Judicial Regulation in Kansas the Rise and Fall of the Court of Visitation and the Industrial Court
| Publication year | 1994 |
| Pages | 28 |
63 J. Kan. Bar Assn. December, 28 (1994). JUDICIAL REGULATION IN KANSAS THE RISE AND FALL OF THE COURT OF VISITATION AND THE INDUSTRIAL COURT
Copyright (c) 1994 by the Kansas Bar Association; Brian J. Moline
WESTLAW LAWPRAC INDEX
JUD - Judicial Management, Process & Selection
The history of an administrative agency is often a reliable chronicle of the interplay between the political, social and economic factors that underlie public policy formation at a particular point in time. The way in which government agencies are organized and reorganized and how power is granted and withdrawn often reflects intense economic and social conflict in the body politic. It is against the backdrop of this struggle that public policy over economic regulation is played out. Understanding the day-to-day political climate that exists during the birth and operation of an administrative agency is often more instructive than the legislative history and administrative record in determining what happened and why.
In the period between 1898 and 1925, Kansas twice experimented with a unique and novel concept -- combining judicial and administrative authority to form a comprehensive type of economic regulation with a distinct judicial overlay. Both experiments failed. This article will explore why.
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State administrative regulation of enterprises affected with a public interest was introduced into Kansas as a direct consequence of the advent of the railroads. Perceived abuses by the railways in pricing and service caused great antagonisms, particularly among the farmers, and a steadily escalating demand for state control of prices and service. By 1878 most Kansas political leaders were conceptually committed to some sort of railroad regulation. The only question was how pervasive and controlling such regulation should be.
George Glick was elected the first Democratic governor of Kansas in 1882 and railroad regulation was arguably the centerpiece of his campaign. But railroad interests dominated the legislature and were able to shape the Railroad Act of 1883, which created the first Board of Railroad Commissioners. The final version of the legislation was a compromise between those who wanted a strong entity with real power to set rates and compel service reforms and those committed to the status quo who wanted a purely advisory body.
In many respects, the first Railroad Commission was a success despite lacking direct authority over rates in specific cases. For a time, the state actually experienced a general reduction in rates but this was at least partly due to competition and economies of scale in the operation of the railroads. [FN1] But popular discontent did not diminish and would soon reach its peak with the formation of the People's party in 1890. The Populists, as they were called, were a phenomenon that still fascinate Kansas historians. Somehow this alliance of diverse personalities, militant farmers, former political enemies and splinter, single issue groups managed to coalesce and dominate Kansas politics in the 1890's. United by little more than chronic discontent, economic distress and disgust with the existing social and political order, this uneasy and loose coalition controlled much of the state government for a brief and turbulent period. Reform of the regulatory process was high on their list of priorities.
The first Populist governor, Lorenzo Lewelling, gave considerable emphasis in his 1892 legislative message to the problem of inadequate railroad regulation. He alleged that the existing Board of Railroad Commissioners was far too limited in authority. Lewelling proposed that the board be given specific authority to set rates, with the railroads retaining the right of appeal to the state supreme court. He called for the direct election of board members rather than the appointment method. Finally, in accordance with the Populist platform, he recommended that the railroad practice of giving free passes to public officials and assorted "friends" be prohibited. [FN2]
When Populist commissioners took control of the board in 1893, they complained that their authority to enforce orders "was so limited that in many cases its rulings practically amount to recommendations which may or may not be complied with, as best suits the convenience of the companies." [FN3]
The Populists lost the election of 1894 and, of course, another complete change was made in the membership of the board. The Populists returned to power in 1896 but reform impulses were overshadowed by factionalism and personality conflicts. Some of the party leaders, including former Governor Lewelling, advocated a policy of moderation but others wished to continue the militant tactics of earlier days. On the question of railroad regulation, the intra-party conflict was, in part, a result of federal court decisions. Moderate party members sought to enact a law that would stand the test of federal court scrutiny. The radical element was determined to enact more stringent legislation hoping to dispose of potential legal problems through the electoral process. [FN4]
The election of 1898 marked another defeat for the Populists and would be their last serious electoral effort. With their supporters about to leave office, Populist leaders decided to make a final effort to carry out the party pledges. Alleging that a recent decision of the United States Supreme Court [FN5] necessitated a change in railroad regulation, Populist Governor John Leedy called a special session of the legislature, which convened less than a month before the newly elected Republican administration was to take office.
The governor informed the legislature that the Smyth decision had emasculated any authority to enact a schedule of railroad rates by legislation. Erroneously concluding that the decision declared ratemaking a judicial and not a legislative function, Leedy proposed that the legislature confer on the Board of Railroad Commissioners "full powers to try, hear and determine all questions as to reasonableness of every charge made by the railroad companies." [FN6]
The "lame duck" Populist legislature abolished the Board of Railroad Commissioners and created a new entity -- a Court of Visitation. This court was empowered to "try and determine all questions as to what are reasonable freight charges connected with the transportation of property between points in this state." [FN7]
The court was empowered to classify freight, apportion transportation charges among connecting carriers and compel reasonable and impartial train and car service. In addition, the court was authorized after hearing to determine the merits of impending railroad strikes. [FN8] This provision was Kansas' first attempt to solve labor disputes through some sort of binding administrative/judicial process.
There is no doubt the Visitation Court was intended to
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function as a judicial body. It was authorized to summon juries and granted full common law and equity power over all matters within its jurisdiction. Drastic penalties were prescribed for failure to comply with the court's rulings. Upon proof of neglect or refusal to comply within 30 days, the court was authorized to sequester a railroad's property and appoint a receiver to take possession, operate the road and execute the court's decision. The court even had its own marshal to enforce its orders. [FN9]
A few of the sponsors of the legislation intended to maintain Populist control of the new court by giving Governor Leedy the power to appoint the new judges in the remaining few days of his administration. This plan, however, was defeated in the Populist caucus when former Governor Lewelling, then a state senator and member of the existing Railroad Commission, stepped down from presiding over the caucus and made a spirited speech in opposition to so partisan a scheme. [FN10] As a result, incoming Governor William E. Stanley was authorized to appoint the judges.
A few days after the close of the special session, the Republicans came into power. They could not undo the handiwork of the special session because the Populists still narrowly controlled the state senate. Governor Stanley criticized his predecessor for calling the special session but urged the legislature to give the Visitation Court a fair chance.
But the idea was doomed to an early demise by both structural problems and political posturing. The railroads quickly reinstated a freight rate on livestock on a cents per hundred basis rather than a dollar per carload basis. This plan had twice been rejected by the former Railroad Commission. But the Visitation Court refused to initiate any affirmative action against the railways. Instead the judges held that the facts did not present a controversy within the "jurisdiction" of the court. The attorney general immediately filed petition for mandamus...
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