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

which confer power on Congress ''all of which provisions existed before the adoption of the eleventh amendment and which still exist, and which would be nulliied and made of no effect, if the judicial power of the United States could not be invoked to protect citizens affected by the passage of state laws disregarding these constitutional Limitations. Much less can the eleventh amendment be sue cessfully pleaded as an invincible barrier to judicial inquiry whether the salutary provisions of the fourteenth amendment have been dsregarded by state enact ment" In the same opinion, 1t refers to the cases, among others, of Fftts vs. McGhee. in which the judicial power of the United States has secured immunity to states from suits in proper cases. '' The supreme court held that the injune- tions against the attorney general of Ne braska to prevent prosecutions to recover penalties for violation of a state rate statute did not present "a proper case'' in which to apply the doctrine of Fitts Vs. McGhee, supra. It phatically held that Fitts vs. McGhee had no application whatever to such case. If 1t be a wise and salutary principle, as the supreme court of the United States has repeatedly held, to restrain the attorney general of state In a matter of this kind upon what principle or reason can it be con tented that restrain of a solicitor as to the like matter is a suit against the state or otherwise improper?
 In the still later case of Davis & Far mum Manufacturing company vs. Los An geles, 1S9 U. s. PIT, the supreme court says, without qualification, it would seem If there were jurisdiction in a court ! of equity to enJoin the invasion of prop erty rights through the instruments lity of an unconstitutional law, that jurisdic- Ia., a the state had chosen to assert it's power to enforce the statute by indictment or other criminal proceedings" It cites as authority for that proposition the leading case of Springfield Spinning company vs. Riley, l.. R., Eq 551-558. in which the vice chancellor said: "The jurisdiction of this court is to protect property, and 1t will interfere to stay any proceeding. whether connected with crime or not. which goes to the immediate or ultimate destruction of a property right or make it less valuable for use and occupation In the still later case of Dobbins vs. Los Angeles, 195 U. S. 241, the supreme court declares: Tt is well settled that where property rights will be destroyed, un- lawful interference by criminal proceed
 ngs under a void law or ordinance, may be reached and controlled by a decree of a court of equity.''
 
 ted States has declared that "the proper if not the only mode of judicial relief against the character of rates established by the legislature or by it's commission, Is by bill in chancery asserting its un- reasonable character, Its conflict with the constitution of the United States, and asking a decree of the court forbidding the corporation from exacting such a fare as excessive, or establishing its right to collect the rate as being within the lim- its of just compensation for the services rendered." This is the language of MT Justice Miller In Chicago, etc., R. R. Co. vs. Minnesota. 1S4 U. s. AIS, which is ap- proved by the whole court in the later case of Railway Go. vs Gill, 156 U. s. 649.
 Indictments under the rate statutes would not settle anything except the pdr- tlcular case One jury might find one way and another jury another way, on the same state of facts. The law would be left in uncertainty and confusion, and so would carriers, shippers and passen- gers as to their rights. If the defend- ant were acquitted 1t would not be bind ing upon the state upon the same state of facts upon another prosecution For a noted instance, in a case of great hard ship, see Boyd ys. Alabama, 94 U. 5. GAS. The expense of making the proof re- quired in cases of this kind, if the car rier could be indicted for each transac- ton, would force him to succumb to the statutory requirement, and prevent his assertion of his right meantime in equity. In recognition of the excessive burdens which would be imposed upon the carrier by the numerous suits and indictments if 1t contested the validity of rates, the