The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-06-29
Bale Waggener Fires Another
Rroadside in Madison Case.
Attorney s. s. Ashbaugh Wants
More Time.
HE CAN'T GET READY.
Associates Say They Can Answer
Missouri Pacific Attorneys.
Hammers ON the UncOnstitu-
tionality of Board.

Ralie P. Waggener has filed another
brief in the Madison branch case,
backing up his attack on the state
board of railroad commissioners, and
bringing few more batteries of legal
guns to bear upon the bulwarks of the
board
This action of Mr.. Waggener seems
to have caused some tumult in the
ranks of the opposition, for it is said
that s. S. Ashbaugh, attorney for the
board of railroad commissioners,
wants to have the supreme court post
pone the hearing of the case, possibly
until after the summer vacation.
Death in the family of Mr.. Ashbaugh's
law partner A. E. Helm, who is as
sisting Judge Ashbaugh in the case,
Is also responsible partly for the pro-
position that the case be continued.
1t was by special arrangement with
the supreme court that the attorneys
managed to get the casesset for hear
ing at the July session. Everybody
seemed to be in a hurry to get the
thing settled, and find out whether the
railroad commission. Is really a legal
organization. But Bale Waggener's
briefs seem to be coming too thick for
comfort.
However, Attorney General F. S.
Jackson who with Carr Taylor, ex-
attorney for the board, is working on
some features of the case. is not in
favor of any delay, and the probability
is that he will have his. way about it.
Carr Taylor is also opposed to post
ponement. General Jackson said:
81 can't see why the case should be
continued
And carr Taylor says: There is
no reason why Judg Asshbaugh
should not have his brief ready. All
the arguments necessary to. answer
every point in Bale Waggener's briefs
are found in the opinion written by
Justice Brewer of the United States
supreme court in the. Iowa case"
Bale Waggener's new brief in the
brief consisted of 14O pages. The new
brief takes the position. that the board
of railroad. commissioners is a. "su-
pfene. executive power and that the
governor has been practically put out
Of business, He says:
The board OF railroad commissioners
occupies very anomalous. position I'M
der the constitution. 1t seems to be
unique department. It is unknown to
the constitution. 1t is responsible to no
superior officer. 1t is in no manner I'M
der the control of the supreme execu-
tive power. In fact the executive de-
partment of the state is under the d.
rection of the board, which has the
right to require the attorney general
to institute actions in the name of the
state whenever, in the opinion of the
board the interest of the public re-
1uires It, The constitution makes it the
luty of the governor to see that the |
avs are faithfully enforced but this |
power and authority has been taken out
If the hands of the governor, Ithe SUI
oreme executive powers of the state
and vested in the state board of rail-
,oad commissioners. So far as the rail- !
.oad companies are concerned, the gov |
ernor is no longer factor. He has
been superseded by the commission law |
and the board of railroad commission |
ers has become the supreme executive |
power -
Mr.. Waggener explains the decision in |
he Iowa case by saying that it depend |
ID largely upon a decision in the Tilley |
.ase which was based on the constitu- |
ion Of the state of Georgia He then
proceeds to dissect the constitutional |
provisions of all the different states of
he union relative 4 to the powers of |
commissioners. He sums this |
Id as follows
"Regardless of what other courts |
AVE decided, this. court, following the |
treat weight of authority, has establish
ID the rule IN this state that under |
,ur constitution, the duties and func-
ions of the coordinate - branches of
he government can not be blended and I
,ested in a subordinate agency or tri
,unal. and that one branch can not be
Iothed with power to discharge the du-
les or exercise the functions of anOth- I
r, and that the legislative power can +
lot be delegated, except as provided by
he constitution. These premises being
onceded can there be any doubt that
he railroad commission law as a whole,
md especially the sections under which
his proceeding is had, is absolutely I'M
Constitutional and Void?"
SIMMONS HAS REALLY MOVED.