Omaha daily bee., 1909-01-17
RIGHT TO GIVE PREPARATION
Power of State Commission Cues
toned in Lumber Case.
WILL BE ARGUED NEXT TUESDAY
Can state Authorities Grant Conces-
sion 60 shippers ~OvercharEed
or who Have Paid I'M
der ProtestR

SLINCoLN, Jan. ~i6.-CSpecial Telegram.)-
Before the State Railway commission Tues
dag Attorneys Charles 8. Elgutter, for the
Florence Lumber and Coal company and
the Katz-Craig Construction company, and
c. c. Wright, for the Omaha road,
will present oral arguments on the
petitions OF the Omaha shippers which in
Volve the question as TO whether the COM
mission has the power to grant reparation
TO shippers overcharged or who have been
paying rates established under protest and
collected until declared unreasonable and
excessive.
Both In railroad circles and among ship
pers the question OF reparation is attracting
unusual attention and the interest in the
case and the briefs filed by attorneys Is
keen. as II will settle for all time the lues-
ton Of certain powers Of the commission.
Through their attorney, Mr.. Elgutter, the
Samuel Katz and George w. Craig Con-
struction company asks that the old rate
of 81 per car for moving crushed stone, sand
and like materials be restored, and also
that some 1888 paid in charges under the
new schedule OF rates be refunded. The
Florence Lumber and Coal company not
only wants the old rate OF IS per car re-
stored. but wants the Omaha road to re-
fund s1l6 with interest, paid under the new
schedule Of rates.
New In Nebraska.
In Nebraska at least the case Is a new
one and the commission is not only asked
to make the order instructing the railroad
to refund the money paid under
a new schedule OF rates, but in so doing to
acknowledge it's right to make and enforce
such an order when shippers are placed
In such a position as the two Florence
firms.
Thus the case takes on a dual character
and the commission must decide first what
rates shall be effective on lumber, crushed
stone, sand, ice, coal and materials of like
class In the future, and. second, whether
the commission has the power and author
ity to consider the question of ~reparation.
Mr.. Wright declares the contention of the
attorney for the plaintiff that the COM
mission has power 10 make an order OF
PREPARATION is not only novel, but upon ex-
animation will be found to be revolutionary
in it's effect" He maintains that the rail-
way commission Of Nebraska has no such
rights, that the constitutional provision Gre
atlng the commission did not contemplate
such power being vested in the commission,
that the Interstate Commerce commission
does not possess such power, and II the
Nebraska Railway commission could make
an order Of PREPARATION 1t would at once
take the authority out Of the hands Of
courts. which, he maintains, are the only
bodies authorized to make such orders; and
the state never contemplated giving the
railway commission the right to exercise
the functions of . court. He says the
Katz-Craig company is simply seeking to
use the railway commission instead of the
courts to get a judgment against a rail-
way company.
Both briefs are literature to the railway
men and shippers, Attorney Elgutter filing
one In reply on the question OF reparation,
which Is considered a bit spicy"
THE people created the Nebraska. State
Railway commission argues Mr.. Elgutter.
"1t Is established and Its powers are de-
fined by the constitution Of the state. 1t
Is not like many state commissions, the
creation Of the legislature; nor is it like
the Interstate Commerce commission, the
child OF congress-"
From this the attorney for the. complain
ants argues that in the absence of specific
legislation the commission shall exercise
the powers and perform the duties emu
merated In the constitutional amendment
provision, and among these powers, duties
and general control, he claims, Is the power
to award reparation to a shipper for the
payment to a railroad of an excessive
freight rate. as asked for in these cases.
He admits no order of the commission can
be enforced except by the Judgment of a
court; the defendant need have no Qualms
that the judicial power of the state has