The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-09
Ex-Treasurer Kelly Technically
But Not Financially Responsible.
PUTS CHECK ON ACTION
No Treasurer Can Again Traffic
in Warrants.
Series Stockholders Win i'm
Aetna Case.

mer State Treasurer T, T. Kelly,
The supreme court scustains the
decision of the Shawnee county dis
trict court that Kelly can not be COM
PEELED to pay back to the state the
$1,000 which the state lost by Kellys
action in selling the per cent Okla
horna warrants to his friends, at face
value. The court says that the states
damage was nominal and that while
Kelly had no right to sell the war
rants. the only judgment which the
state could get against him would be
nominal. Since the only judgment
which could be secured was nominal
the court holds that it is not justified
In reversing the decision Of the lower
court.
This decision, while it lets Kelly off
scott free from any financial liability
for his shortages as disclosed by the
Haskins & Sells report, will put a stop
to the practise of selling Oklahoma
warrants.
This is considered an important VIC
tory for the state, for as disclosed by
the pleadings in the case, Warden
Haskell of the state penitentiary has
been clamoring for the right to hold
the Oklahoma warrants. and sell them
out for cash, just as Kelly did.
The supreme court SAYS in it's opin-
ion:
''It is suggested in behalf of the treas
urer that as the law did not contem-
plate his receiving the warrants. he
was chargeable with any misconduct
with respect to them. But, since he
did accept them, he should be held re-
sponsible for their proper handling.
Mol cover, as no statute authorized him
to sell them, his doing so was doubt
less at least a technical violation of his
official duty. This consideration might
of itself have warranted a recovery of
nominal damages but is not important
here, for this court has decided that
where a demurrer to petition which
states no ground for substan dam
reverse the decision merely because
the facts stated would entitle plaintiff
to nominal damages -
Series Stockholders Win.
~ The decision of the Shawnee county
district court in the Aetna Building
and Loan association case was
affirmed today by the supreme court.
This means that the guaranty fund of
the association must be used as pro-
vided by the by laws of the organiza-
ton. for the payment of the series
stockholders. redeeming the series
guaranty stockholders whatever may
be left.
The case was brought by w r.
Hogsett and others of guaranty stock,
against the association and the hold
ers Of series stock. The holders of
Sudl d1ty StOCk CldIIllGu IndC the 1unQS
of the association were not being
equitably distributed. The trial Of
the case proved that while the dis
tribution may not have been satisfac-
tory to the guaranty stockholders, it
was in accordance with the terms of
stand.
Court Is Badly Divided.
A rather peculiar circumstance ap-
pears in one of the decisions handed
down by the supreme court today.
Justice Mason wrote a decision for
the court, and followed it up by writ
ing dissenting opinion in the same
case. Two other justices, Burch and
Porter, concurred in the dissenting
opinion. ..'-
It was the suit brought by Emma
M. Sewell against the Atchison, To-
peka & Santa Fee Railway company
from Wyandotte county. This was
before the court. The first time it
was affirmed by a vote of to and
this time it was reversed by the same
vote.
The husband of Mrs. Sewell was an
express messenger and was killed in
a wreck. 1t was shown at the trial
that the railroad company was negli-
gent. but Sewell had signed a release
to the express company not to hold it
liable for injuries which he might re-
ceive. The express company had
signed release to the railroad COM
pany not to hold it liable for damages
to it's property or employees. Four of
the justices of the supreme court hold
that an employe in spite Of these wave
ers, may elect damages when negli-
gence is shown under statute passed
in 1901. The ot>er justices maintain
that Mrs. Sewell was not entitled to
damages, as the statute did not apply
to cases of this nature where waiver
had bee nsigned. ..
The case is one where the question
seems to be public policy on the one
hand and the strict reading of the law
on the other.
John G. Cooper Wins.
The Shawnee county district court
will have to grant a new trial in the
famous Cooper-Bower breach Of
promise suit. The. supreme court to-
day reversed the decision of the
Shawnee county district court on the
ground that Improper evidence was
admitted: Virginia Bower received
Judgment against job NC. Cooper for
four thousand dollars on the ground
that he had promised to marry her
and failed to keep his promise. The
principle contention of Cooper in ask
ing for reversal was that the trial
court erred in overruling objections to
questions with respect to CONVERSE
ton had before the action was be-
gun between the witness and the
plaintiff.
Spike in Soldier Preference Law.
The Kansas old soldiers and sailors rs
diers are to have every preference in the n
59eT ~e eour rs'a today ana then the
added that the appointing power had
complete and full authority to determine
coTnnefent to fill the position. The court