The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-16
TIE UP SAND LAW
JacksOn-Walker Company to
Fight Kansas Act.
Says New State Law Contrary
to Constitution.
INVOLVES OLD indian TREATIES
Contract With Usage Tribe in
1926 Is Recalled.
Royalty Rights Questioned Un-
der Statehood Bill.
INVOLVES OLD indian TREATIES

council from the enforcement of the
new sand royalty law and to prevent
the collection of royalties for sand,
coal, gravel and other minerals taken
from the beds of the navigable streams
of the state, was filed in the federal
court today by the Jackson Walker
Coal and Material company, which at
tacks the constitutionality of the new
law and the right of the state to en-
force it's provisions under the state
hood grant and Indian charters dating
back as far as 1925.
The petition of the Jackson-Walker
people was prepared by Judge Henry
c. Sluss, of Wichita, and attacks the
new state law from a half dozen an
giles. It is the first suit to be FLED
contesting the rights of the state to en-
force the provisions of the new Ia"
and questions not only the constitu-
tionalitv of the law, but the theory
that the Arkansas river is a naVigable
stream. A week ago the state sought
to prevent the taking of the sand cases
to the federal courts when Attorney
General John S. Dawson vent to Kan
sas City and filed in the Wyandotte
county district court a suit against
the Stewart-Peck company, the largest
sand dealers in the state, an action IN
which he sought to collect $ll0,000 IN
back royalties and to enjoin the tax
ing of sand from the streams of the
state until the provision of the new
law were complied with.
Says Law Unconstitutional.
In their petition the Jackson-Walker
company declares that the Kansas law
is unconstitutional for three specific
reasons.
Ffrst-The law permits of the state
the taking of property without compen-
sation.
Second-Deprives citizens of the Uni
ted States of property rights without
due process of law.
Third-Confers judicial power on ex-
ecutive and administrative offices in
that it authorizes them to determine
the rights of property of citizens with
out a hearing and right of appeal
Is Arkansas River Navigable?
The plaintiffs in the action also de-
clare that the Arkansas river, along
which their plants are situated, is not
a navigable stream and is not now and
never has been used as a highway of
commerce.
AS the new state law specifically pre-
scribes that royalties shall be collected
only from minerals taken from the
beds of navigable stream, the question
as to whether the Arkansas is really
navigable, becomes one of the really
important issues in the action. But the
petition of the Wichita corporation
does not stop there. After relating the
questions of constitutionality and ques-
tioning the theory of the state that the
Arkansas is navigable, the petitioners
set forth that the state cannot collect
royalties for the further reason that
the plaintiffs are owners in fee SIM
pie of minerals in the beds of the
streams adjoining their lands and that
their rights are further protected un-
der the statehood grant and old Indian
treaties.
That Statehood Provision.
The petition recites paragraph
from the act of congress of January |
29, 1S61-the day Kansas was admit
ed to the Union-and reads into the |
petition this paragraph of the state |
hood grant in defense of their rights |
to sand from the Arkansas without
payment to the state:
"That nothing contained in said con- /
stitution respecting the boundaries of
the rights of persons or property now
pertaining to the Indians of said ter |
ritory so long as such rights shall re- |
main unextinguished by treaty be- |
tween the United States and such In
dians or to affect the authority of the |
government of the United States to
make any regulation respecting such |
Indians. their land, property, or other |
rights, by treaty, law, or otherwise, |
which it would have been competent
passed.
Those Indian Treaties.
1t is then declared in the petition
that the lands through Sedgwick, Sum- |
ner and Cowley counties to the south |
line of the state were formerly in the /
title of the Great and Little Usage In !
dian nations and remained as such I
until conveyances and treaties which
have since been recognized by the leg
islative, executive and judicial branches
of the national government.
Attached to the petition is a copy of
the treaty between the United States
and the Usage Indians, which was con-
sumated December 80, 1925, reserving |
summated December 80, 1925, reserving |
are now situated. This same right, it
is claimed, was later protected under
a treaty ratified June 21. 1867.
As Dawson Sees 1t.
When asked regarding the case to-
day by the State Journal, Attorney
General Dawson stated that it was the
first knowledge he had received of the
filing of tn case and had not seen or
read the petition on file in the United
States district court. Regarding the is
sues which he was advised were con-
tained in the petition, Dawson said:
1.-The states right to the sand in the
rivers of Kansas is founded on this:
When the thirteen original states won
their Independence, Virginia and Mas
sachusettS and one or two other states
owned large areas of unoccupied lands.
These they ceded to the federal gov
ernment, but did not cede the beds of
the streams. The lands where such
rivers flowed afterwards became states
and the United States supreme court
has repeatedly held that the title to
beds of these streams are vested ini