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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1951
- **Citation:** 342 U.S. 877

## Text

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i

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

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:

ii

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!

iv

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

4.
Vv

OCTOBER TERM, 1951

I siecle :

2

JOSEPH MOGIS,
Petitioner,

VS.

LYMAN RICHEY SAND & GRAVEL CORPORATION,
a corporation,

Respondent.

raY
Vv

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

4.
Vv

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 ; —

2

said court, affirming the order of the United States Dis-
trict Court for the District of Nebraska, dismissing the
petitioner’s cause of action.

4.
Vv

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

3

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

a

4

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
Vv

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}.
Vv

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?

— |
Vv

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

6

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.

7
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

ra
Vv

OCTOBER TERM, 1951

>

>}

JOSEPH MOGIS,
Petitioner,
vs.
LYMAN RICHEY SAND & GRAVEL CORPORATION,
a corporation,

Respondent.

4.
Vv

BRIEF IN SUPPORT OF PETITION FOR CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

LY.
Vv

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).

10
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
Vv

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.

11

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

12

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

13

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

——

«de

33

‘*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.

34

‘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.

‘*©. Rules for construction of pipe lines and ap-
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

35

‘‘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

36

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}.
Vv

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

37

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.

3.

‘‘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-

38

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

39

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

40

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

41

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

——

42

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

43

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.’’

44

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.”’

45

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 -

46

‘*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 —

47

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

48

**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

49

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

on

4

50

“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 — _—

51

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

52

‘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

—_

53

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

a

54

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 —

i)

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

56

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

ne
Vv

TEXT OF L. B. 241, 1951
SESSION LAWS OF 1951

“STATE GOVERNMENT
REDEFINING TERMS
(84-901 R. R. S. 1943)

ee

57

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.”’

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0888%3A1. Public record. Not legal advice.