The Birmingham age-herald., 1907-12-29
RAILROAD SUITS ID BE CALLED JAN. s Judge Thos. C. Jones' Illness
 Will Net Interfere MAY WAIT FOR RULING Question of Courts Jurisdiction May Be First To Be Decided-May
 Make Test Case In
 Alabama.
MAY WAIT FOR RULING
BY HERVEY W. LAIRD.


 Montgomery. December 2S.-(special)- The illness of Judge Thomas G. Jones of the United States court is not such as to prevent his attention to business, and he will call the docket on January 6. for the railroad suits against the state unless prevented by complications not now anticipated. He will take up other inn portant matters at his home. This will relieve many who have thought the in- Jury of the judge would cause delay in the answer of the state to application of systems for injunctions preventing the operations of the state rates.
 May Not Be Heard.
 There is an impression that after all the cases will not be heard out to any conclusion on the day mentioned. It is understood that some of the litigants de- sire to wait for ruling by the supreme court involving the questions of juris- diction of the lower federal courts to take these matters out of the state courts, which will come out of the Min nesota cases submitted December 6. This would be the best policy for the state, 1t is thought, as 1t has all along ques- toned the right of district federal tri- bunals to take this matter out of the control of the state by the issue of re- straining orders.
 Talk of Test Case.
 There Is also much talk of a test case by this state. man who will have much interest In the outcome says: Why not take up a case of our own? The de- cison in the Minnesota case will not set tie our difficulties, and in the end we will have to get a ruling for ourselves. So it seems folly to longer delay to hear from some other litigation. I believe we will best serve all concerned if we can get such a test made at once" It is also understood that the court here would not be averse to an agreement for such a case in order that the ques- ton of jurisdiction can be gotten out of the way.
 Constitutional Questions.
 Questions are involved in the Minnesota case that bear on the Alabama litiga- ton to this extent. How far does the fourteenth amendment nullify the elev- enth? Alabama litigation is based on the former, the railroads holding that the state by the making of rate below what it should be would be taking it's property without due process of law. The state has held that the suits as filed are in effect suits against the state, which cannot hold if the eleventh amendment is paramount and in such force and effect as was desired of 1t when first adopted. Railroad men con- tend that the last amendment is effective over any provisions of the first, and the state hopes that the supreme court will make this point very plain in it's decision on the Minnesota case.
 Position of State.
 It is well established that the state Is going to argue in reply to the bills by the railroads that old suits can not be sup plemented as the Louisville and Nash vile and other roads are trying to bring about. In other words. 1t is argued, or will be, that the old laws under which the original injunctions were issued have been swept away by repeal on the part of the legislature, and to make the new litigation hold it must be by new suits directed to the laws as they were passed by the extra session in November. The idea of the new acts was to legislate and the state is expected to take the view that this has been done and no sup plemental orders will hold
 Other Side of This.
 On the other hand the railroad law yers contend that no case can be legislat- ed out of court that this is provided against by the new constitution and there is no getting around it. It is also held by them that the new acts are in effect and 10 all intents and purposes a part of the original movement to reduce the revenue of the railroads, hence, fhey