Petition for a Writ of Certiorari — Mogis v. Lyman Richey Sand & Gravel Corp.

Supreme Court brief1951

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INDEX

Petition For Writ or CERTIORARI:

Page

Summary and Short Statement of the Matter Involved 2

Jurisdiction mm 2

The Opinion .......... 4

Questions Presented 5

Reasons Relied Upon for Allowance of the Writ ........._ 5

Conclusion 7

Brier In Support oF PETITION FoR Writ OF CERTIORARI

Opinions Below 9

Jurisdictional Statement 10

Statement of the Case 10

Reasons Relied Upon for Allowance of Wit ccc. 14

Argument:

Proposition I. The decision of the Court of Ap-

peals conflicts with applicable Nebraska rulings... 16

Proposition II. The decision of the Court of Ap-

peals has so far sanctioned a departure by the

United States District Court from the accepted and

usual course of judicial proceedings 1s to call for

an exercise of this Court’s power of supervision... 18

Proposition III. The Court of Appeals has de-

cided a Federal question in a way probably in con-

flict with the applicable decisions of this Court... 23

Proposition IV. The Court of Appeals has ren-

dered a decision conflicting with decisions of the

Court of Appeals for the Seventh Circuit. ............. . 20

1953

Conclusion

te ?

Cases Crrep

Pages

Adams v. U. S., 63 S. Ct. 1122, 319 U.S. 31, 87 L. Ed.

1421 20

Billings v. Truesdell, 64 S. Ct. 737, 311 U. S. 542,

88 L. Ed. 917 20

Bowtell v. Walling, 66 S. Ct. 631, 327 U. S. 463, 90

L. Ed. 786 20

Chicago & N. W. R. Co. v. Bauman, 132 Neb. 67, 77,

271 N. W. 256 17,19

City of Chicago v. Fieldcrest Dairies, Inc., 316 U.S.

168, 62 S. Ct. 986 24, 26

Douglas County v. Vinsonhaler, 82 Neb. 810, 118 N. W.

a a lca ihiiina 17,19

Elmen v. State Board of Equalization and Assessment,

120 Neb. 141, 231 N. W. 772 17

Fleming v. Mohawk Wrecking & Lumber Co., 67 S.

— Ct. 1129, 331 U.S. 111, 91 L. Ed. 1375 20

Joseph Mogis, Appellant, v. Lyman-Richey Sand ¢

Gravel Corporation, a corporation, Appellee, Civil

No. 14,182, 189 F. (2) 130 (R. 33), 190 F. (2) 202

(R. 95) (rehearing denied) 4,9

Levinson v. Spector Motor Service, 67 S. Ct. 931, 330

U.S. 649, 91 L. Ed. 1158 20

Markham v. Allen, 326 U.S. 490, 66 S. Ct. 296 24

Meredith v. Winter Haven, 320 U.S. 228, 64S. Ct. 7... 24

Phyle v. Duffy, 68 S. Ct. 1131, 334 U. 8S. 431, 92 L. Ed.

1494 20, 21

Propper v. Clark, 337 U.S. 472, 69 S. Ct. 1333 ........ 24, 26

iii

Cases Crrep—Continued

Pages

Railroad Commission v. Rowan & Nichols Oil Co.,

311 U. S. 570, 61 S. Ct. 343 24

Railroad Commission of Texas v. Pullman Co., 312

U. S. 496, 61 S. Ct. 463 24, 26

Rohrer v. Hastings Brewery Co., 83 Neb. 111, 119

N. W. 27 17,19

Shipman v. Du Pre, 329 U. S. 321, 70 S. Ct. 640... 24

So. Pac. Co. v. U. S&., 59 S. Ct. 923, 307 U.S. 393,

83 L. Ed. 1363 20

Soulard v. U. S., 4 Pet. (U.S.) 511, 7 L. Ed. 938... 24

Spector Motor Service v. McLaughlin, 323 U. S. 191,

65 S. Ct. 152 24

State ex rel Village of Dakota City v. Bryan, 112

Neb. 692, 200 N. W. 870 17,19

Thompson v. Magnolia Petroleum Co., 309 U.S. 476,

60 S. Ct. 628 24, 26

U.S. v. American Trucking Assns., 60 S. Ct. 1059, 310

U. S. 534, 84 L. Ed. 1345 20

U. S. v. 150.29 Acres of Land (7th Cireuit), 135 F.

(2d) 878, cert. denied, 325 U. S. 882, 883, 65 S. Ct.

1576, 89 L. Ed. 1998 25, 29

Winterhaven, et al., v. Meredith, 230 U. S. 228, 234... 27

Yellow Cab Co. v. City of Chicago (7th Cireuit), 186

F. (2d) 946 25, 27, 28

ne!

Sratutes CiTep

Pages

Section 59-817, R. S. 1943 2

Section 84-902, R.R.S. Nebr. 1943 2

Section 59-817, R. R.S. Nebr. 1943 10

Sections 84-901 to 84-906, incl., R. R. S. Nebr. 1943........

10, 12, 21

AUTHORITIES CITED

Section 1254(1), Judicial Code (28 U.S. C. 1254(1) ).4, 10

In the

Supreme Court of the United States

OCTOBER TERM, 1951

I siecle :

JOSEPH MOGIS,

Petitioner,

VS.

LYMAN RICHEY SAND & GRAVEL CORPORATION,

a corporation,

Respondent.

raY

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

To THe HonoraBte Supreme Court oF THE Unirep Sratzs:

The petition of Joseph Mogis respectfully prays for

a writ of certiorari to the United States Court of Ap-

peals for the Eighth Circuit to review the decision of the

Ti cniemenetiemnieie th ia iaiechiiitaiaia ; —

said court, affirming the order of the United States Dis-

trict Court for the District of Nebraska, dismissing the

petitioner’s cause of action.

SUMMARY AND SHORT STATEMENT OF THE

MATTER INVOLVED

The petitioner for himself and as assignee of eight

others filed this action on September.15, 1949 (R.1). The

petition alleged that the Petitioner and his assignors

were dump truck operators licensed as common carriers

by the Nebraska Railway Commission; that as common

carriers they had hauled sand, gravel and crushed rock

for the defendant from September 15, 1945, to April 5,

1949, and that during this period the respondent had

paid for said services amounts less than the legal rates

established by the Nebraska Railway Commission. The

petitioner further alleged that these undercharges con-

stituted rebates within the meaning of Section 59-817, R.

S. 1943, and accordingly prayed for triple damages total-

ing $138,000.00, together with costs of suit, including a

reasonable attorney’s fee.

After the matter had been brought to issue and the

petitioner had filed written interrogatories, the respond-

ent raised the issue of the validity of the tariff schedule

covering motor vehicles promulgated by the Nebraska

Railway Commission. It was respondent’s contention

(R.10) that this tariff schedule was invalid for the rea;

son that it had not been filed with the Secretary of State

under the provisions of Section 84-902, R. R. S. Nebr.

1943. This section forming a part of the Nebraska Filing

Act was enacted in 1945 on the recommendation of the

Nebraska Bar Association. Both the report and the act

are set out in full in the appendix to this petition. The

act provided that each administrative agency must file

all ‘‘rules’’ then in force and to be issued with the

Secretary of State. A ‘‘rule’’ was defined to mean, ‘‘The

written statement -of any rule, regulation, standard or

policy of general application issued by an agency.’’

It was petitioner’s contention that tariff sched-

ules were never intended to be covered by the Nebraska

Filing Statute; that the Nebraska Attorney General, in a

written opinion, has specifically ruled that the tariff

schedules were not covered by the Filing Act (Ap. 36-44)

and that the Nebraska Railway Commission had adopted

this interpretation of the Act. It was further the con-

tention of the petitioner that subsequent to the adop-

tion of this interpretation by the Attorney General and

the Nebraska Railway Commission, the Nebraska Legisla-

ture had amended and re-enacted the applicable provi-

sions of the Act without changing the definition of ‘‘rule,’’

(Ap. 44-53) thus implying its approval of this adminis-

trative interpretation at a time when, had the interpreta-

tion been wrong, vast property interests in Nebraska

would have been endangered by the adoption of invalid

rates by the Railway Commission. Both parties agreed

that no tariff schedules issued by the Nebraska Railway

Commission had ever been filed with the Secretary of

State (R. 12).

The issue was submitted to the District Court and

that court rendered its opinion that the tariff schedule

for motor vehicles issued by the Nebraska Railway Com-

mission was invalid on the ground that such a tariff

schedule was a ‘‘rule’’ within the meaning of the filing

act and should have been filed with the Nebraska Secre-

tary of State (R.12). Upon appeal to the Court of Ap-

peals for the Eighth Circuit, this order was affirmed by

a divided court (R. 33). The Court of Appeals likewise

declined to stay the proceedings until an authoritative rul-

ing on the question could be obtained from the Nebraska

Court (R. 32), but in overruling petitioner’s petition for

a rehearing, the Court of Appeals expressed its regret

that it could not see its way clear to suspend or stay

its decision pending such an authoritative ruling (R. 95).

ray

JURISDICTION

The court has jurisdiction to review the decision of

the Court of Appeals for the Eighth Circuit by writ of

certiorari under the provisions of Section 1254(1), Ju-

dicial Code (28 U.S. C. 1254(1)).

.f}.

THE OPINION

The opinion of the Court of Appeals for the Highth

Circuit which petitioner seeks to have reviewed is Jo-

seph Mogis, Appellant, v. Lyman-Richey Sand & Gravel

Corporation, a corporation, Appellee, Civil No. 14,182,

189 F. (2) 130 (R. 33), 190 F. (2) 202 (R. 95) (rehearing de-

nied). The memorandum opinion of the District Court

which was affirmed by the Court of Appeals will be found

at 90 F. S. 251 (R. 12).

)

QUESTIONS PRESENTED

Petitioner desires to present three questions to the

Court:

(1) Are the tariff schedules of the Nebraska Rail-

way Commission and the rates set forth therein ‘‘rules’’

within the meaning of the Nebraska Filing Act, so as to

require the filing of said tariff schedules with the Secre-

tary of State?

(2) Should the construction of the Nebraska Filing

Act by the Nebraska Attorney General, adopted by the

Nebraska Railway Commission, and confirmed by implica-

tion by the Nebraska Legislature, be accepted as control-

ling by the United States District Court and the United

States Court of Appeals?

(3) Should the United States Court of Appeals

have remanded the case to the United States District

Court with instructions to retain jurisdiction for a rea-

sonable time to permit the parties to obtain authoritative

ruling on the validity of the rates involved or should the

Court of Appeals for the Eighth Circuit have stayed the

proceedings in some other appropriate way pending the

rendition of such an authoritative ruling?

— |

REASONS RELIED UPON FOR ALLOWANCE

OF THE WRIT

The petitioner relies on the following four reasons

for the issuance of the writ:

(1) In holding that the word ‘‘rule’’ as used in

the Nebraska Filing Act encompassed rates promulgated

reese revo ssccameasonest ich ac Sa aca

by the Nebraska Railway Commission, the Court of Ap-

peals for the Eighth Circuit has decided an important

question of Nebraska law in a way conflicting with ap-

plicable Nebraska rulings.

(2) In declining to follow an established administra-

tive interpretation of a Nebraska statute based on an

opinion of the Nebraska Attorney General and confirmed

by the re-enactment of the applicable provisions of the

act by the Nebraska Legislature with the effect that all

rates promulgated by the Nebraska Railway Commission

prior to August 27, 1951, are placed under a cloud of

suspicion, the Court of Appeals for the Eighth Circuit

has so far sanctioned a departure by the United States

District Court for the District of Nebraska from the ac-

cepted and usual course of judicial proceedings as to call

for an exercise of this court’s power of supervision.

(3) In failing to remand the case to the United

States District Court with instructions to retain juris-

diction for sufficient time to permit the parties to ob-

tain an authoritative ruling by the Nebraska courts on

the validity of the rates involved and in refusing to stay

the proceedings in some other acceptable manner, the

Court of Appeals for the Eighth Circuit has decided a

federal question in a way probably in conflict with the ap-

plicable decisions of this Court.

(4) In refusing to remand this case to the District

Court or to stay its decision awaiting the rendition of an

authoritative ruling on the validity of the rates by the

Nebraska courts, the Court of Appeals for the Highth

Cireuit has rendered a decision in conflict with the de-

cisions of the Court of Appeals for the Seventh Circuit.

CONCLUSION

For the foregoing reasons, petitioner respectfully

prays that this petition for writ of certiorari should be

granted.

Dated September 22, 1951.

Respectfully submitted,

C se Cale

Ernar VIREN,

Swenson, Viren & TuRNER,

Attorneys for Petitioner.

- Im the

Supreme Court of the United States

OCTOBER TERM, 1951

JOSEPH MOGIS,

Petitioner,

vs.

LYMAN RICHEY SAND & GRAVEL CORPORATION,

a corporation,

Respondent.

BRIEF IN SUPPORT OF PETITION FOR CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

LY.

OPINIONS BELOW

The opinion of the Court of Appeals for the Eighth

Cireuit, Joseph Mogis, Appellant, v. Lyman-Richey Sand

& Gravel Corporation, a corporation, Appellee, Civil No.

14,182, is reported at 189 F. (2d) 130 (R. 33), 190 F. (2d)

202 (R. 95) (rehearing denied). The memorandum opinion

of the United States District Court in Joseph Mogis, Plain-

tiff, vs. Lyman Richey Sand & Gravel Corporation, a cor-

poration, Defendant, is reported at 90 F. Supp. 251 (R.

12).

JURISDICTIONAL STATEMENT

The Court has jurisdiction to review the decision

of the Court of Appeals for the Eighth Circuit by writ of

certiorari under the provisions of Section 1254(1) Judi-

cial Code (28 U.S. C. 1254(1)).

ray

STATEMENT OF THE CASE

This is an action for undercharges based on the con-

tention of the petitioner that respondent paid less than

the established rates for services rendered by the peti-

tioner and his eight assignors as dump truck operators

hauling sand, gravel and crushed rock for the respondent

during the period between September 15, 1945, and April

5, 1949. The petitioner contends that these undercharges

constitute rebates under the provisions of Section 59-817,

R. R.S. Nebr. 1943, and has asked for triple damages to-

taling $138,000.00 together with costs of the suit includ-

ing a reasonable attorney’s fee. Petitioner’s cause of ac-

tion was dismissed by the United States District Court

for the District of Nebraska on the ground that the rates

established by the Nebraska Railway Commission were

invalid because the Railway Commission failed to file

them with the Secretary of State. The Nebraska Filing

Act (Sections 84-901 to 906, incl., R. R. S. Neb. 1943) re-

quires all ‘‘rules’’ issued by Nebraska administrative

agencies to be filed with the Secretary of State. It is the

contention of the petitioner that the Nebraska Filing

Act was never meant to and does not affect the tariff

schedules promulgated by the Nebraska Railway Com-

mission. A short history of the Nebraska Filing Statute

is necessary to disclose the purposes and intent of the act.

The applicable statutes, reports, and legislative history

are set out in the appendix to this Petition and Brief and

will be referred to here by the sign (Ap. ....... ).

In 1944 Special Committee on Administrative Agen-

cies and Tribunals of the Nebraska Bar Association rec-

ommended legislation to cure what it felt to be a flaw in

Nebraska administrative procedure (Ap. 1-18). The com-

mittee was concerned with the unavailability of rules and

regulations of general application being issued by Ne-

braska administrative agencies. Influenced by the use-

fulness of the Federal Register, the committee recom-

mended to the Legislature that all rules and regulations

of such agencies be filed with the Nebraska Secretary of

State. The committee cited as an example of unavaila-

bility of regulations the rules of practice before the Ne-

braska Railway Commission and the general orders is-

sued by the Commission under which public utilities and

common earriers not the subject of specific legislation or

federal control are regulated in Nebraska. These general

orders are distinct from and to be contrasted with the

tariff schedules promulgated by the Nebraska Railway

Commission under which the rates for services by public

utilities and common carriers are established whether the

utility is regulated by a specific act of the Legislature or

by the general orders above referred to. As contrasted

with the general orders, the tariff schedules must be pub-

lished under specific statutory command. The statute cov-

ering the issuance of the motor vehicle tariff schedules

is See. 75-303, R. R. S. Nebr. 1943. The failure to distin-

guish between the general orders and tariff schedules of

the Railway Commission has caused some confusion in the

decisions bearing upon the applicability of the Nebraska

Filing Act to the rates involved in this case.

Pursuant to the recommendation of the Bar Asso-

ciation Committee, the Nebraska Legislature in 1945 en-

acted L. B. 138 which appears as Sections 84-901 to 84-906,

inclusive, R. R. S. Nebr. 1943, referred to hereafter as

the Nebraska Filing Act. This act provides in substance

that to be valid, all ‘‘rules’’ of Nebraska administrative

agencies must be filed with the Nebraska Secretary of

State. It defined ‘‘rules’’ as ‘‘any rule, regulation, stand-

ard or policy of general application.’’ The statute con-

tains no direct reference to rates or tariff schedules (Ap.

23-25).

Shortly after the passage of the filing statute, the

Nebraska Railway Commission turned to the Nebraska

Attorney General for advice as to whether the tariff

schedules published by the Commission were to be filed

with the Secretary of State under the terms of a new

act (Ap. 29-36). The Attorney General gave his opinion,

dated July 16, 1945, that such tariff schedules were not

included (Ap. 36-44). The Railway Commission has,

therefore, refrained from filing any of its tariff schedules

and the rates contained therein.

In 1947, the Legislature amended and re-enacted the

filing statute (Ap. 44-53). No change was made in the

definition of ‘‘rules.’’ The tariff schedules and rates were

not mentioned in the amendment. It can be assumed that

the Legislature was advised of the Attorney General’s

interpretation of the act and the adoption of this inter-

pretation by the Nebraska Railway Commission.

One of the 1947 amendments to the act provided that

all ‘‘rules’’ should be submitted to the Attorney General

for an opinion as to their constitutionality before filing

with the Secretary of State. As the constitutionality of

utility rates involves their reasonableness, a technical

question on which the Attorney General is not competent

to speak, it can also be assumed that the 1947 Legislature

did not intend tariff schedules or rates to be included in

the scope of the act as amended. No tariff schedules have

ever been filed with the Secretary of State (R. 12), and if

such a requirement exists, every rate approved by the

Nebraska Railway Commission covering services rendered

by railroads, motor carriers, Pullman companies, telephone

and telegraph companies, taxicab and express companies,

was then and is now invalid, subject only to the effect of

an amendment to the Act passed by the 1951 Legislature

and hereinafter referred to.

Thus the matter stood on September 15, 1949, when

the petitioner filed this action in the District Court of

the United States for the District of Nebraska, and thus

the matter stood when the District Court declined to fol-

low the administrative interpretation of the Act adopted

on the advice of the Nebraska Attorney General and con-

firmed by the 1947 Legislature. In short, the District

Court rejected the interpretation under which rates af-

fecting a vast segment of Nebraska economy had been

issued by the Nebraska Railway Commission.

On appeal to the United States Court of Appeals

for the Eighth Circuit, the District Court’s order dismiss-

ing the cause was affirmed (R.33) and the Court of Ap-

peals declined petitioner’s request that the proceedings

be stayed until an authoritative decision of the Nebraska

courts could be obtained on this question of Nebraska

—— < sean Re SEEMED NETH, 8 STEIN LAL RETR ER RT

law (R.32). In overruling petitioner’s petition for re-

hearing, the Court of Appeals expressed its regret that

it was unable to afford the relief requested and stated

that had it had the power to do so, it would have been in-

clined to grant the relief (R. 97).

While the order of the District Court was pending on

appeal, the 1951 Nebraska Legislature having been advised

of the existence of litigation challenging the administra-

tive interpretation of the filing statute (Ap. 55) amended

the definition of ‘‘rule’’ to exclude specifically rates adopt-

ed by the Nebraska Railway Commission. The 1951 amend-

ment became effective on August 27, 1951. This amend-

ment appears to affect only those rates adopted after

the effective date of the Act. All rates adopted previously

and whether now in existence or superseded, are still un-

der the shadow cast by the District Court’s ruling.

It is the contention of the petitioner for the reasons

hereinafter stated that the ruling of the District Court

is in error and that either it should be set aside or the

District Court should be instructed to retain jurisdiction

of the action for sufficient time to permit the parties to

obtain an authoritative interpretation of the statutes from

the Nebraska Court.

ra’

REASONS RELIED UPON FOR ALLOWANCE

OF WRIT

I. In-holding that the word ‘‘rule’’ as used in the

Nebraska filing statute encompassed the tariff schedules

promulgated by the Nebraska Railway Commission, the

Court of Appeals for the Kighth Circuit has decided an

important question of law in a way conflicting with ap-

plicable Nebraska rulings.

II. In declining to follow an administrative inter-

pretation of a Nebraska statute based on an opinion of

the Nebraska Attorney General and confirmed by the re-

enactment of the applicable provisions of the act by the

Nebraska Legislature with the effect that all rates pro-

mulgated by the Nebraska Railway Commission prior to

August 27, 1951, were placed under a cloud of suspicion,

the Court of Appeals for the Eighth Circuit has so far

sanctioned a departure by the United States District

Court for the District of Nebraska from the accepted and

usual course of judicial proceedings as to call for an ex-

ercise of this court’s power of supervision.

III. In failing to remand the case to the United

States District Court with instructions to retain jurisdic-

tion for sufficient time to permit the parties to obtain an

authoritative ruling by the Nebraska Court on the va-

lidity of the rates involved and in refusing to stay the

proceedings in some other acceptable manner, the Court

of Appeals for the Eighth Circuit has decided a federal

question in a way probably in conflict with the applicable

decisions of this Court.

IV. In refusing to suspend or state its decision and

in declining to remand to the District Court with instruc-

tions to retain jurisdiction while the parties were given

an opportunity to obtain a definitive ruling of the Ne-

braska court, the Court of Appeals for the Eighth Circuit

rendered a decision in conflict with decisions of the Court

of Appeals for the Seventh Circuit.

ARGUMENT

Proposition I.

In holding that the word “rule’’ as used in the Ne-

braska filing statute encompassed the tariff schedules

promulgated by the Nebraska Railway Commission, the

Court of Appeals for the Eighth Circuit has decided an

important question of law in a way conflicting with appli-

cable Nebraska rulings.

The Nebraska filing statute was enacted in 1945 and

has not yet received judicial interpretation by the Ne-

braska courts. However, promptly after its enactment,

the Nebraska Railway Commission requested an opinion

from the Attorney General of Nebraska construing the

act and its applicability to the various tariff schedules and

general orders issued by the Railway Commission (Ap.

29-36). This request was honored by the Attorney Gen-

eral in an opinion dated July 16, 1945, in which, inter alia,

the Attorney General held that the provisions of the Ne-

braska filing statute requiring the filing of all adminis-

trative ‘‘rules’’ with the Secretary of State did not apply

to the tariff schedules promulgated by the Railway Com-

mission (Ap. 36-44). Acting in accordance with this opin-

jon, the Nebraska Railway Commission has not filed any

of its tariff schedules with the Secretary of State.

The opinion of the Attorney General has never been

withdrawn or amended in any way. To the best of peti-

tioner’s knowledge, it has never been challenged or ques-

tioned by or before any legislative, administrative or ju-

dicial officer of the State of Nebraska with the exception

of the action now pending before the District Court of

Lancaster County (R.25). The Nebraska filing act has

been twice amended, once in 1947 when the applicable

provisions of the act were re-enacted without change (Ap.

44-53), and once in 1951, when the legislature acted to re-

move prospectively the confusion created by the decision

of the United States District Court in this case (Ap. 53-

57).

Accordingly, the tariff schedules of the Nebraska Rail-

way Commission in Nebraska have been held not to be

included in the term ‘‘rules’’ as used in the Nebraska

filing statute. The only dissent from this interpretation

is the decision of the United States District Court in this

case.

The construction of a statute by the highest officer

of the Executive Department charged with its enforce-

ment is entitled to considerable respect and should not

and will not be set aside unless that construction contra-

venes the clear import of the statute. This doctrine has

received the frequent and emphatic approval of the Ne-

braska Court. Rohrer v. Hastings Brewery Co., 83 Neb.

111, 119 N. W. 27; Douglas County v. Vinsonhaler, 82 Neb.

810, 118 N. W. 1058; State ex rel Village of Dakota City

v. Bryan, 112 Neb. 692, 200 N. W. 870; Elmen v. State

Board of Equalization and Assessment, 120 Neb. 141, 231

N. W. 772; particularly where the Legislature has by its

non-interference or re-enactment of the law given its im-

plied assent to the construction adopted. Chicago & N. W.

R. Co. v. Bauman, 132 Neb. 67, 77, 271 N. W. 256. This

rule of law can, therefore, be taken to be firmly established

in Nebraska.

The interpretation of the District Court, as affirmed

by the Court of Appeals in this action, is diametrically

opposed to the interpretation of that statute by the Ne-

braska Attorney General adopted by the Nebraska Rail-

way Commission and confirmed by the Nebraska Legisla-

ture. No action by any Nebraska judicial, administrative

or legislative body is in accord with the interpretation

of the statute adopted by the Federal Courts. An ad-

ministrative interpretation confirmed by the Legislature

is conclusive in Nebraska and will not be set aside by the

courts unless clearly wrong. Petitioner submits that the

ruling of the District Court affirmed by the Court of

Appeals is, therefore, in conflict with the proper Nebraska

construction of this Nebraska statute.

Proposition II.

In declining to follow an administrative interpreta-

tion of a Nebraska statute based on an opinion of the

Nebraska Attorney General and confirmed by the re-enact-

ment of the applicable provisions of the act by the Ne-

braska Legislature with the effect that all rates promul-

gated by the Nebraska Railway Commission prior to Au-

gust 27, 1951, are placed under a cloud of suspicion, the

Court of Appeals for the Eighth Circuit has so far sanc-

tioned a departure by the United States District Court

for the District of Nebraska from the accepted and usual

course of judicial‘ proceedings as to call for an exercise

of this court’s power of supervision.

The District Court in dismissing the petitioner’s cause

of action wrote an opinion which had the effect of render-

ing questionable every rate charged by a domestic public

utility or common carrier in Nebraska and approved by

the Nebraska Railway Commission. The District Court

held that for any such rate to be valid, it must be filed

with the Secretary of State of Nebraska. None have been.

This ruling of the District Court was made despi‘e

the fact that the Nebraska Attorney General has spe-

cifically ruled that tariff schedules and their rates ap-

proved by the Nebraska Railway Commission need not

be filed with the Secretary of State under the provisions

of the Nebraska Filing Statute. It was made despite the

fact that for four years the Nebraska Railway Commis-

sion had adopted the interpretation of the act made by

the Attorney General and had refrained from filing any

tariff schedules with the Secretary of State. It was made

despite the fact that the Nebraska Legislature had amend-

ed and re-enacted the filing statute in 1947 after the opin-

ion of the Attorney General interpreting that statute as

applied to tariff schedules without changing the statutory

definition of ‘‘rules.’’ And it was made despite the fact

that prior to the present controversy the administrative

interpretation of the statute had not been challenged in

any forum in Nebraska. What was settled administrative

law in Nebraska was rendered unsettled by the District

Court. To justify the action of the-Court, the Nebraska

construction of the act must be clearly wrong.

It is acknowledged in Nebraska that administrative

construction of a statute by officer of the state charged

with its enforcement is entitled to great weight particu-

larly where that interpretation has had the benefit of

years of application and has been undisturbed and con-

firmed by the Legislature. Only where the interpreta-

tion cannot be justified by any reasonable construction of

the statute should it be set aside even by a court of the

state. Rohrer v. Hastings Brewery Co., 83 Neb. 111, 119

N. W. 27; Douglas County, Neb. v. Vinsonhaler, 82 Neb.

810, 118 N, W. 1058; State ex Rel. Village of Dakota City

v. Bryan, 112 Neb. 692, 200 N. W. 870; Chicago & North

Western Railway Co. v. Baumam, 132 Neb. 67, 271 N. W.

256.

Likewise, the rule that the construction of a statute

by officers charged with its interpretation and execution

will not be set aside by the courts except for the most

cogent reasons, has long been firmly adhered to by the

Federal Courts, particularly by this Court. So. Pac. Co.

v. U. 8., 59 8. Ct. 923, 307 U. S. 393, 83 L. Ed. 1363; U.S.

v. American Trucking Assns., 60 8. Ct. 1059, 310 U. S. 534,

84 L. Ed. 1345; Fleming v. Mohawk Wrecking & Lumber

Co., 67 S. Ct. 1129, 331 U. S. 111, 91 L. Ed. 1375; Billings

v. Truesdell, 64 S. Ct. 737, 311 U. S. 542, 88 L. Ed. 917;

Levinson v. Spector Motor Service, 67 S. Ct. 931, 330 U.S.

649, 91 L. Ed. 1158; Adams v. U. S., 63 S. Ct. 1122, 319

U.S. 31, 87 L. Ed. 1421; Bowtell v. Walling, 66 S. Ct. 631,

327 U. S. 463, 90 L. Ed. 786. This should be particularly

true where the statute involved is a state statute which

has been interpreted by the state authorities charged with

its administration. Phyle v. Duffy, 68 S. Ct. 1131, 334 U.

S. 431, 92 L. Ed. 1494.

The last case exemplifies the position which, it is sub-

mitted, the District Court and the Court of Appeals

should rightfully have followed in the present action

since it gives an insight into the approach of this court

to rulings of state attorney generals. The court there

said:

‘“‘The Attorney General is the highest non-ju-

dicial legal officer of California and is particularly

charged with the duty of supervising administration

of the criminal laws. His statement on this question

ee ae eee oe NLA PRN ISMN USNS RN at es

is entitled to great weight in the absence of control-

ling state statutes and court decisions.’’

Phyle v. Duffy, supra.

The construction given to the act by the District

Court is not demanded by the clear import of the statute.

The act nowhere mentions rates. The purpose of the act

is to make available rules and regulations of administra-

tive agencies in Nebraska which were not then easily ob-

tainable. All tariff schedules adopted by the Nebraska

Railway Commission are published as required by law

and can be obtained from the public utility or common

carrier rendering the service subject to the rates. In de-

fining its terms, the act states that rules are rules.

‘‘Rule means the written statement of any rule,

regulation, standard or policy of general applica-

tion ** * Posi

84-901 R.R.S. Nebr. 1943.

Does this definition clearly include rates? The Nebraska

Railway Commission thought not. The Nebraska Attor-

ney General thought not. Only the United States District

Court and the Court of Appeals have thought that it did.

Petitioner contends that at the very least the question as

to whether rates are included within the term ‘‘rules’’ is

a matter of serious doubt in which the administrative in-

terpretation was entitled to substantial weight not given

to it by the District Court.

The District Court sought to find support for its po-

sition in the report of the Nebraska Bar Association Com-

mittee recommending the legislation. A careful reading,

however, of this report clearly shows that the committee

did not have in mind the rates and tariff schedules adopt-

ed by the Railway Commission in recommending this leg-

islation. The District Court refers to the paragraph in

that report in which the committee stated that the most

striking illustration of the substantive rule-making power

in Nebraska is the authority of the Railway Commission

under Article 4, Section 20 of the Constitution, in the ab-

sence of legislation to regulate the rates and service of

common carriers. The District Court, however, failed to

note that it was the power of the Commission to regulate

the service of common carriers which was discussed in the

balance of the same paragraph which the committee sin-

gled out.

‘‘Under this provision, the Commission * * * may

and does adopt regulations of a general legislative

character. Its action in this behalf is usually taken

by what it calls general orders.’’ (Ap. 9.)

It was the unavailability of these general orders of

the Railway Commission and not the rates promulgated by

it that caused concern to the Bar Association Committee.

The same error appears in the opinion of the Court

of Appeals (R.49), where the Court again fails to dis-

tinguish between these ‘‘general orders or regulations”

issued by the Railway Commission and the rates published

under its auspices. The petitioner wishes to call the

court’s attention to the summary of the Nebraska Bar

Association Committee in the action of the report on this

problem.

‘‘There seems to be no practical source from

which a lawyer could learn what general orders or

regulations of the Railway Commission are now in

force. Indeed, its rules of practice seem to be avail-

able only by consulting a typewritten copy at the

Commission’s office. It seems clear that regulations

of continuing force having the same effect as a leg-

islative enactment should be published and acceptable

to attorneys and others interested.

‘‘Requirements for publication should be de-

signed to serve a practical and not merely a formal

purpose.’’ (Ap. 9-10.)

It is submitted that neither the District Court nor

the Court of Appeals gave the proper consideration to

the established administrative construction of the Ne-

braska Filing Statute or to the effect which the overruling

of that construction would have in Nebraska, and that,

consequently, the action of the District Court affirmed by

the Court of Appeals in dismissing the petitioner’s cause

of action is such a departure from the normal and usual

course of judicial procedure as to call for the supervisory

powers of this court.

Proposition ITI.

In failing to remand the case to the United States

District Court with instructions to retain jurisdiction for

sufficient time to permit the parties to obtain an authorita-

tive ruling by the Nebraska Court on the validity of the

rates involved and in refusing to stay the proceedings

in some other acceptable manner, the Court of Appeals

for the Eighth Circuit has decided a federal question in

a way probably in conflict with the applicable decisions

of this Court.

The problem presented by this case and the decision

thereon made by the District Court highlight the impor-

tance of maintaining harmonious relations between par-

allel svstems of state and federal courts. Where, as here,

Wee eee

PR SRN AZIM SE

a decision of the District Court would act only as a fore-

cast of the ultimate and authoritative interpretation of

a state statute by the state court, this court has on nu-

merous occasions indicated that the proper procedure to

be followed should be the referral of the state statute to

the state court for its interpretation. City of Chicago v.

Fieldcrest Dairies, Inc., 316 U. S. 168, 62 S. Ct. 986; Mark-

ham v. Allen, 326 U.S. 490, 66 S. Ct. 296; Meredith v.

Winter Haven, 320 U.S. 228, 64 S. Ct. 7; Propper v.

Clark, 337 U. S. 472, 69 S. Ct. 1333; Railroad Commission

v. Rowan & Nichols Oil Co., 311 U.S. 570, 61 S. Ct. 343;

Railroad Commission of Texas v. Pullman Co., 312 U.S.

496, 61 S. Ct. 463; Shipman v. Du Pre, 329 U.S. 321, 70

S. Ct. 640; Spector Motor Service v. McLaughlin, 323 U.S.

101, 65 S. Ct. 152; Thompson v. Magnolia Petroleum Co.,

309 U. S. 476, 60 S. Ct. 628.

While it is true, as pointed out by the Court cf Ap-

peals in its order overruling petitioner’s petition for re-

hearing that the majority of these cases involve the

court’s equity power, the fact that the case was not in

equity has not prevented this court from following this

procedure. Shipman v. Du Pre, 329 U.S. 321, 70 8. Ct.

640 (declaratory judgment). It is likewise true that

the general power of the court to control the course

of litigation before it gives the court ample authority

to stay the progress of that litigation, if in the inter-

ests of the proper administration of justice it is nec-

essary to do so in order to obtain additional informa-

tion required for the proper disposition of the action.

Thus in Soulard v. U.S., 4 Pet. (U. S.) 511, 7 L. Ed. 938,

Chief Justice Marshall, speaking for the court in an action

involving title to lands acquired by the United States in

the Louisiana purchase, stated:

“If the duty of deciding on these various titles

is transferred by the Government to the Judicial De-

partment, the laws and principles on which they de-

pend ought to be supplied. The edicts of the preced-

ing governments in relation to the ceded territory,

the powers given to the governors, whether expressed

in their commissions, or in special instructions, and

the powers conferred on and exercised by the deputy

governors, and their inferior officers, who may have

been authorized to allow the inception of title, are

all material to the correct decision of the cases now

before the ocurt, and which may come before it. We

cannot doubt the disposition of the government to

furnish this information if it be attainable. We are

far from being confident that it is attainable; but we

have determined to hold the cases which have been

argued under advisement, until the next term, in the

hope that, in the meantime, we may be relieved from

the necessity of deciding conjecturally on interests of

great importance.’’ (Emphasis added.)

And in other cases similar to this action, the Courts

of Appeal, in actions at law and statutory proceedings,

have not hesitated to retain jurisdiction of an action pend-

ing a decision by a state court on a matter of state law.

Yellow Cab Co. v. City of Chicago (7th Cireuit), 186 F.

(2d) 946; U. 8. v. 150.29 Acres of Land (7th Circuit), 135

F. (2d) 878, cert. denied, 325 U. S. 882, 883, 65 S. Ct. 1576,

89 L. Ed. 1998.

It is likewise true that most of the cases in which this

court has authorized the submission of a state issue to

the state court have involved actions in which the con-

stitutionality of a state statute, local ordinance or ad-

ministrative ruling has been questioned, and the court has

emphasized the desirability of avoiding unnecessary de-

ee sree e eee nnmensonynenmemenenncmmnmnnnenemennenn

cisions of a constitutional issue. Propper v. Clark, 337 U.

S. 427, 69 S. Ct. 1333. This, however, is only one reason

for referring state issues to state courts for determina-

tion. The desirability of avoiding an unnecessary con-

struction of state law involving the public interests of the

State as well as substantial property interests has like-

wise been recognized as a reason for such referral. Thomp-

son v. Magnolia Petroleum Co., 309 U. S. 478, 60 S. Ct.

628, 84 L. Ed. 876.

‘*For we are here concerned with the much larger

issue as to the appropriate relationship between fed-

eral and state authorities functioning as a harmonious

whole.’’

Chicago v. Fieldcrest Dairies, 316 U. S. 168, 173,

62 S. Ct. 986, 988, 86 L. Ed. 1355.

‘<These cases reflect a doctrine of abstention ap-

propriate to our federal system whereby the federal

courts exercising a wise discretion restrain their au-

thority because of a ‘scrupulous regard for the right-

ful independence of state governments’ and for the

smooth working of the federal judiciary.’’

Railroad Commission of Texas v. Pullman Co.,

312 U. S. 496, 501, 61 S. Ct. 643, 645, 85 L. Ed.

971.

Where, as here, a decision of a federal court places

in jeopardy all of the rates adopted by the state ad-

ministrative agency authorized by state constitution and

statutes to regulate all of the public utilities and common

carriers within the state not subject to federal control, a

scrupulous regard for the rightful independence of state

governments and for the smooth working of the federal

judiciary would seem to call for an abstention by the

federal court and the referral of the state issue to the

state courts.

Proposition IV.

In refusing to suspend or stay its decision and in de-

clining to remand to the District Court with instructions

to retain jurisdiction while the parties were given an op-

portunity to obtain a definitive ruling of the Nebraska

court, the Court of Appeals for the Eighth Circuit ren-

dered a decision in conflict with decisions of the Court of

Appeals for the Seventh Circuit.

In refusing to stay its hand until the prime question

of Nebraska law had been settled by the Nebraska courts,

the Court of Appeals of the Eighth Circuit placed

itself in direct conflict with two decisions of the Court of

Appeals for the Seventh Circuit. The Eighth Circuit

appears to have based its refusal to stay the proceedings

solely on the ground that the present action is an action

at law and not an action in equity, and in support of its

position cites Winterhaven, et al. v. Meredith, 230 U. S.

228, 234. The court in its per curiam opinion overruling

appellants’ motion for rehearing, went on to say:

‘‘Had we the power to suspend or stay decision

here (in some proper form and upon suitable terms)

we would be inclined to do so.’’ (R. 97.)

thus clearly indicating that the court was disposed to

grant a stay but felt itself powerless to act.

This position is diametrically opposed to the recent

action of the Court of Appeals for the Seventh Circuit

in Yellow Cab Co. v. City of Chicago, 186 Fed. (2d) 946.

There the Court of Appeals had before it an action for

damages by the Yellow Cab Company for an alleged

breach of contract by the City of Chicago arising out of

the granting of taxicab licenses in excess of the number

specified in a 1945 ordinance enacted pursuant to a con-

Lis

tract between Yellow Cab Co. and the City of Chicago.

The Court of Appeals for the Seventh Circuit was not

impressed by the fact that this was an action at law

seeking a personal judgment for money. It was im-

pressed by the fact that the question presented was one

of purely local law on which the Illinois courts had not

had an opportunity to pass, and that a decision by the

Federal courts would amount only to a forecast of what

the Illinois courts would hold. Accordingly the Court of

Appeals held that the District Court had erred in dis-

missing the complaint on the ground that it did not state

a cause of action.

‘‘But beyond any vain prognostication as to

what the Supreme Court of Illinois would decide

* * * we are unable to say what the law of Illinois is.

‘It is not our role to attempt to make the sub-

stantive law of Illinois. It is rather our limited func-

tion to ascertain what that law is to give it effect

in our decisions. * * *

‘‘So here, where the question is solely one of

Illinois law, we think it our duty to remand the

cause to the District Court, insofar as it relates to

an action for damages ex contractu and to direct

that court to retain jurisdiction without further ac-

tion until the parties shall have had an opportunity

to obtain an authoritative decision in the courts of

Tilinois.”’

Yellow Cab Co. v. City of Chicago, 186 F. (2d)

946.

The Court of Appeals for the Seventh Circuit had

previously had before it an action brought by the United

States of America to condemn 150.29 acres in Milwaukee

on an appeal from the decree of the District Court. One

of the questions presented by the appellants was the

priority of a certain lien for taxes. This was a statutory

proceeding. Yet the court again did not hesitate to re-

fer the question of Wisconsin law to the Wisconsin

courts and to order the District Court to retain juris-

diction of the case until the parties had had an oppor-

tunity to secure that interpretation.

| ‘“‘On the second question, as to when the lien

| for taxes attached, we are unable from an examina-

tion of the authorities to answer to our satisfaction

the question as to when the lien for taxes does at-

tach under Wisconsin law. This is a matter of vital

concern to Wisconsin. We hesitate to intrude our-

selves into a situation that requires us to make a

decision as to what the law of Wisconsin is, when

we are unable to discern with assurance what that

law is. Since we are in doubt as to what the law

of Wisconsin is on that point, we think it advisable

to remand the case to the District Court with in-

structions to retain jurisdiction until the parties can

seek the answer to this question in the courts of

Wisconsin.”’

United States v. 150.29 Acres of Land, 135 F.

(2d) 878, 881, cert. denied, 325 U.S. 882, 883;

65 S. Ct. 1576; 89 L. Ed. 1998.

The Court of Appeals for the Eighth Circuit, in

stating its regrets that it was powerless to act, indicated

it was persuaded that the question of interpretation of

the Nebraska filing statute was one of vital importance

to the State of Nebraska, and one which would have been

referred to the courts of Nebraska had the action been

phrased in equity rather than in law. The Court of

Appeals of the Seventh Circuit, by its decisions, has re-

vealed that the nature of the problem and its public in-

terest, rather than the chance circumstance of law or

—— % se Se in ne a

equity, controls its decision as to whether the state courts

shall be consulted on questions of state law. Thus a

conflict exists which calls for a definitive ruling by this

court.

fy.

CONCLUSION

Petitioner submits that the decision of the Court of

Appeals sought to be reviewed is in conflict with the de-

cisions of the Court of Appeals for the Seventh Circuit,

that it decides an important question of Nebraska law in

a way conflicting with applicable Nebraska rulings and an

important question of federal law in a way conflicting

with applicable decisions of this court. In addition the

petitioner submits the decision is so contrary to the ac-

cepted and usual course of judicial proceedings that it

should and of rights ought to be reversed and the peti-

tioner’s cause of action reinstated in the United States

District Court. Wherefore the petitioner respectfully

prays for a writ of certiorari to the Court of Appeals

for the Eighth Circuit to review the decision of that

court in this case. ear:

Respectfully submitted,

Ernar VIREN,

Swenson, Viren and Turner,

Attorneys for Petitioner.

vilice-Supree Court, U. S,

0 FiLED

SEP 25 195)

In the “

Supreme Court of the United iene

OCTOBER TERM, 1951

JOSEPH MOGIS,

Petitioner,

vs.

LYMAN-RICHEY SAND & GRAVEL CORPORATION,

A CORPORATION,

Respondent.

— .

APPENDIX TO PETITION FOR CERTIORARI

AND BRIEF IN SUPPORT THEREOF

Ernarn VIREN,

Swenson, Viren & TURNER,

Attorneys for Petitioner.

COCKLE PRINTING COMPANY, LAW BRIEFS, OMAHA

INDEX

Page

Report of the Special Committee on Administrative

Agencies and Tribunals, Nebraska Bar Association... 1

Legislative History, L. B. 138, 1945 18

Text, L. B. 138, 1945 23

Legislative History, L. B. 388, 1945 25

Request for Opinion of Attorney General 2 cecccce 29

Opinion of Attorney General 36

Legislative History, L. B. 399, 1947 44

Text, L. B. 399, 1947 49

Legislative History, L. B. 241, 1951 53

Text, L. B. 241, 1951 ...... 56

_— Semich eet PENRO POETS AAO IO ANY HELENE NRE, PE LMR TILES NTI AAT EY HPN ME

RP OORT

In the

Supreme Court of the United States

OCTOBER TERM, 1951

JOSEPH MOGIS,

Petitioner,

vs.

LYMAN-RICHEY SAND & GRAVEL CORPORATION,

A CORPORATION,

Respondent.

ft.

APPENDIX TO PETITION FOR CERTIORARI

AND BRIEF IN SUPPORT THEREOF

t).

REPORT OF THE SPECIAL COMMITTEE ON

ADMINISTRATIVE AGENCIES AND TRIBUNALS

Vol. 22, Nebr. Law Review No. 4, pp. 29-39

‘‘This committee is charged with the responsibil-

ity of considering the functioning of administrative

agencies and tribunals of this state and the provi-

sions for review of their decisions, with reeommenda-

tions for reform; and to study the reasons for ‘the

decline in the use of their services by members of

the legal profession,’ and recommend any remedies

it may have.

‘“‘The committee assumes that the joinder of

these two responsibilities was not without signifi-

cance. It is taken to be a reflection of the belief that

a process is going on by which the function of the

lawyer is being minimized through new governmental

machinery and methods of procedure. Later in this

report we shall examine this premise, and relate the

results of our study in this regard.

‘We cannot assume, however, that this associa-

tion is interested in administrative tribunals only

as they may be associated with enhanced professional

employment. Hence our principal purpose has been

to consider the place and functioning of these agen-

cies in Nebraska entirely from the standpoint of

the interest of the public in their operation. The

reader of this report will be saved from disappoint-

ment if we say at the outset that the results of our

study are general and it may be superficial. The sub-

ject is entirely beyond the bounds of what can be

dealt with on the basis of a brief spare-time assign-

ment.

PRELIMINARY CONSIDERATIONS

‘‘One of the first reflections which is borne in

upon the student of this subject is that the problem

does not separate itself for consideration as sharp-

ly as he might wish. In our own state there are a few

agencies specially constituted to exercise regulatory

functions in certain fields, notably the State Railway

Commission, which we recognize as typical of our

problem. But we see other important regulatory func-

tions lodged in other departments of government

where their administration is mingled with activities

of wholly different character. This is illustrated by

the Department of Roads and Irrigation, which has

important administrative functions covering the use

of water for irrigation and other purposes, along

with the function of constructing and maintaining

the state highway system. The result is that many

administrative powers are being exercised by de-

partments of government which would not ordinarily

be referred to at all as administrative tribunals.

*“‘It has been the natural and proper concern of

our profession that administrative bodies at times

exercised their powers without adequate protection

against arbitrary action through procedural safe-

guards and judicial review. The comment seems jus-

tified that at times this concern is directed most

strongly at those departments and agencies special-

ly set up and recognized as administrative tribunals,

where in truth these safeguards are best observed,

while neglecting other departments of government

exercising similar powers with little regard for the

restraints of procedural due process.

‘It may be conceded that there is much regula-

tory activity in the fields of public health and public

safety where summary procedures are necessary and

proper. However, our interest in the administrative

process should not be diverted from a particular gov-

ernmental activity because its habitual or prescribed

procedures are summary. Attention has recently been

directed to the extent to which among our state gov-

ernments the exercise of the licensing power is unre-

strained. By the same token, criticism should not be

reserved entirely for the derelictions of those agen-

cies which have attained a high degree of dependable

regularity in their procedural methods.

‘‘We have made no attempt to determine how

many administrative agencies could be identified in

the state government of Nebrasba. The Attorney

General’s Committee on Administrative Procedure

lists 28 in the federal government, but this list treats

as a single agency each of the major executive de-

partments, and other agencies, such as the Federal

Security Agency, which administer many different

functions under numerous divisions, offices, boards,

administrations and the like. Report of Attorney

General’s Committee, pp. 3-4. Landis quotes other

estimates as ranging from 50 to 115. The committee

on administrative law of the Minnesota State Bar

Association reports that it considers there are some

53 administrative agencies in that state.

‘*We have indicated that it would be wholly arti-

ficial to think the problem related only to boards and

commissions as such. It inheres in the kind of func-

tion being administered rather than in the kind of

tribunal which is administering it. Indeed, the habit

seems to have been more marked in Nebraska than

in some other states to vest important administrative

power in regular officers or departments of govern-

ment rather than in commissions. Generally, how-

ever, it is difficult to see any clear line of develop-

ment in this respect. In 1933 the Special Committee

on Administrative Law of the American Bar Asso-

ciation observed a ‘marked tendency’ in this direc-

tion in recent federal legislation. 58 A. B. A. Rep. 416.

Since then several very important boards and com-

missions have been created, and it would now be

doubtful if the last ten vears have followed anv

pattern in this regard.

‘At the same time, it would be unprofitable to

attempt a precise definition of what is to be under-

stood by the term ‘administrative’ as applied either

to an office or a function. We shall be understood

equally well if we leave the field indistinct at its

houndaries.

‘‘Much of the criticism which appears to be

directed at the methods of procedure of these agen-

cies is in truth a criticism of the existence of govern-

mental activity in the particular field in question. The

extension of governmental activity in recent periods

of time has, of course, been enormous. Political con-

trols have been introduced into many phases of

economic life. For good or ill this has been going

on all over the world, but this committee was not

constituted to deal with this problem. It is charged

with considering the methods by which this extending

governmental activity is administered.

‘‘Some other criticism is actually criticism of

individuals. We are not likely to think well of pro-

cedures which are administered by those we distrust.

It is not too much to say that the general satisfaction

in this state with methods of administrative proced-

ure is associated with a generally high level of com-

petency and integrity among those charged with

their administration. Many feel that here alone can

there be adequate protection of fundamental rights.

‘‘The forms in which these agencies act, and

the means by which a review may be had of their

acts in the courts are the subject of our study. We

have thought it wise to confine particular considera-

tion to a few agencies. Anything more han this

would have been impracticable. There are other

agencies in the state of great importance; there are

many others of varying degrees of importance. We

have reason to believe that those studied are typical

enough to illustrate anything of general significance.

‘*A complete description of the functions of even

these agencies would be much too tedious for such

a report as this. What follows is in the nature of

some general observations concerning problems of

administrative procedure as they appear in this state

from a consideration of these agencies. Specific sug-

gestions for reform are few. This will not be surpris-

ing to many. There may be less than the usual basis

for complaint in Nebraska; in some cases evils may

seem less acute in fields where the ohserver is more

at home; principally, it reflects the fact that excel-

lence of administration depends far more on people

and purpose than it does on forms or methods.

JUDICIAL REVIEW

‘‘Great variety characterizes the provisions for

judicial review of administrative action in this state.

It may lie in a district court or in the supreme court;

it may be upon the record made before the admin-

istrative body or upon new evidence; it may be a

trial de novo or not; varying degrees of conclusive-

ness may attend the administrative decision. Prob-

ably some of this variety is nothing more than hap-

hazard. The importance of judicial review warrants

thoughtfulness and continued study. It does not fol-

low, however, that there is any vice in mere variety.

It is the judgment of this committee that the great

variety of administrative function precludes any uni-

form system of judicial review.

‘‘The habitual confidence of lawyers in the courts

leads them to look with distrust on clothing admin-

istrative decisions with finality. Naturally this aspect

of administrative law has been of most interest to

them. In the nature of things judicial review is the

only aspect of administrative procedure with which

the courts are concerned, and it is the subject mat-

ter of discussion in judicial decisions. It results that

much thought has been devoted to the problem as to

what should be the scope of judicial review. Many

refinements have been suggested and appear in var-

ious statutes. This committee has several comments

upon this subject.

‘‘ Judicial review at best is an inadequate guaran-

tee of good administrative procedure and results.

Anyone who has long observed appellate review of

cases tried in the lower courts knows that a very

great part of what goes on in the trial court is not

subject to any effective review. The necessity for

this is brought ahout hy the requirements of handling

‘

judicial business. The same conditions are bound

to prevail as between administrative bodies and the

reviewing courts,

‘*The moral would seem to be that improvement

in administrative procedure must come principally

from attention directly to the practices and personnel

of the agency itself rather than through the medium

of judicial control and review.

‘“‘The necessity of judicial review, of course,

still remains, and the definition of the scope which

it ought to have is proper for study, but it should

not be the entire reliance of those interested in im-

proved administrative procedure. Indeed, the ac-

tual scope of judicial review may depend much less

on the avowed boundaries as they appear in a statute

or set of decisions, than upon the underlying and

perhaps unspoken attitude of the courts to the agency

or subject matter in question.

‘*In this connection it should be remembered that

a measure of conclusiveness of administrative deci-

sion is not wholly an invention of the legislature. The

courts at times have placed limitations upon them-

selves quite beyond statutory compulsion. The con-

stitutional federal courts have adopted a restricted

view of their authority to review ordinary fact de-

terminations of administrative agencies. See also

Furstenberg v. Omaha & C. B. St. Ry. Co., 132 Neb.

562, 272 N. W. 756, 760. In the federal field, this has

led to suggestions for the creation of special review

tribunals, and of an administrative ‘court’. These

are primarily suggestions for administrative rather

than judicial review. Experience in the field of ap-

pellate judicial procedure does not suggest that a

multiplicity of suecesive appeals is any guarantee

of justice.

‘A general view of this matter in Nebraska in-

dicates that both in statutory pattern and judicial de-

cisions extremes have heen avoided. Tt is common

—_—— SEPT NERO EE TEILEING LLG AKON EERE LIVE ACLS 2 ALOT EE TESLA AOR OR OAS

to provide for a review upon the record before the

board or agency, with or without other evidence.

Sometimes it is provided that the trial shall be de

novo. In several instances a direct appeal to the

Supreme Court is provided with a review based on

the record made before the agency. This is illustrat-

ed by appeals from the Railway Commission C. S.

Sec. 75-505, and in certain cases from the Department

of Roads and Irrigation, Sec. 81-6315. Whatever

the court may have said about the conclusiveness of

administrative findings, it has on various occasions

found it appropriate to set aside such determinations.

ADMINISTRATIVE RULES AND REGULATIONS

‘It is of the essence of the administrative proc-

ess that application is made to specific situations of

much more general statutory standards and purposes.

This may proceed in a case by case manner, or it

may be facilitated by the adoption by the agency of

rules which will govern its application of the statute.

These substantive rules should be distinguished from

mere rules of procedure and practice. The scope and

necessity for rules of the latter type in any agency

will depend upon the formality of its procedures and

upon the extent to which the legislature has failed

to provide detailed procedural steps. Whether for-

malized and published or not, every department of

government must have rules for conducting its af-

fairs. Some of the agencies we have studied have

written rules of practice; others do not have them

to the same extent. This suhject seems to have been

dealt with adequately.

‘‘Statutes often authorize agencies to make such

regulations, consistent with the statute, as may be

needed to carry out its provisions. This process of

substantive rule-making has been much studied by

those interested in the improvement of administra-

tive procedure.

ae ccbeeahiacia ——

‘‘Perhaps the most striking illustration of the

substantive rule-making power in Nebraska is in

the authority of the Railway Commission under Ar-

ticle IV, Section 20, of the Constitution, in the ab-

sence of legislation, to regulate the rates and service

of common carriers. Under this provision, the Com-

mission not only may take specific action directed

at a particular carrier; it may and does adopt regu-

lations of a general legislative character. Its action

in this behalf is usually taken by what it calls gen-

eral orders. Their adoption seems to be taken only

after hearing or opportunity for hearing. Under

these orders or rules, the Commission has provided

comprehensively for the regulation of taxicab com-

panies, it has forbidden extension into new territory

by certain utilities without a certificate: it has taken

other important action.

“‘The nature and scope of the rules adopted by

other agencies in Nebraska are not a matter of spe-

cial interest. We wish to direct attention only to the

lack of generally effective means of publishing and

making available the rules so adopted. No doubt in

practice most businessmen and others interested keep

currently informed as to regulations of these agen-

cies affecting their particular affairs. Much of the

material is readily available. Some regulations are

required by statute to be printed and made publicly

available; some are required to be filed with the

Secretary of State, e. g., rules of the Division of

Placement and Unemployment Insurance.

‘‘This is not universally true, however. The com-

mittee wishes to call attention to what it regards as

an unsatisfactory situation in this respect. There

seems to be no practicable source from which a law-

yer could learn what general orders or regulations

of the Railway Commission are now in force. Indeed,

its rules of practice seem to be available only by con-

sulting a typewritten copy at the Commission’s of-

fice. Tt seems clear that regulations of continuing

— PONSA ROTOR REE NIETO ER NOE ET 8 BSED INP SS BE IHG AEN PND I LIES DEI TE eee

force having the same effect as a legislative enact-

ment should be published and accessible to attorneys

and others interested.

‘We express our belief in the desirability of a

requirement for filing regulations in some designated

registry, such as the Office of the Secretary of State,

and otherwise making them publicly available. Re-

quirements for publication should be designed to

serve a practical and not a merely formal purpose.

Several states have adopted statutes in recent years

to insure the availability and public knowledge of

administrative regulations. The usefulness of the

Federal Register is familiar to all.

SEPARATION OF FUNCTIONS

‘“‘One of the commonest suggestions for admin-

istrative reform is for the separation of the function

of prosecution from that of judging. Recommenda-

tions for action in the federal field recently have em-

braced proposals for independently appointed hear-

ing commissioners with adequate salaries and long

terms of office.

‘‘It is not the purpose of this committee to con-

sider this problem comprehensively. We make sev-

eral observations. This problem presents itself par-

ticularly with those agencies which chiefly initiate

regulatory proceedings, rather than those which prin-

cipally pass upon complaints or applications pre-

sented to them. The problem is prominent where

the prosecuting function is important. It may be that

the problem is not so much the difficulty of secur-

ing unbiased adjudication, as it is in the possibility

of unrestrained and irresponsible prosecution. There

are many situations where the institution of proceed-

ings with attendant publicity may be more serious

than any order which may finally emerge. Independ-

ent adjudication is certainly an incomplete protec-

tion against administrative oppression. In some sit-

uations it might even tend to make the initiation of

prosecution less responsible than it would otherwise

be.

‘‘While the creation of a corps of independent

and expert trial examiners is quite feasible for the

great federal commissions, it is hardly practicable

for such agencies as might present such a problem

in this state. In few cases is the importance of the

authority exercised by them fairly measured by the

frequency of formal adjudication following adversary

proceedings.

UNIFORMITY OF PROCEDURE

‘‘Proposals for reform of administrative pro-

cedure often take the shape of a suggested statute

prescribing a code of uniform procedure for admin-

istrative agencies. Some of the suggestions for re-

form of federal administrative agencies have been

of this kind.

‘It may be agreed that it might be practicable

to prescribe in this manner some minimum require-

ments suitable to all agencies. Something of this

sort is the objective of the proposed Uniform Ad-

ministrative Procedure Act, now being given ad-

vanced consideration by the Conference of Commis-

sioners on Uniform State Laws. It would cover such

matters as filing and publishing rules, making de-

elaratory rulings, general provisions governing no-

tice and hearings in contested matters, judicial re-

view, ete.

“It would be pleasant, of course, if administra-

tive procedure could be reformed and perfected by

a single statute. But the problem is not so simple.

We referred earlier in this report to the variety of

function and of agency involved in the administra-

tive process. Some deal principally with a vast num-

ber of simple transactions, others with a few compli-

cated ones. Some of these matters lend themselves

to formal treatment through evidence in the manner

of a lawsuit, others do not. Some permit great delib-

eration, while others must be acted on at once.

**It is believed that any single method of pro-

cedure which might be appropriate for agencies

where hearings are typically formal and the subject

matter capable of testimonial treatment, would be

wholly unworkable for agencies which handle many

matters informally and where judgment must rest

upon criteria of different character. Calling a great

variety of governmental functions ‘administrative’

does not make them all alike.

‘We are bound to be skeptical of any simple so-

lution of so complex a problem. It is believed that

there are three courses worth following:

‘‘1. Attention to each existing or proposed

agency to insure that the statute under which it is

to operate is as free as possible from imperfections.

The result will be only such uniformity as is con-

sistent with the variety of problems dealt with.

‘*2. The achievement of as high a degree of

competence in personnel as is possible. Improvement

in the forms of procedure will be a very barren thing

if there is deterioration in the worthiness of those

who administer them. This involves concern about

the qualifications of both the elected or appointed

agency heads and also the staff of the agency.

‘*3. The development of a tradition of excel-

lence of workmanship in the administrative process

itself. This implies the development of standards,

with attendant freedom from the influence of preju-

dice, political pressure or expediency.

‘‘The second matter with which the committee is

charged has to do with legal employment in its re-

Aa RIS

lation to the growth of the administrative process.

Presently existing conditions preclude any current

appraisal which would be reliable. The immediate

past President of the American Bar Association re-

cently said:

‘« “Kiver since our generation has been admit-

ted to the Bar or, roughly, for that length of

time, there has been alarm among the members

of the Bar with the ‘‘overcrowding’’ of the Bar,

the surplusage of lawyers, their interference

economically with one another, because there

are too many of them and they are too easy to

employ. That situation, at least for the first

time in my lifetime, is changing. There is def-

initely growing in this country and already has

appeared in several localities and in several lines

of occupation, a shortage of lawyers. Lately

we have been trying to increase the supply of

lawyers, whereas a few months ago we were try-

ing to increase the demand for them. There is

no doubt that governmental offices, municipal,

state and federal, are facing a dearth of lawyers,

notwithstanding the cartoons about 2700 lawvers

in the OPA.’

‘On some fairer day, however, our brethren will

come back from the service, the law schools will re-

open their doors, and we shall have occasion to think

of things at longer range. We may now properly

look at some of these things which pertain to the

long run.

‘‘It must surely be regarded as anomalous if

there should be a decline in the requirements for

legal services in the face of a vast expansion of the

application of law to private life and affairs. There

may be periods of transition, but it seems unlikely

that if the role of government is to continue to mount,

the place of the lawyers will become less. This could

only result from a fatal incapacity of lawyers to ad-

just themselves to a changing society.

— ELT ONG SORT NE LE ee Ra ES FEET RIOT fn

‘*No doubt some of the older conventional sourc-

es and types of law business are drying up. To a

limited extent this has been contributed to by the

development of administrative machinery. The read-

iest example is in the case of workmen’s compensa-

tion legislation, superseding the former field of mas-

ter-servant litigation. In theory, a judicial remedy

against common carriers for unreasonable charges

was supplanted when public utility commissions were

established. On balance, however, it can hardly be

said that the development of administrative tribunals

-has reduced the field of professional employment for

lawyers. If the amount of legal employment has been

shrinking, the reason must be sought elsewhere.

‘“‘An extremely direct approach to the problem

is the suggestion in one form or another that prac-

tice before administrative agencies be limited to law-

yers. Our supreme court had occasion recently to

consider to what extent practice before the Railway

Commission is the practice of law. State ex rel

Johnson v. Child, 139 Neb. 91, 295 N. W. 381. For

the protection of the public as well as for its own

protection, the bar should be as zealous here as else-

where to see that laymen do not practice law. But

the truth is that only a few agencies in this state

conduct hearings with any frequency; the great mass

of their business is dispatched without formal ad-

versary proceedings of any kind.

‘This committee believes that there is a greater

place for lawyers in this process than they have so

far occupied. Its doubts are grave that such a place

can be effectively made by artificial or restrictive

measures.

‘*One characteristic of present-day activity seems

to be that its legal aspects are more dispersed than

formerly. The making of a will, the purchase of real

estate, the organization of a corporation—these and

other usual legal matters are such as hefit the hahitu-

al procedures incident to consulting a lawyer. On

the other hand, the impact of much of modern ad-

ministrative control of business is a continuous thing,

often of daily or hourly concern. The business man-

ager is uncertain how much he ought to expect a

lawyer to know about the matter, and it may seem

to present an immediate occasion quite inadequate

to warrant consulting him. So we find systems of

governmental control of price, of wages, of hiring,

of production, of great areas of economic life de-

veloping and being applied with very little partici-

pation by lawyers acting for or advising those who

are subject to the controls. The employment by the

government of lawyers in large numbers in prepar-

ing and applying these regulations suggests that the

field is not foreign to our profession.

‘‘Now much of this is a wartime condition and

much of this governmental regulation we expect to

disappear. But much was here before the war and

much will remain after the war. Are businessmen

to look to government employees not only for ad-

ministration of regulations, but for advice and guid-

ance in these fields which are not quite conventional

law and not at all conventional business?

‘‘In answer we can make a few observations

only:

‘*J. Lawyers cannot hope to hold a place in any

field unless they have learning or skills which serve

their clients there. Present-day administrative ac-

tivity poses great problems of accessibility to what-

ever needs to be known in order to participate in-

telligently. Sometimes an inner circle of practition-

ers may be interested in keeping it so. Whatever

these difficulties are, they will have to be overcome.

We should not underestimate the skills which capable

lawyers possess in analysis and in marshalling and

presenting factual material. Governmental activity

may all the time be creating new situations calling

for such work, but there is nothing new about law-

yers participating in it.

‘*2. It is not unnatural for lawyers to have a

certain disdain for practicing law out of newspapers

and looseleaf services. There must surely be im-

mense room for improvement in this respect, but in

the meantime, we can hardly afford to yield much to

mere prejudice.

**3. Thought might well be given to a better

organization of the going relationship between law-

yers and their business clients. This involves such

matters as accessibility, charges and recognition that

much of that with which we are concerned is legal

in character only to a limited extent and in certain

aspects.

‘“‘If these new legal problems are now to be

found dispersed throughout the affairs of a business,

emerging frequently, but often as a matter of only

minor consequence, then lawyers can serve their

clients well only by taking thought of physical ar-

rangements which are adapted to this situation. Like-

wise compensation for services must properly he

adapted to the subject matter.

‘‘4. Continued attention should be given to the

development in the profession of cooperative pro-

cedures appropriate in this field. The success of the

tax clinics testifies to the usefulness of that device.

The section of this association on Administrative and

Labor Law has made important contributions, and

could properly look forward to further extending the

scope of its activity. Local bar associations can be

of great benefit to their members in exploring in sim-

ilar manner some of these new fields, or in otherwise

providing material and information. On an individ-

ual basis there may need to be more recognition of

the importance of professional consultation with oth-

er attorneys who are specially qualified, or in some

eases referring clients to them.

ey ALOT MPA PI AERA SORE LONE OA PTT GRE 1 mee My se = *

“5. The usefulness of an attorney to a busi-

ness client depends in a large degree upon the in-

timacy of his acquaintance with the client’s business.

Practicable ways may need to be sought to achieve

this result on a current basis.

“‘If participation by lawyers in this great area

where government meets business has to depend up-

on analyzing and segregating matters which can

properly be called exclusively ‘legal’, their partici-

pation will be very limited. The line between law

and modern business has never heen sharp. It is less

than ever so today.

‘If we are in a period of change, then the final

shape and character of the administrative process is

not now clearly apparent. A certain instability is

bound to accompany such a process of development.

We believe that the ways of many administrative

agencies at present lack obedience to acceptable and

predictable standards, which we may broadly call

law. The correction of this fault is worthy of our

efforts. The development in this regard of this great

domain of administrative legislation may determine

in the end how much law there is to practice in this

field.

“‘It goes without saying that economic society

will forge the instruments and techniques which it

requires to function in a period when political con-

trol exercised through administrative procedures of

various kinds are numerous and pervasive. Like-

wise, it seems likely that government will continue

to develop and use these procedures. There is no

reason to think that our profession camnot have such

part in this process as it deserves. It ought to be a

very large and useful part.

‘¢Your Committee recommends:

‘‘1. That the committee be continued with in-

structions to continue the study of specifie admin-

wate gee

istrative law problems in Nebraska and make recom-

mendations.

‘2. That the Association support legislative ac-

tion to insure the filing in a recognized registry and

the adequate publication of all administrative regula-

tions now or hereafter in effect.

Respectfully submitted,

Tracy J. Peycke, Chairman

James L. Brown

Edwin Cassem

Harry E. Gantz

Harlan G. Greenamyre

Robert R. Troyer

Robert Van Pelt

John J. Wilson.’’

HISTORY OF L. B. 138, NEBRASKA LEGISLATIVE

JOURNAL, FIFTY-EIGHTH SESSION

1945

L. B. 138:

Jan. 16 Read first time Page 108

‘“‘LEGISLATIVE BILL 138. By John E. Mekota

of Saline

‘*A bill for an act relating to state government;

to define terms; to require the filing and publication

of rules of administrative agencies; and to prescribe

their effect as evidence.’’

Jan. 16 Referred to Committee on Judiciary.......Page 110

‘‘MOTION—To Refer Bills

‘“Mr. President: I move that the rules be sus-

pended and that all bills introduced today he imme-

diately referred to standing committee.

(Signed) C. Petrus Peterson.

‘‘The motion prevailed with 35 ayes, 0 nays and

8 not voting.

Bills Referred to Standing Committees

Committee

* * *

L. B. 138 Judiciary

7 * * ue

Jan. 19 Notice of hearing Page 130

Feb. 5

‘NOTICE OF COMMITTEE HEARINGS

JUDICIARY

L. B. 138 Wednesday, January 31, 1945, 2:00

Placed on General File Page 274

‘*Placed on General File with amendments.

‘‘Standing Committee amendments to L. B. 138:

‘*1, Amend the bill by striking all of section 2

and by inserting in lieu thereof the following:

** ‘Sec. 2. Each 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 the

effective date of this act. A certified copy of any

rule adopted after the effective date of this act shall

likewise be so filed. Such copy or copies shall be

printed, typed and mimeographed on legal size paper.

The Secretary of State shall keep a permanent file

of all such rules, which shall be open to public in-

spection.’

PO Pe, Sree La ac i lw a PS UT ee ae “aa Peers

**2. Amend the bill, section 3, lines 1 and 2, by

striking the words ‘any rule hereafter adopted by it’

and inserting in lieu thereof the words ‘its rules’.

**3. Amend the bill, section 4, line 4, by striking

the words ‘of each rule’ and inserting in lieu thereof

the words ‘the rules’.

“*4, Amend the bill, section 5, line 2, by insert-

ing after the word ‘print’ and before the word ‘all’ '

the following: ‘, type or mimeograph’.

**5. Amend the bill, section 6, line 4, by inserting

the punctuation ‘.’ after the word ‘adopted’ and by

striking all of lines 4 and 5 after the word ‘adopted’.

(Signed) John E. Mekota, Chairman.’’

Feb. 7 Laid over Page 306

‘*Laid over.”’

Feb. 8 Considered. Referred for review ............ Page 316

‘*Read and considered.

‘‘Standing Committee amendments found in the

Legislative Journal for the Twenty-fifth Day were

adopted.

‘Referred to E and R for review.’’

Feb. 14 Placed on Select File Page 356

‘Placed on Select File as amended.

‘*E and R amendments to L. B. 138:

‘1, In Standing Committee amendment 3, 2nd

line, strike the word ‘of’ before the word ‘each.’

‘*2. In the bill, section 3, line 3, strike: ‘the

end, and in lieu thereof insert: ‘bring’ and in said

line strike: ‘of bringing’ and in lieu thereof insert

a comma.

RARER PI SE ag a RE ee IORI ae meas _ 3

“*3. In the bill, section 5, line 6, strike the word

‘cost’ and in lieu thereof insert: ‘charge’, and after

the word ‘agency’ insert a comma.

‘4, In the bill, title, 3rd line, strike: ‘and pub-

lication of rules of’ and in lieu thereof insert: ‘of -

certified copies of and the publication and distribu-

tion of printed, typed or mimeographed copies of

the rules of the’; 4th line, after the word ‘agencies’

and before the semicolon, insert: ‘or the State of Ne-

braska, as prescribed’ and in said line strike: ‘pre-

scribe their’ and in lieu thereof insert: ‘provide the

use of and the’; 5th line, strike the period and in

lieu thereof insert: ‘of such certified copies thereof.’

**5. In the bill, section 1, line 1, decapitalize the

word ‘Act’; line 2, strike: ‘(a)’ and in lieu thereof

insert: ‘(1)’; line 6, strike ‘(b)’ and in lieu thereof

insert ‘(2)’.

Feb. 16 Referred for engrossment ccc Page 401

‘*K and R amendments found in the Legislative

Journal for the Thirty-second Day were adopted. Re-

ferred to E and R for engrossment.’’

Feb. 23 Correctly engrossed Page 478

*‘Correctly engrossed.’’

Feb. 28 Final reading Page 517

“*A bill for an act relating to state government;

to define terms; to require the filing of certified cop-

ies of and the publication and distribution of printed,

typed or mimeographed copies of the rules of the ad-

ministrative agencies of the State of Nebraska, as

prescribed; and to provide the use of and the effect

as evidence of such certified copies thereof.

‘‘Whereupon the President st-ted: ‘All provi-

sions of law relative to procedure }:aving been com-

plied with, the question is, ‘*Shall the bill passa?’’’

a GOMER ERTIES AS VND OIE OLE MIL LS OPEL ESF MD Feet move OLE iy Ag + Oe Oe ORs

‘‘Voting in the affirmative, 39:

Adams Cullingham Klaver Raecke

Anderson, J. Foster Lee Reavis

Anderson, L. Garber Lusienski Ryan

Babcock Hanna Mekota Schultz

Brodahl Heiliger Mueller Seaton

Burney Hern Norman Sorrell

Burnham Hoyt Ogden Tvrdik

Carlberg Hubka Peterson Weborg

Conklin Jeffords Pizer Wood

Cronin Kain Raasch

‘‘Voting in the negative, 0.

‘*Not voting, 4:

Carmody Crossland Dooley Doyle.

‘‘A constitutional majority having voted in the

affirmative, the bill was declared passed and the title

agreed to.’’

Mar. 1 Correctly enrolled. Signed by Speake-....................

Pages 524, 533

‘*Correctly enrolled.’’

‘‘Speaker Signs.

‘‘While the Legislature was in session and ca-

pable of transacting business, the Speaker signed:

“hs oe

Mar. 2 Presented to Governor Page 542

“STANDING COMMITTEE REPORTS.

Enrollment and Review

‘‘Presented to the Governor for approval March

2, 1945, 9:30 A. M.:* * * L. B. 138 * * *.

(Signed) Roy B. Carlberg, Chairman.”’

a I BONA RRR ER ISTE AIMEE EMDR AEE LOO MAP TERE

Mar. 5 Approved by Governor Page 556

‘‘Approved by the Governor

March 3, 1945

‘To the President, the Speaker and -

Members of the Legislature.

Gentlemen:

“‘T have been requested by Governor Dwight

Griswold to inform your honorable body that he has

this day approved the following bills:

=e? 3, ae

‘‘Respectfully submitted,

(signed) H. G. Greenamyre

See’y. to the Governor.”’

ray

—-

TEXT OF L. B. 138, 1945

SESSION LAWS OF 1945

‘ADMINISTRATIVE AGENCIES FILING AND

PUBLISHING THEIR RULES

Legislative Bill No. 138, Serial No. 56

A Bill

“FOR AN ACT relating to state government; to

define terms; to require the filing of certified copies

of and the publication and distribution of printed,

typed or mimeographed copies of the rules of the

administrative agencies of the State of Nebraska, as

prescribed; and to provide the use of and the effect

as evidence of such certified copies thereof.

‘‘Introduced by John E. Mekota of Saline.

‘‘Be it enacted by the people of the State of Ne-

braska,

‘‘Section 1. For the purposes of this act: (1)

‘Agency’ means each board, commission, department,

officer, division or other administrative office or

unit of the state government, authorized by law to

make rules, except the courts and the Legislature;

*“(2) ‘Rule’ means the written statement of any

rule, regulation, standard or policy of general ap-

plication, issued by an agency, including the amend-

ment or repeal thereof, and designed to implement,

interpret or make specific the law enforced or ad-

ministered 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.

**See. 2. Each 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 the

effective date of this act. A certified copy of any

rule adopted after the effective date of this act shall

likewise be so filed. Such copy or copies shall be

printed, typed or mimeographed on legal size paper.

The Secretary of State shall keep a permanent file

on all such rules, which shall he open to public in-

spection.

**Sec. 3. Each agency shall cause its rules to be

published in such manner as the agency shall de-

termine, to bring, as far as practicable, the existence

and scope of the rule to the attention of all persons

affected thereby.

*‘Sec. 4. Each agency shall file with the Clerk

of the Legislature, not more than thirty nor less than

ten days prior to the commencement of each regular

legislative session, a certified copy of the rules of the

agency in force and effect at the time of filing, for

the consideration of the Legislature.

‘‘See. 5. Each agency shall periodically and as

often as necessary compile and print, type or mimeo-

graph all rules adopted by it and remaining in effect.

Copies shall be made available to all interested per-

sons on request, at a price fixed to cover costs of

me! Pen erent Maer ———

publication and mailing; Provided, however, any such

agency may furnish the same without charge, in the

discretion of the agency, if funds are available.

‘*Sec. 6. No rule shall be effective unless filed

with the Secretary of State as herein required. The

filing of any rule as herein provided shall give rise

to a rebuttable presumption that it was duly and le-

gally adopted.

‘*Approved March 3, 1945.”’’

fy.

HISTORY OF L. B. 388, NEBRASKA LEGISLATIVE

JOURNAL, FIFTY-EIGHTH SESSION

1945

L. B. 388:

Apr. 18 Read first time Page 1090

“BILL ON FIRST READING

‘“‘The following bill was read the first time by

title:

‘LEGISLATIVE BILL 388. By Committee on

Judiciary, John Mekota, Chairman.

‘*A pill for an act to amend sections 1 and 2

Legislative Bill 138, Fifty-eighth Session of the Ne-

braska Legislature, relating to state government; to

define terms; to except rate tariffs, together with

rules of interpretation thereof, from requirements of

act; to provide manner in which copy of administra-

tive rules shall be filed with the Secretary of State;

and to repeal the original sections.’’

Apr. 18 Motion. Placed on General File ......... Page 1090

‘*‘MOTION—To suspend Rules

‘‘Mr. President: I move to suspend the rules,

and that I. B. 388 be placed on General File.

(Signed) John KE. Mekota

SS AICI Starr saner IT ARDY RR ELAN EIR IEE PTR LEN OE ET, RE NTI LTT SN ERY ELLER BY TA HAP REY TE MN Th ay ON Pecan

‘‘The motion prevailed with 30 ayes, 0 nays, and

13 not voting.’’

Apr. 27 Considered. Referred for review..............Page 1247

‘‘Read and considered.

‘*Mr. Peterson offered the following amendments,

which were adopted:

‘‘1, Amend section 1 of the bill, line 8, by in-

serting after the word ‘courts’ the following:

‘« ¢, State Railway Commission’.

‘*2. Amend section 1 of the bill, lines 15 and

16, by reinstating the stricken matter and striking

the new matter contained therein.

‘*3. Amend the title of the act, lines 4 to 6, in-

clusive, by striking the following:

‘“*to except rate tariffs, together with rules of

interpretation thereof, from requirements of act;’

‘* Advanced to E and R for review.’’

Apr. 30 Placed on Select File Page 1286

‘Placed on Select File as amended.

‘*H and R amendments to L. B. 388:

‘‘1. In the bill, section 1, line 2, strike ‘Legis-

lature,’ and in lieu thereof insert: ‘State Legislature,

1945,’; line 4, before the word ‘For’ insert: ‘Section

1.’; line 10, strike the comma after the word ‘appli-

cation’ and in lieu thereof insert ‘;’.

‘*2. In the bill, section 2, line 2, strike ‘Legis-

lature,’ and in lieu thereof insert: ‘State Legislature,

1945,’; line 3, before the word ‘Each’ insert: ‘Sec.

2.’; insert the word ‘the’ at the end of line 8, after

the word ‘unless’; line 9, after the word ‘form’ in-

aert the word ‘shall’.

‘¢3. In the bill, section 3, line 2, strike ‘Legisla-

ture,’ and in lieu thereof insert: ‘State Legislature,

1945.’.

‘*4, - In the bill, title, line 3, strike the word ‘ Leg-

islature’ and in lieu thereof insert: ‘State Legisla-

ture, 1945’; line 6, strike ‘manner in which’ and in

lieu thereof insert: ‘the manner in which a’; line 4,

after ‘government;’ insert: ‘to eliminate the State

Railway Commission from the provisions of this

aat:*.”"

May 1 Referred for engrossment Page 1301

‘*E and R amendments found in the Legislative

Journal for the Eighty-Second Day were adopted.

‘‘Advanced to E and R for engrossment.’’

May 4 Correctly engrossed Page 1362

“STANDING COMMITTEE REPORTS

Enrollent and Review

LEGISLATIVE BILL 388. Correctly engrossed.

* * *

(Signed) Roy B. Carlberg, Chairman.’’

May 8 Motion. Final reading —...... Pages 1398, 1405

‘*‘MOTION—To Suspend Rules

‘‘Mr. President: I move to suspend the rules

and take up the bills on final reading for May 9, 1945.

(Signed) Fred A. Mueller.

‘“‘The motion prevailed with 33 ayes, 0 nays and

10 not voting.’’

‘BILLS ON FINAL READING

‘“‘The following bills were read and put upon

final passage:

——— RoR PR OIE ERT ID EIS ITE NEK ERIE TOI 5 2 Ee HEE UE GG EN

“LEGISLATIVE BILL 388.

‘A bill for an act to amend sections 1 and 2,

legislative bill 138, Fifty-eighth Session of the Ne-

braska State Legislature, 1945, relating to state gov-

ernment; to eliminate the State Railway Commission

from the provisions of this act; to define terms; to

provide the manner in which a copy of administrative

rules shall be filed with the Secretary of State; and

to repeal the original sections.

‘*Whereupon the President stated: ‘All provi-

sions of law relative to procedure having been com-

plied with, the question is, ‘‘Shall the bill pass?’’’

‘‘Voting in the affirmative, 38:

Adams Cronin Kain Raasch

Anderson, J. Crossland Klaver Raecke

Anderson, L. Cullingham Lee Ryan

Babcock Dooley Lusienski Schultz

Brodahl Doyle Mueller Seaton

Burney Foster Norman Sorreli

Burnham Heiliger Ogden Tvrdik

Carlberg Hoyt Peterson Wehorg

Carmody Hubka Pizer Wood

Conklin Jeffords

‘‘Voting in the negative, 0.

‘*Not voting, 5:

Garber Hern Mekota Reavis

Hanna

‘*A constitutional majority having voted in the

affirmative, the bill was declared passed and the title

agreed to.’’ .

May 9 Correctly enrolled. Signed by President...

Page 1439

‘While the Legislature was in session and ca-

pable of transacting business, the President signed:

ee e L. B. 388 a

—

May 9 Presented to Governor Page 1445

“STANDING COMMITTEE REPORTS

Enrollment and Review

Presented to Governor

‘*Presented to the Governor for approval May

9, 1945, at 11:00 A. M.

« * 2 L. B. 388 7 * *

(Signed) Roy B. Carlberg, Chairman.’’

May 12 Vetoed by Governor Page 1454

‘‘Vetoed After Adjournment

‘*The following Legislative Bills were vetoed by

the Governor after adjournment:

2 * *

May 12, 1945

‘*Legislative Bill 388.’’

Lt.

REQUEST FOR ATTORNEY GENERAL'S OPINION

Thirty-Eighth Annual Report of the Nebraska State

Railway Commission, 1945

**June 8, 1945.

‘*Hon. Walter R. Johnson

Attorney General

Capitol Building

Lincoln 9, Nebraska

Dear Sir:

‘*Your official opinion is requested as to the consti-

tutionality of Legislative Bill 138 enacted by the 58th

Session of the Nebraska Legislature, only insofar as it

relates to the State Railway Commission.

_— cameieihdied

“In the event you determine that it was legally en-

acted and is not violative of the state constitution and the

statutes pertaining to the State Railway Commission, all

and singular of which it is amendatory, then advise of-

ficially the full scope and manner of its applicability and

the filings thereunder which the Commission will be re-

quired to make.

‘* Advise specifically whether the Commission will be

required to file its general orders, resolutions, rules, etc.,

listed herein, to wit:

**1. RAILROADS: General orders and resolutions

and supplements thereto, relating to railroads,

which have been issued and adopted intermittent-

ly since 1907 and stil! in full force and effect.

‘*A. Interpretations of the state constitution and

statutes relative to the manner and style of

construction of bridges, culverts, crossings

(including size and style of warning devices),

rules for cooperage of grain, stock and mer-

chandise cars; depots and station facilities,

including toilets.

“*B. Freight classifications; exceptions thereto;

rate tariffs and rules and regulations gov-

erning interpretations of said publications.

(Now letter size)

‘*C, Orders of the Commission interpreting state

laws relative to crews on train and engines;

also safety precautions and measures of em-

ployes.

“‘T). Orders relating to passenger fares, rules and

regulations.

‘62. STREET RAILWAYS: (Including buses, intra-

city). General orders and resolutions and sup-

plements thereto relating to street railways (in-

cluding buses, intra-city) which have been issued

and adopted intermittently since 1907 and still

in full foree and effect.

ae.

“4,

666.

‘*A. Orders relating to passenger rates and fares,

rules and regulations, including transfer

privileges.

**B. Orders interpreting operative rights, i. e.,

routes operated.

**C. Transfer privileges and arrangements be-

tween different companies.

‘*D. Orders interpreting state laws relative to

fixing employes’ wages during strikes.

TELEPHONE COMPANIES: General orders

and resolutions and supplements thereto relat-

ing to telephone companies which have been is-

sued and adopted intermittently since 1907 and

still in full force and effect.

‘*A. Rate tariffs together with rules of inter-

pretations and regulations. (Uniform size

now letter size.)

‘*B. Rules and regulations relative to construc-

tion of wire lines, crossings, conflicts and lo-

cations.

“*C. Interpretation of state laws with respect to

scope of operation. (Invasion of territory.)

*‘D. Rules of accounting procedure.

EXPRESS COMPANIES: General orders and

resolutions, and supplements thereto, relating to

Express Companies which have been issued and

adopted intermittently since 1907 and still in

full force and effect.

‘*A. Freight classification; exceptions thereto;

rate tariffs and rules and regulations gov-

erning interpretation of said publications.

(Now letter size.)

TELEGRAPH COMPANIES: General orders

and resolutions and supplements thereto, relat-

ing to Telegraph Companies which have heen

£66,

"9,

66g.

issued and adopted intermittently since 1907 and

still in full force and effect.

‘‘A. Rate tariffs together with rules of inter-

pretation.

“‘B. Rules and regulations relating to construc-

tion of wire lines, crossings, conflicts and

locations.

PULLMAN COMPANIES: General orders and

resolutions and supplements thereto relating to

Pullman Companies which have been issued and

adopted intermittently since 1907 and still in full

force and effect.

‘‘A, Rate tariffs together with rules of interpreta-

tion.

MOTOR TRUCKS AND AUTOMOBILES,

COMMON AND CONTRACT CARRIER: Gen-

eral orders and resolutions, and supplements

thereto, relating to Motor Trucks and automo-

biles, common and contract carriers, which have

been issued and adupted intermittently since 1937

and still in full force and effect.

‘‘A. Freight classifications; exceptions thereto;

rate tariffs and rules and regulations gov-

erning interpretations of said publications.

(Now letter size.)

‘*B. Orders relating to passenger fares, rules and

regulations including transfer and interline

privileges. (Now letter size.)

ELECTRIC TRANSMISSION LINES: General

orders and resolutions, and supplements thereto,

which have been issued and adopted intermittent-

ly since 1907 and still in full force and effect.

‘*A. Rules and regulations for wires crossing

over and under railroad tracks at public

highway crossings, pursuant to the statutes.

—->

«de

‘*B. Rules, regulations, and recommendations for

the construction, operation, and maintenance

of overhead and underground electric supply

and communication lines other than at public

highway crossings of railroad tracks. (Na-

tional Electric Safety Code, National Bureau

of Standards Handbook H32.) (Now in book

form size 5 x 714.)

“*9, PUBLIC GRAIN WAREHOUSES: General or-

ders and resolutions and supplements thereto, re-

lating to public grain warehouses which have

been issued and adopted intermittently since 1931

and still in full force and effect.

**A. License application forms, bond forms, ware-

house receipt forms, rules and regulations in

manner of operation.

‘‘B. Prescription of storage rates and interpreta-

tions.

‘“‘C. Orders fixing fee charged for registering

warehouse receipts.

“10. PUBLIC STORAGE WAREHOUSES:

A. Prescribing application, bond, surety, self-

insurer and license forms in various orders.

‘11. FARM STORAGE OF GRAIN: General orders

and regulations and supplements thereto, rela-

tive to the Farm Storage of Grain which have

been issued and adopted intermittently since 1933

and still in full force and effect.

‘A, Rules and regulations.

‘‘B. Prescription of fees.

‘12, ISSUANCE OF SECURITIES BY PUBLIC

UTILITIES: General orders and resolutions and

supplements thereto relating to the issuance of

securities by public utilities.

‘A. Interpretations of state law as to jurisdic-

tion.

**B. Accounting procedure.

“13. LIQUID FUEL TRACTORS: General orders

and resolutions and supplements thereto, relat-

ing to Liquid Fuel Tractors which have been is-

sued and adopted intermittently since 1919 and

still in full force and effect.

‘*A. Prescribed form of application for permit.

‘*B. Prescribed form of application for tempo-

rary permit.

**14, PIPE LINE COMPANIES: General orders and

resolutions and supplements thereto, relating to

Pipe Line Companies which have been issued and

adopted intermittently since 1907 and still in

full force and effect.

‘‘A. Orders interpreting state laws as to jurisdic-

tion of Commission, manner and type of con-

struction, location, conflict, ete.

**B. Certificates of public convenience and neces-

sity of orders authorizing construction of

pipe lines, ete.

purtenance equipment, such as pump sta-

tions, storage tanks, loading docks, ete.

‘‘T). Orders prescribing rates for the transporta-

tion of erude oil and petroleum and products

thereof.

‘*E. Uniform system of accounting for pipe line

companies.

**15. Orders of the Commission in multitudinous cases

in which the Commission has interpreted and ap-

plied the state law to specific controversies,

Se re re an

‘‘Upon passage and approval of Legislative Bill

138, various persons in the State became much con-

cerned.

‘“We seriously question how the terms of the bill

could be applied to the various functions of the Com-

mission.

‘‘The manner in which the State Railway Com-

mission differs from other departments of the State

Government was stated by the Nebraska Supreme

Court in the case of State ex rel Quinn v. Marsh, 141

Neb. 436, 3 N. W. (2nd) 892, wherein it said, among

other things:

“ee # * * Among the many important duties

this commission is called upon to perform are

the following: To regulate rates and services

of all common carriers, to investigate violations

of law by common earriers, to conduct hearings,

to enter orders, to enforce provisions relating to

sale of liquid fuel tractor engines in the state,

to regulate rates and services and to have general

control over pipe lines for oil and gas, to regu-

late the issuance of stocks and bonds of common

carriers, to find the valuation of public service

corporations in the state. From an examination

of this constitutional and these statutory provi-

sions, it is safe to say that no other agency of

the state subordinate to the sovereign govern-

ment itself has more broad, far-reaching and im-

portant powers and functions than does the state

railway commission. * * * *

“In re Lincoln Traction Company v. City of

Lincoln, et al, 103 Neh, 229, the Court, among other

things, said:

‘ee * * * In adopting the constitutional pro-

vision creating the state railway commission it

was made an independent part of the Constitu-

tion, and was not designated as an amendment

to the executive, legislative or judicial articles of

the Constitution. * * * ’

‘ee @ * * The functions of this commission

are largely administrative, but as it is stated in

Prentis v. Atlantic Coast Line Co., supra, the

commission necessarily has independent legisla-

tive, judicial, and executive or administrative

powers,* °°’

‘‘The Legislature recognizing the situation, en-.

acted L. B. 388 which exempted the State Railway

Commission from the provisions of L. B. 138, by a

vote of 38 Ayes, no Nays, on May 8th, 1945. The

Legislature adjourned on May 9th. Governor Gris-

wold vetoed the bill on May 12th, leaving L. B. 138 in

full force and effect.

‘‘IT is of the utmost importance and vital con-

cern to the public, and to the Commission, that the

questions propounded herein be fully answered.

‘‘Awaiting your early advice, we are

Yours very truly,

Richard H. Larson, Chairman.’’

4}.

ATTORNEY GENERAL’S OPINION

Thirty-Eighth Annual Report of the

Nebraska State Railway Commission

1945

“STATE OF NEBRASKA

DEPARTMENT OF JUSTICE

LINCOLN

July 16, 1945

‘‘Mr. Richard H. Larson, Chairman

Nebraska State Railway Commission

Capitol Building

Lincoln, Nebraska

Dear Sir:

‘*You request our official opinion as to the

constitutionality of L. B. 138 enacted by the 58th

Session of the Legislature, insofar as it relates to the

State Railway Commission. In the event we deter-

mine that it is a valid and legal act, you ask to be

advised officially as to the full scope and manner of

its applicability to the Commission and as to the fil-

ings thereunder which the Commission will be re-

quired to make. You ask to be advised specifically

whether the Commission will be required to file its

general orders, resolutions, rules, ete., under some

fifteen separate headings which you have listed, and

which include (1) railroads, (2) street railways, (3)

telephone companies, (4) express companies, (5) tel-

egraph companies, (6) Pullman companies, (7) motor

trucks and automobiles, common and contract car-

riers, (8) electric transmission lines, (9) public grain

warehouses, (10) public storage warehouses, (11)

farm storage of grain, (12) issuance of securities by

public utilities, (13) liquid fuel tractors, (14) pipe

line companies, and (15) orders of the Commission in

multitudinous cases in which the Commission has

interpreted and applied the state law to specific con-

troversies.

‘‘We believe that L. B. 138 is a constitutional en-

actment. Examination of the Legislative Journal of

the fifty-eighth session reveals that it was passed

in conformity with the constitutional requirements.

Furthermore, we find no constitutional limitation on

the legislature forbidding it to enact legislation of

this kind.

II.

‘‘We believe that the act applies to the State

Railway Commission. Sec. 20, Art. TV of the Consti-

tution provides: ‘The powers and duties of such com-

mission shall include the regulation of rates, service

and general control of common earriers as the Leg-

islature may provide by law.’

‘‘The constitutional provision creating the Rail-

way Commission contemplates legislative action pre-

scribing the powers and duties of the Commission,

and the Legislature has exercised its authority in this

respect on frequent occasions. The definition of

‘agency’ contained in L. B. 138 appears to us to in-

clude the Commission, although it specifically ex-

cludes the courts and the Legislature. The Commis-

sion is primarily an administrative office, although

it performs many legislative and judicial functions.

IT.

‘As to whether or not the State Railway Com-

mission will be required to file its general orders,

resolutions, rules, ete., relating to the fifteen specific

headings which you list, it is impossible to give you

a definite and exact answer, which we can be sure

will apply properly to all cases which have arisen

or may arise under each of these headings. To at-

tempt to do so, would be to invite certain trouble and

embarrassment, and would add to rather than clar-

ify the confusion and uncertainty already existing.

‘*The decision as to what rules do and what rules

do not come within the purview of L. B. 138, is one

which must ultimately be made by the Commission

itself in the exercise of a sound and reasonable dis-

cretion. a

‘“‘The difficulty, of course, arises from the wide

scope and varied nature of the activities of the Com-

mission. The Commission, while essentially an exec-

utive and administrative body, performs numerous

legislative and judicial functions as well, and it is

often difficult to determine whether its rules and or-

ders should he classified as administrative or judicial

meee

and whether they are of general or special applica-

tion. Your letter emphasizes this difficulty with

great force and clarity.

‘‘Nevertheless, we are making a few general ob-

servations which we hope the Commission may find

helpful in the solution of its problem.

‘‘The answer to your inquiry as to what general

orders, rules, resolutions, etc., are to be included un-

der L. B. 138, depends primarily on the interpreta-

tion to be placed on the language of the act itself.

Sec. 2 of the act defines ‘rule’ as any ‘written state-

ment of any rule, regulation, standard or policy of

general application * * * designed to implement, in-

terpret or make specific the law enforced or admin-

istered by it, or governing its organization or pro-

cedure, but not including regulations concerning the

internal management of the agency not affecting

private rights or interests.’

“‘The act requires that certified copies of such

rules, printed, typed or mimeographed on legal size

paper, shall forthwith be filed in the office of the

Secretary of State. The act further requires that

such rules shall be published in such manner as the

agency shall deem shall best bring them to the at-

tention of the persons affected thereby, and that each

agency shall periodically compile and print, type or

mimeograph all rules adopted by it and remaining in

effect, and copies shall be made available to all in-

terested persons on request, either free or at a price

not to exceed cost of publication and mailing. Fi-

nally, the act provides that ‘no rule shall be effective

unless filed with the Secretary of State as herein

required.’ Such is a summary of the provisions of

the act which we deem pertinent to this inquiry.

‘‘Before attempting to interpret the language

of this act as it applies to the State Railway Com-

mission, we call attention to certain elementary rules

of statutory construction which have been announced

—_— wmrne 9 me NPI

from time to time by our Supreme Court. Perhaps

the most fundamental rule is that the legislative in-

tent should be ascertained, if possible, and should be

given effect. Hansen v. Dakota County, 135 Neb.

582, 283 N. W. 217. In determining the intent of the

Legislature, the statute should be considered as a

whole, its object and purposes should be taken into

account, and the real intent of the Legislature should

prevail over the literal sense of the language used

in the statute. State ex rel. Davis v. Farmers State

Bank, 112 Neb. 597, 200 N. W. 173; Grand v. Houston,

45 Neb. 813, 64 N. W. 245; Behrens v. State, 140 Neb.

671, 1 N. W. (2d) 289; Anstine v. State, 137 Neb. 148,

288 N. W. 525. The consequences that would result

should also be taken into consideration. Howard v.

Jensen, 117 Neb. 102, 219 N. W. 811. The strict let-

ter of the law ought not to be followed when such an

interpretation would lead to an unreasonable or ab-

surd construction. Parker v. Nothomb, 65 Neb. 315,

93 N. W. 851; In re Glover’s Estate, 104 Neb. 151, 175

N. W. 1017. Furthermore, the act should be con-

sidered in relation to other enactments of legislature

pertaining to the same matters. Nebraska District

of Evangelical Lutheran Synod v. McKelvie, 104 Neb.

93, 175 N. W. 531; Morrill v. Bliss, 125 Neb. 97, 249

N. W. 98; MeQuiston v. Griffith, 128 Neb. 260, 258

N. W. 553. The fact, however, that a statute may

operate harshly in a particular case, does not justify

a construction which is contrary to the plain intent

of the Legislature. Goble v. Simeral, 67 Neb. 276, 93

N. W. 235; Medow v. Riggert, 132 Neh. 429, 272 N.

W. 238.

‘‘Construing L. B. 138 in the light of these prin-

ciples, it is quite apparent that the legislative intent

was to afford to the public and to persons having to

do with the various governmental agencies, an op-

portunity to inspect and obtain copies of the rules

and regulations of such agencies, which might affect

their private rights and interests. Many of the rules

and regulations of such an agency as the State Rail-

way Commission, for example, have the force and ef-

fect of an act of the Legislature itself. It is nec-

essary under our system of government that the pub-

lic, and particularly those persons whose rights may

be affected, be apprised of these rules. Such un-

doubtedly was the general purpose of the act.

‘‘We must assume, however, that in passing 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 pro-

vided a procedure for establishing schedules and

classifications of rates (85-302, R.S. 1943) and re-

quired the common carriers to print and keep avail-

able 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 in-

tend that all such tariff regulations should be an-

nulled 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 un-

der L. B. 138.

‘‘Furthermore, the Commission in the eexrcise

of its administrative, as well as of its judicial func-

tions and powers, issues numerous orders, regula-

tions, certificates, ete., which, while perhaps follow-

ing precedent or conforming to a general routine, are

intended to apply only to the specific ease or matter

——

before the Commission at the time, and are not a

general application. It would be almost physically

impossible to compile and type, print or mimeograph

all such orders, rules and regulations on legal size

paper for filing, or make them available for public

distribution. They are not in our opinion, ‘of general

application’, and need not be included.

‘‘To come within the definition of L. B. 138, the

rule must be:

**1. Of general application; that is, it must ap-

ply to all members of the public coming in its pur-

view;

‘*2. It must be designed to implement, interpret

or make specific the law enforced or administered by

the Commission, or governing its organization or

procedure.

‘*Rules of special or local application are to be

excluded. So also are all rules and regulations which

do not relate to the organization of the Commission

or its procedure, and which are not designed to ‘im-

plement, interpret or make specific the law enforced

or administered by it.’ Furthermore, rules and reg-

ulations concerning the internal management of the

Commission, and which do not affect the private

rights and interests of the members of the general

public, are not included.

‘‘The Legislature has in the past authorized and

empowered the Railway Commission to make and

adopt rules and regulations for the government of

its activities. Sec. 75-107, R.S. 1943, empowers it ‘to

make all needful rules and regulations for the gov-

ernment of its proceedings.’ Sec. 75-109 also empow-

ers it to ‘adopt rules and regulations to govern its

proceedings, the mode and manner of conducting in-

vestigations and hearings of railroad companies, com-

mon carriers, and other persons before it,’ ete., Sec.

75-225 authorizes the Commission to establish ‘such

just and reasonable rules, regulations and require-

Se ee eee eT i ea, ee ee oo ye Pe PHLEUN HRD ey CURD i

ments, to be observed by the (motor) carriers se clae

sified or grouped, as the commission deems meerseary

or desirable * * *’ ete., Sec. 88-213 makes it the duty

of the Commission ‘to make and promulgate rules amd

regulations to aid in the administration’ of the lew

governing public grain warehouses, and Mee. #292

grants it ‘full authority to preseribe such rules amd

regulations as are deemed necessary to carry out the

provisions’ of the law governing warehousing of

grain on farms. The rules and regulations of gen-

eral application adopted by the Commission pur-

suant to any of the above mentioned statutes should,

we believe, be included.

‘‘Where reference is made in the rules to stand-

ard technical works or tables or other books, tables

or documents already in printed form and readily

available to the public, or where such books, tables or

documents are incorporated by reference into the

rules, we do not deem it necessary that such books,

tables or documents be printed, typed or mimeo-

graphed on legal size paper and filed with the Secre-

tary of State, or indeed, that they be filed in any

form. A rule, for example, that certain proceedings

before the Commission should be conducted in ac-

cordance with ‘Robert’s Rules of Order’, would not

require the filing of a copy of ‘Robert’s Rules of

Order’ with the Secretary of State.

‘‘Very truly yours,

Wa trter R. JoHNsOoN,

Attorney General,

(Signed) Homer L. Kyle,

Homer L. Kye,

Assistant Attorney General.’’

HISTORY OF L. B. 399, NEBRASKA LEGISLATIVE

JOURNAL, FIFTY-EIGHTH SESSION

1947

L. B. 399:

Feb. 3 Read first time Page 263

‘*‘BILLS ON FIRST READING

‘‘The following bills were read the first time by

title:

‘‘LEGISLATIVE BILL 399. By Fay Wood of

Seward.

‘*A bill for an act to amend sections 84-901, 84-

902, 84-904, 84-905 and 84-906, Revised Statutes Sup-

plement, 1945, relating to rules of administrative

agencies; to define terms; to require the filing of

properly indexed certified copies of the rules of the

administrative agencies; to provide for approval of

the rules by the Attorney General; to provide for

making of rules and regulations by the Secretary of

State to carry out the provisions of this act; to pro-

vide the use of and effect as evidence of such certi-

fied copies; and to repeal the original sections.”’

Feb. 5 ‘‘BILLS REFERRED TO STANDING COM-

MITTEE Page 320

“L. B. Committee

a 4 a e * s

399 Judiciary

ee? ¢@ * = 2 9

Feb. 28 ‘‘NOTICE OF COMMITTEE HEARINGS

Page 564

= 7

Judiciary

L. B. 399 Friday, March 7, 1947 2:00 P. M.”’

Mar. 20 ‘“‘STANDING COMMITTEE REPORTS —

2 Page 796

Judiciary

‘*Legislative Bill 399. Placed on General File as

amended.

‘*Standing Committee amendments to L. B. 399:

**1. Amend section 2, line 9, by striking the

word ‘and’ and inserting in lieu thereof the punctua-

tion ’,’.

**2. Amend section 2, line 9, by inserting after

the word ‘indexed’ and before the punctuation ‘.’ ,

- the words ‘and bear the effective date’.

**3. Amend section 5, line 4, by inserting after

the word ‘approval’ the words ‘or disapproval’.’’

May 7 CONSIDERED. REFERRED FOR REVIEW —

Page 1332

‘‘Mr. Wood asked unanimous consent to waive

the reading of the bill except the new and stricken

matter.

‘‘Consent was granted and it was so ordered.

‘‘Standing Committee amendments found in the

Legislative Journal for the Fifty-third Day were

adopted.

‘‘ Advanced to E and R for review.’’

» May 13 PLACED ON SELECT FILE Page 1391

“STANDING COMMITTEE REPORT

Enrollment and Review

‘‘Placed on Select File as amended.

‘KE and R amendments to L. B. 399:

a on -

‘*1. In the bill, section 1, strike the comma at

the end of thee5Sth line after ‘government’ and in the

9th line before ‘issued’ and show the same as stricken

matter.

**2. Section 2, strike the word ‘and’ in line 16

and in line 17 after ‘and’ insert ‘(5)’; line 18, strike

the balance of the line after the comma and in lieu

thereof insert ‘unless otherwise specifically provided

by statute.’

**3. In the bill, section 6, strike in line 8 the

word ‘statute’ and in lieu thereof insert ‘law.’

**4. In the bill title, line 7, strike commencing

with ‘approval’ to and including ‘General’ in line 8,

and in lieu thereof insert ‘submission of a certified

copy of each amendment or rule to the Attorney Gen-

eral for his consideration and approval or disapprov-

al.’

(Signed) Roy B. Carlberg, Chairman.’’

May 14 CONSIDERED: REFERRED FOR ENGROSS-

MENT Page 1409

‘*E— and R amendments found in the Legislative

Journal for the Eighty-ninth Day were adopted.

‘“‘Mr. Wood offered the following amendment,

which was adopted by unanimous consent.

‘‘1, Amend page 2 of the bill, section 2, line 11,

by inserting after the period following the word ‘of-

fice’ the following:

‘‘*The Secretary of State, in order to maintain

and keep such files current, shall be empowered to re-

quire new and amended rules to be filed as complete

file pages and to remove all superseded pages to a

separate file.’

‘*Advanced to FE and R for engrossment.’’

eID ya emcee Me SRE BER TRIM ET —

May 22 REPLACED ON SELECT FILE ......... Page 1563

‘‘Replaced on Select File as amended.

‘*E and R amendments to L. B. 399:

‘1, In the bill, section 2, line 17, after the word

‘State’ insert a semicolon.”’

May 23 REFERRED FOR ENGROSSMENT....Page 1597

‘*— and R amendment found in the Legislative

Journal for the Ninety-Sixth Day was adopted.

‘Advanced to E and R for engrossment.’’

May 26 CORRECTLY ENGROSSED .......... Page 1614

ce * 2

Legislative Bill 399. Correctly engrossed.

. * 99

May 28 FINAL READING Page 1673

‘*A bill for an act to amend sections 84-901, 84-

902, 84-904, 84-905 and 84-906, Revised Statutes Sup-

plement, 1945, relating to rules of administrative

agencies; to define terms; to require the filing of

properly indexed certified copies of the rules of the

administrative agencies; to provide for submission

of a certified copy of each amendment to rule to the

Attorney General for his consideration and approval

or disapproval; to provide for making of rules and

regulations by the Secretary of State to carry out

the provisions of this act; to provide the use of and

effect as evidence of such certified copies; and to re-

peal the original sections.

‘Whereupon the President stated: ‘All provi-

sions of law relative to procedure having been com-

plied with, the question is, ‘‘Shall the bill pass?’’’

PRP Rees SRNR MTD MRE BEN IONNINE

**Voting in the affirmative, 38:

Adams Doyle Lusienski Prohs

Babcock Foster McKnight Raasch

Benesch Garber Metzger Raecke

Bevins Heiliger Mueller Schroeder

Burney Hern Norman Seaton

Burnham Hoyt Person Tvrdik

Callan Kain Peterson Vogel

Carmody Kosman Pizer Weborg

Cramer Lee Prichard Wood

Cretsinger Lillibridge

‘*Voting in the negative, 0.

‘“Not voting, 5:

Anderson Copeland Leedom Steele

Carlberg

‘A constitutional majority having voted in the

affirmative, the bill was declared passed and the

title agreed to.’’

June 2 CORRECTLY ENROLLED ~... . Page 1685

SIGNED BY PRESIDENT

‘*President Signs

‘*While the Legislature was in session and ca-

pable of transacting business, the President signed:

os L. B. 399 I

June 3 PRESENTED TO GOVERNOR... Page 1709

“STANDING COMMITTEE REPORTS”

Enrollment and Review

Presented to the Governor

‘Presented to the Governor for approval on

June 3, 1947, at 9:00 a. m.

eee L. B. 399 ‘ea

June 9 APPROVED BY GOVERNOR ..._.. .. Page 1790

‘‘LEGISLATIVE BILLS

Approved After Adjournment

‘‘The following Legislative Bills were approved

by the Governor after adjournment:

June 9, 1947

ae Legislative Bill 399 ea a

a’

| a

TEXT OF L. B. 399, 1947

SESSION LAWS OF 1947

“ADMINISTRATIVE STATE AGENCIES

AMENDMENT TO THEIR RULES

CONSIDERATION BY ATTORNEY GENERAL

(84-901, 902, 904, 905, 906, R. S. Supp. °45)

LEGISLATIVE BILL NO. 399, SERIAL NO. 319

‘‘A BILL FOR AN ACT to amend sections 84-

901, 84-902, 84-904, 84-905 and 84-906, Revised Stat-

utes Supplement, 1945, relating to rules of adminis-

trative agencies; to define terms; to require the filing

of properly indexed certified copies of the rules of

the administrative agencies; to provide for submis-

sion of a certified copy of each amendment or rule

to the Attorney General for his consideration and

approval or disapproval; to provide for making rules

and regulations by the Secretary of State to carry

out the provisions of this act; to provide the use of

and effect as evidence of such certified copies; and

to repeal the original sections.

‘‘Introduced by Fay Wood of Seward.

‘Be it enacted by the people of the State of Ne-

braska,

a HRI NEMS EERE M2

“Section 1. That section 84-901, Revised Stat-

utes Supplement, 1945, be amended to read as fol-

lows:

**84-901. For the purposes of this act: (1) ‘Agen-

cy’ means each board, commission, department, of-

ficer, division or other administrative office or unit

of the state government authorized by law to make

rules, except the courts and the Legislature; (2)

‘rule’ means written statement of any rule, regula-

tion, 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, man-

agement 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.

‘*See. 2. That section 84-902, Revised Statutes

Supplement, 1945, be amended to read as follows:

‘84-902. Each 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 the

effective date of this act. A certified copy of any

rule adopted after the effective date of this act shall

likewise be so filed. Such copy or copies shall be

printed, typed or mimeographed on legal size paper,

properly indexed and bear the effective date. The

Secretary of State shall keep a permanent file of

all such rules, which shall be open to public inspec-

tion during regular business hours of his office. The

Secretary of State, in order to maintain and keep

such files current, shall be empowered to require new

and amended rules to be filed as complete file pages

and to remove all superseded pages to a separate

file. The Secretary of State shall prescribe regula-

meme PREP» sAmERRRN RRR ReREETRNRNNERS — _—

tions for carrying out the provisions of this act to

include: (1) Manner of certification of rules filed

under this act; (2) form of indexing the file of each

agency; (3) method of filing amendments to the

rules; (4) manner in which copies shall be made

available to the public from the office of the Secre-

tary of State; and (5) the price per copy, unless

otherwise specifically provided by statute.

‘‘Sec. 3. That section 84-904, Revised Statutes

Supplement, 1945, be amended to read as follows:

‘*84-904. Each agency shall file with the Clerk of

the Legislature, not more than thirty nor less than

ten days prior to the commencement of each regu-

lar legislative session, a certified copy of the rules

of the agency in force and effect at the time of filing,

properly indexed in the manner prescribed for filing

with the Secretary of State, for the consideration

of the Legislature.

‘‘See. 4. That section 84-905, Revised Statutes

Supplement, 1945, be amended to read as follows:

‘84.905. Each agency shall prepare, compile and

print, type or mimeograph a complete certified com-

pilation of all rules duly adopted and in force and

effect on the thirteenth day prior to the commence-

ment of the next regular legislative session, and on

the same date prior to each regular legislative ses-

sion thereafter, and shall file same in the office of the

Secretary of State, as provided by section 84-902.

Such certified compilation, when duly filed, shall

supersede all rules previously filed. This shall not

be construed as precluding any such agency from

making additional compilations as often as it deems

it necessary or advisable. Copies shall be made avail-

able to all interested persons on request, at a price

fixed to cover costs of publication and mailing; Pro-

vided, any such agency may furnish the same with-

out the same charge, in the discretion of the agency,

if funds are available.

—_—— i ail a ea ee oS ee a et ne

‘See. 5. The certified ¢opy of each amendment

or rule adopted under this act, subsequent to the

effective date thereof, shall be submitted to the At-

torney General for his consideration, and his ap-

proval or disapproval thereof shall be attached to

and filed with such amendment or rule in the office

of the Secretary of State. Thirty days prior to the

next regular legislative session, the Attorney Gen-

eral 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 require-

ments of the Constitution and laws of the United

States and the State of Nebraska.

**Sec. 6. That section 84-906, Revised Statutes

Supplement, 1945, be amended to read as follows:

‘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; and, unless otherwise

specifically provided by law, such filing of any rule

shall, except where notice by publication is insuffi-

cient in law, be sufficient to give notice of the con-

tents of such rule to any person subject thereto or

affected thereby. The filing of any rule as herein

provided shall give rise to a rebuttable presumption

that it was duly and legally adopted.

‘‘See. 7. That original sections 84-901, 84-902,

84-904, 84-905 and 84-906, Revised Statutes Supple-

ment, 1945, are repealed.

‘Approved June 9, 1947.”’

nieces icenscansstanintialiinasicin

—_

HISTORY OF L. B. 241, NEBRASKA LEGISLATIVE

JOURNAL SIXTY-SECOND SESSION

1951

(From Daily Journal—Printed Legislative Journal not

yet Available)

L. B. 241:

Jan. 23 Read first time Page 211

‘‘BILLS ON FIRST READING

‘‘The following bills were read the first time by

title:

“LEGISLATIVE BILL 241. By John P. Mc-

Knight of Nemaha and Earl J. Lee of Dodge.

‘‘A pill for an act to amend section 84-901, Re-

issue Revised Statutes of Nebraska, 1943, relating to

state government; to eliminate the State Railway

Commission from the provisions requiring each state

agency to file a copy of administrative rules with the

Secretary of State; and to repeal the original sec-

tion.’’

Jan. 23 ‘‘BILLS REFERRED TO STANDING COM-

MITTEE .. Page 214

“lh. Committee

241 Committee on Government

a * * a * e999

Feb. 23 ‘“‘NOTICE OF COMMITTEE HEARINGS

Page 571

Committee on Government

LGR E HHI NECTED KEEN LDU MeO ERR ean

‘ PE WAS tg

L. B. 241 Wednesday, February 28, 1951 2:00

a2”

Feb. 28 “‘STANDING COMMITTEE REPORTS

Committee Minutes

Committee on Government

‘‘The committee on Government considered L. B.

241, and Senator Klaver moved to indefinitely post-

pone the Bill. The motion was seconded by Senator

Kreutz, and the vote to indefinitely postpone L. B.

241 was unanimously carried.

(Signed) Karl E. Vogel, Chairman

Eloise M. Galloway, Clerk.’’

Mar. 7 GOVERNMENT COMMITTEE REPORT ......

Committee Minutes

‘‘L. B. 241 was recalled at the request of Senator

Vogel, Chairman of the Committee, was then con-

sidered, and Senator Klaver moved to advance the

bill to general file. Senator Nelson seconded the mo-

tion, and the committee, by unanimous vote, ad-

vanced the bill to general file.’’

Mar. 8 ‘“‘STANDING COMMITTEE REPORTS ..........

Page 796

Government

~—~Committee Statement on L. B. 241

March 7, 1951

‘“‘This bill as originally presented would have

exempted the Railway Commission from the provi-

“gions of the statutes requiring them to file a copy of

all their administrative rules, including tariffs and

rules for their interpretation, with the Secretary of

State, a privilege now enjoyed by only the courts and

the legislature.

‘‘The committee understands that a similar bill

was passed by the Legislature in 1945, which was ve-

cone —

toed by the Governor, for the reason, as he stated, that

this agency is no different than any other similar state

agency and should be treated accordingly. The com-

mittee agrees with this statement, except that they

can see no reason why the Railway Commission tar-

iffs together with rules for their interpretation should

be filed with the Secretary of State. They are of a

voluminous nature and their filing with the Secretary

of State requires a great deal of labor. The Depart-

ment of State is not sufficiently informed as to their

interpretation when inquiry is made of them and

must of necessity refer the person making the inquiry

back to the Railway Commission.

‘*Moreover, the committee is informed that the

Railway Commission has not conformed with this re-

quirement, 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.

‘‘The bill was supported at the public hearing

only by Mr. Larson of the Railway Commission and

no one appeared in opposition. The Secretary of

State, upon inquiry made in his office. voiced no op-

position to the hill, as amended.

‘“‘The committee, at its executive meeting on

March 7, amended the bill, so that it will no longer

require the filing of the tariff, but will still require

the Railway Commission to file all other information

with the Secretary of State, as is required by law of

all other agencies and the committee, by unanimous

vote of its 9 members, advanced the amended bill to

General File.

Karl E. Vogel, Chairman."’

‘‘Standing Committee Amendments to L. B.

241:

‘*Amend page 2 of the bill, section 1, line 7 by

striking the new matter, and in line 14 by inserting

after the word ‘interests’ the following: °, and not

including rate tariffs, together with rules of inter-

pretation thereof’.

‘‘Amend the title of the bill by striking lines 4

and 6 and inserting in lieu thereof the following:

‘redefine terms; to except rate tariffs, together with

rules of interpretation thereof, from requirements

of sections 84-901 to 84-906, Re-issue Revised Stat-

utes of Nebraska, 1943;’.’’

Mar. 8 Placed on general file as amended Page 729

Mar. 21 Read and considered. Standing Committee amend-

ments adopted and advanced to E & R for review .....

Page 890

Mar. 28 Placed on Select File as amended ..... Page 931

Mar. 29 E & R amendments adopted. Advanced to E&R

for engrossment Page 947

Mar. 30 Correctly engrossed Page 971

Apr. 4 Laid over Page 1016

Apr. 5 Read and passed with 38 ayes, no nays, and 5

not voting Page 1025

Apr. 6 Correctly enrolled Page 1049

Apr. 6 Signed by the Speaker Page 1049

Apr. 9 Presented to the Governor for approval on April

9, 1951, at 10:20 A. M. Page 1060

Apr. 13 Approved by the Governor on April 12, 1951

Page 1124

TEXT OF L. B. 241, 1951

SESSION LAWS OF 1951

“STATE GOVERNMENT

REDEFINING TERMS

(84-901 R. R. S. 1943)

L. B. No. 241 Serial No. 200

‘‘A BILL FOR AN ACT to amend section 84-

901, Reissue Revised Statutes of Nebraska, 1943, re-

lating to state government; to redefine terms; to

except rate tariffs, and any rules of interpretation

thereof, from requirements of sections 84-901 to 84-

906, Reissue Revised Statutes of Nebraska, 1943; and

to repeal the original section.

‘Introduced by John P. McKnight of Nemaha,

Earl J. Lee of Dodge.

‘‘Be it enacted by the people of the State of

Nebraska,

‘‘Section 1. That section 84-901, Reissue Re-

vised Statutes of Nebraska, 1943, be amended to read

as follows:

‘*84-901. For the purposes of sections 84-901 to

84-906: (1) ‘Agency’ means each board, commission,

department, officer, division, or other administrative

office or unit of the state government authorized by

law to make rules, except the courts and the Legisla-

ture; (2) ‘rule’ means the written statement of any

rule, regulation, standard or policy of general ap-

plication issued by an agency, including the amend-

ment or repeal thereof, and designed to implement,

interpret, or make specific the law enforced or ad-

ministered 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, and not including rate

tariffs, and any rules of interpretation thereof; Pro-

vided, 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.

“‘Sec. 2. That original section 84901, Reissue

Revised Statutes of Nebraska, 1943, is repealed.

‘Approved, April 12, 1951.”’

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.