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In the 2014 Republican primary race for governor, Ricketts beat Bruning by 2,170 votes. There are more than 600,000 Democrat and unaffiliated voters in Nebraska. That means if less than half of 1% of those voters had changed their party affiliation to Republican before the primary election and voted for Bruning, he would be our governor. Then, again, maybe they did and voted for Ricketts.
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The defendant is a stockyards owner and subject to the provisions of the Packers and Stockyards Act 1921 (7 USCA c. 9). On October 20, 1921, the defendant published and filed with the Secretary of Agriculture, as required by the act, schedules showing its rates and charges for stockyard services rendered at its stockyards in Omaha, Neb., which thereupon became and were the only charges which it could lawfully collect during the time that such schedules remained unchanged.
The plaintiff was a trader at the stockyards and the assignee of the claims of a number of other traders upon the same market, who bought, planted, and resold a large number of animals between the 20th day of October, 1921, and the 1st day of October, *61 1923. The plaintiff and his assignors were charged and had paid the additional yardage or reweighing charges provided by the tariff, to the amount of $34,988.52, which amount the plaintiff sued to collect, on the ground that these charges were discriminatory and therefore unlawful.
It is claimed, however, that such an interpretation of the Packers and Stockyards Act and of the Act to Regulate Commerce renders them unconstitutional, because it gives to the Secretary of Agriculture, in the one instance, and to the Interstate Commerce Commission, in the other, judicial powers. No case is cited in the plaintiff's brief which has any bearing on the specific question. He refers to the general proposition that executive, legislative, and judicial functions shall be kept separate, and that persons intrusted with power in any one of these three branches shall not be permitted to encroach upon the powers confided to others. About this, of course, there is no dispute. He cites Interstate Commerce Comm. v. Brimson, 154 U.S. 447, 14 S. Ct. 1125, 38 L. Ed. 1047, in which it was held that the Commission could not be invested with authority to compel obedience to its orders by a judgment of fine or imprisonment, on the ground that "the power to impose fine or imprisonment in order to compel the performance of a legal duty imposed by the United States, can only be exerted, under the law of the land, by a competent judicial tribunal having jurisdiction in the premises." There is a vast and obvious distinction between the power to order a man to jail and the power to determine from evidence whether a right to reparation exists because of a discriminatory charge.
*62 Much the same contention as is made by the plaintiff here was made with respect to the powers of the Interstate Commerce Commission in Mitchell Coal Co. v. Penn. R. R. Co., 230 U.S. 247, 33 S. Ct. 916, 57 L. Ed. 1472. Mr. Justice Lamar, on page 257 (33 S. Ct. 921), says:
"Section 9 [Act to Regulate Commerce (49 USCA 9; Comp. St. 8573)] gives the plaintiff the option of going before the Commission or the courts for damages occasioned by a violation of the statute. But since the Commission is charged with the duty of determining whether the practice was so unreasonable as to be a violation of the law, the plaintiff must, as a condition to his right to succeed, produce an order from the Commission that the practice or the rate was thus unreasonable and therefore illegal and prohibited.
"There are several answers to this proposition. In the first place, the plaintiff cannot claim under the act and against it. To say the least, it is extremely doubtful whether, at common law, one shipper had a cause of action because the carrier paid another shipper more than the market value of transportation services rendered to the carrier. I. C. C. v. B. & O. R. R., 145 U.S. 263, 275 [12 S. Ct. 844 (36 L. Ed. 699)]. But if any such right existed it was abrogated or forbidden by the Commerce Act [49 USCA 1-22, 25-27; Comp. St. 8563 et seq.], and one was given which, as a condition of the right to recover, required a finding by the Commission that the allowance was unreasonable and operated as an unjust discrimination or as an undue preference. Texas, etc., Ry. v. Cisco Oil Mill, 204 U.S. 449 [27 S. Ct. 358, 51 L. Ed. 562]; Texas, etc., Ry. v. Abilene Co., 204 U.S. 426, 444 [27 S. Ct. 350 (51 L. Ed. 553, 9 Ann. Cas. 1075)]; Southern Ry. v. Tift, 206 U.S. 428, 437 [27 S. Ct. 709 (51 L. Ed. 1124, 11 Ann. Cas. 846)]; United States v. Pacific & Arctic R. R., 228 U.S. 87 [33 S. Ct. 443, 57 L. Ed. 742]. Such orders, so far as they are administrative are conclusive, whether they relate to past or present rates, and can be given general and uniform operation, since all shippers, who have been or may be affected by the rate, can take advantage of the ruling and avail themselves of the reparation order. They are quasi judicial and only prima facie correct in so far as they determine the fact and amount of damage as to which, since it involves the payment of money and taking of property, the carrier is by 16 of the act given its day in court and the right to a judicial hearing (March 2, 1889, 25 Stat. 855, 859, c. 382 [49 USCA 16; Comp. St. 8584])."
"As to past and present practices for allowances, the Commission has the same power and there is the same necessity to take preliminary action. This was recognized in Texas, etc., Ry. v. Abilene Co., 204 U.S. 426 [27 S. Ct. 350 (51 L. Ed. 553, 9 Ann. Cas. 1075)], where, after considering sections 8 and 22 [49 USCA 8, 22; Comp. St. 8572, 8595], relating to jurisdiction and the statutory and common law remedy, it was said that although a railroad might alter its rates voluntarily or in obedience to an order of the Commission, yet it can `not be doubted that the power of the Commission would nevertheless extend to hearing legal complaints of and awarding reparation to individuals for wrongs unlawfully suffered from the application of the unreasonable schedule during the period when such schedule was in force.' A contrary ruling would upset a useful, timesaving, economical and established practice. For in accordance with this construction of the act the Commission, after the abandonment of a rate, has repeatedly received and heard complaints and, upon finding that it had been unreasonable, has granted reparation accordingly. See Arkansas Fuel Co. v. C., M. & St. P. Ry. Co., 16 I. C. C. 95, 98; Allen & Co. v. C., M. & St P. Ry. Co., 16 I. C. C. 293, 295." 041b061a72