The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1900-05-06
CANNOT Be APPEALED
State Supreme Court Says
Court of Visitation
is UNCONSTIT u TI0NAL
Solicitor A. J. Myatt Thinks
That Ends 1t.

Yesterday the state supreme court
handed down decision at Topeka hold
ing that the court of visitation Of Kan
sas, supplanting the old board of railroad
commissioners, was unconstitutional The
decision arises from certain suits brought
to compel the Western Union Telegraph
company to transmit messages to points
in Kansas for a rate not to exceed Is
cents for ten words. The court is prac-
tically now dissolved and the salaries of
ali officers will stop from yesterday.
Judge Myatt, solicitor of the court, said
yesterday that the case would not be ap-
pealed. He thought the state supreme
court was the proper forum in which to
construe all state laws. and even if the
case was appealed the United States SUI
preme court would probably follow the
state court in the Interpretation of state
laws, and it would be useless to appeal
if it were possible. He thought the state
would now be without a railroad court
or board until the next legislature unless
Governor Stanley should call an extra
session, which he thought would be a
useless expense even if he were assured
that the legislature could agree on any
thing.
A dispatch to the Eagle. from Topeka
says: The reason for the decision is
briefly stated in the syllabus as follows
Chapter q Of the laws Of the special
session of 1898, entitled, An act creating
a court of visitation, declaring its jur-
isdiction and powers, and providing for
proceedings and procedure therein; is
unconstitutional and void, for the reason
that in the pwers conferred upon that
tribunal, legislative, judicial and admin
istrative functions are commingled and
interviewer together lin a manner vio-
lative Of the constitutional requirements
that the three great departments Of gov
eminent shall be kept separate and the
powers and duties Of each exercised in
dependently of the others"
Judge Smiths argument covers sixteen
are summed up in the following para
graph: 1--WE think that by the several
provisions of the statute under consid-
Grafton, legislative, judicial and admin
lstrat1ve powers are so inextricably in
terwOven and bound up together as to
render their separation impossible There
is absolute confusion in the law, and OBJ
liberation of all dividing lines One kind
of power is fused with and welded upon
another. We must therefore hold that
said court of visitation is wholly with
out that authority and jurisdiction which
the legislature appears to have intended
to confer upon it,
Chief Justice Doster argues from the
other side of the question at great length,
saying in part: 81 dissent from the judg
ment Of the majority of the court in this
case, and dissent from much that is said
in the opinion of Mr. Justice Smith. In
expressing my non-concurrence, l do not
wish to be understood as affirming beyond
all question the validity or the statute
Called the court of visitation act in all
its details, nor even in It's general scope
and design. No particular parts of the
act have been assailed except as subsid-
larry to its main provisions and as in
elusive in the general whole consequently
l have not taken the trouble to ascertain
whether particular portions of it may not
be repugnant to the organic low.
1.-The opposition to the act under con-
sideration is based upon the theory of
the distribution of government power in
10 the three classes called legislative, jul
dicial and executive, and the non-assimil-
alton Of one with the others. There is no
disposition to question sucn classical
ton Of powers nor the necessity Of ex-
Guiding public officials charged with the |
execution of one of them from the do
main of the others. Without admitting
that the court of visitation produces an |
of separable powers, I wish |
government IS not and cannot be any |
such thing as a clearly defined and COM
plete separation Of such powers.
"A most striking instance of the inter |
fusion of the se2arable powers of gov |
eminent was furnished by the act of con- |
sress of 1894, providing for the govern |
ment of the territory Of Louisiana. BY |
section Z of that act the governor and |
judges of the territory Of Indiana were
empowered TO enact, promulgate and ad-
minister a code of laws for the govern
ment of the new territory The judges
We're not only authorized to assist in thu
making of the laws. but We're authorized
10 judicially administer them when made
and were further authorized to perform
he executive duty of making appoint
neDts TO the inferior judicial Offices"
The court Of visitation, abolished today
~ the decision Of the supreme court
-ook the place of the old state board Of
'ailway Commissioners, which was ere
ated by an act Of the legislature Of 1888
Unfortunately for the state the board is
lot restored to life by the decision Of
oday, for the act Of 1883 was repealed by
separate statute by the special session
II 1897. following the passage of the act
'reatins the court Of visitation. The
tate therefore, is without a law regulat-
rs railroads and the railroad question
II once becomes an issue Of politics.