The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1906-05-09
Federal Government Denies Gov.
Hoch's Right.
Had No Business to Loan Name
of State.
NJ. X. & T.'S OWN SUIT.
kansas Has No Interest in
Action.
Attorney General Claims Gov
ernment Is Real Defendant.


Washington, May s-The federal gov
ernment has acted against the stand of
Governor Hoch in the Missouri, Kansas
& Texas suit. Attorney General Moody
filed yesterday in the supreme court an
answer in behalf of the government
against the consideration by the su-
preme court of the suit brought by
the state of Kansas in behalf of the
Missouri, Kansas & Texas Railway
company. The attorney general takes
the position in the brief that the state
of Kansas has no substantial interest in
the subject matter and is only nominally
the complainant and that the real party
in interest is the railroad company, as
appears, upon the face of the bill.
In it's brief the government advances
much the same arguments against the
consideration of the rights of Kansas
to appear in this suit as the citizens and
newspapers of that state have suggest
ed in interviews and editorials. The
difference is that the attorney general
quotes congressional enactment ana
opinions of the supreme court in support
of his contentious.
The government lays down the pro-
position that it does not appear that
the attorney general for the state of
Kansas has any authority to institute
the contemplated suit and alleges that
he has no right to bring action in be-
half of the state unless so authorized
by an act of the legislature or the di-
rection of the governor. OF the counsel
for the state it is alleged that one at
least belongs to the legal department
Of the railway company.
apparently the proceeding" said the
United States attorney general, "is un-
der the control of the railroad company,
and the name of the state is used stnnp-
ly for the purpose of prosecuting the
claim for the company in the lands in
question and as a collecting agent Tor
it If the value thereof could be recover
ed against the United States. Doubt
less the expense of the action is to be
borne by the railway company. Under
such circumstances it is well settled
that this court does not possess origt-
nal jurisdiction OF suits by a state.
1t Is alleged in tbegovernment's brief
that jurisdiction in the supreme court is
limited to two classes Of eases
First, those which affect ambassa-
doris, other public ministers and consuls;
and. second, those in which state shall
be a party subject to Limitation OF
amendment eleven.
The proposition is therefore laid down,
and an effort viii be made to demon
| interest whatever IN this suit and that
/ It is one which concerns the Missouri.
Kansas & Texas Railroad company
alone. The attorney general says:
Inc EIdlG IS HOl Interested III tltC
construction of q road beyond its boun-
daries and congress did not intend to
grant it lands for that purpose
It is alleged that: In formal COM
munieations and protests by it to the
Dawes commission the townsite COM
mission, the Indian agent and the sec
retary of the Interior the tracts In
question have been claimed by the rail-
way company invariably heretofore s
it's own without reference to any inter-
est of the state therein"
The attorney general quotes a case
brought by the state of New Hamp-
shire against Louisiana. All expenses
of this suit were to be paid by the
assignor and the amount recovered by
the attorney general of the state, as
special trustee. was to be turned over
to the assignor Of the bond after de-
ducting expenses. The attorney gen
eral says:
This court held that the bondhold-
/ ers and not the state of New Hamp-
shire were the real parties in interest.
and that therefore it did not have
original jurisdiction
The attorney general alleges that the
United States is the real party in in
terest as defendant, that it has not
| consented to the suit and of course
cannot be sued without its consent.
Jurisdiction qualities he says,
must exist as to all parties in order
to confer jurisdiction. Therefore be-
ing without jurisdiction as to the
/ United States there is no jurisdiction
of any of the parties
It is submitted that the grants in
question were intended to embrace
public land only-that is. land which
at the taking effect of the grant was
! subject to disposition under the gen
eral land law. .It appears from the
BILL says the attorney general, that
the lands were not only burdened with
the immediate right of occupancy Sc
cured to them by treaty, but that the
Indians were in possession by virtue
/ of a patent heretofore issued to their
tribal nation by the United States. It
/ is respectfully submitted that permis-
sion to file the bill should not be
granted
Coleman Says Railroad Pays.
c. c. Coleman has returned from his
i Washington trip, but stopped in
Topeka but a few hours, being called
away to Clay Center by private busi-
ness.
Mr.. Coleman has given out state
ment in which he says that his ex-
penses while in Washington bringing
suit against the government on behalf
of the Missouri. Kansas & Texas Rail
way company viii all be paid by the
/ railroad company.
who will be expected to pay your
expenses for your trip to Washington
and while there ?" he was asked.
1.-The Missouri. Kansas & Texas will
pay all the expenses Of the suit In
fact 1t has given a sufficient bond for
! that purpose. I shall return to Topeka
next Thursday.
It has been charged by Kansas news
I papers that the appointment of John
i Madden to be general counsel in Kan
sas for the Katy was really a reward
for the action OF Madden's friend, Gov
ernor Hoch, in lending the name OF
| the state to the railway in an attempt
/ to take away from the civilized tribes
of Indian territory property worth 81
million dollars, to which the railway
i had no right
When Governor Hoch was told that
AIadden's appointment had been gfver