Omaha daily bee., 1896-12-29
SANTA FE WINS THE CASE
Judge Myers Decides Alien Land Law is
Not Applicable to Railroads,
IN EFFECT REvERSES HIS OWN DECISION
Attempted RccciNcrship Falls 10 tho
Ground bS the Decree of the
Very Judge Who First
Gave IL IncipicnCy,


Judge Louis Myers handed down decision
in the famous Santa Fe railway receiver
ship case. holding in favor OF the railway
company He declares that the alien land
law, under which he had appointed a re-
ceiver for the property, does not apply to
railroads. The decision is a complete VIC
tory for the Santa Fc company. The other
questions of law raised by the attorneys
on both sides were rot passed upon, Judge
Myers holding that this point alone was
sufficient to end the litigation The attor-
neys for the plaintir will take steps at once
to carry the case to the Kansas supreme
court on an appeal.
When court convened there was a notable
array of officials both court and railway,
present. Attorneys IIite ana Henry Keeler
represented the state and Attorney a. a.
Hurd and ex-Judge Albert II. Horton tho
railway company Among the spectators
were the following railway officials, who
had arrived during the day on special
train from Chicago: President c. A. Rip
ley, General Solicitor Il. d. Kenna, Third
Vice President Paul Morton and General
Manager j. j. Frey.
Just before court opened the Santa Fo
attorneys. not knowing that the decision
would be rendered, filed an amendment to
their original answer, in which they set
forth that the property of the present santa
Fc railway company was the same as torm-
ory owned by the Santa Fe Railroad COM
pany and that the act under which the re-
Ceivcrship suit was brought was void be-
cause II was repugnant to section of arti-
Gle /; also article vi of the United States
constitution.
Court convened at o'clock and Judge
Myers promptly got down to the business
at hand. After a few preliminaries had
been disposed of, the reading of the deci-
sion, which was quite letngthy was begun.
The pivotal point in the case, says Judge
Myers turns on section 3, whether or not
the alien land law applies to property nee
essarily used in operating railroad. The
great weight of judicial authority in this
country is, continued he, that the property
OF a railroad company necessary for tho
operation of its railroad, cannot be seized
and sold in parcels under an execution.
The courts have also held invariably, when
considering the words real estate and
lands" that the same should not be taken
to mean the roadbed or right OF way OF
railroad company or other property nee.
essary for it to use in the performance or
its chartered obligations. The real estate
held or acquired by a public corporation
like that held or owned by railrond conn
pCny in the exercise of a delegated right
of eminent domain and necessary for uses
in which the public is concerned is not
within the meaning of the law real estate.
LAW HAS ANOTHER PURPOSE.
The decision cites several authorities to
uphold its stand, and continuing, says:
We know from current history that the
mischief primarily sought to he remedled
the prevention of the ownership of large
tracts of land in the state by aliens ana the
establishment In this state OF the oppres-
siVC system of landlordism prevalent IN
England and other countries. The move
ment of which the statute of 1871 was tho
expression and result was not a crusade
rs,ilp Inn NaFuG nj a ~ al
holding real estate, in the usual and ordi-
nary acccptatiOn of that te1m; that is for
farming, grazing and other like purposes.
II may be that there Is reason for prohibit
ing the investment of foreign capital In tho
construction, purchase or operation OF rail-
roads in the state but there seems to haVo
been no expression of such reasons In tho
legislature, public papers or newspapers up
to the time of the adoption of tho act of
1891. 1t is automatic that statutes will bo
construed In the most beneficial way when
their language will permit the prevention
of absurdity. hardship or injustice result
ing, and also that public convenience and
public interest must be considered il the
statute Is in any way ambiguous or doubt
full. Considering all of the provisions of
known mischief intended to be TCmedled
thereby and especially in view of the cx-
press terms of the statute providing how
real estate forfeited must be divided into
parcels and sold, i am forced to conclude
that the term real estate employed in
section and other sections of the statute
was not intended to embrace a railroad
or any essential part thereof. The egsla-
ture did not intend to make the provisions
of the statute applicable to railroads. The
result follows that the plaintiffs petition
in this case does not state n cause of ac-
tion. The statute fails to provide for a for
fciture of railroads ON account of alien
ownership of capital stock in railway cor
porations and no petition can be formu-
lated under the provision of this statute,
which should be sufficient to forfeit and
sell the property of the defendant corpora
ton used in the operation of it's railroad.
In my. opinion neither the letter nor the
spirit OF the statute includes railroads.
HISTORY OF THE CASE.
The history of the case is most Interest,"
ing 1t began at 'Oskaloosa on November
last, when in the jefferson county district
court, over which Judge Louis Myers pre-
sided, a petition was filed by County At
torney II. T. Phinney ana Attorney Henry
Keeler OF Topeka praying for the appoint
ment OF receiver OF the property Of tho
Santa Fe company in Kansas. The action
was taken upon what Is known as the allen
land law" passed in 1891, which proyides
that where more than 20 per cent of the
stock OF corporation doing busnegs In
the state is owned by aliens, It's real estate
shall be declared forfeited to the state and
a receiver appointed. Judge Myers ap-
pointed Charles +. Johnson. an Osialoosa
banker, as receiver and instructed him to
take possession of the property. The ap-
pOintment came ms a thunderbolt TO railway
intu BcNtIallSt many Oi AnOUl were una
ware OF the existence of the law. Soon
thereafter afidavits were filed by the Santa
Fe officials before Judge g. G. Foster in the
United States circuit court at Topeka. in
which 1t was asserted shat the action Of the
Jefferson county court was part of a stock
jobbing scheme and that memberI of 1t had
speGuated On Santa Fe stocks In the east
on the strength Of the courts appointment.
Following this, Assistant Attorney Gem
eral A. A. Goddard fled a petition in tho
Oskaloosa court seeking to remove the case
to the federal court at Topeka. On the
same day at Topeka the Union Trust com
pany OF New York filed cross bill in Judge
Fosters court, holding as trustees that they
ought to have been made party to the suit,
and on the strength of this bin Judge Fos-
ter Issued a restraining order, preventing
Johnson from taking possession of the prop
erty. Attorneys Keeier and Phinney then
on November 13 filed a petition In tho
courts, seeking to have the petition filed by
Attorney Goddard stricken from the files OF
that court. charging, among other things.
that he had acted "in coluson with the
railroad attorneys" On the same day at
Kansas City Mr.. Phnney was persuaded to
sign an agreement, which was also signed
by both Kenna and the attorney general,
which stipulated that the case should he
tried In the federal court ana that Judge
Keelcr should be dismissed from the case.
when Judge Myers on November II took up
the case, Mr. Phinney backed down on his
tn