The Birmingham age-herald., 1907-09-08

to be protected by writs of the proper courts from rreparabe injury. while the facts are being gathered upon which alone il can be ascertained whether the statutes. the enforcement of which is enloined, can ever have any force. The
 court has undoubted power to enJoin such arrests, not only because they
 would result in irreparabie injury, but for the further reason that they con stitute "endeaVorsn to "obstruct or Impede the due administration of jus tiee" in these cases, under section 5399
 of the Revised Statutes of the United States.
 The authorities are unbro<en and numerous to the effect that under such circumstances, equity must intervene by it's preventive remedies. Osborn M Bank Wheaton, 73S; Davis Vs. Los
 Angeles. lS0 |. lS 217; Dobbins vs. Los Angeles, 195 U. S. 225, No court has
 been more pronounced in this direction i than the supreme court of Alabama in series of decisions commencing Wlth
 Mayor vs. Rodgers, 10 Aa., ST. and
 running down to the present time, in 1 cluding Port of Mobile vs. Railway Co., 1 S4 Ala 123, City Council Vs. Railroad ! Co, SI Ala. 131. As the great story
 observes, "1f. indeed courts of equity 1 did not interfere in cases of this sort, | there would be q great failure of jus 1 lice Tn llllS country. folOi y . b'i. J uA .
 section 928. The arrests under the cir
 cnmstances stated in the amended bills | would involve direct trespasses upon 1 the property of complainants, and even 1 if Fitts vs. McGhee were applicable
 to the case here presented. would fall within the express exceptions the opiit- l ion in that case states on pages 52S and 529
 What is the difference in the issue tg Io aie,nI l,zrf ma
 asked to be enjoined and the issue pend | ing in this court on d bill in equity as to l these rates? None at all. They present | the identical question. The same proof | in either court will defeat maintain the | rate. No greater or less degree of proof ! is required nl either case No proof can
 possibly bet offered upon the trial of an | indictment as to the rates, which would
 not be competent evidence in the civil suit 1 concerning them. A judgment either way l in criminal prosecutions would not bind
 the state or the public. judgment either way, in the equity suit will determine the i whole question as regards the state the | publc the customer and the carrier. To | quote the language of the supreme court, l ''fhe same rights are involved in the civil | and criminal cases, and the legal ques- | ton involved is the same" See Haril- | rader- vs. Wadley, 172 r. s. 167, where the tVhil III uttlllllIB tO dliDW lDlcIltI euCS ! with the indictment in that case. put it's l refusal upon the distinct ground that "the | fallacy in the argument of the appellee in | the present case is the assumption that ! tine same right was involved in the crinl- | inal case in the state court, and in the l equity case in the federal court" It was | also observed that the indictment there 1 asserted an offense against the law of the 1 state. "the validity of which is not as- 1 sailed That the supreme court of the ! United States considered that the very
 same question is involved in the indict-
 ment for violation of a rate law and
 prior suit in equity 10 test it, is obvious
 on perusal of it's still later decision of | Prout Vs. Starr 1SS r. s. 544, where It , speaks of "an attempt to transfer the
 very matters that stood for judgment in | the federal court to the state court hy | filing a bill in the latter" Such q course, | il said might bring about conflict be-
 tween those courts and create the con fusion So often deprecated by this court. ! Peck vs Jenness, How. 612 Orton vs. ] Smith, IS How. 263 " In the same case ! of Prout vs Starr, the supreme court ] said the bill there did not seek to inter 1 fere with the act of the attorney general | in prosecuting offenders against the vaiil 1 criminal laws of the state, but It's opJect ! was to prevent him from collecting pen ! allies that had accrued under a statu.e | determined to be void" Here the court | declared unconstitutional the act punish l ing complainants for bringing the suit to I test the validity of the rate Legislation in this court, and it necessarily had the | power to entoin the numerous penalties 1 dependent upon that unconstitutional aet' | and it had Suspended, as well as enjoined,
 undor it's equity powers, the operation of the rate statutes, in the gode pro I vided by law pending ascerta1nment or sAA faets which alone could determine