The Birmingham age-herald., 1907-08-19
(Commun ated) TEXT OF THE OPINION RENDERED BYJUDGE JONES

These laws being thus suspended as well as enjoined, can have no opera tive force again until that suspension is revoked by further order of this
 court or some higher court. There is now no law in force to be violated by disregard of the rates. No offense is thereby committed against the laws of
 the state, if we look alone 10 them, and also make the unwarranted con cession that its laws can limit the equity powers of a court of the United States In this condition of the cases,
 there is no unlawful act upon which any one can legally fasten penalties, or which can furnish any element of a violation of the law of the state. eith- CT civil or criminal. 4 law cannot be violated at time when it is not in force. The passenger and freight statutes stand in legal contemplation and effect at the present time, Just as any other law which goes into effect at some furture date, upon the hap pening of some contingency as where It's taking effect depends upon a local election, or the ascertainment of some particular fact by some designated of ficer
 No one, the court takes 1t, can serious ly urge, throwing aside for the moment the potency of the supreme law of the land, that the legislature of Alabama contemplated, notwithstanding rate laws
 were suspended by the court, in a mode
 prescribed by it's own laws, pending final
 inquiry into it's reasonableness, that
 nevertheless it should be the duty of any
 officer to treat such a suitor as a crim- inal and yiolator of the law of the land, because he did not conform to the pro-
 vision of the suspended law. Such a construction would raise q lurking intent
 behind the words of the statute, which no respectable court would impute to the law making power of a state, to trap and snare an unWary sultor, who in the mode invited by it's own laws, well as in the exercise of rights the constitution of the United States gives him, has asked court to decide upon it's legislation and procure it's suspension: meanwhile It would also involve the legislature in the attitude of intending although the con- stituton declares, No power of suspend ing laws shall be exercised, except by the legislature" that executive officers though no such authority is given them by law should themselves set aside the laws which authorize suspension of the rates, and thus put them back in force, uwithstanding the state law had been suspended in the mode they provide, pend ing final inquiry as to their validity. The bare statement of the proposition shows how utterly unfounded In reason is any tleory that the legislature intended or desired, or put any duty on anybody to see that its statutes should be enforced
 
 thorlty.
 We have then, the case of a statute declared unconstitutional by court of competent jurisdiction, and two other statutes which may, or may not, be ad- judged void, depending upon the final proof not now obtainable but whose oper- ation has been suspended, not only In the undoubted exercise of the jurisdic- tion of the court of equity, but in the mode provided by express authority of the state laws. There Is absolutely no legal warrant authority for the tres passes which the amended bills alege l are threatened ana will be committed, i nevertheless, in the name of the law.
 The importance of a right understand | ing of the power and duty of a court | of equity In cases of this kind, seems | very essential at this time and justifes | a more extended discussion than the 1 question of law involved, would ordi- 1 narily demand. The question is not new. or at all difficult of solution. Let us see what 1t Is that has been stopped by the order of the court. will be found that its orders, in no just sense legal or moral. involve ,5ny interference with the 'crimnail laws of the state.' What Is the right here in issue. and what mode of settling 1t is prevented by the law of the state and the United States? How does the question arise? The question arises out of the performance of a ser vice by a carrier in transporting pas sengers and freight. The thing done, the law demands the carrier to perform. It is essential to the public welfare that 1t should undertake the duty, and harm full to every interest, public and private, If it does not discharge 1t. In perform ing the service. the carrier violates no law of God or man, put on the contrary
 complies with tho duty the law of the state puts upon 1t. The act of render
 ing such service, therefore, cannot i'm peril any right, whatsoever, or involve any question of the morals. welfare, peace or happiness of the people. The per formance of the service does good not harm. It Is neither malum prohbitum,
 nor malum in SC. Such acts. therefore, do not fall with the scope of the sub jects upon which the police power of ! the state Is ordinarily exerted. The only 1 issue arising here grows out of an act
 in the lawful use of the property, and is, did the carrier charge too much? The carrier claims that the limits fixed by the statute is unreasonaby low, and insists that its enforcement would de- stroy property right, secured to 1t alike under the constitution and laws of the state and of the United States. Equity | Jurisprudence, and the statute alike, pre- scribe the mode in which the right of
 exacting the charge complained of can ! be tested. That matter Is before a court
 of competent jurisdiction, and presented
 in the very form and mode which the
 statute prescribes for testing the ques-
 ton. The court in which the matter Is ] pending has exclusive jurisdiction of 1t. ] The same right or contention cannot be | tried in any other mode or in any othe- | court. Criminal prosecutions are not au. | thorized by the law of the state for the i settlement of such questions when they
 are already before competent tribunal,
 in the mode and manner the state stat utes prescribe for testing the rates, and
 after their operation has been suspended,
 in the mode and upon the terms prescrib-
 eG by the statute itself as well as
 under the equity powers of the court. If criminal prosecutions can be main ! tained, notwithstanding, the complain ant would be compelled to succumb and ! lose the benefit of any right the law gave 1t in contesting in the court. It would have to engage in another con test which would involve the entire destruction of its local business Is it possible, under the law of the land, that where the mere right to make 1 particular charge for service or use of property is being tried in the courts of the country. as the law fixing | ha ra tn Ga1f bot ha 1aer