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

:, judgments were based, and has no doubt 1 of their correctness Assuming for the l present, tho doctrine of F'itts Vs. McGhee l has not been modified by later cases, 1 that case has no bearing whatever, upon | the different state of facts here present
 ed by the original and amended bills, for
 the six weighty reasons:
 l l. There was no state law in Fitts ys l McGhee, as is the case here, under l which the owner of the bridge there,
 could, bill in equity initiate litigation to 1 test the reasonableness of the tolls, and | by pursuing the mode the state law l pointed out, not only bind every one by 1 the decision in that one case, but could l secure the suspension of the statutes com 1 plained of and thus destroy, pending l the decision in that court all power of 1 the state, or any of its officials or any
 body else, to interfere by indictment or
 other criminal proceedings. to compel | observance of the statutes.
 2. In that case, no court of competent 1 jurisdiction, armed with power to de- | termine the very matter in dispute, l had enjoined further prosecutions by in- 1 dictments, under statutes which that
 court had either declared unconstitutional, l or suspended under state statutes as well 1 it's equity powers, pending the ascertain l ment of the facts upon which alone the court could determine whether the statutes , were void or not, and, therefore, whether
 
 3. In that case, no injunction had been l issued, as here, by court of competent l jurisdiction. before any indictment found,
 in which court the decision of the very
 matter sought to be raised by tho in dietment-the validity of the rate-was
 pending, in order to preserve it's own
 prior jurisdiction, acquired by the inltia- ton therein of the very proceedings the
 state law invited and to prevent the
 transfer of the trial of the case by the indirect mode of a criminal prosecution i into another court. which could no longer ] take Jurisdiction, since the matter was l already pending In a court of coordinate 1 jurisdiction.
 1. That case did not involve. as does l this. irreparable injury, both public and l private from the disturbance of the oper
 alton of great inland highway of com l meroe, by constant and incessant ar 1 rests of It's officers and operatives, whose l duties pertain alike to the movement of l domestic and interstate business. and which would inevertably inflict grievous 1 burdens and hindrances upon a great 1 volume of interstate commerce. and inter- ! fere with the prompt dispatch of the mails l of the United States. The arrest of the I tollkeeper. in the F1tts ys. McGhee case, l supra, did not interfere with either do- | mectic or interstate commerce, or in- 1 jure the public, or impede the passage of
 persons things over the bridge in any 1 way, or prevent the bridge company from 1 maintaining 1t as part of local highway, 1 for the use of q comparatively few lntra- l state passengers.
 1 5. Nor is that case authority for the
 proposition that where proceedings against 1 officers specially charged with the duty | of enforcing statute, are authorized l by the state law to enjoin the enforce
 ment of an unconstitutional act, (which 1 Fitts vs. MeGfhee, expressly admits is l proper, and not to be suit against the l state), that officers who are not charged l with any duty can butt in,'' so to speak. | and try the case elsewhere and thus pre- 1 vent the court, in which the suit is pend 1 ing, from effectively determining the ques- | ton and nullifying its judgment by trans 1 ferring the trial elsewhere. If the orig l inal proceeding be not a suit against the | state, a. Fitts vs. McChee admits 1t is l not, and thereby the court can arrest, l the acts of the states chosen and trusted l agents in the enforcement of a statute, ] 1t stands to reason that the power which l can arrest the selected and chosen agent 1 of the state to enforce law may stop 1 other agents of less degree from doing | that which the court can prevent the 1 higher servant from doing.
 l G. This case falls within the exception | MT. Justice Harlan was careful to make | in Fitts vs. McGhee, "as 10 suits author | 1 is not intended in any way to infringe l upon the principle which justifes suits l against individual defendants, who, un- l der color of authority of unconstitutional | by the state are guilty of personal tres | pass and wrongs; nor to forbid suits
 against officers in their official capacity | either to coeree or direct their official &C., l ton by injunction or mandamus, where
 such suits are authorized by law and the
 acts to be done or omitted to be done | is purely ministerial in the performance
 or omislson to perform wliich the plaintiff
 has a legal interest"
 The supreme court of the United States
 in the later cases has administered in
 junctive relief, when the performance of
 the duties involved something much more
 than the purely ministerial Prout vs. | Starr. 1SS U. S., 537. In that case the l supreme court affirmed a judgment en- | joining the attorney general of Nebraska | from carrying on prosecutions in the su- 1 preme court of Nebraska to collect pen | altes for $310,00o for rates exacted in ex-
 cess of the Nebraska statute. The attor- | ney general set up, as appears from the | opinion of the supreme court itself, that | the attorney general cannot be restrained | by an injunction of admitted States court
 from enforcing the criminal laws of the l state" The supreme court said that | 'fcontention is only another phase of the
 same question: referring to its observa- tions in another part of the same opinion. l wherein 1t said, it would indeed be most 1 unfortunate If the immunity of the indi- l yidual states from suits by citizens of ! other states, were interpreted as nullify
 ing other provisions of the constitution