the opinion of such court, they ought to make | Abbott v. Johnstown, G. & R. H. R. Co. 80 N. for themselves, for such function is legislative Y. 31, 36 Am. Rep. 572; State v. Hartford & rather than judicial. N. H. R. Co. 29 Conn. 538; Covington StockYards Co. v. Keith, 139 U. S. 128, 35 L. ed. 73; Mason v. Missouri P. R. Co. 25 Mo. App. 480; Budd v. People, 143 U. S. 517, 36 L. ed. 247; Brass v. North Dakota, 153 U. S. 391, 38 L. ed. 757.

able charge on all the lines of railroad within | N. J. Eq. 178, 90 Am. Dec. 617; Ames v. Lake the state, and this may be done in advance of Superior & M. R. Co. 21 Minn. 255; 2 Morathe rendition of the service.

State v. Fremont, E. & M. V. R. Co. 22 Neb. 322.

The court erred in holding and deciding that said act was incapable of being enforced, for the reason that there was no tribunal which was authorized to determine and fix the details of the business connections between the various railroads affected by said act.

Ibid.; State v. Chicago, St. P. M. & O. Railroad, 19 Neb. 476; State v. Missouri P. R. Co. 29 Neb. 550.

The court erred in holding and deciding that the main and sole object of said act was the compelling of the various railroad companies affected thereby to enter into business relations and intercourse with each other, and was not the compelling of said railroads solely to connect their tracks.

Burlington, C. R. & N. R. Co. v. Dey, 82 Iowa, 312, 12 L. R. A. 436, 3 Inters. Com. Rep. 584.

Messrs. Lloyd W. Bowers, William B. Sterling, Wright, Hubbard, & Bevington, John B. Hawley, and B. T. White, for defendants in error:

wetz, Priv. Corp. 2d ed. §§ 1047, 1059; Hutchinson, Carr. 2d ed. § 145; Kentucky & I. Bridge Co. v. Louisville & N. R. Co. 37 Fed. Rep. 567, 2 L. R. A. 289, 2 Inters. Com. Rep. 351; Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co. 110 U. S. 668, 28 L. ed. 291.

The act compels involuntary contracts of agency between different railroads and their employees, and in so doing opposes the United States Constitution.

The rates fixed by the act for any transportation of freight in the course of which a transfer switch is traversed are unreasonable, and have the effect of taking property without due process of law, in disregard of both the Federal and state Constitutions.

Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014; Black, Const. L. pp. 318, 324, 325; Re Jacobs, 98 Ń. Y. 98, 50 Am. Rep. 636; Tiedeman, Pol. Powers, § 194, p. 593; Toledo, W. & W. R. Co. v. Jacksonville, 67 Ill. 37, 16 Am. Rep. 611.

Section 3 of the act, declaring in terms that no extra charge shall be made for the service of delivering or receiving freight on a transfer switch, explicitly requires the taking of property without due process of law.

The right of railroads, under their charters from Congress and the state of Nebraska, to charge reasonable rates, is a contract right, and is subject to regulation only by the legislative power of the state in the proper exercise of the police power, and for the purpose and to the extent of preventing unreasonable charges.

3 Am. & Eng. Enc. Law, article, Constitutional Law, p. 741; Black, Const. L. pp. 536, 741; Story, Const. § 1892; Cooley, Const. Lim. 5th ed. p. 712, *577; Pingry v. Washburn, 1 Aik. (Vt.) 264, 15 Am. Dec. 676; New Orleans Gaslight Co. v. Louisiana Light & Heat Pro

As the statute neither itself determines, nor provides any tribunal clothed with authority to determine, such essential preliminaries to the building of the switch track as the place of its beginning or ending, its intermediate route, the method or material of its construction, or its cost, and yet the track is to be built by the joint action of the railroads to be connected, and is neither required nor permitted to be built by any one of them alone, it follows that the act undertakes to oblige the railroads themselves to agree upon all necessary preliminaries to construction such as the above named. It does not, however, declare which railroad shall yield to the others' desires in case of disagree-ducing & Mfg. Co. 115 U. S. 650, 29 L. ed. 516. ment, and is fatally uncertain and incomplete in failing to do that, or otherwise determine where and how the switch track shall be built. If the statute is not fatally defective in its own provisions, then it requires one railroad to reach agreement with the other, as to the necessary preliminaries of constructing the track, by yielding to the demands of that other railroad concerning such preliminaries. In that view the act requires one railroad to help build such a track as the other demands; and that is depriving the first railroad of its liberty and property without due process of law, in violation of Amend. 14, § 1, of the United States Constitution, and of art. 1, § 3, of the Nebraska Constitution, beside denying to the first railroad the equal protection of the laws guaranteed by the same section of the Federal Constitution.

By the act a railroad is required to engage in the business of transporting freight beyond its own line of road, and so is forced (whether it chooses or not) into an occupation which it has never bound itself to enter. Such legislation is a deprivation of liberty and property without due process of law, abridges the immunities guaranteed to railroads as to others, and denies them the equal protection of the laws.

Zabriskie v. Hackensack & N. Y. R. Co. 18

The rates fixed by the statute for the transportation of freight in the course of which a transfer switch is traversed are absolute and are conclusively imposed, whether actually reasonable or not. The rates are established finally, instead of being merely declared presumptively reasonable; and under the terms of the statute judicial inquiry into the actual reasonableness of the rates is immaterial and improper; for this reason, the act takes property without due process of law.

Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, 33 L. ed. 970, 3 Inters. Com. Rep. 209.

Ryan, C., filed the following opinion:

This action was begun in the district court of Holt county, as shown by the prayer of the application, for a writ of mandamus to compel the defendants to build forthwith a transfer or connecting switch at O'Neill, in said county, whereby the lines of the respondent railroad companies might be connected one with the other, and, upon completion of said transfer switch, to henceforth maintain the same in good condition, and to receive and forward freight in car-load lots, offered by one road to the other, on or over said transfer switch, and to place in force a joint schedule of rates between stations on the

lines of each of said roads, whereby freight | in this state over two or more lines of railin car-load lots might be carried from a station on one road to a station on the other, which said rates should be for the rate for the shortest mileage by any railroad between the point of shipment and the point of destination, or to show cause, by a day fixed, why said order should not be complied with, and, upon final hearing, that said order be made final, and for such other and further order as might be required, and which a full and complete carrying out of the statute set forth in the application aforesaid should demand. It is not necessary to more fully state the nature of this action, further than to say that, by the application, it was shown that the lines of railroad owned and operated by the defendant companies touched each other at O'Neill, and at that point each received and delivered freight; that the board of transportation of the state of Nebraska, before the commencement of this action, had found a necessity for a transfer switch between said lines, and had duly ordered the same to be constructed; and that the respondents, and each of them, had failed and refused to build and maintain such switch. The right to the relief above prayed was based upon the provisions of chapter 11, Laws 1893. It is not possible to determine whether or not the connection by transfer switch could have been compelled under the provisions of section 113, chap. 16, Comp. Stat., for there are contained in the application no averments showing the existence of prerequisites indispensable under this section. A general demurrer to the petition by each defendant was sustained, and from the judgment of dismissal thereupon following plaintiffs have prosecuted error proceedings to this court.

The first and second sections of chapter 11, Laws 1893, contain the provisions concerning which most of the arguments in this case have been made. The enacting clause and these sections are in the following language: "Be it enacted by the legislature of Nebraska :

"Sec. 1. That all railroads touching the same point in this state, at which point such railroads receive and deliver freight or at some near point, shall build and maintain transfer switches for common use in transferring freight in car-load lots from one such railroad to another, and receive and forward such freight according to the provisions of this act; provided, that the railroads interested may apply to the state board of transportation to be relieved of this duty in any case where its performance is unusually burdensome; and if, upon a personal examination of the locality where the transfer switches are to be put in, and taking testimony of the persons residing in the locality, by the secretaries of such board, they find it unjust and unreasonable to require the building of such transfer switches, then such board may relieve such roads of such duty, and that evidence from any locality along the lines of roads interested shall be considered by said board, and be competent testimony in such

case.

"Sec. 2. That whenever a shipper of freight from any point in this state to any other point

The

roads to reach such point of destination, it shall be the duty of all such railroads as come under the provisions of this act to receive and deliver all such freight in car lots, on board cars upon such transfer switch. The railroad company at point of shipment shall make a through waybill to point of destination, and the rate to be charged for such shipment shall not be the sum of two or more locals, but shall be apportioned between the different roads according to the mileage of each necessarily used in such shipment, and shall be the rate for the shortest mileage distance by any railroad between point of shipment and point of destination. The mandatory requirement of the first section is that railroad companies, situated as the defendants, shall build and maintain transfer switches for transferring car-load lots from one road to the other, and receive and forward the same according to the provisions of said act. The case has been presented on both sides upon the theory that the clause "according to the provisions of this act" relates to and qualifies each antecedent requirement; that is, of putting in and maintaining the transfer switch, as well as of receiving and forwarding freight. In this, we think, counsel correctly construed these provisions. In view of the fact that at the date of the passage of this act there was already in existence a section of the Compiled Statutes which required the construction of transfer switches, it is very clear that the main purpose of the act under consideration is to be found in its second section. validity of this act will therefore be considered with reference to its chief object as defined in the said second section, rather than with reference to the duty to construct transfer switches, -a matter of minor importance. In Iowa a transfer-switch law was enacted by the legislature, of which some provisions resemble those found in the above act. It is not necessary that these should be copied or described at length, for the argument of the attorney general was based upon analogies sufficiently indicated by an opinion of the supreme court of that state filed in a cited case, to which we shall now refer. In Smith v. Chicago, M. & St. P. R. Co. (Iowa) 53 N. W. 128, thus confidently relied upon by the plaintiffs in error, there were considered but two questions. Of these, the first was whether the state was the proper party plaintiff. The other proposition decided is found correctly stated in the fourth paragraph of the syllabus, thus: "Code, § 1292, provides that a railroad corporation whose road intersects or crosses any other line of railway of the same gauge 'shall' connect its road with such other railway so intersected. Act 1878, 3, provides that the railroad commissioners shall have general supervision of all railroads in the state, and inquire into any neglect or violation of the laws of the state. Acts 20th Gen. Assem. chap. 24, § 1, provide that corporations having intersecting roads shall, whenever ordered by the railroad commissioners,' unite and connect their tracks. Held, that the commissioners should order the connection of such tracks only when

66

they deem it best, and need not do so regarded. 97, the question of legislative control less of its advisability." In this case the over railroads was presented, and it was held railroad commissioners had, in effect, found that the fixing of rates was not a matter that there was no necessity for the connec within the absolute discretion of the carriers, tion sought to be required, but ordered it, but was subject to legislative control. As on the theory that the statute compelled them stated by Mr. Justice Miller in Wabash, St. so to do, whether the connection was neces- L. & P. R. Co. v. Illinois, 118 U. S. 557, sary or not. How the supreme court of Iowa 569, 30 L. ed. 244, 248, in respect to those viewed the construction followed by the rail-cases: The great question to be decided, road commissioners is clearly indicated by and which was decided, and which was arthe language above quoted. In the case just gued in all those cases, was the right of the considered, however, there was involved no state within which a railroad company did such question as that which chiefly concerns business to regulate or limit the amount of us in this case. Since we have had brought any of these traffic charges.' There was in to our notice the holding of the supreme court those cases no decision as to the extent of conof Iowa in one case, it may subserve a use- trol but only as to the right of control. This ful purpose to note that in State v. Chicago, question came again before this court in RailM. & St. P. R. Co. (Iowa) 55 N. W. 331, road Commission Cases, 116 U. S. 307, 331, another ruling of that court has been made, 29 L. ed. 636, 644; and while the right of which is correctly reflected in the following control was reaffirmed a limitation on that language of the syllabus: An order of the right was plainly intimated in the following railroad commissioners that the defendant words of the chief justice: 'From what has railroad company transfer cars delivered to it thus been said it is not to be inferred that by another company, from its station to an- this power of limitation or regulation is itother point, as a switching service and at self without limit. This power to regulate switching rates, will not be enforced where is not a power to destroy, and limitation is such point is beyond the yard limits, and not the equivalent of confiscation. Under the service rendered is on the main line, and pretense of regulating fares and freights, the is done under orders, as in case of trains, state cannot require a railroad corporation and not under the direction of the yard mas- to carry persons or property without reward; ter." The court, in its opinion, said that if neither can it do that which in law amounts the order of the railroad commissioners was to a taking of private property for public to be enforced by a decree, as prayed, such use without just compensation, or without enforcement involved a change in the man- due process of law.' This language was agement of the company as to the classifica- quoted in the subsequent case of Dow v. tion and operation of its trains, and for this Beidelman, 125 U. S. 680, 689, 31 L. ed. 841, reason a demurrer to the petition containing 843, 2 Inters. Com. Rep. 56. Again, in the prayer above indicated was held to have Chicago, M. & St. P. R. Co. v. Minnesota, been properly dismissed. Indirectly, there 134 U. S. 418, 458, 33 L. ed. 970, 981, it was thus considered one of the minor ques- was said by Mr. Justice Blatchford, speak. tions to which the law under discussion might ing for the majority of the court: The naturally give rise, but, as this question is question of the reasonableness of a rate of not necessarily involved, we shall proceed charge for transportation by a railroad comto consider other questions, which cannot be pany, involving as it does the element of ignored. reasonableness, both as regards the company It is insisted by the plaintiffs in error that and as regards the public, is eminently a section 2 of the act under consideration is not question for judicial investigation, requir within the inhibition of the following lan- ing due process of law for its determination.' guage of section 1 of the 14th Amendment And in Chicago & G. L. R. Co. v. Wellman, of the Constitution of the United States, to 143 U. S. 339, 344, 36 L. ed. 176, 179, is wit: "No state shall make or enforce any this declaration of the law: The legislature law which shall abridge the privileges or has power to fix rates, and the extent of judiimmunities of the citizens of the United cial interference is protection against unreaStates; nor shall any state deprive any personable rates.' Budd v. People, 143 U. S. 517, son of life, liberty, or property, without due 36 L. ed. 247, announces nothing to the conprocess of law." In the construction of the Federal Constitution and statutes, state courts must follow the Supreme Court of the United States. Franklin v. Kelley, 2 Neb. 79; Bressler v. Wayne County, 25 Neb. 468. In delivering the opinion of the court in Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014, Mr. Justice Brewer briefly reviewed the history of the adjudications of the United States Supreme Court respecting legislative control over railroads. As such a review is not inappropriate in the consideration of this case, and as no one is more likely to correctly summarize such history than Judge Brewer, his language is quoted, as follows: "In Chicago, B. & Q. R. Co. v. Cutts, 94 U. S. 155, 24 L. ed. 94, and Peik v. Chicago & N. W. R. Co. 94 U. S. 164, 24 L.

trary. The question there was not whether the rates were reasonable, but whether the business, that of elevating grain, was within legislative control as to the matter of rates. It was said in the opinion: 'In the cases before us the records do not show that the charges fixed by the statute are unreasonable.' Hence there was no occasion for saying anything as to the power or duty of the courts in case the rates as established had been found to be unreasonable. It was enough that upon examination it appeared that there was no evidence upon which it could be adjudged that the rates were in fact open to objection on that ground. Commenting upon the principles involved in the cases which he had just reviewed, Mr. Justice Brewer said: "It has always been a part of the judicial function

to determine whether the act of one party foregoing quotation were fixed by a commis(whether that party be a single individual, sion to which that power has been delegated an organized body, or the public as a whole) by the legislature of Minnesota, in principle, operates to devest the other party of any was the same as though the legislature itself rights of person or property. In every Con- had exercised that power, for the latter could stitution is the guaranty against the taking not delegate to the former a power not posof private property for public purposes with- sessed by itself. Considered independently out just compensation. The equal protec- of the entirely fortuitous circumstance that tion of the laws which, by the 14th Amend- the commission had fixed rates, the majority ment, no state can deny to the individual, of the Supreme Court of the United States forbids legislation, in whatever form it may in effect held, in Chicago, M. & St. P. R. be enacted, by which the property of one in- Co. v. Minnesota, that it was not within the dividual is, without compensation, wrested power of the legislature to provide, as an from him for the benefit of another, or of the absolute finality, that only certain fixed rates public. This, as has been often observed, could be charged by railroad companies for is a government of law, and not a govern- the transportation of freight. In the subsement of men, and it must never be forgotten quently decided case of Reagan v. Farmers' that under such a government, with its con- Loan & T. Co. supra, the entire court seems stitutional limitations and guaranties, the to have assented to the correctness of the folforms of law and the machinery of govern-lowing proposition, therein quoted from the ment, with all their reach and power, must majority opinion in Chicago, M. & St. P. R. in their actual workings stop on the hither Co. v. Minnesota, to wit: "The question of side of the unnecessary and uncompensated the reasonableness of a rate of charge for taking or destruction of any private property transportation by a railroad company, inlegally acquired and legally held." volving as it does the element of reasonableIn Chicago, M. & St. P. R. Co. v. Minne-ness both as regards the company and as resota, referred to in the above review of cases gards the public, is eminently a question for by Judge Brewer, the restrictions just re- judicial investigation, requiring due process ferred to were applied to such facts and in of law for its determination." As this seems such a manner as to illustrate their inhibitory unquestionably to be the conclusion estabforce. In that case there was under considera-lished by the able review of the cases which tion a law of Minnesota which empowered a has been herein before quoted from Reagan v. commission to prescribe rates for the trans- Farmers' Loan & T. Co., it should be accepted portation of freight upon the several rail- as such an authoritative construction of the road lines in that state. Upon a failure of part of the 14th Amendment which is inany railroad company to comply, within a volved in this case that it must bind this fixed time, with the rate established by such court, whatever its views independently of commission, the commission was empowered this construction might have been. by law to post such rate, which thereupon In view of this construction by the Subecame as binding upon the railroad com- preme Court of the United States placed upon pany concerned as though adopted and pro- the part of the 14th Amendment with which mulgated by its authority. Under the pro- we are now concerned, let us consider some of visions of this law, the supreme court of the provisions of the 2d section of the act enMinnesota had held that the rates thus pub- titled "An Act to Regulate Railroads and to lished were the only ones that were lawful, Compel Them to Put in Transfer Switches," and therefore in contemplation of law the the same being chapter 11, Laws 1893. The only ones that were equal and reasonable, first sentence of this section is imperfect, but and hence that, in a proceeding by mandamus its evident meaning is that where freight to compel a railroad company to comply with shall be shipped over two or more lines of this rate, there was no fact to traverse, ex- railroad, between points in this state, it shall cept the alleged violation of the law in re- be the duty of all such railroads to receive fusing compliance with the recommendations and deliver such freight in car lots, on board of the commission. In delivering the opin- cars, upon such transfer switch as connects ion of the majority of the Supreme Court of their lines. By this section it is furthermore the United States, Mr. Justice Blatchford required that the railroad company, at the said: "This being the construction of the point of shipment, shall make a through statute by which we are bound in consider-waybill to the point of destination, the rate ing the present case, we are of opinion that, for the shipment not to be the sum of two so construed, it conflicts with the Constitu- or more locals, but for the shortest mileage tion of the United States in the particulars complained of by the railroad company. It deprives the company of its right to a judicial investigation, by due process of law, under the forms and with the machinery provided by the wisdom of successive ages for the investigation judicially of the truth of a matter in controversy, and substitutes therefor, as an absolute finality, the action of a railroad commission which, in view of the powers conceded to it by the state court, cannot be regarded as clothed with judicial functions or possessing the machinery of a court of justice. That the rates referred to in the

distance by any railroad between the point of shipment and the point of destination. For the sake of illustration, let us suppose that a triangle is formed by three distinct lines of railroad within this state; that of each of two of these lines the length is 100 miles; and that the length of the line on the third side is 25 miles. A shipper of a ton of hard coal, we will suppose, directs that his coal be sent from the intersection of the short line with one of the longer lines, over both of the longer lines, to the point at which such coal shall reach the extremity of the short line furthest from the initial point of