The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1899-11-28

the legislature attempted TO CONFER
upon a single board, or body, important
and substantial legislative, adminiStra-
tive and judicial powers to be eXer-
cised IN the same proceeding and as 10
the same subject matter. II attempted 10
confer full power to regulate the Oper-
alton of railroad and tese2raph COM
panies and to prescribe schedules OF
rates and charges, which power is leg
islatiVe or administrative IN It's char-
acter. 1t also attempted to confer
upon the court of visitation the power
to pass judiciaIly upon its regulations
and the reasonableness of the rates
fixed by it, to embOdy its determine
lions in DEGREES which it was author
lied to enforce by the appointment OF
receivers and the sequestratiOn of the
property Of the companies.
"Third-That the law creating the
court of visitation is in cOntraventiOn
of the constitution of the state of Kan
sas which inhibits the comforting of in
consistent legislative ana Judlclai pow
ers upon the same body, to be exercised
regarding the same subject matter.
'Fourth-That a proceeding in the
court of visitation to determine judi
cially the validity and reasOnableness
of a body of rates established by it in
the exercise of its legislative functions,
is not due process of law within the
meaning of the Fourteenth amendment
to the Federal Constitution. An ac-
tive, potential agency of the legisla-
tive power of a state can not be en-
powered to sit in judgment upon the
validity of its own enactments and to
enforce its DEGREES with reference there
to by the exercise of the extraordinary
powers of a court of chancery.
"Fifth-The act of the legislature
creating the court of visitation and the
act extending the powers and jurisdic-
ton thereof to telegraph companies
cast upon the officials who are defend
ants in this suit the special duty OF ad-
ministering and enforcing said laws;
their offices were created solely for
such purposes and they are not general
officers of the state whose duty it is
to see to the enforcement of laws gen
orally and who act only by formal jul
dicial proceedings in the courts of the
state. This suit. therefore, is not
against the state of Kansas, and hence
is not within the prohibition of the
Eleventh amendment to the COnstitu-
ton of the United States.
''Sixth-Whenever it is claimed that
the purpose and effect of a writ of in
junction granted by a court of the Uni
ted States is to stay proceedings in a
court of a state it is competent for the
former court to ascertain and lettering
inc whether the board or body created
by the laws of the state and before
whom the proceedings sought to be en-
Joined are pending is in fact and in law
a court. The jurisdiction of a court of
the United States cannot be denied by
an unconstitutional enactment of a
state legislature nor by an erroneous
use of terms therein. The court of Wis
itatiOn of the state of Kansas cannot
lawfully exercise judicial functions nor
IS II q court WITHIN the meaning OF sec
ton 100 of the revised statutes of the
United States.
'Seventh-Whether the said enact
ment of the legislature are cOnstitu~
tional to the extent that the court of
visitation may lawfully perform the
legislative and administrative func-
tiOns therein specified is not determin-
ed.
THE application for a temporary in
junction will be granted"
The case in which the decision is rem
ern Union Telegraph company to enioin
the court of visitation from putting into
CRASH rate iaW Fhe matter t Game before
the court of visitation in suit brought
pei the telegraph company to send mes
sages within the state for 10 cents for ten
The court of visitation was not asked in
this case to establish a rate, as the rate
islature, and the court was simply asked
to pass upon the business of the rates and
graph company raised the point. however,
that the court could not fix rates, and
Judge Hook passed upon that point.
Lawyers are wondering why. Judge
Hook did not declare the administrative
and legislative powers of the court I'M
constitutional instead of the judicial pow
ers, as long as the legislature clearly in
of a legislative body.
The case was argued at Leavenworth
several months ago, ROssingtOn, Smith
& Histed appearing for the telegraph
court of visitation and Attorney General
GODDARD appearing for the court.
Immediately after the decision was rem
dered Mr.. GODDARD and G. c. Clemens met
in the corridor of the federal building,
I understand said Mr. GODDARD. that
you have said the court of visitation law
was full of holes''
m have never said so.'' replied Mr..
Clemens
q have been told that repeatedly" said
Mr.. GODDARD.
why, am the author of the bill my
self" replied Mr. Clemens with some
warmth IF this law had been defended
by its friends instead of its enemies the
result would have been different
Mr.. GODDARD had by this time got on his
OvercOat and walked away.
mot one of those who had a hand in
that Ia added