The Montgomery advertiser., 1907-08-16
GOVERNOR c0MER Is BUSY
 AND HAS NOTHING TO SAY
Marshal Judkins Starts Task of
 Serving County Officials.
! Attorney Gregory l.. smith of Mobile Gives Out statement of Railroads Position in Latest Phase of
 Famous Litigation.

After the Ilring or lhe DIE gun by the Louisville and Nashville in the war against the Conner rates. both State and railroads were content yes terday to stay by their guns and watch developments.
 There was absolutely no action on either's part. save for the preparation of a statement of the Louisville and Nashville's side of the controversy by Gregory L. Smith. counsel for that road.
 Governor Conner was busily engaged in military affairs yesterday. He was not at the capitol at ali during the af- ternoon and when seen had no state ment to make.
 stin there were informal conferences of his leaders. though no definite plan of action was decided on.
 United States Marshal J. H. Judkins, in obedience to the requirements of the enlarged injunction secured by the Louisville and Nashville preventing so- licitors and sheriffs from Interfering in the operation of the road In Ala hama, yesterday sent out Deputies Hay den and Gladden. Harrison to serve no-' tice on the various sneriffs and so- licitors of the courts action.
 They will go into every county through which the road operates.
 The statement of MT. smith follows:
 "The position taken by the Louisville and Nashville Railroad Company in what Is commonly known as the rate cases seers to have been greatly misunderstood
 Would Result .in Enormous LOSS.
 "The railroad has frequently been referred to as refusing to obey the laws of Alabama. and as attempting to deny the sovereignty of the State. This Is an entire misunderstanding Of it's position. The enforcement of the Acts the validity of which is being attacked. will necessarily result In an enormous loss of revenue to the rail- road
 If the Acts are not valid. the ran road does not wish to submit to this and ought not to be required to do so. If the Acts are held to be valid, the railroad will not attempt to evade their provisions. and will. as it should do. obey the laws without any evasion or equivocation, and will make good to every passenger and shipper any excess of charge over the. rates pre- SCrlDoQ+ Dy OIdIuLc LudI Ab heaFS made pending the litigation.
 Every person, natural or artificial has a right to test any law, the valid- ity of which injuriously affects his or its interest. by proceedings in proper Court. and this is all that the Louis vile and Nashville Railroad Com pany is doing.
 when a law so affects property interests that. if enforced during the litigation necessary to test its valid ity. serious loss will be sustained, should the law be held to be tnvalid' the enforcement of that law during the litigation is generally enjotned. and the party obtaining the injunction is required to give bond to protect all other partes in interest against loss ar damage, should the law be declared valid.
 This is a common and familiar prac tice which is fndulged in by individuals and everywhere recognized as orderly and proper. and in this case. the Rail- road Company has been required to give. and has given, ample security to refund to every person, should the laws be held valid, every overcharge it may make during the litigation.
 If the defendants could be required to give the railroad similar bond to pay 1t for any loss of revenue if the law should be held void. there would be no necessity for or justice In al- lowing the railroads to charge rates in excess of those provided by the Stat ute while the case is pending, but this cannot be done, and If the railroads were to charge only the rates pre- scribed by the Acts and those Acts were afterwards to be held to be void the road would be without remedy for the loss it sustained while the suit was pending.
 "Independent C any Statutory reg ulation. this practice of enjoining the enforcement of rates established by law. has been frequently indulged in cases exactly like that now pending, and has been frequently upheld by the Supreme Court of the United States. This fact was fully recognized by the attorneys employed by the Governor to defend this suit; they have admitted this in open court upon the hearing or the motion for the original restraining order in this case.
 Laws Provide for Such Test.
 ''The legislature in passing these laws was evidently familiar with this prac tice. and had no intention or desire 10 abrogate it; on the contrary. 1t evl dently recognized the fairness and justice of the rule. for 1t provided by more than one of the Acts in eontro- verfv for testing, in proper Court the real nableness and fairness of raN fixed by the law and for the suspension of such rates while the test of the reasonableness and fairness of the laws is being made and the su- pension by the United States Court of the rates established by the laws Is supported by the provisions of these very laws themselves, as well as upon general equity principles
 "As the proceedings themselves are Justified and supported by the provIs- Ions of the laws of Alabama, it Is of course. mistake to say that the rail road by instituting such proceedinrs has ignored and defied the laws of The state. and sought to set aside its sovereignty.
 By the first restraining order made by the Court, the rates fixed by the ieveral statutes of Alabama were thus suspended and since that time there lAs been no such rates in force, ana