The Montgomery advertiser., 1907-08-25

as entirely sound. They. are proposi- tions that have been considered both by the Federal and Srate Supreme Courts, and have been fully considered by the Supreme Court of Alabama, and decided in the most vigorous and florid language by Chief Justice Mcclellan. There IS no opinion any where strong CT or more emphatic In its denuncia- tton of the right of & court of equity to enJoin, as a general proposition, a criminal proceedings than is found in Brown vs. Mayor and Aldermen of Bir- mingham, 140 Ala. And yet, Judge Mcclellan recognized as fully as do any of the judges of the Supreme Court of the United States or any of the Federal court judges the exceptions to that rule under which this amend ed bill of complaint is filed. I read from page col: There IS long argu- ment preceding it against filing a Dill to enjoin criminal prosecution, show ing that equity courts as a general rule have no jurisdiction over crimi- nal matters, showing further that State cannot be sued. and showing that suit against solicitor in ordi- nary instances, is a suit against the State, and then 1t says:
 There are, 1t is true, some so-called exceptions to the general rule we have stated, that is, there are some cases in which prosecutions for alleged yfo- lations of penal ordinances may be en- joined; but it would perhaps be more apt to say that injunctions in such cases may be granted as incidental and ancillary to the exercise of some &C., knowledged equity Jurisdiction resting upon other bases than the mere hat- assment of prosecutions under void or dinances than that the cases form an exception to the general rule.''
 Alabama Court.
 In other words. Chief Justice McClel- Ian lays down the proposition that it is not an exception to the general rule, that It is not case where a court of equity undertakes to take jurisdic- tion for the purpose of enjoining criminal prosecutions but the so-called exceptions are cases where the court has equity Jurisdiction independent of injunction and that the issuance of the injunction against the criminal prose- cution is ancillary to that and neces- sary to preserve the corpus before the court so that the fruits of the final adjudication may. be enjoyed by those entitled to them
 That Is exactly the proposition here This is not an original bill filed sole- ly for the purpose of enjoining a. criminal prosecution, but 1t is a bill
 
 cognized equity Jurisdiction over the subject matter of suspension of these rates because they are confiscatory unreasonable and unfair, and taken that Jurisdiction under an express statute of the State of Alabama con ferring it upon it, and this amended and extended injunction is as Chief Justice Mcclellan said, not an excep- tion to the rule, but case where a nnUrf nf fu hao diction of the subject-matter and this proceeding is anctllary to it for the purpose of protecting that Jurisdiction in the administration of that subject matter over which it has control Then he goes on:
 illustrative cases are those in which the criminal proceedings sought to be enJoined are instituted by,a party to a suit already pending in a court of equity to try the same right in issue in such suit; those in which the pros- ecution is against an officer of chan cery for an act done Ina pursuance of the courts order or decree. and those In which prosecutions under a void ordinance will destroy or impair prop cry rights to the irreparable injury of the owner Brown ys. Mayor and All 1 dermen of Birmingham, 40 Ala, 60l. Here sa case where the allega- tions of the bill shows that these l prosecutions will necessarily by the fact that they may be directed against the people, who have to operate trains station agents, telegraph operators conductors. where these prosecutions Is | indulged in to the extent shown hy the amended bill of complaint. absolutely, paraly1e the business of the largest common carriers of the State involv- ing, according to the allegations of the bill about $S0O.00
 1 Now the case of Brown vs Mayor and Aldermen of the City of Birming- ham that have read from is the first | case in Alabama where that principle has been enunciated. In the City Council of Montgomery vs the L. and N | R. R. Co.,, eighty-four, Ala, Port of Mobile vs. L. and N. R. R. Co.,, eighty four Alabama Weller vs City of Gads- den. 141 Alabama, which is subsequent. however, to the Brown case and Mayor vs. City of Columbus, ten Alabama,- in all these cases, the principle was the same. but the question arose where | there was a prosecution involving the i exercise of a franchise or alleged fran chise and prosecution of the city to punish the parties for the exercise Of | that property right and in each and l every one of those cases, starting with the ten Alabama, and coming on down to the Al Ala, without a dissent from | beginning to end, it has been held that l a criminal prosecution involving as 1t does. In that case property rights. may be enjoined and should be enjoined | while the matter is being determined by court of chancery. So that sub init that the propositions under which this amended bill of complaint is filed and under which an extension of this injunction Is sought against the solici- tors and sheriffs restraining them from further destroying these property rights by criminal prosecutions is nowhere better settled than by the Supreme Court of Alabama itself in quite a number of cases. and markedly Is the two cases. taken together that I have cited, the Gray and the Brown case.
 Fitts vs. McGhee.
 Now the Brown case bears the same relation to the case of Fitts vs. Me Ghee, so much relied upon. as the Gray case bears to the sharon case. In other words. the Gray and sharon cases are on a direct parallel. They an- ncunce the same propositions and both quote copiously from other authorities. In the same way the Brown case, and Fitts vs. McGhee, are upon identically the same propositions and announce fdentiCally the same rule. In Fitts vS. McGhee. there was statute prescrtb- ing rate of toll for the Florence bridge and penalties for taking exces- sive tools. There was no provision there for the enforcement of that act by any particular officer. No one was charged with any duty with regard to that. The bill was filed not for the purpose of contesting or suspending the rates there fixed, but 1t was filed directly against the Attorney General