The Montgomery advertiser., 1907-09-05

 Criminal Proceedings Not Binding. OPINION RENDERED ON
 ENLARGED INJUNCTION Florence Bridge Case Not Applicable to These Facts. Fftts VI. McGhee Pointed Out to Re Different in Six Important Es- sentiaIs From Present
 Railroad Litiga- t,-.,
 tien. '

Judge Thomas c. Jones. of the Uni ted States Circuit Court, handed down an opinion yesterday. setting forth at some length the reasons that impelled the court to issue the temporary in- junction, pending the final determine ton of the litigation in the Louisville and Nashville and South and North Ala bama Railroad cases, in the petition of those roads for enlarged injunctions.
 In this opinion, Judge Jones takes occasion to discuss somewhat in detail the reasons why the decision in the Fitts vs. McGhee case. to which so much attention has been paid by the supporters of the Governor, is not at all applicable to the present contro- versy Six reasons are advanced why that decision does not apply to the facts as existing in the present railroad litigation.
 The Fitts vs. McGhee decision, 1t will be recalled, was rendered in case involving the rate of toll to be charged on bridge at Florence. The opinion by Judge Jones points out that in that case only few people. at the most, would be inconyenienced should any disaster overtake the company op- erating 1t, while in the case of the Louisville and Nashville. there are thousands of employees and hundreds of thousands of passengers and shippers whose business is directly involved in the condition Of the railroad.
 In the Florence case, also. there was the vital difference. from a legal stand point, that no Federal Court had as- suned Jurisdiction of the subject mat ter in advance. and that proceedings to ,aiaictn the operation of criminal stat utes were brought to restrain the penal laws that were actually in force. whereas, in the present case the laws were suspended. and therefore entire- Iy imperative, before the enlarged in- Junction, relating to the criminal pro- cesses, was sought.
 The fact is emphasized in the opinion that a decision in the Federal Court in Equity would be binding on all parties, whereas judgment in crim- inal prosecution would not.
 The Court Tn the opinion. quotes opinion after opinion of the Supreme Court of the United States in support of the positions taken by the Alabama Federal Court.
 Text of Opinion.
 The opinion in full follows:
 sIJnfted States Circuit Court for Mid
 die District of Alabama In Equity. q. and N. R. R. Co., ct al, vs. Railroad
 Commission, ct al.
 "Jones, District Judge.
 "The original bills were filed by the complainants against the Railroad Commission, ct al, to restrain the en- forcement of certain Legislation fixing freight and passenger rates, and the act which forfeited the right of com pIainants to do intra-state business, if they filed bills in this court to test the validity of the rate legislation. A pre- lirinary injunction was issued. some months ago, on the original bills. On August 14, 1907, complainants filed their amended bills, making the solicitors and sheriffs in the several counties, In which their roads were operated, de- fendants, praying an injunction against them to prevent their prosecut- ing or arresting complainants' officers, servants and agents, for any alleged violation of the statutes named, pend ing the determination of their validity in this court.
 The amended bills state in extenso various alleged violent utterances of His Excellency. the Governor, and his threats to instruct solicitors and sher- iffs to disregard the orders of this court against such arrests and prose- cutions. and aver that the said several solicitors will. unless restrained, pro- cure such indictments and cause such arrests, etc. The answers to the rule to show cause are in effect only plea to the jurisdiction of the court; that the amended bills are. in effect suits against the State. and that this court under the facts set forth in the origin al and amended bills, has no authority to enioin criminal prosecutions. The arguments in support of this plea are based upon an tnsistence that the case Of Fitts V. McGhee, 172 U. s. 52S, ap- plies to and controls the case made by the amended bills, and 1t seeks a re- hearing and reversal of the prior decis- ions of this court on these points
 The court has carefully reviewed and reconsidered the reasons upon which its judgments were based, and has no doubt of their correctness. -As- suming. for the present, the doctrines of Fitts V. McGhee, has not been mod filed by later cases. that case has no bearing, whatever. upon the different state of facts here presented for six wetghty reasons:
 First. There was no State law In Fitts V. McGhee. as is the case here, under which the owner of the bridge there, could, by bid in equity initiate litigation to test the reasonableness of the tolls. and by pursuing the mode the State law pointed out. not only bind every one by the decision in that ono case. but could secure the suspension of the statutes complained of. and thus destroy, pending the decision in Il at court, all power of the State, or any of its officials or anybody else. to inter- fere by indictment or other criminal proceedings, to compel observance Of the statutes.
 Second. In that case, no court of competent Jurisdiction, armed with power to determine "the very matter in dispute" had enjoined further pros cautions by indictments, under statutes which that court had either declared unconstitutional, or suspended under