Kansas City daily journal., 1896-12-08
SAYS JUDGE FOSTER OF THE KAN
sAs ALIEN STATUTE.
ALARMING IN POSSIBILITIES.
IF IT MEANS ALL THAT IS CLAIMED
FOR 1T.
Santa Fe Case Remanded to the State
Court-LiberaI Transit Privileges
Accorded Grain for Texas
Other Interesting Rail-
way News.

Topeka, Dec. 7-(special9 \ decision
was handed down in the federal court to-
day in the Santa Fe receivership case in
which the motion to remand the case to
the Jefferson county district court for trial
was sustained. The opinion was written
by Judge Foster, and was concurred in by
Judge Thayer of the United States circuit
court of appeals, VINO heard the argument
the last time.
The decision will in no way affect the
property, In accordance with the stipula>
ton entered into between the attorneys on
each side and the order of Judge Myers, as
printed in to-day's Journal, the receiver.
ex-senator Martin, Will not take charge
of the property. 1t viii remain in the
hands of the company.
Under the provisions of the stipulation
the case will next come up before Judge
Myers, of the Jefferson county court. Ar
rangement was made to-day for a hearing
at Leaverworth next Friday. The argu-
ment will be based on demurrer fled by
Attorneys Hite and Keeler. representing
the state, to the answer of the company 3
attorneys TO the original petition. The an
swer charges that the stock of the comp3-
the purchase of the property. that the alien
act was never regularly passed, that # it
was, it was unconstitutional. The demur-
rer is filed on the grounds that the answer
does not state facts sufficient to constitute
a defense.
This suit will go through the courts on
the hearing of the demurrer This brings
up all the points involved. No matter which
way Judge Myers decides the question Fri
day, it will be taken to the state supreme
court. and from there to the United States
supreme court.
When court convened this morning At
torney Charles Blood Smith. representing
the Union Trust Company. of New York.
asked permission to withdraw the inter-
plea filed by him, on account of the stipU-
latiOn which had been entered into. The
request was granted. Then Judge Foster
announced that the motion to remand the
case to the jefferson county district court
would be sustained, and that his written
opinion, concurred in by Judge Thayer,
would be filed with the clerk. The following
are the main points of the decision of
Judge Foster:
THE motion to remand the case to the
state courts presents the simple question
of jurisdiction. That question is ever pres
ent in all judicial proceedings, and courts
will at all times take notice of objections
to their jurisdiction, whether they come
from the parties to the litigation, or Of
their own voliton.
This action, commenced in the district
court of jefferson county by the state, to
forfeit the real estate, the roadbed and
right-of-way of defendant in said county,
is prediCated on an act of the legislature
of 1891 (Ch. 81, entitled, An act in regard
to aliens and to restrict their rights to ac-
quIire and hold real estate. and to provide
for the disposition of the lands now owned
by nonresident aliens
The section of the act reads as follows:
Section ,. That no corporation or associa-
ton, more than % per centum of the stock
of which is, or may be, owned by any
person, or persons, corporation or assoCia-
ton. not a citizen of the United States, or
of some district or territory thereof, shall
hereafter acquire hold or own any real
estate in the state of Kansas
by section ; of the act it is provided
| that real estate held in violation of the
act shall be forfeited to the state of Kan
! sas, and makes it the duty of the county
attorney of any county in which such real
/ estate is situated TO enforce such forfeit
| Ure in civil action brought in the name
of the state as plaintiff. 1t further provides
| that the court shall appoint a receiver 10
| take charge of the real estate.
| The sixth section OF the act provides as
| follows: IF, upon the final hearing OF
such action. the court shall find that any
| portion Of the real estate described in the
| petition is held or owned in violation OF
! this act. the court shall adjudee such reaI
! estate forfeited to the state: and shall or,
| der the same appraised. sold and conveyed
| by the sheriff in parcels not exceeding 16l
acres each, in the same manner provided
! by law for the sale of real estate upon ex.
ecution.'
by section it Is provided how the
money arising from the sale of the for
/ feited lands shall he disposed of; that. after
! compensating the receiver paying the
/ costs of the action. and allowing the coun
/ ty attorney 10 per centum for his services
! the residue shall be paid to the owner OF
the real estate at the time of the forfeit
urc: if not 30 paid within thirty days. II
| shall he paid into the treasury Of the state
I of Kansas subject to the order of the per
| son adiudCed to be entitled thereto.
! This statute is, in some respects, a re
markabIe one and if it means all that has
hecn claimed for it by attorneys tempora
/ rily speaking for tho state in this case.
I might say it is most alarming in its posi-
! bilttics: but With the merits Of the Contro