The taking by a the private property of one person or
corporation, without the owner's consent, for the private use of
another, is not due process of law, and is a violation of the
Fourteenth Article of Amendment of the Constitution of the United
States.
A statute of a state by which, as construed by the supreme court
of the state, a Board of Transportation is authorized to require a
railroad corporation which has permitted the erection of two
elevators by private persons on its right of way at a station to
grant upon like terms and conditions a location upon that right of
way to other private persons in the neighborhood for the purpose of
erecting thereon a third elevator in which to store their grain
from time to time is a taking of private property of the railroad
corporation for a private use, in violation of the Fourteenth
Article of Amendment of the Constitution of the United States.
This was a writ of error to review a judgment of the Supreme
Court, of the Nebraska, awarding a writ of mandamus to compel the
Missouri Pacific Railway Company, a corporation of Nebraska, to
comply with an order of the Nebraska State Board of Transportation
which directed the company to grant to John W. Hollenbeck and
others the right and privilege of erecting an elevator upon the
grounds of the railway company at its station at Elmwood.
By the Constitution of Nebraska of 1575, art. 11, sec. 4,
"Railways heretofore constructed or that may hereafter be
Page 164 U. S. 404
constructed in this State are hereby declared public highways,
and shall be free to all persons for the transportation of their
persons and property thereon, under such regulations as may be
prescribed by law. 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."
And by sec. 7,
"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."
The State Board of Transportation was created by the Statute of
Nebraska of March 31, 1887, c. 60, entitled "An act to regulate
railroads, prevent unjust discrimination," etc., which took effect
July 1, 1887, and was very similar to the Act of Congress of
February 4, 1887, c.104, regulating interstate commerce (24 Stat.
379), except in applying only to commerce within the state. The
material provisions of the Nebraska statute are copied in the
margin.
*
Page 164 U. S. 405
On October 9, 1889, there was presented to the Nebraska State
Board of Transportation a complaint in these terms:
"The petition and complaint of John W. Hollenbeck, Cyrelius
Lemasters, John W. Miller, John Hayes, Charles Hall and others,
trading under the name of the Elmwood Farmers' Alliance Number 365,
of Elmwood, Cass County, Nebraska, respectfully represents: "
Page 164 U. S. 406
"First. That the petitioners and complainants are now and have
for many years been extensive raisers of corn, wheat, oats and
other cereals, and that large quantities of said cereals
Page 164 U. S. 407
have been marketed in seasons past, and that large quantities
are now ready for the markets; that the several farms and
leaseholds of the petitioners are situated near Elmwood, in Cass
County, Nebraska."
"Second. That the Missouri Pacific Railway Company is a common
carrier, engaged in the transportation of passengers and property
by railroad under a common control, management, or arrangement for
a continuous carriage or shipment through Elmwood aforesaid."
"Third. That the said defendant railroad company is the owner of
the right of way and depot grounds bordering the main and side
tracks of the defendant company, upon which are located the
stationhouses and other shipping facilities connected with the
transportation originating at or destined to Elmwood station
aforesaid; that the complainants aforesaid did make a written
application to the general manager of the defendant company for a
location, on the right of way at Elmwood station aforesaid, for the
erection of an elevator of sufficient capacity to store from time
to time the cereal products of the farm and leaseholds of
complainants aforesaid, as well as the products of other
neighboring farms; that the application aforesaid was refused by
the general manager of the defendant company aforesaid."
"Fourth. That the elevators now located on the right of way of
the defendants aforesaid at Elmwood station aforesaid are during
certain seasons of the year wholly insufficient in affording a
market for the cereals of the complainants and others desirous of
marketing their grain."
"Fifth. That the refusal of the defendant railroad company to
lease a location for an elevator as aforesaid is in contravention
of the provisions of an act of the legislature entitled 'An act to
regulate railroads, prevent unjust discrimination,' etc., approved
March 31, 1887, in that --"
"(a) The said refusal is an unjust discrimination."
"(b) The said Missouri Pacific Railway Company, by the refusal
aforesaid, is subjecting the complainants aforesaid to an undue and
unreasonable prejudice and disadvantage in respect to traffic
facilities over other localities. "
Page 164 U. S. 408
"(c) The said Missouri Pacific Railway Company, by the refusal
aforesaid, is giving an undue and unreasonable preference and
advantage to Adams and Gilbert, and Eells Brothers, owners of the
elevators located at Elmwood, on the right of way of the defendant,
by permission of the said Missouri Pacific Railway Company."
"Wherefore the petitioners pray that the defendants may be
required to answer the charges herein, and that after due hearing
and investigation, an order be made commanding the defendants to
cease and desist from said violations of the act of the legislature
entitled 'An act to regulate railroads,' etc., and for such other
and further relief as the Board of Transportation may deem
necessary in the premises."
On the same day, the Board of Transportation issued an order to
the railway company to show cause why the prayer of the complaint
should not be granted, and on October 19, 1889, the railway company
filed an answer, admitting its ownership of the right of way and
depot grounds at Elmwood, described in the complaint, and its
refusal to allow the petitioners to erect an elevator on the side
track there, and that there were two elevators now upon that track,
and alleging that those two elevators were sufficient to transact
the business at Elmwood, and that there was no room there for
another elevator, without purchasing an additional right of way and
extending its track, and that this was the only reason for the
refusal; and denying all the other allegations of the
complaint.
On December 13, 1889, the Board of Transportation, after a
hearing, at which evidence and arguments were submitted on behalf
of both parties, made the following findings and order:
"This case and complaint having been heard by the board upon the
pleadings, evidence and argument of counsel, the board finds as
follows:"
"First. That the defendant has all its side tracks within the
limits of its right of way and depot grounds at the said station of
Elmwood."
"Second. That there are only two elevators at said station
Page 164 U. S. 409
of Elmwood, having the combined capacity of ten thousand
bushels, and that said elevators are insufficient to handle the
,grain shipped at said station, and that the owners and operators
thereof have entered into a combination, and do combine and fix the
prices of grain, and prevent competition in the purchase price
thereof, and that there are not sufficient facilities for the
handling and shipping of grain at said station."
"Third. That it is necessary for the convenience of the public,
patrons and shippers of grain of said railroad company, that
another elevator be erected and operated at said station."
"Fourth. That the defendant has permitted two elevators to be
erected upon its grounds at said station, and that the same are now
being operated, and that the said defendant hall refused to grant
the same privilege to the complainant."
"Fifth. That an elevator is necessary for the shipment of grain
by railroad, and that, by reason of the side track being placed
within the right of way and depot grounds, the plaintiff cannot
ship grain without building its elevator upon the grounds of the
defendant."
"Sixth. That there is room upon the grounds of the defendant at
said station for another elevator without materially interfering
with the operation of said railroad, and the building of the
elevator by the plaintiffs upon said ground will not materially
affect the defendant in the use of its grounds, or be .an
unreasonable burden to the defendant."
"Seventh. That granting of the right and privilege by the
defendant to the elevators now standing upon its right of way and
depot grounds at said station, and refusing to grant the same right
and privilege to the complainant, is an unjust and unreasonable
discrimination against the complainant, under the circumstances of
this case."
"Eighth. That the said respondent has discriminated against the
complainant, and that it has unlawfully made and given a preference
and advantage to Adams and Gilbert, and to Eells Brothers, owners
and operators of elevators at said station."
"It is therefore, by the Board of Transportation of the State of
Nebraska, considered, adjudged and ordered that the respondent, the
Missouri Pacific Railway Company, shall
Page 164 U. S. 410
cease and discontinue discriminating against the complainant,
and grant to said complainant the same facilities and privileges as
granted to the owners and operators of the elevators now
established at said station; and that said respondent, within ten
days after the service of this order, grant, and give to the
complainant, on like terms and conditions as granted to the said
Adams and Gilbert, and Eells Brothers, the right and privilege of
erecting an elevator upon its ground at said station, adjacent to
said respondent's side track, at a convenient and suitable place
thereon, to-wit, at a point on the side track of said respondent
near the east terminus of said side track, or some other suitable
and convenient place on said side track, if the parties to this
action can agree, and that said respondent grant to the said
complainant all and equal facilities for the handling and shipping
of grain at said station which it grants and gives to other
shippers of grain at said station, and cease from all
discrimination or preferences to and of said shippers and operators
of elevators at said station of Elmwood aforesaid."
The railway company not having complied with that order, there
was presented to the Supreme Court of the State of Nebraska, on
January 7, 1890, a petition in the name of the State of Nebraska,
at the relation of the Board of Transportation, and signed by the
Attorney General of the state, setting forth the proceedings and
order of the Board of Transportation, and praying for a writ of
mandamus to the railway company to compel them to comply with that
order.
To this petition for a mandamus the railway company filed an
answer, setting up the same defences as before the Board of
Transportation, and relying upon the provisions of the Fourteenth
Amendment of the Constitution of the United States, which prohibit
any state to deprive any person of property without due process of
law, or to deny to any person, within its jurisdiction, the equal
protection of the laws.
Upon a hearing on this petition and answer, the Supreme Court of
Nebraska, on May 13, 1890, "found the issues in favor of the
relators," and adjudged that unless the railway company within
forty days complied with the order of the
Page 164 U. S. 411
Board of Transportation, a writ of mandamus should issue to
compel a compliance with that order according to its terms. 29 Neb.
550. The railway company sued out this writ of error.
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
The arguments in this case have taken a wider range than is
required for its decision. The material facts, as assumed by the
court below, are as follows:
The Missouri Pacific Railway Company, a corporation of the State
of Nebraska, was the owner of the right of way and depot grounds,
within which were its main and side tracks, its stationhouses, and
other shipping facilities, at Elmwood in that state; and had
permitted two elevators to be erected and operated by private firms
on the side track at that station.
John W. Hollenbeck and others, apparently not a corporation, but
a voluntary association of persons owning farms and leaseholds in
the neighborhood of Elmwood upon which they raised corn, wheat,
oats, and other cereals, large quantities of which were ready for
market, made an application in writing to the railway company to
grant them
"a location on the right of way at Elmwood station aforesaid for
the erection of an elevator of sufficient capacity to store from
time to time the cereal products of the farms and leaseholds
of"
the applicants "as well as the products of other neighboring
farms." That application was refused by the railway company.
The applicants then made a complaint to the Board of
Transportation of the state of Nebraska, alleging that the two
elevators already built on the right of way of the railway
Page 164 U. S. 412
company at Elmwood station were,
"during certain seasons of the year, wholly insufficient in
affording a market for the cereals of the complainants and others
desirous of marketing their grain,"
and that the refusal of the railway company to grant to the
complainants a location for an elevator was in violation of the
Nebraska statute of 1887, c. 60, in that such refusal was an unjust
discrimination and that the railway company, by such refusal, was
subjecting the complainants to an undue and unreasonable prejudice
and disadvantage in respect to traffic facilities over other
localities, and was giving an undue and unreasonable preference and
advantage to the owners and operators of the two elevators already
built at the station.
The Board of Transportation, after notice to the railway company
and hearing evidence and arguments, found that the two existing
elevators were insufficient to handle the grain shipped at Elmwood
station, and the owners and operators of those elevators had
entered into a combination to fix the prices of grain and to
prevent competition in the price thereof, and there were not
sufficient facilities for the handling and shipping of grain at
that station; that it was necessary for the convenience of the
public that another elevator should be erected and operated there;
that by reason of the side track's being placed within the right of
way and depot grounds, the complainants could not ship grain
without building their elevator upon the grounds of the railway
company; that there was room upon those grounds for another
elevator without materially interfering with the operation of the
railroad, and the building of an elevator thereon by the
complainants would not materially affect the railway company in the
use of its grounds or be an unreasonable burden to it, and that the
granting by the railway company of the right and privilege to the
owners of the two elevators now standing, and refusing to grant the
like right and privilege to the complainants, was an unjust and
unreasonable discrimination against the complainants, and
unlawfully gave a preference and advantage to the owners of the two
existing elevators.
Page 164 U. S. 413
The Board of Transportation thereupon ordered that the railway
company, within ten days, grant to the complainants, on like terms
and conditions as granted to the owners of the two existing
elevators, the right and privilege of erecting an elevator upon its
grounds and adjacent to its track at a point specified in the order
or at some other suitable and convenient place, if the parties
could agree, and grant to the complainants all and equal facilities
for the handling and shipping of grain at that station which it
granted to other shippers of grain there, and cease from all
discrimination or preference to and of shippers and operators of
elevators at that station.
The railway company not having complied with the order, the
supreme court of the state, upon a petition in the name of the
state at the relation of the Board of Transportation, for a
mandamus and an answer thereto and hearing thereon, found the
issues in favor of the relators, and adjudged that unless the
railway company within forty days complied with the order of the
Board of Transportation, a writ of mandamus should issue to compel
compliance with that order according to its terms. In the opinion
of the court, it was said, "The correctness of the findings of the
board is not seriously questioned, but its power to make such
findings and order is denied." 29 Neb. 556.
The statute of Nebraska of 1887, c. 60, §§ 1-3, prohibits and
declares to be unlawful all unjust and unreasonable charges made by
a railroad company for any services rendered in the transportation
(which includes all instrumentalities of shipment or carriage) of
passengers or property or in connection therewith or for the
receiving, delivering, storage, or handling of such property. The
demanding or collecting, directly or indirectly, by a railroad
company, from any person, of a greater compensation for such
service than it demands or collects from any other person for a
like and contemporaneous service in the transportation of a like
kind of traffic under substantially similar circumstances and
conditions is declared to be unjust discrimination. It is also made
unlawful to give any preference or advantage to, or to subject to
any prejudice or disadvantage, any particular person, company,
firm, corporation, or locality, or
Page 164 U. S. 414
any particular description of traffic in any respect whatsoever,
and railroad companies are required, according to their respective
powers, to afford all reasonable, proper, and equal facilities for
the interchange of traffic between their respective lines and for
the receiving, forwarding, and delivering of passengers and
property to and from their several lines and those connecting
therewith, and not to discriminate in their rates and charges
between such contracting lines.
By § 17, upon complaint in writing concerning any lack of
facilities or accommodations furnished by a railroad company for
the comfort, convenience, and accommodation of individuals and the
public or concerning any unjust discrimination against any person,
firm, corporation, or locality either in rates, facilities
furnished, or otherwise, the Board of Transportation, whenever, in
its judgment, any repairs of or additions to or changes in any
portion of the road, rolling stock, stations, depots,
stationhouses, or warehouses of a railroad company are necessary in
order to secure the safety, comfort, accommodation, and convenience
of the public and individuals or any change in the mode of
conducting its business is reasonable and expedient in order to
promote the security and accommodation of the public or to prevent
unjust discrimination against persons or places, is directed to
order the railroad company to make such repairs, additions, or
changes.
The Supreme Court of Nebraska has construed this statute as
authorizing the Board of Transportation to make the order
questioned in this case, which required the railroad company to
grant to the relators the right to erect an elevator upon its right
of way at Elmwood station on the same terms and conditions on which
it had already granted to other persons rights to erect two
elevators thereon. The construction so given to the statute by the
highest court of the state must be accepted by this Court in
judging whether the statute conforms to the Constitution of the
United States.
Chicago, Milwaukee & St. Paul Railway v.
Minnesota, 134 U. S. 418,
134 U. S. 456;
Illinois Central Railroad v. Illinois, 163 U.
S. 142,
163 U. S.
152.
A railroad corporation doubtless holds its station grounds,
tracks and right of way as its private property, but for the
Page 164 U. S. 415
public use for which it was incorporated, and may, in its
discretion, permit them to be occupied by other parties with
structures convenient for the receipt and delivery of freight upon
its railroad, so long as a free and safe passage is left for the
carriage of freight and passengers.
Grand Trunk Railroad v.
Richardson, 91 U. S. 454. But
how far the railroad company can be compelled to do so against its
will is a wholly different question.
Upon the admitted facts of the case at bar, the railroad company
had granted to two private firms the privilege of erecting
elevators upon its right of way at Elmwood station, and had refused
an application of other private persons, farmers in the
neighborhood, for the privilege of erecting on that right of way a
third elevator of sufficient capacity to store from time to time
the grain produced upon their farms and upon those of their
neighbors, and has been ordered by the Board of Transportation and
by the supreme court of the state to grant to the applicants a
location upon its right of way for the purpose of erecting thereon
such an elevator upon the like terms and conditions as in its
grants to the owners of the two existing elevators.
The only particular alleged in the complaint, and the only one
therefore presented for our consideration in this case, in which
the railroad company is supposed to have made an unjust
discrimination against the complainants or to have subjected them
to an undue and unreasonable prejudice and disadvantage in respect
to traffic facilities over other locations, or to have given an
undue and unreasonable preference to other persons, is the refusal
of the railroad company to grant to the complainants a location
upon its right of way for the purpose of erecting an elevator
thereon upon the terms and conditions upon which it had previously
granted to other persons similar privileges to erect two other
elevators.
The record does not show what were the terms and conditions of
the contracts between the railroad company and the owners of those
elevators, nor present any question as to the validity of those
contracts.
Nor does it present any question as to the power of the
Page 164 U. S. 416
legislature to compel the railroad company itself to erect and
maintain an elevator for the use of the public, or to compel it to
permit to all persons equal facilities of access from their own
lands to its tracks, and of the use, from time to time, of those
tracks for the purpose of shipping or receiving grain or other
freight, as in
Rhodes v. Northern Pacific Railroad, 34
Minn. 87, in
Chicago & Northwestern Railway v. People,
56 Ill. 365, and in
Hoyt v. Chicago, Burlington & Quincy
Railroad, 93 Ill. 601.
Nor does this case show any such exercise of the legislative
power to regulate the conduct of the business, or the rate of
tolls, fees, or charges either of railroad corporations or of the
proprietors of elevators, as has been upheld by this Court in
previous cases.
Munn v. Illinois, 94 U. S.
113;
Chicago, Burlington & Quincy Railroad v.
Illinois, 94 U. S. 155;
Dow v. Beidelman, 125 U. S. 680;
Budd v. New York, 143 U. S. 517;
Brass v. North Dakota, 153 U. S. 391;
Covington & Cincinnati Bridge Co. v. Kentucky,
154 U. S. 204,
154 U. S.
213-214;
Louisville & Nashville Railroad v.
Kentucky, 161 U. S. 677,
161 U. S.
696.
The order in question was not limited to temporary use of
tracks, nor to the conduct of the business of the railway company.
But it required the railway company to grant to the petitioners the
right to build and maintain a permanent structure upon its right of
way.
The order in question was not, and was not claimed to be, either
in the opinion of the court below or in the argument for the
defendant in error in this Court, a taking of private property for
a public use under the right eminent domain. The petitioners were
merely private individuals voluntarily associated together for
their own benefit. They do not appear to have been incorporated by
the state for any public purpose whatever, or to have themselves
intended to establish an elevator for the use of the public. On the
contrary, their own application to the railroad company, as recited
in their complaint to the Board of Transportation, was only
"for a location, on the right of any at Elmwood station
aforesaid, for the erection of an elevator of sufficient capacity
to store
Page 164 U. S. 417
from time to time the cereal products of the farms and
leaseholds of complainants aforesaid, as well as the products of
other neighboring farms."
To require the railroad company to grant to the petitioners a
location on its right of way for the erection of an elevator for
the specified purpose of storing from time to time the grain of the
petitioners and of neighboring farmers is to compel the railroad
company, against its will, to transfer an estate in part of the
land which it owns and holds under its charter as its private
property and for a public use to an association of private
individuals for the purpose of erecting and maintaining a building
thereon for storing grain for their own benefit, without reserving
any control of the use of such land or of the building to be
erected thereon to the railroad company for the accommodation of
its own business or for the convenience of the public.
This Court, confining itself to what is necessary for the
decision of the case before it, is unanimously of opinion that the
order in question, so far as it required the railroad corporation
to surrender a part of its land to the petitioners for the purpose
of building and maintaining their elevator upon it, was in essence
and effect a taking of private property of the railroad corporation
for the private use of the petitioners. The taking by a state of
the private property of one person or corporation, without the
owner's consent, for the private use of another is not due process
of law, and is a violation of the fourteenth article of amendment
of the Constitution of the United states.
Wilkinson
v. Leland, 2 Pet. 627,
27 U. S. 658;
Murray v. Hoboken
Co., 18 How. 272,
59 U. S. 276;
Loan Association v.
Topeka, 20 Wall. 655;
Davidson v. New
Orleans, 96 U. S. 97,
96 U. S. 102;
Cole v. La Grange, 113 U. S. 1;
Fallbrook District v. Bradley, 164 U.
S. 112,
164 U. S. 158,
164 U. S. 161;
State v. Chicago, Milwaukee & St. Paul Railway, 36
Minn. 402.
Judgment reversed and case remanded to the Supreme Court of
the state of Nebraska for further proceedings not inconsistent with
this opinion.
*
"SEC. 1. The provisions of this act shall apply to any common
carrier or carriers engaged in the transportation of passengers or
property by railroad, under a common control, management or
arrangement for a continuous. carriage or shipment from any point
in the state of Nebraska to any other point in said state. The term
'railroad,' as used in this act, shall include the road in use by
any corporation operating a railroad, whether owned or operated
under a contract, agreement or lease, and the term 'transportation'
shall include all instrumentalities of shipment or carriage. All
charges made for any service rendered or to be rendered in the
transportation of passengers or property as aforesaid, or in
connection therewith, or for the receiving, delivery, storage or
handling of such property, shall be reasonable and just, and every
unjust and unreasonable charge for such service is prohibited and
declared to be unlawful."
"SEC. 2. If any common carrier subject to the provisions of this
act shall directly or indirectly, by any special rate, rebate,
drawback or other device, charge, demand, collect or receive from
any person or persons a greater compensation for any service
rendered or to be rendered in the transportation of passengers or
property, subject to the provisions of this act than it charges,
demands, collects, or receives from any other person or persons for
doing for him or them a like and contemporaneous service in the
transportation of a like kind of traffic under substantially
similar circumstances and conditions, such common carriers shall be
deemed guilty of unjust discrimination, which is hereby prohibited
and declared to be unlawful."
"SEC. 3. It shall be unlawful for any common carrier subject to
the provisions of this act to make or give any preference or
advantage to any particular person, company, firm, corporation or
locality, or any particular description of traffic in any respect
whatsoever, 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 whatsoever. Every
common carrier subject to the provisions of this act shall,
according to their respective powers, afford all reasonable,
proper, and equal facilities for the interchange of traffic between
their respective lines and for the receiving, forwarding, and
delivering of passengers and property to and from their several
lines and those connecting therewith, and shall not discriminate in
their rates and charges between such contracting lines; but this
shall not be construed as requiring any such common carrier to give
the use of its track or terminal facilities to another carrier
engaged in like business."
"SEC. 17. Said board shall have the general supervision of all
railroads operated by steam in the state, and shall inquire into
any neglect of duty, or violation of any of the laws of this state
by railroad corporations doing business in this state or by any
officer, agent or employee of any railroad corporation doing
business in this state, and shall from time to time carefully
examine and inspect the condition of each railroad in this state
and its equipments and manner of the conduct and management of the
same with reference to the public safety, interest, and
conveniences. It shall carefully investigate any complaint made in
writing and under oath concerning any lack of facilities or
accommodations furnished by any railroad corporation doing business
in this state for the comfort, convenience, and accommodation of
individuals and the public, or any unjust discrimination against
either any person, firm or corporation, or locality, either in
rates, facilities furnished, or otherwise; and whenever in the
judgment of said board any repairs are necessary upon any portion
of the road or upon any stations, depots, stationhouses or
warehouses, or upon any of the rolling stock of any railroad doing
business in this state, or additions to or any changes in its
rolling stock, stations, depots, stationhouses or warehouses are
necessary in order to secure the safety, comfort, accommodation and
convenience of the public and individuals, or any change in the
mode of conducting its business or operating its road is reasonable
and expedient in order to promote the security and accommodation of
the public or in order to prevent unjust discriminations against
either persons or places, it shall make a finding of the facts and
an order requiring said railroad corporation to make such repairs,
improvements, or additions to its rolling stock, road, stations,
depots, or warehouses, or to make such changes either in the manner
of conducting its business or in the manner of operating its road
as such board shall deem proper, reasonable, and expedient, and
said finding shall be entered in a record kept for that purpose,
and said board shall cause a copy of the same to be served on said
railroad corporation by any sheriff or constable in this state in
the same manner as a summons is required to be served, and shall
also transmit to the person, firm, or corporation interested a copy
of the same. Said railroad corporation shall, within ten days after
being served with a copy of said finding and order, show cause, if
any it has, why it should not comply with said order by filing with
said board an answer, verified in the same manner as pleadings of
fact in the district court are required to be verified. If no
answer shall be filed as aforesaid, then such finding and order
shall be final and conclusive as against said railroad corporation.
Upon the filing of any answer as provided for in this section, the
said board shall set a day, not exceeding thirty days from the date
of the filing of such answer, for the hearing of the matter, and
shall notify said railroad company, or any other person or persons
or corporations interested, of the time so fixed and the place of
hearing the same; and shall carefully and fully investigate the
matter, and for that purpose may subpoena witnesses and compel
their attendance and the productions of any books or papers in the
same manner as the courts of law of this state may do. After a full
investigation of the matter, said board shall again make a finding
of the facts and make such an order as it may deem just in the
premises. If said railroad shall refuse or neglect to comply with
such order, the board shall order the attorney general, or the
county attorney of the proper county, to institute a suit to compel
such railroad company to comply with such order, and it shall be
the duty of the Attorney General, or the county attorney of the
proper county, at the request of the board or any person interested
in any such order or finding, to apply to the supreme court or to
the district court of any county through or into which its line of
road may run, in the name of the state and on the relation of said
board, for a writ of mandamus to compel such railroad company to
comply with such order, and upon the hearing of any such cause,
such finding and order shall be, as against such railroad company,
prima facie evidence of the reasonableness of such order
and of the necessity of such repairs, changes, additions, or
improvements or other matters in such order required to be done or
omitted."
Nebraska Laws of 1887, pp. 541, 542, 555, 558 ; Compiled
Statutes of 1895, pp. 779, 780, 785, 786.
