The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1906-12-08
MUST TAKE CARS.
eCourtGrants Mandamus
Against Missouri Pacific.
Decisive Victory for Larabee
Flour Mill Company.
AGAINST SETH WELLS.
His Ruling on the BelIeviIIe
Bond Case Reversed.
List of Opinions Handed Down
To-day by Supreme Court.


A decision was handed down by the
supreme court today allowing a writ of
mandamus against the Missouri Pacific
railway company in the suit brought
| by the Larabee Flour Mills company
of Stafford requiring the railway COM
pany to handle cars on the switches to
the plant of the milling company.
The Missouri Pacific and the Atchi-
son, Topeka & Santa Fe built a track
SO that cars from the Santa Fe could
reach the switching tracks at the mill.
This transfer track was owned by the
Santa F'e. Some cars that had been set
on the mill track were not moved in the
] required time and a bill for demurrage
was presented by the Missouri Pacific
to the mill company. The mill company
refused to pay The Missouri Valley
Car Service Storage association, a vol
untary organization of railway lines
to look after the distribution and hand
ling of cars ordered the Missouri Pa
cff1c not to handle any more cars COM
ing from the Santa Fe over this trans
fer track for the mill company until
this demurrage bill was paid.
The opinion in this case was written
! by Justice Burch, in the syllabus of
which he says: "A common carrier has
no right to discontinue switching cars
for a shipper on account of his refusal
to pay bills for car service when the
detention for which the charges were
assessed was occasioned much by
the fault of the carrier as by the fault
of the shipper
"A rule or order obliging a shipper
to pay car service charges, whether
just or unjust, with no redress but to
submit claim for the return of his
money to the manager of the car SER
vice association promulgating the re-
quirement is not reasonable
At the time of hearing of this suit in
> ~.
pany's attorneys claimed that a major
ity of the business of the mill company
was interstate and that the supreme
court did not have any jurisdiction.
On this point the court says; THE
internal movement of property is not
freed from state control until after it
has been finally released by the con-
sfgnoF TO a. carr Ter for TRANSPORTS ton
to destination fixed beyond the state
line;. and under the facts of this case
such control is not lost until after the
freight has been billed to its destina-
! ton
THE switching of cars loaded with
freight afterwards transported to an
other state, which is purely local, which
is Independently contracted for, which
has no rela ton to the contract of car
riages under which the freight is re-
moved beyond the border of the state
which has no relation to- the ultimate
destination ofsthe cars. and which be-
gins and ends before the destfna ton OF
any car handled Is fixed. is a mere pre-
lfminary Incident to interstate com
merce and subject to state control
A charge of 81 was made by the rail-
way company for switching cars from
the transfer track to the mill track or
vice versa. The court held that no
matter where the ear came from or
was bound to. this switching was not
a part of interstate commerce
The court compels the Missouri Pacific
to handle the business OF the mill COM
pany over the transfer track to the
Santa Fe.
State Auditors Ruling Reversed.
The city of Belleville wanted to is
sue $40. 900 in bonds for building a
municipal waterwCrks plant. Seth G.
Wells, state auditor, refused to regis
ter the bonds on the ground that a
city could not issue bonds which would
exceed fifteen per cent of the assessed
valuation of all property in the city
and this $4,000 would exceed the
statutory limit. A writ of mandamus
was asked for to compel the auditor
to register the bonds and the supreme
court today allowed the writ.
1t was claimed that the act allowing
cities to issue bonds for municipal
utilities was limited by a previous act
which set the amount to which bonds
could be issued. The opinion was
written by Justice Porter in which he
says:
'.The amount of bonds which cities
of the first, second and third class are
authorized to issue under chapter 1O1,
session laws 1905. for the purposes
therein: mentioned, is not controlled by
any limitations of previous legislative
acts. The act of 1905 is the latest ex-
preston of legislative will upon the
subject asd repeats. the provisions of
all other acts in conflict with it
Under this decision the cities of
Kansas can issue bonds for water,
light and heating plants and natural
gas to any amount. even if their bond
ed indebtedness at present equals the
statutory limitations.
Hits Foreign Corporations.
Foreign corporations cannot main
tain suits in Kansas unless they have
Obtained a certificate from the secre-
tary of state. according to an opinion
of the supreme court which was writ
ten by Chief Justice Johnston in the
suit brought by D. NJ. Osborne & Com
papX- against ]. A Shifting, appealed
from the Miami county district court
Mr.. Shilling and his brother bought
a corn harvester from the Osborne
company and gave notes in payment
The machine was returned as not be-
agent and payment on the notes was
refused. The corporation brought the
suit To collect the notes but the case
was thrown out of court because they
statutes relating to foreign corpora
tons. The case was appealed to the
supreme court and 1t was held that the
corporation did not have a right to
seek redress in the courts of Kansas TO
collect a debt because It did not have
any right to do business here.
List of Opinions.
The following opinions were handed
down by the supreme court today:
JOHNSTON. C. J.
c. NJ. Anthony vs. J. T. Brennon;
error from Clay county. Affirmed.