State ex rel. Attorney General v. Atchison & Nebraska Railroad

57 N.W. 20, 38 Neb. 437, 1893 Neb. LEXIS 380

• Court: Nebraska Supreme Court
• Decided: November 21, 1893
• Docket: No. 3010
• Status: Published

Opinions

Ryan, C.

This cause was considered and certain propositions of-law applicable to the matters alleged in the information were fully stated, in 24 Nebraska, on pages 143 et seq. This was upon a demurrer to the said information on the grounds of a defect of parties, and because the facts alleged did not entitle the state to the relief prayed. Upon the averments of the information, which, for the purposes of the demurrer, were conceded to be true, it was held that the lease of the respondent to the Burlington & Missouri River Railroad Company should be declared void. The respondent was given leave to answer the information, and, in due time, its answer was made, averring the existence of such facts as negatived all infringements of the provisions of the statutes and constitution of the state of Nebraska, charged in the information.

On the 24th day of March, 1891, by consent of the respective parties and their counsel, it was ordered that upon the pleadings, testimony, and exhibits, then ready for final consideration, this cause should be referred to John H. Ames, Esq., by whom, thereon, a report should be made stating his findings of fact and conclusions of law. Accordingly, on October 1, 1891, said referee filed his report, in respect to which were deduced and applied five conclusions of law, the last of which was that the information should be dismissed.

Summarized, the findings of fact relevant and material to the decision of the issues joined were substantially as follows:. That the Burlington & Missouri River Railroad Company in Nebraska had, prior to January 15,1872, constructed and acquired by leases lines of railway extending from Plattsmouth to Lincoln, and from Lincoln, by way of Crete, through the counties of Lancaster, Saline, and Gage, to the city of Beatrice, in the last named county, and from Lincoln, through the counties of Lancaster, Otoe, and Nemaha, to the town of Brownville, in the county last named; that said line from Crete to Beatrice practically constituted a branch from the main line of said Burlington & Missouri River Railroad Company extending to Kearney, and, if treated as a prolongation of said main line, was and is not parallel with, but divergent from the said line of said defendant at substantially all points; after leaving said city of Lincoln this divergence being so great that the stations of Crete, on the first-named line, and of Hickman, on the defendant’s line, the former about twenty miles and the latter about fifteen miles from Lincoln, are geographically more than twenty miles apart; that the line by way of Nebraska City to Brownville is not parallel to, but divergent from the said defendant’s line at all points after leaving Lincoln, said divergence being as great as between the two lines above mentioned; all of said lines, however, converging to a common point, which is Lincoln; that from Beatrice to Tecumseh, which is the nearest point on defendant’s line, is thirty-five miles, and from Tecumseh to Nemaha City, the nearest point on the Brownville line, is thirty miles; that since January 15, 1872, the lines of the Burlington & Missouri River Railroad Company, of the Chicago, Burlington & Quincy Railroad Company, and of the defendant have, as constructed and maintained, admitted of the continuous passage of ears from one to the other, without detention or bieak of bulk at Lincoln; that since January 1, 1880, all of said lines have been in the exclusive possession and under the sole control and management of- said Chicago, Burlington & Quincy Railroad Company; that defendant’s line constitutes a practical continuation and prolongation in nearly a right line southeasterly from Lincoln, Nebraska, to Atchison, Kansas, of the aforesaid line extending from Plattsmouth to Lincoln; and, as such continuation and prolongation, defendant’s line, as respects the transportation of freight, has been, and is now, operated by the Chicago, Burlington & Quincy Railroad Company; that, first by lease, and afterwards by deed, the defendant’s line of railroad was transferred .to the Burlington & Missouri River Railroad Company, by which latter company it was duly, by deed, conveyed to the said Chicago, Burlington & Quincy Railroad Company; that pending the construction of defendant’s line of railroad, and in aid thereof, bonds were voted and issued to the defendant to the aggregate amount of $397,700, by the counties of Richardson, Gage, and Lancaster, though upon what inducement the record does not disclose; that previous to January 1, 1880, defendant’s line was in very bad repair, and very inadequately equipped with rolling stock, and unable to give a safe or effectual service, and on account of its financial embarrassment the defendant was unable to ameliorate these evils; that since January 1, 1880, the Chicago, Burlington & Quincy Railroad Company has practically reconstructed defendant’s line of railroad by putting in new ties and the substitution throughout of new steel rails for the iron rails formerly in use thereon, and has built at Rulo, across the Missouri river, a bridge at a cost of one million dollars, so as to connect with its lines east of the Missouri river, and has placed in repair and furnished with rolling stock the defendant’s line, so that now it is safe and efficient for use as a railroad; that within ten miles of Lincoln the Burlington & Missouri River Railroad Company’s line and that of defendant were so near each other as to serve on nearly equal terms some of the traffic destined to Lincoln; but with this exception these lines were not competing, and the above exception did not render them within the meaning and effect of the provisions of the constitution of 1875, inhibiting the consolidation of railroad corporations owning parallel and competing lines; that there was no proof of competition for traffic between interstate points, and excepting at Lincoln there was no competition between points within Nebraska and other points outside its limits. The referee further found that such other competition as existed was between shippers stimulated to activity by a system of individual rebates common to the railroad companies previously to the enactment of the interstate commerce law by congress, or arose from occasional fortuitous circumstances, or combinations of circumstances, entirely foreign to the inhibitions of the statutes and the constitution of Nebraska. That there was no violation of such provisions by the defendant were substantially the referee’s conclusions of law.

To these several findings of fact and conclusions of law there were filed exceptions which challenge the correctness of every conclusion, whether-of law or of fact. These exceptions are criticised as inexact, general, and as unavailing as against the findings of the referee, especially as to matters of fact, the contention being that these must stand as the special verdict of a jury. It may be that these points are well taken, and that this case might be disposed of upon the presumption contended for. The magnitude of the interests involved and of the questions presented, as well as the consideration due to an application for a prerogative writ by the state, seemed to require that technicalities should be avoided as far as possible; and the evidence, therefore, has been as carefully read and considered as though no report had been made by the referee, with the same conclusions as had been set forth in his report. As the referee’s findings fully and fairly epitomize the evidence as to questions of fact, and as his conclusions of law are in consonance with the principles recognized on the hearing of the-cause on demurrer, it would be but a work of supererogation to examine the same matters in detail only to reach the same, result. The exceptions to the report of the referee are overruled and the information is

Dismissed.