The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1906-05-12
Gov. HOCH DID IT.
Attorney General Coleman Files
Brief in II. K. &T Case.
Places RespOns bility for State
Action on Governor.
STATE HAS A CASE.
Claim That Right to an Action
Is Clear.
Another Chapter in the Now
Famous Case.
STATE HAS A CASE


pared and forwarded to Washington
his answer brief in the Katy land
case to the claim made by the gov
eminent that the state has no right
to appear as plaintiff against the gov
eminent In the interests of the NJ. K
& r. railroad.
General Coleman IN his brief placed
the responsibility for the states action
upon Governor Hoch.
Mr.. Coleman says in his answer
that while he has the power as attor-
ney general to make the state a party
to the suit, yet he says that ito give
him further authority for allowing the
states name to be used the bill as
originally presented was by the au-
thOrity of the chief executive Of the
state of Kansas. In this connection he
quotes Governor HOch's original order
authorizing him to begin the proceed
ings, which reads:
whereas, The Missouri Kansas &
Texas railway company has made ap-
plication for an order to, bring the
necessary suit or suits to test the rights
of the state to recover the lands men
toned in said application, which said
lands are the lands included in land
grants to the state of Kansas as trus-
tee for said railway company under
certain acts of congress and accepted
by acts of the legislature of said state;
and
whereas, It appears that in justice
to all parties who may claim an in
terest in lands included in said grants
such suit or suits should be brought at
the earliest possible moment and the
rights of all determined
Therefore, It is ordered that said
application is hereby granted and the
attorney general, in connection with
the counsel provided by said railroad
company, are hereby authorized and
directed to institute the necessary suit
| or suits to test the rights Of the state
to recover the lands mentioned in said
! application through the Indian terri
tory the state to be fully indemnifed
and protected by said railroad COM
pany from all costs and expenses OF
litigation, including ttorneys' fees
The answer insists that the govern
ment is clearly in the wrong when It
! states that action may not be brought
! against the United States without the
! government consent. as he says that
the rule does not apply in the case of
| sOyereigns. He calls attention to the
cases in which the government is the
plaintiff in suits against Texas and
! Michigan as trustees, and insists that
if it is Just that the United States be
allowed to be the plaintiff in a suit
against sovereign states, then the op-
! posite is just. that the government
must be allowed to be defendant in
similar suit in which the state of kan
sas Is the plaintiff. The answer says;
Hence, upon the very theory of the
decision in the Texas case. it is mani
fest that Kansas, having a justihable
| case against the United States. and the
constitution comforting original juris-
diction in all cases arising under the
1 constitution, laws and treaties of the
! United States in which a state shall be
/ a party must, OF necessity, include all
cases of such federal nature wherein
the state has justihable interest.
\ Otherwise, the state would be wholly
| without remedy. If the United States
j had not sought judicial determination
! of the controversy with the state of
! Texas, the state would. in such view,
| have been without judicial remedy. for
| the United States would not have been
suable by the state.
THE principle is admirably reasoned
in the Texas case. That immunity
from suit by the sovereign, except with
its consent, applies only in respect Of
! individuals and not to controversies
between the sovereigns, to the conclu-
| sion that in all controversies of q fed
eral nature wherein the state is q
/ party. original suit may be brought in
! this court, summoning to its bar the
| United States, precisely as under con-
verse conditions the United States
may thus summon in the sovereign
state.
I'm other words the Interpretation
| of the constitution, which opens the
door of original jurisdiction in this
| court to the United States against the
| state must equally operate under con-
verse conditions or equality Of SOW
ereignty in this regard. disappears.
1.-The constitution of the United
| States is the constitution of all the
| states, spea king In q. united sense and
this court. as the supreme court Of
the United States. is also, in the same
sense, the supreme court of all the
United States having original juris-
diction in all cases of federal cogniz-
ance in which a state shall be a
party. The language of the constitu-
ton in this respect is broad and IN
qualified. Hence. we submit the door
does not here open to the United
States against the state and close
against the state when the United
States is sought 10 be made defend
The brief submitted in behalf of the
Limited States in opposition suggests
/ that the state of Kansas has no sub
/ stantial interest in the subject matter
/ and is but nominal complainant, the
/ real party in interest being the railway
/ company and by the terms of the grant
1 ing act the legal title passed to the
I construction of the road This contef-
ton is based upon section 3 of such
/ granting acts. which provide that as
! construction of each section of road is
certified by the governor of the state
patents shall issue to the company for
"the land herein granted within the
/ limits above named.
The cases cited to support such con-
tention demonstrate the exact contrary.
The grant was TO the state for the use
and benefit of the company named
| therein.
mo patent has Issued to the rail-
way company, and hence the legal title
conveyed by the granting act to the
state still remains IN the state. The
state of Kansas IS hence the indispen-
sable party complainant and can alone
pray the demanded relief.