State ex rel. Missouri Pacific Railway Co. v. Clarke

Rose, J. This is an original application for a peremptory writ of mandamus directing the members of the state railway commission to pass on the merits of a petition by relator for an increase in existing railroad rates for the transportation of passengers. Respondents dismissed relator’s petition. They resist the writ of mandamus because they are of the opinion that they have no power to increase passenger rates beyond the limits fixed by the following legislative enactment: “It shall be unlawful for any railroad corporation operating, or which shall hereafter operate, a railroad in this state to charge, collect, demand or receive for the transportation of any passenger over twelve years of age, with baggage not exceeding two hundred pounds in weight, on any train over its line of road in the state of Nebraska, a sum exceeding two cents per mile: Provided, no railroad company shall he required to sell any ticket for less than five cents.” Rev. St. 1913, sec. 6067. It is insisted that the constitutional amendment creating the state railway commission confers upon it power to change rates fixed by the legislature. The amendment declares: “The powers and duties of such commission shall include the regulation of rates, service and general control of common carriers as the legislature may provide by law. But, in the absence of specific legislation, the commission shall exercise the powers and perform the duties enumerated in this provision.” Const., art. V, sec 19ft. Relator argues that the words, “as the legislature may provide by law,” modify only the expression, “general control of common carriers,” thus excluding “regulation of rates” from the modifying clause. That interpretation is — 568 — not warranted by the language construed. “As the legislature may provide by law” applies to the entire grant of power, including “regulation of rates.” This is shown also by the concluding provision: “But, in the absence of specific legislation, the commission shall exercise the powers and perform the duties enumerated in this provision.” The amendment did not grant to the state railway commission exclusive power to fix rates. Before the amendment was adopted the constitution declared: “And the legislature may from time to time pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on the different railroads in this state.” Const., art. XI, sec. 4. This provision is still a part of the supreme law. The fixing of rates, therefore, is still within the legislative power. It is in the absence of specific legislation that the state railway commission may exercise such authority. It follows that, since passenger rates were fixed by statute, authority of the state railway commission to increase them must be found in legislative action. Relator further insists that power to increase passenger rates has been delegated to the state railway commission by the legislature. Following the adoption of the constitutional amendment at the general election in 1906, the legislature of 1907 passed an act defining the powers and the duties of the state railway commission. This became a law March 27, 1907, and to it relator points for authority to increase passenger rates. It contains the following provisions: “The commission shall have the power to regulate the rates an'd services of, and to exercise a general control over all railroads, express companies, car companies, sleeping car companies, freight and freight line companies, and all other common carriers engaged in the transportation of freight or passengers within the state.” Rev. St. 1913, sec. 6107. “The commission shall have the power, and it shall be its duty to make all necessary classifications and to fix all necessary rates,. charges and regulations to govern and — 569 — regulate the freight and passenger tariffs of railway companies and common carriers, the power to correct abuses, and prevent unjust discriminations, extortions and overcharges in rates of freight and passenger tariffs on the different railroads in this state, and to enforce the same by having the penalties inflicted as hereinafter provided, through proper courts having jurisdiction.” Rev. St. 1913, sec. 6109. At the same session the legislature enacted another law known as the “Anti-pass Act.” Separate acts reducing express charges and freight rates were also passed. The import of statutes relating to rates and to the powers and the duties of the state railway commission is determined from all the laws on the subject, including constitutional provisions. Referring to the “Railway Commission Act,” the “Anti-pass Act” (Laws 1907, ch. 93), and the “Two-cent Fare Act” (Laws 1907, ch. 92), it was said in State v. Union P. R. Co., 87 Neb. 29: “These provisions of the statutes, though forming parts of separate acts, enacted at different times, treat of the same subject matter. They form stages in the progressive development of legislation seeking to correct abuses which formerly existed. They carry out specifically the mandate to the legislature given by section 7, art. XI of the Constitution, that The legislature shall pass laws to correct abuses and prevent unjust discrimination and extortion in all charges of express, telegraph and railroad companies in this state and enforce such laws by adequate penalties to the extent, if necessary for that purpose, of forfeiture of their property and franchises! They are, therefore, in pari materia, and must be construed together.” The provisions quoted from the “Railway Commission Act” went into effect 21 days later than the “Two-cent Fare Act.” Do they authorize the state railway commission to increase passenger rates? The answer to this question must be found in the intention of the legislature as disclosed by all of the legislation on the subject, when viewed in the light of the constitution and the. conditions requiring improvement. The power of the legislature to — 570 — fix rates or to delegate to the state railway commission authority to increase rates already fixed by statute cannot be questioned. After passing the act defining the powers and duties of the state railway commission, the legislature at the same session enacted laws decrehsing existing express and freight rates. Laws 1907, chs. 91, 95. In each instance power to change the rates thus fixed was conferred in specific terms on the state railway commission. In the “Two-cent Pare Act” authority to increase passenger rates was not granted, nor is it to be.found in specific terms in any subsequent enactment, though the statute prescribes penalties for violating its provisions. Rev. St. 1913, sec'. 6071. The intention to withhold from the state railway commission authority to increase passenger rates is fairly disclosed by the legislation specifically authorizing it to increase express and freight rates, though they had been fixed by statute; by the fixing of passenger rates without thus authorizing an increase; by the failure of the legislature to specifically amend the “Two-cent Pare Act,” while legislating generally at the same session on the subject of rates; by the conditions which prompted the.lawmakers to remedy existing abuses; and by the constitutional provisions conferring the rate-making power on the legislature and creating the state railway commission. Legislation requiring railway companies to sell for $20 a book of tickets good for 1,000 miles also indicates a legislative intention to withhold from the state railway commission authority to increase passenger rates beyond two cents a mile. After the passage of the act conferring on the state railway commission in general terms power to fix passenger rates, railway companies were required to sell passenger transportation at the rate of two cents a mile. Laws 1907, ch. 94. This act recognized the maximum rate fixed earlier in the session, and prescribed penalties for violations of its terms, but contained no provision authorizing the state railway commission to alloAv an increase. When the legislature convened in 1907, the maximum rate was three cents a mile. At that session, as al — 571 — ready stated, the maximum was reduced to two cents a mile. All of the legislation, both specific and general, relating to rates and to the powers and duties of the state railway commission may be harmonized by reasonable construction. Between the earlier and later acts there is no repugnance amounting to a repeal of the former. In the “Two-cent Fare Act” the legislature dealt with a specific Subject limited to passenger rates. In the subsequent act relating to the state railway commission and conferring upon it authority over rates, the' legislation is general. The specific provisions control, since they are not expressly contradicted by the general terms of the later act. The specific enactment fixes a maximum rate of two cents a mile for the transportation of passengers, leaving the question of lower rates for future determination. The general power of the state railway commission, as applied to passenger traffic,.is limited to rates below the maximum fixed by the two-cent fare law. The legislature, in specifically fixing a maximum passenger rate and in conferring generally upon the state railway commission power to regulate or abolish passenger rates, left the state railway commission free to change or abolish rates within the hounds thus set by the lawmakers. This view of all of the legislation harmonizes it, gives effect to all of the acts, and makes resort to repeal by implication unnecessary. Intention, rather than expediency or legislative" wisdom, is the end sought in construing and in giving effect to statutes. The principles applicable to the present inquiry were recently stated by Judge Morris of the supreme court of Indiana in the following language: “As applied to the question of an implied repeal of an earlier by a later act of the same session, it is held that the later act, if in general terms, and not expressly contradicting the provisions of the earlier one, shall not he considered as intended to affect its more particular and specific provisions, unless absolutely necessary to hold otherwise in order to give any meaning at all to the words of the later act. * * * The reason for such rule is clear. — 572 — In passing tlie special act, the minds of the legislators were necessarily directed to the details of the special case, and it is not probable that they should intend, by a general act, to derogate from that which they have carefully supervised and regulated. * * * Where a particular intention is expressed in an act, which conflicts with a general intention expressed in a later one, the particular intention shall be given effect, leaving the later act to operate only outside the scope of the former.” Cleveland, C., C. & St. L. R. Co. v. Blind, 182 Ind. 398, 423. For these reasons, the state railway commission properly declined to entertain the application having no purpose except to increase passenger rates beyond the limit fixed by statute. Writ denied.