Ames v. Union Pac. Ry. Co.

64 F. 165, 1894 U.S. App. LEXIS 3035
U.S. Circuit Court for the District of Nebraska·Decided November 12, 1894·No. Nos. 59 Q, 60 Q, 62 Q·Published·Cited by 55 cases

Opinion

BREWER, Circuit Justice.

In each. of these three cases, respectively, the plaintiffs arc; stockholders in the corporation first named therein as party defendant, in (lie first ¡he defendants are the Union Pacific Railway Company, a corporation created under the laws of congress, and owning and operating a railroad partly within the limits of the state of Nebraska; the St. Joseph & Grand Island Railroad Company, the Omaha & Republican Valley Railroad Company, and the Kansas City & Omaha Railroad Company, corporations organized under the laws of the states of Kansas and 'Nebraska, whose stock is substantially owned and whose lines are controlled and operated by the Union Pacific Railway Company; and certain officers of the state of Nebraska, constituting its board of transportation, together with the secretaries thereof. In the second the defendants are the Chicago & Noi ihwestern Railroad Company, a corporation organized and existing under the laws of the states of Illinois, Wisconsin, and Iowa; the Fremont, Eikhora & Missouri Valley Railroad Company, a corporation organized under the laws of the state of Nebraska; and the Chicago, St Paul, Minneapolis & Omaha Railroad Company, a corporation organized under the laws of the state's of Minnesota and Nebraska, — both of which companies are owned and their roads operated by the Chicago <& Northwestern Railroad Company; and, in addition, the board of transportation of the state of Nebraska, and its secretaries, in the third case the defendants are the Chicago, Burlington & Quincy Railroad Company, a corporation organized and existing under the Jaws of the states of Illinois and Iowa, which owns, controls, and operates, in the name of the Burlington & Missouri River Railroad Company in Nebraska, certain lines within that state; and in addition the state board of transportation, and its secretaries.

On April 12, 1803, the legislature of the state of Nebraska passed an act (Laws 1893. c. 21, p„ ÍGÍ; Consol. St. Neb. p. 2!1) spoken of in (he records in ílíese cuses sometimes as the “Newberry Bill,” and sometimes as “House Roll 33,” which act prescribed the maximum mies for the transportation of freight, by railroads within the state. The act, in terms, applies raity to freight whose transit begins and ends within the stair-, and in no manner attempts to affect interstate freight. The bills in there eases wore filed to restrain the state officials from putting that act in force, as against the railroads named. Pleadings were perfected, a largo volume of testimony has been taken, and the canes are now’ before us, upon, pleadings and proof, for determination.

At. the threshold the question arises whether this, which purports to be an act of the legislature, is a Jaw; in other words, whether ilie various steps prescribed by the constitution as essential to the due passage of a. bill through, the two houses of the legislature were all regularly taken. The act. is found duly filed in the office of the secretary of state; is attested by the signatures of the speaker of the house, and its chief clerk, also by the signatures of the president of the senate, and its secretary; is indorsed, “Approved, April 12, A. 1). 1893. Lorenzo Orounse, Governor." and bears the following additional certificate, signed by the chief clerk of the house of representa-[168]*168fives: "I hereby certify that the within act originated in the house of representatives, and passed the legislature, April 5th, A. D. 1893.” An act of congress thus authenticated would be conclusively presumed to have been duly and legally enacted. This precise question was before the supreme court of the United States, and fully considered, in Field v. Clark, 148 U. S. 649, 12 Sup. Ct. 495. Following that decision, the courts of the United States will regard an act of any state legislature, thus authenticated, as having been enacted in full compliance with all the prescribed forms, unless there be some special provision in the constitution of that state, or some decision of its supreme court, which requires a looking beyond these evidences of authenticity, and determination of the question of due enactment by reference to other kinds or matters of evidence, or, to state the proposition in another form, the rule prescribed in that case will control unless the state has prescribed some other or further rule.

In the constitution of Nebraska (article 3, §§ 8, 10, 11) are these provisions, which are all that are referred to by counsel, or that seem to have any bearing on this question:

Sec. 8. Each house shall keep a journal of its proceedings, and publish them (except such parts as may require secrecy) and the yeas and nays of the members on any question shall, at the desire of any two of them, be entered on the journal. All votes in either house shall be viva voce.
Sec. 10. The enacting clause of a law shall be, “Be it enacted by the legislature of the state of Nebraska,” and no law shall be enacted except by bill. No bill shall be passed unless by assent of a majority of all the members elected to each house of the legislature. And the question upon the final passage shall be taken immediately upon its last reading, and the yeas and nays shall be entered upon the journal.
Sec. 11. Every bill and concurrent resolution shall be read at large on three different days in each house, and the bill and all amendments thereto shall be printed before the vote is taken upon its final passage. No bill shall contain more than one subject, and the same shall be clearly expressed in its title. And no law shall bo amended unless the new act contains the section or sections so amtended, and the section or sections so amended shall be relocated. The presiding officer of each house shall sign, in the. presence of the house over which he presides, while the same is in session and capable of transacting business all bills and concurrent resolutions passed by the legislature.

Tlie utmost that can be inferred from these constitutional provisions is that, in respect to certain matters, evidence may bo sought in the journals of the two houses, and evidence which will prevail over that which appears on the enrolled bill as found in the office of the secretary of state; and this is as far as any decision of the supreme court of Nebraska bas gone.

In Hull v. Miller, 4 Neb. 503, that court held that the office of the journal is to record the proceedings of the house, and that- it must appear on the face of the journal that a bill was passed by a constitutional majority, but also held that an omission therefrom of other matters which the constitution does not', in terms, require to be entered upon the journal, would not invalidate the law, and that it would be presumed, in favor of its validity, that the legislature had done that which it ought to have done. In State v. Liedtke, 9 Neb. 402, 4 N. W. 68, it was claimed that an appropriation bill, as it passed both houses, named a larger sum than was found in the en-[169]*169i-OJled bill signed by Hie governor, and a mandamus was asked to compel tin; state auditor to draw bis warrant on the treasurer for such excess: but the court denied the writ, and declined to look into the journals of the two houses to see whether the fact ivas as claimed, on the ground that, even if such sum was iu the hill when before ilie houses, it had never received the approval of the governor, and had therefore never been legally appropriated. In State v. McLelland, 18 Neb. 236, 25 N. W.

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Ames v. Union Pac. Ry. Co., 64 F. 165, 1894 U.S. App. LEXIS 3035 (circtdne 1894).

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