The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1900-05-05
Court of Visitation Declared
Unconstitutional.
Chief Justice DOster Writes
Dissenting Opinion.
DIVERSITY OF POWER.
Justices Smith and johnson Say
Act Too Comprehensive.
Legislative and Other Functions
COmmingled.

In a decision handed down today the |
supreme court declares the law creating
the court of visitation unconstitutional
The opinion was written by Justice
Smith, and is concurred in by Justice
Johnston. Chief Justice Doster dissent
ing.
The court holds the law unconstitu-
tional "for the reason that in the
powers conferred upon that tribunal.
legislative, judicial and administrative
functions are commingled and inter
woven in a manner violative of the con-
stitutional requirement that the three
great departments of government shall
be kept separate and the powers and
duties of each exercised independently
of the others
The federal court by Judge w. c.
Hook held that the court of visitation
had power only to draw salaries. This
the judges and clerks have done indus
triouSly; now the salaries are gone,
and the court is out of business en-
| tirely.
There are nine principal propositions
| in Justice Smiths opinion, in which it
! is specifically pointed out that the va
rious functions of government are in
| terwoven in the court of visitation act
They are as follows:
1.-The first paragraph of section
| gives authority to try and determine
| all questions as to what are reasonable
! freight rates, switching and demurrage
| charges, and other charges connected
| with the TRANSFORMATION of property be-
| tween points in this state This, to-
! gether with other sections, as we shall
see, is a grant of judicial power to the
court to determine what are reasonable
freight rates for services already rem
| dered; but as to what shall be charged
| in the future for such services it is
| legislative in character.
Second. To apportion charges be-
| tween connecting roads, and determine
all questions relating to charges for the
use of cars and equipment; and to reg
ulate the charges for part car load and
mixed car load lots of freight including
live stock This also combines both
legislative and judicial powers, depend
ent on the manner the power is exer-
cised.
{" Third. To classify freight This
is an administrative function.
q Fourth. To apportion transporta-
tion charges among connecting car
riers.' This is subject to the criticism
in respect to the first and second
| clauses.
& Fifth. To regulate the construction
and maintenance of depots, switches,
sidetracks, stockyards, cars and other
facilities for the public convenience
This is administrative and legislative
g Seventh. To regulate crossings and
intersections of railroads and regulate
the operation of trains over them
This is administrative and authorizes
the court to make rules and regulations
to govern the parties affected 1t is
thus, in a sense, the exercise Of legis-
lative power.
Eighth. To prescribe rules concern
ing the movement of trains to secure
the safety of employees and the public.
This is in a manner a legislative power,
! as the rules established become the
rules governing the railway corpora
ton.
Ninth To reo11Iate the 71se of an
proved appliances and methods to avoid
, accidents and injuries to persons AS
! this gives power to prescribe the ap-
: pliances and regulate their use, it may
{ be said to be legislative and admins
: trative."
! Justice Smith states that the legis-
| lature has power to create a body which
r may fix rates for carrying freight and
passengers. He says: THE exercise OF
this power has been uniformly upheld
5 by the courts Proceeding, Justice
= Smith says:
r s'While the line of division between
the three powers is not marked dis
| tinctly, and it is not always easy tC
| lay down an abstract rule defining
each of the separate powers of SOW
ereignty, all courts and all authority
unite in holding that the ratemakins
power is intrinsicaily legislative In ex
erciSing~ sucn power, whether by the leg
islature or by a commission, genera
rules prescribing the duties, fixing thu
i persons and corporations in the future
: are made, and the combining of such
e power with those essentially judicial, o.
q Vesting it in court, is a palpable anS
p fragrant violation of the constitutional
u principle and limitation regulating tn
l. separation of the sovereign powers
t Governor Leedy, in calling the specia
:, session which enacted the law, and il
i recommending the kind of Legislation
respecting freight rates deemed by hin
: to be necessary, said the courts had de
= cided that the question as to whethe
an existing rate is reasonable is a ju
V dicial question, and that the queStio
e as to what rate shall be collectible i
: the future is a legislative question:
This case was the Outgrowth of tn
l. contention on the part of the caffeine
1T that the existing live stock rates ar
sr 11nreasona bic. A writ of Inandanlus wa
- to hear the case and to also require til
J. court to promulgate a schedule of ree
? sonable rates. This application was ds
10 MED and in so doing the court declare
I'd the law unconstitutional.
le In conclusion the opinion says:
55o 5 I'VE think that by the several pro
~ visions of the statute under considers
tion legislative, judicial and ADMINISTERS
tive powers are so inextrieably intel
woven and bound up together as to rel
der their separation impossible. Thel
3 is absolute confusion in the law an
5, obliteration of all dividing lines. Or
y kind of power is fused with and welde
IS 1--WE must therefore hold that sai
= court of visitation is wholly withol
$ that authority and Jurisdiction whiC
the legislature appears to have 'intends
to confer upon it. We concur in Il
Judgment of the judges of that cou
or in their refusal to act in the matt
ly presented to them, for the reason TIL
e rate-malSing is a legislative and admit
as istrative function Incompatible with j
la | dicial power. We are unmindful of Il