine what rates are unjust and unreasonable. It is the duty of the board to prevent unjust discrimination in all the forms mentioned in the statute, and to do so it may determine what is a proper charge to and from any points within the state, and its order in that regard based on its finding of facts will be prima faeie evidence of the correctness of the order. . In the case under consideration the board found that the rates and charges of the respondent were excessive; in other words, that there was unjust discrimination against that part of the state, and having so found, the board is clothed with ample power to. .require such railway company to reduce its rates and charges. The power of the board, there — 330 — fore, to establish and regulate rates and charges upon railways within the state of Nebraska is full, ample, and complete. 4th. Some objection is made to the remedy by mandamus, and it is said by the attorneys for the respondent that the writ may not issue where there is a plain and adequate remedy in the ordinary course of the law [Code, Sec. 646]; and therefore “ it may not issue 'in this case, because there is a plain and adequate remedy in the law for enforcing the order of the board of transportation, if its order is a lawful one, by application to the district court in the mode pointed out by the 16th section of the act of 1887. That the proceeding under the 16th section is both plain and adequate. “ That the legislature did not intend to authorize or permit the enforcing of all orders of the board by mandamus, is clear, from the fact that as to the particular matters mentioned in the 17th section, it gave authority to proceed by mandamus as the only and exclusive remedy for enforcing such orders, and as to all other orders in reference to all other matters mentioned in the act, the legislature provided as the only and exclusive remedy an application in the first instance to the district court, as provided in section 16. “ The fact that the legislature specifically gave the right to proceed by mandamus, in the cases mentioned, in the 17th section only, and provided other specific and adequate remedy for all other cases, leaves no doubt that it was the intention of that body that mandamus should only be resorted to in the cases provided for in the 17th section.” These objections are untenable. They are that the district court alone has jurisdiction, and not that the relator has another remedy besides mandamus. But even if the objections were to the form of the remedy, they could not be sustained. The fact that an action will lie does not supersede the remedy by mandamus. If the remedy by an action is not plain and adequate, a mandamus may be issued, notwithstanding an action would lie. State v. — 331 — Stearns, 11 Neb., 107. Thus while a party aggrieved by some violation of the statute by the respondents might maintain an action against such respondent, yet if such remedy was not adequate it would not prevent him from enforcing his rights by mandamus. The test to be applied in determining the right to relief by mandamus is to inquire whether the relator has a clear legal right to such writ, and whether he has any other adequate legal remedy. People v. Head, 25 Ill., 325. People v. Hilliard, 29 Ill., 418. In the case at bar the relators show a clear legal right to have the order made by them complied with. People v. Mayor, 51 Ill., 28. People v. Brooklyn, 1 Wend., 318. And this writ may be applied for in a proper case in the supreme court under any section of the act which 'authorizes the filing of an application in the district court for such writ. In many cases the district court is unable to grant adequate relief, its jurisdiction being limited to a particular county. Thus suppose the board of transportation, as in the case under consideration, should order a railway company to reduce its rates and charges on all its lines within thé state, a question might, perhaps, arise as to the power of the district court to act on rates without the county in which the action was brought. So in cases of like character. But where the action is instituted in the supreme court no question of that kind can arise; nor can the party be debarred by any statute of a constitutional right. The supreme court, therefore, has jurisdiction in the case, and mandamus is the proper remedy. The demurrer, therefore, is overruled, and a peremptory writ will issue within ten days from this date, unless the respondent, within that time, shall present to the court an answer showing compliance with the alternative writ, or a defense to the action upon the facts. Judgment accordingly. The other judges concur.