The opinion
COLLET, Circuit Judge,
(dissenting).
In 1945 the Nebraska Legislature passed an Act which provides that all state agencies shall file with the Secretary of State a certified copy of the “rules” in force and effect in such agencies and if not so filed such “rules” should not be valid. 1 The sole question for determination on this appeal is whether this Act, which will be referred to as the “filing Act”, required the Nebraska Railway Commission to file all rate schedules of all public utilities subject to its supervision with the Secretary of State as a condition precedent to their validity. The present action is for the recovery of motor carrier rates approved by and filed with the Commission but not filed with the Secretary of State. The trial court held the rates sought to be collected were invalid because not filed with the Secretary of State. This appeal is from that ruling. Consideration of the legislative history of the filing section is concededly appropriate.
The Railway Commission was created by constitutional enactment in 1906. By the Constitution the Commission was given the power and duty to regulate rates of public utilities in the state. The Constitution also gave to the legislature the authority to direct the Commission in the discharge of its duties and provided that if the legislature did not do so the Commission should exercise its duties in its own way. Pursuant to the authority given the legislature, that body many years ago provided that the public utilities, including motor carriers subject to the Commission’s regulation, such as the plaintiff herein, should file their rate schedules with the Commission. 2 Unless they were so filed they were invalid. But when filed with the approval of the Commission and published, such rates were the legal rates and the only legal rates.
This procedure is a common one under State Regulatory Laws. It has been followed in Nebraska for many years and is without dispute the law in that state today. In 1945 the Nebraska State Bar Association became concerned with the unavailability of “general orders or regula tion.r” of the Railway Commission and other state agencies. A committee of lawyers was appointed to investigate the situation and make a report and recommendations. This committee reported with respect to the Railway Commission that (as quoted in the majority opinion) there was no practicable source from which a lawyer could learn what general orders or regulations of the Railway Commission were in force, *144 and that its rules of practice appeared to be available only by consulting a typewritten copy at the Commission’s office.. The report observed that “regulations of continuing force” had the same effect as legislative enactments and should be published and made accessible to attorneys and others interested. The committee recommended legislation requiring the filing of such “regulations” in some designated registry such as the office of the Secretary of State. Since this report and the recommendation made therein was the moving cause of the filing act subsequently passed, it should have considerable bearing upon the intent of that Act. The report was long and detailed. It was prepared by lawyers who went into the question covered meticulously. Nowhere in the entire report is the word “rate” or “rate schedule” even mentioned as within the purview of the recommended legislation. And the recommended legislation was to apply to all state agencies, only one of which had any cognizance of public utility rates or rate schedules. Did the instigators of the Act have “rate schedules” in mind? If they had, as good lawyers they would have said so.
The next step was the introduction of the bill which later became the filing Act. That bill contained no specific reference to “rates” or “rate schedules.” It followed the Bar Association recommendation and applied to all state agencies. It provided that their “rules” be filed. In that form it was passed on February 28, 1945. 3 It appears that soon after its passage the question must have been raised as to whether the term “rules” as used and defined in the filing Act could be construed to include “rates” or “rate schedules” which the law required be filed with the Railway Commission. It is very probable that the legislative committee of the State Bar Association, good lawyers as they no- doubt were, made assurances that this general Act of 194S, the filing Act, would not be construed as a repeal by implication of the old, old provision of their law providing for the filing of “rates” and “rate schedules” with the Railway Commission. But fifteen days after the Governor’s approval of the filing Act, a bill was introduced by the Committee on Judiciary itself to make sure that the filing Act would not be construed to include “rates” or “rate schedules”. This bill specifically provided that “rate tariffs, together with rules of interpretation thereof” should be excepted from the provisions of the filing Act. This is the first time the words “rates” or “rate schedules” or “tariffs” can be found in the legislative history of the filing Act, and then it was in an effort to make certain that “rules” would not include them. This bill “to make more definite and certain” was amended to exempt the Railway Commission entirely from the provisions of the filing Act and as so amended was passed. Because in his opinion there was no good reason to exempt the Railway Commission from doing what all other state agencies were required by the filing Act to do, the Governor vetoed the amended bill. But the legislature had by then adjourned and the Railway Commission was confronted with the problem of following the demonstrated intent of the legislature that it did not intend to require the Commission to file “rates” with the Secretary of State, and not do so, and by such action take chances on being criticized for not filing “rates”, and by such course of action also take chances that the validity of all of the “rates” of all kinds on file with it might be questioned as a result of the veto of the bill which would have settled the question beyond all question; or, by making copies of the truckload or more of rate schedules and filing them, to assume the repeal by implication of the long-recognized and time-honored statutory system of establishing rates in Nebraska by having them filed with the Commission. In the light of this situation and pursuant to statutory provision therefor, the Railway Commission called upon the Attorney General of Nebraska for his opinion as to whether “rates” or “rate schedules” were required by the filing Act to be filed with the Secretary of State. The Attorney General said, “No.” The *145 majority opinion raises some question concerning the positiveness of the Attorney General’s conviction on the subject, but his language indicates a greater degree of conviction 4 than the language of the majority opinion expresses in its ultimate conclusion. Pursuant to the Attorney General’s opinion, which the legislature had authorized, if not directed, the Railway Commission to obtain, and presumably to follow, the Commission filed none of the multitude of rates or tariffs or rate schedules filed with it by the public utilities of Nebraska. And it has filed none to this day. And apparently no one ever questioned the propriety of the Attorney General’s opinion or the Commission’s action until the question was raised for the first time in the Federal Court in this action. Two sessions of the Nebraska Legislature passed without complaint from or action by it. If the Commission’s conduct had not been that intended by the legislature, all of the rates of all kinds being charged by all domestic utilities in Nebraska were unenforceable and invalid. And the Commission would have been defying the intent of the legislature. The legislature’s non-action under those circumstances seems inconsistent with any theory other than concurrence in the universal construction then being given the filing Act. But when the Federal Court held in this case that all of the rates on file with the Railway Commission since the passage of the filing Act in 1945 were invalid because not filed with the Secretary of State, an entirely different situation, and a very serious situation, arose. And the legislature met that situation by promptly reviving and passing the old “bill to make more definite and certain”, specifically excluding “rate tariffs, together with rules of interpretation thereof,” from the requirements of the filing Act of 1945. And the Governor, acting in complete consistency with the veto of 1945, promptly signed that bill into law.
The construction which the trial court gave the filing Act of 1945 can never be placed upon it again in the light of this recent action of the Nebraska Legislature. But as noted in the majority opinion, that legislative action is prospective in effect, not retroactive. It cannot, therefore, control the determination of this cause.
I agree that the ascertainment of the real intent of the legislature is our function in this case. I agree that in reaching that intent the legislative background of the filing Act should, under the circumstances of this case, be given consideration. I agree that the rule of “great deference” for the trial court’s opinion on questions of local law is a good rule. But the limit of observance of the “great deference” rule should be the giving of great deference and respect to the trial judge’s opinion on what the highest court of the state would do in construing a new statute, and if after doing so there still exists an abiding conviction on the part of the appellate court that the trial judge’s conclusion is incorrect, the only proper course is to disagree with it. A good illustration of *146 both these principles is found in the recent case of Nelson v. Westland Oil Co. (Foster v. Westland Oil Co., Weston v. West-land Oil Co., and Myers v. Westland Oil Co.), 8 Cir., 181 F.2d 371 , wherein this court disagreed with the District Judge of North Dakota concerning the construction to be given a North Dakota statute, and later the Supreme Court of North Dakota disagreed with this court. Those cases and the case before us furnish a further object lesson on the desirability of obtaining the judgment of the courts of the state on the proper construction of a state statute. Such a course would have been desirable in this case. And I think our opinion in this case should have been held in abeyance to permit that being done.
I agree that the administrative interpretation of the Act in question by the government agency affected is entitled to weight and consideration. And I believe that if any substantial weight is given to the administrative interpretation of the filing Act in this case the conclusion of the majority could not be sustained. I agree that the opinion of the Attorney General should be considered. But I believe it should be given more substantial consideration. I agree that the recent action of the legislature amending the filing Act of 1945 is significant — and that it changes things. But I do not believe it was intended to change anything except the construction the Federal Court put on the filing Act. And I believe that to be correct because the legislature did not act when the Commission construed the filing Act as not requiring the filing of “rates” with the Secretary of State. It did not act when the Attorney General so construed it. It did not act when if those constructions had been wrong tremendous property interests in Nebraska would have been jeopardized by the illegality of all rates. It acted only when and not until a Federal Court construed it otherwise and it was necessary for the legislature to do what it did to prevent a repetition of that construction. And I do- not believe that the polite language of the committee’s report referred to in the majority opinion to the effect that the committee was recommending the passage of this amendment so that it would “no longer require” the filing of tariffs, means that the committee or the legislature construed the filing Act of 1945 as making that requirement. I would have been much surprised if the Nebraska Legislature or any committee thereof had said in a committee report of so eminent and distinguished a Nebraska jurist as the trial judge in this case, that “the Federal Court has misconstrued our statute and we are fixing it so that it cannot do so again”. Hence, logic, diplomacy, statesmanship and good ethics on the part of the committee prompted it to use the language noted in the majority opinion and to go as far as it could go to undo the misconstruction of the filing Act by the trial court and prevent such misconstruction by this court by saying: “Moreover, the committee is informed that the Railway Commission had not conformed with this requirement, has not in the past filed their tariffs with the Secretary of State and that there are suits now pending based on the premise that the tariffs are not legal, since they were not so filed.” (Italics ours.)
The committee certainly knew that the amendment it proposed could not determine this action or others like it. Hence the only possible reason for mentioning the existence of such case or cases as one of the reasons for the amendment was in the hope that the courts would construe the old law for the period of its past existence like they were saying it must be construed in the future. Indeed, that appears to be the only logical reason for the amendment of the filing Act.
I agree that rates may under many circumstances be treated as rules of a utility. I agree that the adjudicated cases on the subject are not of controlling value. The two Georgia cases referred to in the majority opinion — Parmelee v. Savannah F. & W. Ry. Co., 78 Ga. 239 , 2 S.E. 686 , and Atlantic Log & Export Co. v. Central of Georgia, 171 Ga. 175 , 155 S.E. 525 — are excellent illustrations of that fact. In each of those cases the court had before it the question of whether rules of a railroad filed with the state regulatory commission *147 should be construed to include the rates of the railroad. Certainly railroad “rates” constitute a part of and in most instances most of the rules of the railroad on file with the regulatory commission. But a factual situation like that is far different from one such as is involved here when we are seeking to determine whether utility “rates”, were included in rules made by all state agencies and in which the bar generally was interested and concerned in the general practice of law. The rules contemplated by the filing Act of 1945 included the rules of state eleemosynary institutions, the rules of the boards, if any, controlling cosmetologists, osteopaths, the medical profession, the tax authorities, the prison authorities, and all other state agencies in Nebraska. Can it be said with logic that the legislature intended that the “rates”, if any, promulgated by agencies such as those should be filed with the Secretary of State of Nebraska for the benefit, education, or guidance of the bar of Nebraska?
But most important of all, I cannot agree that the long-established law of Nebraska, specific, definite, and detailed in its application to rates, tariffs, and rate schedules, requiring that they be filed with the Railway Commission may be repealed by implication or superseded by a general act such as the filing Act of 1945. It is a cardinal rule of statutory construction that where a specific subject is dealt with by a statute dealing with that subject alone and with particularity, that a subsequent general act, not necessarily in conflict with the specific law, will not be held to have repealed the earlier law by implication. Repeals by implication are frowned upon, and it is only when it is necessary to give effect to the later general law that a repeal by implication is permitted.
In Kepner v. United States, 195 U.S. 100 , loc. cit. 125, 24 S.Ct. 797 , loc. cit. 803, 49 L.Ed. 114 , the Supreme Court stated the rule as follows: “It is a well-settled principle of construction that specific terms covering the given subject-matter will prevail over general language of the same or another statute which might otherwise prove controlling.”
The rule is reiterated in D. Ginsberg & Sons v. Popkin, 285 U.S. 204 , loc. cit. 208, 52 S.Ct. 322 , loc. cit. 323, 76 L.Ed. 704 , as follows: “Specific terms prevail over the general in the same or another statute which otherwise might be controlling.” Citing Kepner v. United States, supra.
This court said in United States v. Mammoth Oil Co., 8 Cir., 14 F.2d 705 , loc. cit. 715: “In Washington v. Miller, 235 U.S. 422, 428 , 35 S.Ct. 119, 122 ( 59 L.Ed. 295 ) the Supreme Court said: ‘Where there are two statutes upon the same subject, the earlier being special and the later general, the presumption is, in the absence of an. express repeal, or an absolute incompatibility, that the special is intended to remain in force as an exception to the general.’ In Witte v. Shelton et al., 240 F. 265, 268 , 153 C.C.A. 191 , 194, this court said: ‘Specific legislation upon a particular phase of a single subject is not affected by a subsequent law relating to a general subject which neither refers to the earlier law nor is repugnant to nor inconsistent with it, but the two laws must stand together, the former as the law of its specific phase of the subject, and the latter as the general law relating thereto.’ ”
The Court of Appeals for the Fourth Circuit stated the rule in Niagara Fire Insurance Co. of New York v. Raleigh Hardware Co., 62 F.2d 705 , loc. cit. 709, in the following language:
“It is elementary that statutes are to be construed together when possible, and that repeals by implication are not favored. * * * The rule is well settled that ‘where there are two statutes upon the same subject, the earlier being special and the later general, the presumption is, in the absence of an express repeal, or an absolute incompatibility, that the special is intended to remain in force as an exception to the general.’ Washington v. Miller, 235 U.S. 422, 428 , 35 S.Ct. 119 , 59 L.Ed. 295 ; Rodgers v. U. S., 185 U.S. 83, 87-89 , 22 S.Ct. 582, 584 , 46 L.Ed. 816 ; Townsend v. Little, 109 U.S. 504, 512 , 3 S.Ct. 357 , 27 L.Ed. 1012 .
“The rule stated in Sedgwick on the Construction of Statutory and Constitutional Law, p. 98, quoted with approval in Rodg *148 ers v. U. S., supra, is as follows: ‘The reason and philosophy of the rule is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless’ it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all.’ ”
Again in the case of United States v. Hess, 8 Cir., 71 F.2d 78 , loe. cit. 79, this court restated the rule as follows: “Where there are two statutes upon the same subject, one general and the other special, the special statute is recognized as an exception to the generality of the other statute without regard to priority of enactment.” Citing a number of cases.
And in Baltimore & O. R. Co. v. Chicago River & Indiana R. Co., 7 Cir., 170 F.2d 654 , loc. cit. 658, appears the following statement of the rule: “The primary rule of statutory construction is to give effect to the intention of the legislature. Whenever that is apparent it dominates and interprets the language used. So where there are two statutes, the earlier special and the later general, the special controls the general, and the fact that one is special and the other is general creates a presumption that the special is to be considered as remaining an exception to the general. The general will not be understood as repealing the special, unless a repeal is expressly named, or unless the provisions of the general are manifestly inconsistent with those ofi the special.”
It is not only unnecessary to a logical construction of the filing Act of 1945 that the long-established system of establishing rates in Nebraska be overturned, but in my judgment it might be disastrous to the validity of most, if not all, utility rates in'Nebraska during the period from 1945 until the passage of the recent amendment to- construe the filing Act of 1945 as repealing or superseding that system. I do not believe the legislature intended to do so. I believe that if they had intended to do so they would have said so.
For the foregoing reasons, I respectfully dissent.
. Cum.Supp.Nebraska Statutes 1949, Sec. 84-901, et seq.
84r-902: “Bach agency shall file forthwith in the office of the Secretary of State a certified copy of the rules in force and effect in such agency on August 10, 1945. A certified copy of any rule adopted after August 10, 1945 shall likewise be so filed. * * * ”
84-905.01: “ * * * Thirty days pri- or to the next regular legislative session, the Attorney General shall have examined the file of each agency as it appears in the office of the Secretary of State, and shall approve same or file a report with the Clerk of the Legislature in the form of an opinion on each rule which in his opinion fails to meet the requirements of the Constitution and laws of the United States and the State of Nebraska.”
84-906: “No rule required under this act to be filed with the Secretary of State shall be valid as against any person until the certified copy of the rule shall have been so filed; * *
84-901: “ * * * (2) ‘rule’ means the written statement of any rule, regulation, standard or policy of general application issued by an agency, including the amendment or repeal thereof, and designed to implement, interpret or make specific the law enforced or administered by it, or governing its organization or procedure, but not including regulations concerning the internal management of the agency not affecting private rights or interests; Provided, that for the purpose of this act every rule which shall prescribe a penalty shall be presumed to have general applicability or to affect private rights and interests.”
Secs. 75-241; 75-244; 75-245 ; 75-247; R.S.Nebr.1948 quoted in the majority opinion.
. The pertinent portions of which are heretofore quoted in the margin.
. “We must assume, however, that in pass-in L.B. 138 the Legislature did not intend to limit the powers vested in the Railway Commission by the constitution, or even those powers granted to it by the Legislature itself. For example, the constitution imposes on the Commission the duty to regulate rates of common carriers. The Legislature also has provided a procedure for establishing schedules and classifications of rates (85-302, R.S.1943) and required the common carriers to print and keep available for public inspection the schedules of rates and fares under which it operates (75—303, 75-304, R.S.1943). While in a sense such tariff schedules might be said to be rules of general application, we do not believe that they come within the definition as used in the act. Furthermore, there would appear to be nothing gained in the way of informing the public of these rates by filing copies with the Secretary of State in view of the statutory requirements that they be published by the carriers themselves; and it is inconceivable to us that the Legislature should intend that all such tariff regulations should be annulled and abrogated if not filed with the Secretary of State. We are of the opinion, therefore, that such tariff schedules and regulations are not included under L.B. 138.”