The Montgomery advertiser., 1903-12-27

perform this service, or for delay Tn US performances. The Commission may re- Quire the service to be performed, ana may fix the value of the service, but has no authority under the provisions of this section of the act to assess damages for failure in the performance of this service. That is a question. which must be settled between the carrier and the shipper under the contract of affreightment. or under the law regulating such matters, and It's solution belongs to, a domain in which the provisions of the Railroad Commts- sion law do not authorize this ComHlls- sion to enter ...-
 Tt necessarily follows then that the Railroad Commission is not empowered under the act of its creation to hear and determine either originally, or as an ap- pellate tribunal, controversies arising be- tween the carriers and the shippers, un- der the rules of the Car Service Associa- ton, which were not contemplated nor provided for by the act of the Legislature creating this commission, and conferring which 1t possesses.
 Jurisdiction by Consent.
 '"The connection of the Railroad Com mission of Alabama with the rules of the Alabama Car Service Association be- gun under the provisions of the old act. dated several years back. and seems to have originated by consent on the part of cerain of the railroads composing the membership of the Association. In other words. jurisdiction was taken by consent. and the cases which have been heard and determined heretofore were considered without the question of jurisdiction ever having been raised.
 ''In the above mentioned cases the plea to the Jurisdiction is now formally inter- posed by the Alabama Car Service Asso- citation as to the authority of the Com- mission under the present act to hear and determine these matters. If the law does not itself confer the jurisdiction, of course. 1t is uncontrovertible that former consent and proceedings without objection to Jurisdiction cannot cure the defect. This is securely established principle of law:
 '"The Jurisdiction of courts having its source in the law of the land, no act of the parties can impart to court jurisdic- tion which the law denies. or to a person the right to exercise. judicial functions. It is accordingly well settled and univer- sally applied. principle. that consent of parties cannot confer upon a court juris- diction which the law does not confer or confers. upon some other court, although the parties may. by consent. submit tnemSelVeS to the 'JuriSdlctlon or the court, In other words, consent cannot confer Jurisdiction of the subject matter. Vol. 12, Am. and Eng. Ency. P. and P, page 125 :.
 Also:
 When the court has no lawful power to act, by reason of the fact that such power either is not conferred or is ex- pressly withheld with regard to the sub ject matter of the suit. the parties the e. to cannot be said to have waived their objection to this want of power because 1t Is not made at the proper time. Such objection cannot be waived. and is fatal at any stage of the proceedings Vol. F, Am. and Eng. Ency.. P. and F., page 1SS. f. and authority cited. ..-
 ''In view of the foregoing principles the plea to the Jurisdiction in the above cases is sustained, and said cases are dismiss ed without costs"