The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1900-05-05
DosTER DIssENTs.
Thinks Court Expent Much Energy in
Proving Unconstitutionalitv.

Proving Unconstitutionality.
In introducing his dissenting opinion
Chief Justice Doster calls attention to
the length Of the majority opinion and
says:
lengthy and labored argument to clear
away all doubts as to the constitution
ality or validity of a Legislative enact
ment is one which bellies all professions
of adherence to the rule. If case OF
unconstitutional validity is clear and
free from doubt the ordinary mind can
be led to a positive conclusion without
following to any great length and IN
volved and SinuOuS ways Of legal meta
physics With much respect to my as
sociates I think they have succeeded
only in involving the court Of visitation
in doubt" Justice Doster says further:
without admitting that the court of
visitation act produces an fnterblending
of separable powers 1 wish to say that
in the practical affairs of government
there is not and can not be any such
thing as a clearly defined and complete
separation of such powers. There is not
and can not be any such thing as leg
islature which wills and ordains and
nothing else; a Judiciary which inter-
prets and decides and nothing else, and
an executive which enforceS and MOTH
ing else. The metaphysical distinction
between the spheres of will, judgment.
and action can not be applied IN the
domain of political science. In the prac-
tical affairs of government the distinc-
ton between legislator, judge and execu-
tioner are speculative and doctr1nal
rather than actual, and the lines or de-
markation between them vague and
fanciful rather than real. There are
points at which the functions OF the
one assimilate so closely to the others
as to be impossible of detection and
separation. The most that can be done
is to recognize the theoretical classifica-
ton made and preserve in general out
| line the distinction drawn.
Il ion, nf
based upon the assumption that the pow
/ er to declare a schedule of railroad traf-
| ic charges is a legislative power l de-
ny that such is true in the sense IN
| which the claim is made and in the
sense in which it is necessary to make
/ it in order to reach the conclusion at
which they have arrived There IS not
| a single case in the books giving eoun-
| tenance to the claim as made On the
| contrary there rs not q case which in
terms or in its rationale does not decide
| or give countenance to a different the
| ory. The power to declare a schedule OF
railroad rates is legislative only in the
| sense that the subject matter of rail-
| road rates is within legislative juriSdIc-
| ton. The making Of the rate Itself IS
| not a, legislative duty, but on the con-
| trary may be committed to an inferior
| tribunal or body precisely as was done
| in the act under consideration. II the
making of a schedule of railroad rates
| is the exercise of a legislative power it
1
| islature and cannot be delegated. But it
/ can be delegated. 1t has been delegated
and legislative acts delegating the pow
er have been in every instance upheld.
''Thirty-five years have elapsed Si1\4
the first railroad entered upon Kansas
soil. During that time not a single
common law controversy over the rea-
sonableness of railroad charges has
reached this court. doubt whether any
have been brought in any of the courts
of the state. The common law rule
which allowed them to be brought as
particular instances Of claimed over
charges occurred while still in existence,
no longer has application according to
| common law methods. To refer an ag-
grieved shipper to the common law rem
edy is like holding the word Of promise
to the ear and breaking it to the hope.
| 7 claim that the common law while
still requiring reasonableness of charges
| by the carrier no longer undertakes the
adjustment of particular disputes as they
arise but it aggregates such disputes
and settles them in a judicial contro-
versy to which the public is a party or
the one hand and the carrier party or
the other; that is. I claim that the rule
for so doing is in process of evolution
through the adjudications of the
courts. :"
In conclusion Justice Doster says
''That the law should afford to railroad
companies a remedy in the court.
against an unreasonably low schedule
of rates, and the right to adjudicate i
| as a whole, in a single controversy bu
at the same time deny to the shipping
public the right to aba.te as a whole anC
in q single controversy an unreasona pll
high schedule fixed by the company it
self would be a reproach to the admin
l istration of justice and an outrage up
l | on common right. Whether the poWe
2 in the courts to adjudicate the question
: of traffic rates be called judicial or ad
l | ministrative it exists, in my Judgment
| I close with the following quotation
/ | from a recent and most philosophic an
! valuable work entitled 'Comparativ
: Administrative Law by Goodnow.
r Although the general rule may b
: that the courts shall be confined in tn
I main to the decision of controversies be
4 tween individuals, nevertheless in man
instances the needs of governmen
e make it seem advisable to entrust tn
n courts with functions somewhat admin
e iStratiye in character. While these ma
$ be said of all states, it is especial
n true Of those which have not realI
e striven in their law to reach any cIea
: istrative functions. Thus in the con-
d monWealths of the United States an
England where the exceptions of tn
logical adoptions. and application of tn
, theory of the separation of powers al
- numerous, judicial officers from tim
! immemorial have been entrusted wit
: the discharge of executive or admin:
/ trative functions" Page 30
e 4 think there are no sufficient res
q | sons for annulling the statute as hs
le been done by my associates in their de
d cision.''