I. CONTROL AND REGULATION. Regulation and control of telegraph and telephone companies, see Telegraphs and Telephones, §§ 7-12.

Who are common carriers.

Street railways as common carriers, see post, $213-216.

Telegraph and telephone companies as common carriers, see Telegraphs and Telephones, §§ 1-5.

1. (1893.) Street railway companies are common carriers of passengers, and are liable as other common carriers upon common law principles. Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890 (55 N. W. 270; 38 Am. St. Rep. 753; 20 L. R. A. 316).

1a. (1885.) Telephone companies are common carriers of news and intelligence. State, ex. rel. Webster, v. Nebraska Telephone Co., 17 Neb. 126 (22 N. W. 237; 52 Am. Rep. 404); Nebraska Telephone Co. v. State. ex rel. Yeiser, 55 Neb. 627 (76 N. W. 171; 45 L. R. A. 113).

2. A telegraph company is a public carrier of intelligence with rights and duties analogous to those of a public carrier of goods or passengers. (1893) Pacific Telegraph Co. v. Underwood, 37 Neb. 315 (55 N. W. 1057; 40 Am. St. Rep. 490); (1895) Western Union Telegraph Co. v. Call Publishing Co., 44 Neb. 326 (62 N. W. 506; 48 Am. St. Rep. 729; 27 L. R. A. 622); (1897) Perry v. German-American Bank, 53 Neb. 89 (73 N. W. 538; 68 Am. St. Rep. 593).

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Statutory provisions. 3. (1887.) The word "locality," tioned in act of March 31, 1887, means the territory unjustly discriminated against, and may be a village, city, county, or portion of the state. State, ex rel. Board of Transportation, v. Fremont, E. & M. V. R. Co., 22 Neb. 313 (35 N. W. 118).

4. (1887.) Act of March 31, 1887, prohibits any preference or advantage to any particular person, company, corporation, or locality on any particular description of traffic in any respect, 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, and places the general supervision of all railroads within the state in the board of transportation, and requires it carefully to investigate any complaints made in writing, and under oath, concerning any unjust discrimination against any person, firm, corporation or locality; either in rates or facilities furnished, in order to prevent unjust discriminations against either persons or places. State, ex. rel. Board of Transportation, v. Fremont, E. & M. V. R. Co., 23 Neb. 313 (35 N. W. 118). 5. (1887.) The act to regulate railroads and prevent unjust discrimination, approved March 31, 1887, being remedial, is to receive a liberal construction. State, ex rel. Board of Transportation, v. Fremont E. & M. V. R. Co., 22 Neb. 313 (35 N. W. 118).

6. (1889.) The act of 1897 (Session Laws, p. 303, ch. 56) placed certain companies or persons, owners or in control of telegraph, telephone or express line or lines, under the control of the board of transportation, and for the jurisdiction and powers of the board adopted such as were conferred by a prior act. It was not amendatory of the act of 1887, by which there was created the board of transportation. Pacific Express Co. v. Cornell, 59 Neb. 364 (81 N. W. 377).

is not violative of section 11, article III of the constitution, respecting amendatory legislation. Nebraska Telephone Co. v. Cornell, 59 Neb. 737 (82 N. W. 1).

7a. (1900.) Chapter 60, Session Laws, 1887, regulating railroads, providing for a board of transportation, etc., is void, as the act as enrolled was not passed by the legislature in the mode prescribed by section 11, article III of the constitution. State v. Burlington & M. R. R. Co., 60 Neb. 741 (84 N. W. 254).

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8. (1904.) A statute forbidding railroad companies to charge for transportation for any specific distance a greater than they charge for carriage over a greater distance is within legislative discretion and is valid. Chicago, B. & Q. R. Co. v. Anderson, 72 Neb. 856 (101 N. W. 1019).

9. (1899.) The law creating the board of transportation, by which certain designated state officers of the executive department are charged with prescribed duties in regard to railroads, does not cast such duties upon the individuals, as distinguished from the offices or officers, but it is the latter upon whom is put the burden of further acts executive in their nature. Pacific Express Co. v. Cornell, 59 Neb. 364 (81 N. W. 377.)

Legislative authority to create railroad

commissioners.

9a. (1884.) The legislature have no power under the constitution to create railroad commissioners. The supervision of railroads by a commission would be proper, but the power must be conferred on executive offices already existing. In re Railroad Commissioners, 15 Neb. 679 (50 N. W. 276). Power of courts to regulate.

10. (1896.) It is not within the power of a court to make such an arrangement for the business intercourse of common carriers as, in the opinion of such court, they ought to make for themselves. State, ex rel. Board of Transportation, v. Sioux City, 0. N. & W. R. Co., 46 Neb. 682 (65 N. W. 766; 31 L. R. A. 47).

of the municipality that the latter may fix the rates of fare for passage over said railway, and may require tickets six for twentyfive cents to be kept for sale by each conductor of a street car. Sternberg t State, 36 Neb. 307 (54 N. W. 553; 19 L. R. A. 570).

Discrimination.

See, also, post, §§ 118-125.

12a. (1885.) The right to build and operate a railroad and to charge and take tolls and fares, is a prerogative granted by the state. Public utility is the consideration for such grant. Although in the hands of a private corporation it is still a sovereign franchise, and must be used and treated as such, it must be held in trust for the general good. In the use of such franchise all citizens have an equal interest and equal rights, and all must, under the same circumstances, be treated alike, without unjust discrimination against any. State, er rel. Mattoon, v. Republican V. R. Co., 17 Neb. 647 (24 N. W. 329; 52 Am. Rep. 424).

Who are members of state board of transportation.

14. (1900.) The act of 1893, known as the "Maximum Rate Law" (Session Laws, ch. 24), does not materially modify the provisions of the law enacted in 1887 (Session Laws, ch. 60), defining the duties and powers of the state board of transportation. Nebraska Telephone Co. v. Cornell, 59 Neb. 737 (82 N. W. 1).

15. (1900.) The act of 1887 (Laws 1887, ch. 60) creating the board of transportation and defining its powers, is not in conflict with constitution, art. V, p. 26, which for bids the legislature to create any executive state office, nor with art. V, p. 2, which de clares that no executive state officer shall be eligible to any other state office. Nebraska Telephone Co. v. Cornell, 59 Neb. 737 (82 N. W. 1).

As to telephone, telegraph, or express companies.

16. (1395.) Section 7, article XI of our constitution, limits the legislature in the regulation of telegraph companies to the correction of abuses and prevention of unjust discrimination. graph Co. v. Call Publishing Co., 44 Neb. 326 (62 N. W. 506; 48 Am. St. Rep. 729; 27 L. R. A. 622).

Western Union Tele

16a. (1898.) Since the state board of transportation is vested by statute with authority to fix reasonable rates to be charged by telephone companies, a patron of such company should apply to that board for relief against unreasonable charges, and canLot resort to mandamus. Nebraska Telephone Co. v. State, ex rel. Yeiser, 55 Neb. €27 (76 N. W. 171; 45 L. R. A. 113).

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16b. (1898.) The power the jurisdiction to determine what compensation public service corporation may exact for services to be rendered by it is a legislative and not a judicial function. Nebraska Telephone Co. v. State, ex rel. Yeiser, 55 Neb. 627 (76 N. W. 171; 45 L. R. A. 113).

16c. (1900.) The act of 1897 (Session Laws, ch. 56) empowering the board of transportation to regulate the charges of express, telephone and telegraph companies, is an original and independent statute and is not violative of section 11, article III of the constitution, respecting amendatory legislation. Nebraska Telephone Co. v. Cornell, 59 Neb. 737 (82 N. W. 1).

16d. (1900.) The state board of transportation has power to inquire into the intra-state business of express, telephone and telegraph companies and to regulate their rates therefor. Nebraska Telephone Co. v. Cornell, 59 Neb. 737 (82 N. W. 1).

16e. (1908). Express companies operating over the lines of railroad corporations exercising a public franchise in this state are equally subject to state control and regulation with the railroad companies over whose lines they operate, within the limited field of the business of transportation which they occupy. State v. Pacific Express Co., 80 Neb. 823 (115 N. W. 619).

17. (1900.) The jurisdiction of the bcard of transportation under the act of 1897 (Session Laws, ch. 56) is not limited to the regulation of specific charges for messages sent from one point to another within the state. The regulation of telephone rentals is also within the powers of

the board. Nebraska Telephone Co. v. Cornell, 59 Neb. 737 (82 N. W. 1).

Power of board of transportation as to rates.

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18. (1887.) The power to determine what is an unjust rate and charge, and the extent of the same, and to prevent unjust discrimination, carries with it the power to decide what is a just rate and charge, and authorizes the board to fix just and reasonable rates and charges. State, ex rel. Board of Transportation, v. Fremont, E. & M. V. R. Co., 22 Neb. 313 (35 N. W. 118). 19. (1887.) The act to regulate roads and to prevent unjust discrimination, approved March 31, 1887, provides that all charges made for services rendered, or to be rendered, by any railway company in this state, in the transportation of passengers or property, shall be reasonable and just, and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful; and requires such railway company to print and keep for public inspection schedules showing the rates and fares and charges which have been established and are in force at the time upon such railroad. Held, That the board of transportation has authority to determine, in the first instance, what are just and reasonable charges for the services rendered or to be rendered on such railways. State, ex rel. Board of Transportation, v. Fremont, E. & M. V. R. Co., 22 Neb. 313 (35 N. W. 118).

20. (1887.) The state board of transportation has power to fix a reasonable and just rate, and also power to determine what is a reasonable or unjust rate. State, ex rel. Board of Transportation, v. Fremont, E. & M. V. R. Co., 22 Neb. 313 (35 N. W. 118).

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20a. (1906.) A side-track and used by a railroad company, and which connects with its main line and occupies a portion of the public streets of a city under a grant from the city to such company, will be presumed, in the absence of evidence to the contrary, to be a part of the public highway system of such company, and a public highway within the meaning of section 4, article XI of the constitution. Roby v. State, ex rel. Farmers Grain Co., 76 Neb. 450 (107 N. W. 766).

21. (1888.) Where the board of transportation finds that the charges on a line of railway are not reasonable and just,

and orders a reduction of such rates 33 1-3 per cent., such board cannot enter into a compromise with the railway company by which the charges within the state shall be in excess of the rates found to be reasonable and just, in consideration of certain reductions in rates on in and out freight to and from Chicago and other common points. State, ex rel. Board of Transportation, v. Fremont, E. & M. V. R. Co., 23 Neb. 117 (36 N. W. 305).

Findings of board of transportation.

22. (1887.) The finding of fact by the board of transportation, in any matter submitted to it under act of March 31, 1887, for determination, is prima facie evidence of the existence of such facts, and of the reasonableness of an order made by said. board in pursuance thereof. State, ex rel. Board of Transportation, v. Fremont, E. & M. V. R. Co., 22 Neb. 313 (35 N. W. 118).

22a. (1897.) An order of the state board of transportation under the provisions of the act of March 31, 1887, entitled "An act to regulate railroads and prevent unjust discrimination," etc., which requires a railroad company to surrender a portion of its right of way for an elevator site to a person or corporation engaged in the buying and shipping of grain, contemplates the taking of property for mere private use within the prohibition of the United States constitution, and is accordingly without authority and void. Chicago, B. & Q. R. Co. v. State, ex rel. Board of Transportation, 50 Neb. 399 (69 N. W. 955).

23. (1888.) It is the duty of the board of transportation to fix rates and charges within the state at such sum as shall be reasonable and just, and make findings of the fact. Its findings are prima facie evidence of the truth of the same, but when issue is taken upon them in court, the question of what are reasonable and just charges must be determined like other questions of fact. State, ex rel. Board of Transportation, v. Fremont, E. & M. V. R. Co., 23 Neb. 117 (36 N. W. 305).

Enforcement of order of board of transportation.

24. (1885.) The duty imposed upon a railroad, as a common carrier, growing out of the principles of common law, may be enforced by mandamus in the absence of statutory provisions. State, ex. rel. Mattoon, v. Republican V. R. Co., 17 Neb. 647 (24 N. W. 329; 52 Am. Rep. 424).

25. (1887.) Where the board of transportation has investigated charges of unjust discrimination against a railroad company, and has found such unjust discrimination to exist, and ordered such railroad company to reduce its rates to conform to a schedule présented by such board, which crder the railroad company neglected to comply with, mandamus is a proper remedy to enforce such order, and the mention of the district court in the statute (act of March 31, 1887) will not preclude bringing the action in the supreme court in any case where the latter court has original ju risdiction. State, ex rel. Board of Transportation, v. Fremont, E. & M. V. R. Co., 22 Neb. 313 (35 N. W. 118).

26. (1887.) Where a railway company demurred to an alternative writ requiring it to reduce its rates and charges to conform to an order of the board of transpor tation, and denied the power of the board to reduce such rates and charges, the court would determine the question of the power of the board to make the order in question before entering upon an examination of the facts, and therefore would not permit the demurrer to be withdrawn. State, er rel Board of Transportation, v. Fremont, E. & M. V. R. Co., 22 Neb. 313 (35 N. W. 118).

27. (1907.) A court has no power to issue a peremptory mandamus without notice in an action brought to compel a railroad company to furnish cars to a shipper at a certain time and place, since it cannot be "apparent that no valid excuse can be given." State, ex rel. Chicago & N. W. R. Co., v. Harrington, 78 Neb. 395 (110 N. W. 1016).

Interstate commerce.

28. (1894.) The act of congress entitled "An act to regulate commerce," when it took effect, abrogated all existing contracts with common carriers for special interstate commercial rates, and especially vested in the federal tribunals described in that act exclusive jurisdiction to inquire into and adjust such interstate rates as are alleged to be unfair or discriminative. Fitzgerald v. Fitzgerald & Mallory Construction Co., 41 Neb. 374 (59 N. W. 838).

Jurisdiction of state courts over interstate

commerce.

29. (1906.) The allowance by railroad companies of certain charges, as elevator charges, to terminal elevators on shipments of grain from points in this state to points

without the state is an incident of interstate commerce, and this court has no jurisdiction to limit or control the same. State v. Omaha Elevator Co., 75 Neb. 654 (106 N. W. 979)..

30. (1893.) The state courts have not lost jurisdiction of the subject matter of actions against carriers of interstate commerce by reason of legislation by congress upon that subject. St. Joseph & G. I. R. Co. v. Palmer, 38 Neb. 463 (56 N. W. 957).

Maximum rate law.

31. (1896.) Chapter 11, Laws of 1893, requiring railroad companies, without the right of judicial investigation, to carry freight over longer lines at the rates for carrying it over shorter lines between the same points, conflicts with the fourteenth amendment to the federal constitution prohibiting a state from depriving a person of property without due process of law. State, ex rel. Board of Transportation, v. Sioux City, O'N. & W. R. Co., 46 Neb. 682 (65 N. W. 766; 31 L. R. A. 47).

32. (1899.) The law of 1893, known as the maximum rate law, or the portion thereof which contained the schedule of rates, was declared unconstitutional, under the then existing conditions, by the supreme court of the United States. This carried with it section 6 of the act, which could have no operation except in connection with the rates as fixed in the schedule. Such law is now as if non-existent, and does not interfere with the enforcement of the law of 1887 by the board and in the method provided in the law of 1887. Pacific Express Co. v. Cornell, 59 Neb. 364 (81 N. W. 377). [Overruled. Nebraska Telephone Co. v. Cornell, 59 Neb. 737.]

33. (1900.) The enactment of 1893, known as the "Maximum Rate Law" (Session Laws, ch. 24), appears upon its face to be a constitutional and valid act; and there is no presumption that its immediatte execution would deprive freight carriers of their property without due process of law, or deny them the equal protection of the laws. Nebraska Telephone Co. v. Cornell, 59 Neb. 737 (82 N. W. 1).

34. (1900.) The supreme court does not take judicial cognizance of the net earnings of railroad companies, and can not assume, without proof, that the "Maximum Rate Law" (Session Laws, 1893, ch. 24) is now, or was at the time of its enactment,

confiscatory legislation. Nebraska Telephone Co. v. Cornell, 59 Neb. 737 (82 N. W. 1).

35. (1902.) The provisions of section 9 of the act of 1893, known as the "Maximum Freight Law," being punitive and not remedial, are to be enforced in accordance with State the procedure of the criminal code. v. Missouri P. R. Co., 64 Neb. 679 (90 N. W. 877).

36. (1904.) The title "An act to fix a maximum standard of freight charges on railroads, and to prevent unjust discrimination therein, or secret rates, rebates or drawbacks therefor," contains only one subject. Chicago, B. & Q. R. Co. v. Anderson, 72 Neb. 856 (101 N. W. 1019). Action for penalty for violation of statute. 37. (1887. 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, ex rel. Board of Transportation, v. Fremont, E. & M. R. Co., 22 Neb. 313 (35 N. W. 118).

38. (1903.) An action by the state to collect the penalty of a railroad under the Maximum Freight Law is criminal in nature, and can not be originated in the supreme court in the first instance. State v. Union P. R. Co., 67 Neb. 141 (93 N. W. 222). II. CARRIAGE OF GOODS.

A. In General. Duty to provide shipping facilities. Stations for passengers, see post, §§ 198. 39. (1885.) It is the duty of railways as common carriers to furnish suitable warehouses at all appropriate points on their lines for the receipt and discharge of freight. State, ex rel. Mattoon, v. Republican V. R. Co., 17 Neb. 647 (24 N. W. 329; 52 Am. Rep. 424).

40. (1890.) Facilities for the erection of elevators, which a railroad is required to furnish need not necessarily be upon the right of way, but may be along the side thereof; but if facilities are granted to one or more for that purpose on the right of way, the same privilege, upon like terms and conditions, must be granted to others who are engaged, or desire in good faith to engage, in the business at that point, of receiving, storging, and shipping produce over such railway. State, ex rel. Board of Trans