The Montgomery advertiser., 1907-08-25

tion of the subject matter, drawing. If your Honor please, identically the same distinction that is drawn in Brown vs Mayor and Aldermen of Birmingham. So that so far at any rate, as Alabama, we have the law stated in two cases and by a Judge of the Supreme Court in the one case, and the Supreme court In the other case, and we have the Federal law laid down line by line. we might say word by word. parallel 10 that In Alabama, both enunciating the general doctrine as in the Gray case and both enunciating the application or that general doctrine to prosecution by the Attorney and the solicitors as in the Brown case. and Fitts ys MIG Ghee, and both calling attention to the fact that in the second exception to the rule as to jurisdiction there Is a TUT ther exception as Chief Justice McCiei- Ian says, if 1t can be called an exception which goes back to the Gray case. anu is not an exception, as case where sno chancery court has Jurisdiction or .ne matter and the matter as 10 lne criminal prosecution Is merely anS- Iary to- that other jurisdiction.
 Has The Jurisdiction.
 It seems to me, therefore, under the uncontroverted decisions in Alaoalha, and in the Supreme Court of the Uniteo States, they being the decisions Feiea upon everywhere as controverting tnls question. this court did have, and now has Jurisdiction of the sup9ect-,Hlas.o ,1as.ors and the injunction against the solicitors and other prosecuting officers Will he where that Is the case.
 The Court:--Have you read the case of Prout vs. Starr.
 MT. Smith:-Yes, 1SS United States 542 was calling attention to these cases. because they are cases relied on against me.
 If recollect the case of Proutt vs. Starr 1t arose under a Nebraska. which was the basis of Smyth ys Ames. In that case, they had made an agreement that the judgment in the case of Prout vs Starr, should be de- termined on the facts found in Smyth vs. Ames. They had gone on and sald nothing about 1t under a general un- derstanding that Smyth would not pro ceed in any other court while this mat ter was being determined. Smyth for- got this agreement and instituted prosecution, criminal or civil, and after a while his term of office expired. with that case pending, he having forgotten the agreement just mentioned. Trout came in as the successor to Smyth. and when his attention was called to the agreement, he repudiated 1t, and de- clined to abide by it. and threatened to go on with the prosecution. There upon, there was a supplemental Dill filed. making Prout a defendant. ana the question arose as to whether Prout as Attorney General and prosecuting officer could be enjoined from prose- cutting a criminal proceeding. So that the question arose as directly as the question can arise, in that case. like this, there was a statute limiting freight rates and providing it should be prosecuted or defended by certain tribunal where the bill was filed just as in this case. except that in the Prout case, there was no provision in the staute expressly authorizing court of chancery or court of concurrent juris- diction to suspend the act pending the litigation, but where the suspension was had upon general equitable prin- ciples. So the only two dfstinctions between the case at bar, and the Prout case are that fin the case at bar. we have all the elements necessary for the protection of the compliments that they had in Prout vs. Starr, and in ad- dition to that we have as the basis of our proceeding the express provision in the statute of Alabama authorizing a court of chancery or court of concurrent jurisdiction to suspend the act pending the litiga- tion. and in addition to that. we have the Supreme Court holding that the court having Jurisdiction of the matter, and 1t being necessary for the protect ion and enjoyment of the fruits of the decision, it can and should enjoin a criminal prosecution which would have the effect of interfering with its juris- diction.
 Federal Court Case.
 Now. there is still another case In the Federal courts to which desire to call attention, Central Trust Company V. Citizens, etc, 80 Fed Rep, 225. There was a statue similar to this, only 1t regulated street railroad fares, and there was a bill filed to enjoin criminal prosecutions against the violation of that statute and the bill was filed against the solicitors:
 Counsel urge that this bill does not show a cause of action cognizable in | chancery against MT Wiltsie. the dis 1 trict attorney, since it's purpose is to restrain him from instituting crimin- al prosecutions under color of the amendment of 1897. But this complain ant is seeking to protect a property right, and it seems to be law that, when such prosecutions are threatened under color of an invalid statute for the purpose of compelling the relinquish- ment of 8 property right, the remedy in chancery is available. Reagan V. Trust | Company, 154 U. s., 302, IA Sup. Ct.. | l047, and Lottery Company V. Fitz- ! patrick, Woods. 222. Fed. Gas. No. g., 541, in each of which apprehended criminal prosecutions were enjoined, are to the point. Even in the case of Sawyer, 124 U. s., 200, 8 Sup. Ct., 4S2, cited by the attorney general, the rule as here stated is plainly recognized; nor | do find it disputed in any case.
 Tt is also contended that this suit cannot be sued; and, further, that sec tion 720 of the Revised Statutes of the | United States inhibits the relief prayed for in this bill as against defendants l Wiltsie and the City of Indianapolis ] But under the ruling of the Supreme | Court of the United States in Pennoyer V. McConnaughy, 140 U. S. 1, Il Sup. Ct | 699. and Reagan V. Trust Company, su- l pra, this Is not a suit against the State of Indiana, within the sense of the elev- enth amendment nor does it fall within
 the terms of Section 72O. It. seems to
 me, on principle. as wellNas on the very l distinct authority of Reagan V, Trust l Company, Ga case which parallels this
 in nearly every aspect), and Lottery
 Company V. Fitzpatrick. the present 1 controversy falls within the judicial
 power of the United States vested in
 this court But counsel for defendants
 insist that, at al events. a preliminary | injunction ought not to issue They
 say, If the defendant railroad company
 will obey the law, and reduce it's fares | to three cents. the damage prior to
 final hearing will be inconsiderable or nothing. But supp SC the alleged law
 to be invalid. and suppose the de-
 fendant railroad company declines to
 obey it. In the Reagan case. above cit ed, the same argument could have been l used, yet there the preliminarV infIlnct-