The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-07-03
Bale Waggener Attacks Live
Of Railroad Board.
Contends Before Supreme Court
That Its Creation Is Illegal.
STATES In BACK SEAT
Railroads Under Jurisdiction of
Interstate Commission.
Case Will Not Be Decided Until
Next Fall.

The argument of the Madison branch
case in the supreme court on Tuesday
afternoon was one of the most inter-
esting events which has taken place
j before that body for some time. The
case is the one in which Bale P. Wag-
gener is attacking the constitutionality
of the Kansas law creating the state
board of railroad commissioners.
The court allowed the state until
Monday to file its brief, and gave Mr..
/ Waggener 80 days in which to file a
reply brief. This means that the case
will not be decided until fall.
Mr.. Waggener presented to the su-
I preme court in his orai argument the
] new contention that under the laws as
they now exist, all railroads doing in
! terstate business, are under the exclu-
/ sive and absolute jurisdiction of the fed
| commerce commission, and the federal
! courts. He contended that the state
/ boards of railroad commissioners have
! been practically all wiped out of exist
ence, and have nothing left except
minor function as police regulators of
state railroads.
| Mr. Waggener appeared alone on be-
half of the Missouri Pacific, while the
state was represented by Attorney
| General Jackson, S. S. Ashbaugh, Carr
| w. Taylor and A. E. Helm. Owing to
the Importance of the case, the court
| allowed an hour for argument on each
| side.
Mr.. Taylor led off with an argument
on the report filed by the special mas
| ter, in which he contended that the
! findings of the master were not sus-
tanned by the evidence.
| Attorney General jackson then spoke
briefly on some points of the case, en-
phasizing the fact that the railroad
company had by its neglect, forfeited
the right to challenge the justice of
the commissions order.
Mr.. Waggener then made a powerful
argument one hour in length. and was
followed by Mr.. Ashhaugh. who closed
for the state. Mr.. Ashbaugh's argument
was regarded as a strong presentation
of the states side. and his attack on
Mr.. Waggener'S arguments was very de-
termined.
Mr.Waggener said in part:
II challenge the attorneys for the
state to tell under what branch of
government this board of railroad
commissioners should be classed. This
court held the old court of visitation
to be void because it. mingled legisla-
tive judicial and executive functions.
ask this court to carefully consider
the Dey case, upon which the state
places its whole dependence. Aside
from that Iowa case, challenge the
state to cite any commission which is
not specially authorized by the con-
stitution When a case comes before
the board, it is claimed that the board
is Legislative: but when the same case
is appealed to this court, the board is
judicial"
General Jackson. "that this court has
no original jurisdiction to determine
the reasonabl bleness of a rate?"
This court has no authority" re-
piled Mr.. Waggener, 'in it's original
jurisdiction to determine the reason
ableness of a rate. 1t is only as an
appellate court that it can act upon
such matters.
'"This is a matter that concerns the |
we'll as the people of Kansas. 1t is |
conceded that the Missouri Pacific is |
an inter state carrier, and according to |
the decisions of the higher courts. it |
was the intention to give to the fed |
eral government absolute and exclu- |
sive jurisdiction over every railroad |
which does an inter state business, |
leaving only to the state boards sort |
of police jurisdiction over state roads. |
used to be quite a strong believer /!
in states rights, but the time has |
come in the history of this govern |
ment when that question has become |
myth The time has come when we |
must have a strong central govern /
ment.''
'"This court held not long ago. in /
terrupted General Jackson. Sin the |
Western Union case, that the state has |
considerable jurisdiction.''
"Rut it don't follow that the court |
was right retorted Mr.. Waggener.
at must be admitted. however" said
Mr.. Jackson, that this question is
something more than a myth. 1t is a
pretty stubborn sort of a myth
Mr.. Waggener read a large number
of decisions sustaining his contention
that the present laws should be inter
preted to give to the federal govern
ment the exclusive jurisdiction of rail-
roads, leaving all state commissions
with no powers whatever. Justice
Burch who wrote the recent very i'm
portant opinion in the Western Union
case and Pullman case. in which it
was held that the state had jurisdiction
over the state business of the respec-
tive companies. and could compel
them to pay charter fees under Kansas
laws, questioned Mr.. Waggener keenly
at times, and indicated that he did not
agree with the Missouri Pacific attor-
ney.
In reply to Mr.. Waggener, S. s.
attorney for the board of
railroad mmisSioners, said:
ct want to accept the challenge of
Mr.. Waggener right here. and tell this
court Just where the board of railroad
ornmissioners may be classed. We
might as well clear away this con-
irving to build up in his 179 pages of
briefs, and in his argument before this
court This board of railroad commits
sioners is a legislative, but it has no
simple. It is legislative, but it has no
power to make laws. but merely is
given the power to fill in the details
when it comes to enforcing laws,
less body in the state. It absolutely is
helpless to enforce its own orders. 1t
has to come before this court by man
damus proceedings and secure action
which will make its orders effective"