State v. Johnson

• Decision Date: 05 May 1900
• Docket Number: 11,723
• Citation: 60 P. 1068,61 Kan. 803
• Parties: THE STATE OF KANSAS, ex rel. A. A. Godard, Attorney-general, v. W. A. JOHNSON, J. C. POSTLETHWAITE, AND L. S. CRUM, as Judges, AND J. M. MICKEY, as Clerk of the Court of Visitation of the State of Kansas
• Court: Kansas Supreme Court

60 P. 1068

61 Kan. 803

THE STATE OF KANSAS, ex rel. A. A. Godard, Attorney-general, v. W. A. JOHNSON, J. C. POSTLETHWAITE, AND L. S. CRUM, as Judges, AND J. M. MICKEY, as Clerk of the Court of Visitation of the State of Kansas

No. 11,723

Supreme Court of Kansas

May 5, 1900

Decided January, 1900. [Copyrighted Material Omitted]

Original proceeding in mandamus.

STATEMENT.

ON the 8th day of February, 1900, the state solicitor filed with the clerk of the court of visitation an information based on the affidavit of J. W. Robison, praying said court of visitation to inquire into and find what are reasonable rates or charges for the shipment of cattle in this state between the several stations on the lines of road operated by the Atchison Topeka & Santa Fe Railway Company, and especially between El Dorado, Kan., and Kansas City, Kan.; that a complete schedule of such rates or charges be made, and that said company be enjoined from demanding, charging or receiving any other or different rates or charges. The material part of said information is as follows:

"That said The Atchison, Topeka & Santa Fe Railway Company is a railroad corporation incorporated. and organized under the laws of the state of Kansas, and is and for several years last past has been engaged as a common carrier in operating certain lines of railroad in said state, carrying freight and live stock between numerous points and stations therein including the haul from El Dorado, Kan., to Kansas City, Kan.; that said complainant, J. W. Robison, is a citizen and resident of said state, and is an extensive shipper of cattle and has frequent occasion to make use of the facilities afforded for shipment over said railroad; and many other citizens and residents of this state are, and for a long time have been, engaged in the business of feeding and shipping cattle, and are interested, in common with said complainant, in the rates charged by the railroads, including the lines of road operated by said The Atchison, Topeka & Santa Fe Railway Company, for such shipments.

"That previous to December 1, 1899, said railway company charged for the shipment of cattle a certain rate per car-load, which rate, as it concerned and affected said complainant, was thirty-six and 20/100 ($ 36.20) dollars per car, thirty-six feet in length, from El Dorado to Kansas City, Kan., and that such rate or charge gave to said company a fair and reasonable compensation for the services performed; that in disregard of the rights of said complainant and other shippers of cattle, said company, on or about December 1, 1899, put in and promulgated a new and greatly increased rate for all such shipments of cattle, and asked and demanded therefor a charge that was and is unreasonable and unjust, and greatly in excess of what a reasonable charge should be for such service; that the new rate or charge is partially based upon weight, but is skillfully devised so as, as far as possible, to conceal the purpose to increase rates; that in the practical use and application of such new rate said company now exacts for a shipment of a car of cattle from El Dorado to Kansas City, Kan., about forty-two ($ 42) dollars per car, as against the charge of thirty-six and 20/100 ($ 36.20) dollars per car, made prior to December 1, 1899; that a correspondingly increased rate has been put in force and is charged between all other stations on the line of the road of said company in this state; that such increase has been made, and such unjust and unreasonable rates are being demanded and exacted from the shippers of cattle in this state, without any legal excuse, and without any regard to what is a reasonable charge for such services."

Upon such information being filed with the clerk and brought to the attention of the judges of the court of visitation, said clerk refused to issue a citation to the railway company, and the judges thereof declined and refused to make an order directing the clerk to issue the same, on the ground and for the reason that the information did not present a case for consideration and adjudication by said court of visitation as to any particular charges or rates paid to or demanded by said railway company, nor present a case which called for an exercise of the judicial powers of said court, but that the matters alleged in said information called for the exercise of powers which were purely legislative or administrative in their nature, the court being asked merely to determine and fix a schedule of charges which should regulate the rates or charges which might be exacted or demanded by said railway company in future, and were such powers as the court believed it could not exercise.

The attorney-general has filed a petition in this court, setting out the matters contained above, and praying that a writ of mandamus issue to the clerk and judges of said court of visitation commanding them to assume jurisdiction of, and to hear and determine, the case presented by said information.

The law creating the court of visitation is chapter 28 of the Laws of 1898 (Gen. Stat. 1899, §§ 5779-5820), entitled "An act creating a court of visitation, declaring its jurisdiction and powers, and providing for proceedings and procedure therein." Section 1 creates a court of record with a seal, to be known as the court of visitation, consisting of a chief judge and two associate judges, and provides for their qualifications. Section 5 requires the appointment by the governor of a state solicitor, and that "it shall be his duty to appear and represent the state in all actions and proceedings before the court of visitation to which the state is a party." The act provides further:

"SEC. 7. The court shall sit at its rooms in the state-house, but may for good cause sit in any other place in the state, and shall be deemed in perpetual session for the transaction of business.

"SEC. 8. The court of visitation shall have power and jurisdiction throughout the state --

"1st. To try and determine all questions as to what are reasonable freight-rates, switching and demurrage charges, and other charges connected with the transportation of property between points in this state;

"2d. To apportion charges between connecting roads, and determine all questions relating to charges for the use of cars and equipments; and to regulate the charges for part car-load and mixed car-load lots of freight, including live stock;

"3d. To classify freight;

"4th. To apportion transportation charges among connecting carriers;

"5th. To require the construction and maintenance of depots, switches, side-tracks, stock-yards, cars and other facilities for the public convenience;

"6th. To compel reasonable and impartial train and car service for all patrons of the railroad;

"7th. To regulate crossings and intersections of railroads and regulate the operation of trains over them;

"8th. To prescribe rules concerning the movements of trains, to secure the safety of employees and the public;

"9th. To require the use of improved appliances and methods, to avoid accidents and injuries to persons;

"10th. To restrict railroad corporations to operations within their charter powers, prevent the oppressive exercise thereof, and compel the performance of all duties required of railroads by law;

"11th. To summon juries, as a court of equity, in any case or matter before it; such juries to be selected as may be directed by rule. Jurors to possess the qualifications, except as to locality, required by law for jurors in the district courts;

"12th. Such other and further powers as are given by this act or may be conferred by law."

Section 9 provides that, in all matters within its jurisdiction, said court shall possess full common-law and equity powers. It may issue every appropriate writ and process to compel the attendance of parties and witnesses; may issue writs of injunction and mandamus and appoint receivers to carry its judgments into effect, and shall have the same power to punish for contempt as district courts now have, and may exercise it in the same manner, and cause the attendance of a jury whenever required in the exercise of such power.

By section 10, the court has power to establish rules for its government and for the regulation of practice therein, and it is authorized to appoint masters, referees or receivers in causes before it. It may make rules regarding the framing and filing the proceeding and the entering and promulgating of orders and decrees, and generally regulate the practice to be used in said court where special provision is not made or special procedure prescribed.

Section 11 makes it the duty of the sheriff to whom any process of said court shall be directed or delivered to serve and execute the same without delay, and gives the court the same power over such officers as the district courts have over sheriffs. Section 12 confers upon the court power to appoint a marshal to serve process, and also to appoint a bailiff. Section 13 relates to pleadings and amendments thereto.

Sections 14, 15, 24 and 25 read:

"SEC 14. Whenever a complaint on oath shall be presented to the state solicitor, charging that any railroad company demands or collects unreasonable charges, discriminates for or against any shipper, violates any provision of law, or fails or refuses to perform any duty, or stating a valid ground of complaint for any other cause over which the court has jurisdiction, it shall be the duty of said solicitor to forthwith file an information in the name of the state charging the matters set forth in the complaint.

"SEC 15. Proceedings in said court shall be instituted by the filing of an information in the name of the state. Upon the filing of the information, the clerk shall at once issue a citation to the defendant...