The Birmingham age-herald., 1907-08-25

| torney generals assurances of interest," | respect and consideration.
 Day for Hearing.
 The proceedings this morning were d. i recty the outcome of the restraining or l der against solicitors and sherlffs 1 which was issued to the Louisville and | Nashville railroad on the 14th of Au-
 gust. Pending the litigation In court. Judge Jones had set aside this morning as the time for the hearing of the case | the pros and cons of the injunction. The Louisville and Nashville railroad was represented by Chief Counsel II. L. Stone, of Louisville; Gregory l.. Smith of
 of Mobile. and George w. Jo/es of this
 city. The argument for the railroad
 was made by Attorney Smith.
 After detailing the various stages lead ing up to the litigation. Mir Smith ex- plained at length reason why the injunc- tion desired should be made pendente lite, denying the authority of the state to take out of the hands of the federal
 court any case which had been placed ' therein.
 The attorney cited a number of in- stances of a similar step that had been decided in both the United States fed eral courts, supreme court civil courts and state supreme court, showing in his brief that any court first having juris- | diction over any subject matter had an | exclusive right to the case.
 Brief of Railroad.
 I The attorneys brief was based on l two arguments: First, that criminal pros ecution on the part aof the solicitors and : sheriffs at this stage of the proceedings were unconstitutional; second. that 1t also unreasonable and unfair. Again, he
 said, too low rates provided for by the legislature were conhscatory and cal- cuated to do an irreparable injury to one
 of the states foremost common carriers. Largely for this reason, he said, be-
 cause of the fact that one of the fore- most common carriers in the state would
 be paralyZed by such practices" the brief of the attorney asked that the injunc- ton be not disregarded. Property the attorney said, .'is involved in the litga- ton, and because the injunction is
 cured as q protection for this the court
 has right. and should enjoin the state. MT. Smith spoke for about one hour in 1 the reading and presentation of the ar ticles Incorporated In his brief, Partic- ular stress was laid on various decisions and opinions made In other states on | matters similar to the one which the attorney adduced In the railroad tur-
 moil. His chief argument was in show ing that whenever two courts hSve ju- risdiction over the same subject matter, the first has an exclusive right to It." by l which he inferred that the attitude should
 not be changed from the federal to the state powers to such an extent as 10 au-
 init of criminal prosecution.
 Judge Jones' Response.
 Responding to the remarks of Attorney General Garber, Judge Jones said this afternoon: When these cases were called the court hoped to have the benefit of argument from counsel for the rall- road commission. For reasons the attor-
 ney general has stated in open court this | was declined. The ground stated is that ! the opinion rendered on granting the last
 restraining orders practically decided the l questions, and effect the mind of the court | was so firmly made up that they deemed l 1t useless to try to change 1t by argu- I ment. Whenever d court acts it's action l inevitably involves decision of every | doctrine necessary to maintain the par | tcular ruling. Every order in case Is i necessarily an expression of opinion. In 1 this case the doctrine asserted by the l late restraining orders was decided as l far back as the 30th of March The pre- i liminary injunction then granted not only 1 enjoned the defendant by name, but all 1 other individuals, persons and corpora f tons were enjoined and restrained from 1 lnsttuting, bringing prosecuting | against complainant. or any of it's officers l or employees any action or proceeding, 1 civil or criminal.
 Orders Submitted.
 For failure to conform to the rate l statutes, or from instituting any proceed 1 ings whatever against complainant for | bringing the suit in this court to test l validity of the rate laws. these orders l were submitted to counsel for the rail- i road commission before they were made. l No appeal was taken from them, and no ] objection made although objections were l requested by the court in open court, the
 reply being that as the injunction was l not resisted it was needless. In the opin- 1 ion subsequently, filed on the 16th of l July, authoricties were cited, though the l that for the protection of a property right, pending in the court of equity. 1t l would restrain and enjoin criminal prose 1 cution under void statutes or those which | might be so declared, where irreparable | injury would otherwise result.
 "Thoses cases thus cited were: Osborne 1 vs. the Bank of Wheaton. 73S Smythe
 vs. Ames 169. United States 466, Prout vs. Starr 1SS, United States 5S7. Mississippi l Railroad Commission vs. Illinois Central l Railroad company 203, United States 341. | Other cases were cited in the opinion on | the same line. In one of these. Smythe | vs. Ames, blanket inJunction,' so | called. was issued and approved by the supreme court of the United States. ] against prosecution or institution, or | causing to be instituted prosecuted. any action or proceeding, civil or crim- inal,' etc.. for anything done, suffered or | omitted which may be forbidden com | manded by the act there referred to- In
 the opinion filed on the 16th of July it was
 stated that it had been settled beyond
 controversy, by decisions of the supreme