The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13
LEGAL.

| portationS, such as common carriers may
| sioners certain functions administrative In
character and which can not well be per-
formed by the legislature itself.
8. The act does not confer upon the
board executive or judicial powers, al
though the board is required to exercise
! judgment and discretion and to make or
ders for the regulation and control OF
railroads and other common carriers.
constitution does not specifically provide
| for the creation of a board of railroad
commissioners. The subjects upon which
enumerated in the constitution.
5. The legislature has the power to regu-
late and control the operation OF rail all
control and regulation must be left to the
legislature to determine, subject always
to the constitutional guarantees for the
protection of property
s. The act creating such board applies
the state, and is not designed to affect
and does not apply to or regulate inter-
state commerce.
Z. Nor is the act in question unconstitu-
tional upon the ground that it provides
for taking the property of persons or cor
porations without due process Of law.
hearing before the board of railroad COM
missioners upon a complaint filed with
the hosrd and ahn rec
ing, can not claim that an order issued
by the board after such hearing is not due
process of law.
3. This court has Jurisdiction of original
proceedings in mandamus to compel obedi-
ence to an order made by the board of
the act cOnfers upon the court is not a
legislative or nonjudiciai power. 1t is a
ing the only question to be determined by
this court IS whether such an order is
reasonable.
10. The provisions of section IL chapter
$40, Laws of 1905. making certain orders
of the board conclusive after the lapse of
thirty days from the time such orders
snail be made, is q rule of evidence and
not Limitation upon the right of defend
ant of railroad company to offer evidence
In defense of an action in mandamus to
compel obedience to an order of the board.
Defendant is not estopped in this action
order of the board is unreasonable by the
failure to avail itself of the right to COM
mence an action to vacate such order
II. The order of the board requiring de-
PENDANT to operate separate passenger
trains is not unreasonable upon its face.
II. In mandamus proceedings in this
court to compel obedience to an order of
the board of railroad commissioners, the
able, and the burden of proof is upon the
defendant to establish its unreasonable
ness.
IS. Defendant failed to produce sufficient
evidence to overcome the prirna facie pre-
sumption that such order is reasonable.
IA. The order of the board requiring de-
PENDANT to operate separate passenger ser
vice within the state is in the exercise of
lions necessarv for the conyenience safe
ty and comfort of the public, and is not
an attempt to regulate interstate COM
nferce, nor does it directly cast burden
upon such commerce.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
ISeal-1 Clerk Supreme Court.
No. 1920
st. Louis & San Francisco Railway
Company
Josanh Hoff
Error from Labette County.
REVERSED.
i. An informal statement of a material
fact will be held sufficient in a bill of par
ticulars before justice of the peace; but
when there is an absolute omission to
state a fact essential to the cause of ac-
tion and such fact Is not infera BILE from
the allegations made, the omission is ia
the testimony offered to prove such fact.
2. In an action under the statute against
ed by its failure to inclose the road with
fence. it is necessary to allege such fail
been tried upon the theory that the neg
igence complained of consisted in such
failure and there being no allegation, di-
rectly or by inference, of such omission.
the recovery can not be sustained.
All the Justices concurring-
Attest: D. A. VALENTINE,
ISeall Clerk Supreme Court.
Grand Lodge, Ancient Order of United
Workmen of Kansas
Levina Smith.
Error from Republic County.
AFFIRMED.
Syllabus. BY the Court. Johnston c. J. |
1. Where there is Inconsistency in the !
provisions of the bylaws of a benefit So
eiety as to the payment of dues and as
seSsmentS by its members and a question
arises whether there has been forfeiture
Of benefits because of the non-payment of
where Interpretation is possible, construe
the bylaws so as to give the insured the
benefit of the provisions favorable to him.
2: The receipt and retention of money
paid to the benefit society by one of its
on overdue assessment is or
iinarily sufficient to waive a forfeiture
sessment when due.
g. The demand, receipt and retention by
he benefit society of an assessment on |
which the member is not in default with one |
which was overdue valves the forfeiture |
growing out of the delay of non-payment. |
All the Justices concurring.
Attest: D. A VALENTINE.
ISeal1 Clerk Supreme Court.
No 1923
w. P. Harris
E. S. Aiken. ct al.
Error from Wyandotte County District |
AFFIRMED. !
syllabus. By the Court. Mason, ]. |
ltion, not organized for profit, may law
ully expel a member, notwithstanding it |
nay own property and membership there |
n may have a pecuniary value. if these |
exist: that he is charged with |
conduct for which his expulsion is a |
proper penalty if he be guilty" that he |
opportunity TO defend himself; that he /
S given a fair hearing; that a decision |
s rendered against him in good faith; /
md that he is not denied the benefit of
my special rule that may exist relating
o the matter
2. 1t is not fatal to the validity of an
rider of expulsion made in such a case
hat the accused is not given written no.
ice of hearing, where he appears in re-