The Montgomery advertiser., 1907-09-09

absolutely and literally trailed the doe 1 triues of that supreme body.
 The Advertiser is familiar with a 1 leading case bearing upon this subject which does not seem to have been mentioned prominently in any of the 1 briefs and opinions which have reached this paper. and that is the case of Cot l ting vs. Kansas Stock Yard Company. 1Ss United States Supreme Court Re ports, page S3. In that case Circuit Judge Thayer, before whom the case was tried. decided that the statute in question in that case. the constitution aIity of which was being assailed, was valid. Nevertheless Judge Thayer granted an order restraining the en- forcement of said act of the Legislature until the matter could be finally deter mined by the Supreme Court of the United States We quote below that portion of the order of Judge Thayer embodied as a part of the final decree in that case:
 l The great importance of the ques- l tions involved in these cases will doubtless occasion an appeal to the l where they will be finally settled and determined. If, on such appeal, the Kansas statute complained of should and in the meantime the D statutory schedule of rates should be enforced, the stock yards would sustain a great cumstances, as was said in substance by the Supreme Court in Hovey ys. McDonald, los U. S., 1el. 1t is the right tain. if possible. the status quo pend ing an appeal, if the questions at issue are involved In doubt; and Equity Rule sS was enacted in recognition of that the cases at bar are of such moment | and the questions at issue, so balanced with doubt, as to justify and require an exercise of the power in question. | Therefore, although the bill will be | dismissed, vet an order will at the same time be entered restoring and contln- heretofore granted for the term of ten days, and if in the meantime an ap- peal shall be taken, such injunction appeal is heard and determined in the Supreme Court of the United States; provided that. in addition to the ordi- Live stock yards Company shall make and file in this court its bond in the penal sum of two hundred thousand dollars payable to the clerk of this court and his successors in office, for the benefit of whom it may concern, conditioned that in the event the decree dismissing the bills is affirmed, it will, on demand, pay to the party or parties entitled thereto, all oyercharges for yarding and feeding live. stock at its stock yards in Kansas City. Kansas, and Kansas City, Missouri, which 1t may have exacted in violation of sec tions four and five of the Kansas sta ute relative to stock yards, approved March 3, 1897, since an injunction was first awarded herein, to-wit, on April -, 1907: and that 1t will in like man ner pay such overcharges, if any, as if may continue to exact in violation of said statute during the pendency of the apepal
 The foregoing action of Circuit Judge Thayer is a striking instance of the extent to which courts of equity will go. and ought to go, in order to pre- serve the status quo and prevent ir- reparable injury in a case like the one in which Judge Jones has Jurisdiction. It Is interesting to follow this case and observe the language of MT. Jus tice Brewer who delivered the opinion of the Supreme Court of the United States In referring to the action of Judge Thayer Mir Justice Brewer used the following language:
 The learned circuit judge in deciding
 the. case. appreciated the importance , denying the relief sought by the plain tiffs, exercised his power of continu-
 ing the restraining order until such
 time as these questions could be de-
 termined.
 Thus it will be seen that although the circuit judge held that the statute
 under discussion was valid, and al- though he dismissed the bill which had
 been filed in his court yet in order to prevent the confiscation of property and irrcparable damage, he continued the restraining order until the Supreme
 Court of the United States could pass , upon the question.
 It should be further observed that in the Cotting case above referred to, when it reached the Supreme Court,
 that tribunal reversed Judge Thayer and held that the statute in question was unconstitutional and void. and, , thus it is demonstrated that it was only by Judge Thayer's foresight in restraining and enjoining the enforce ment of the statue which he himself ] held to be valid and which the Supreme Court afterwards held to be invalid,
 that the Kansas Stock Yards Company was saved from irreparable loss.
 In the case before Judge Jones the question of whether the several stat utes fixing freight and passenger rates