The Birmingham age-herald., 1907-08-27

In our issue of August g, 1907 (65 Cent. l.. J. 9D. we referred to the conflict be- tween state and federal laws concerning railroad rate regulation, and took the position that federal control of railroads, as well as of all other means of inter- state commerce. was a necessity, and that federal courts must and should take cognizance of such questions. We desire now, however, to take another view of this confiice between federal and state jurisdictions, especially as evidenced in the late unpleasantness in the state of North Carolina and Alabamai and in this view we desire to adopt the states contention that the federal judiciary can exercise this power only by injunction against some affirmative act enjoined by the statute alleged to be unconstitutional or by the ordinary methods of appeal; that they have no right to exercise this power to enjoin criminal prosecutions nor to release persons on habeas corpus le- gally found guilty under the criminal laws of any state
 It is certainly true that tho federal courts have the absolute right to enjoin the enforcement of any state law which is contiscatory. as many railroad rate reg ulation statutes are said to be- Thus Smith V. Ames, 169 U. S. 466, 1t appeared that the state of Nebraska had fixed maximum schedule of rates and had em- powered the board of railroad commits sioners to establish rates within that maximum. The suit was by stockholders of the railroad companies to enjoin sthe companies from making rates in con- formity with the law and to enjoin the railroad commissioners from taking any action which the law authorized them to take hereunder. It was insisted by the stockholders that the rates prescribed were confiscatory. The lower court de- scided in favor of the stockholders, hold ing the law to be invalid, and granted the injunction asked for. The supreme court sustained the lower court in Its decision.
 In this case 1t will be observed that the action was against state board to compel them to refrain from doing spec fife affirmative act under the statute. which was in its nature confscatory. or alleged to be such But this is far different from enjoining a state attorney from prosecuting an individual ticket seller for selling tickets in violation of a criminal statute, the latter being a rule of conduct prescribed for an individual, and not directly confiscatory of any prop erty right. This distinction is sustained. we believe. by the case of Fitts V. Mo Ghee, 172 U. s. 516. In this case the state of Alabama had by law fixed the maximum rates of toll to be charged on a bridge across the Tennessee river, and prescribed a penalty of s20 for each off, fense in case of violation of the law. The bridge company contended that the law-swas invalid because the rate was conflscatory, and brought suit against the state of Alabama, It's governor and attorney general, to enjoin them any any body else from instituting proceedings under the law. The circuit court of the United States in which the suit was brought issued the injunction against the governor and the attorney general While the suit was pending indictments were found by the state grand jury against the agents of the bridge company and the federal court enjoined the prosecuting attorney of the state from prosecuting the indictments and on writs of habeas corpus discharged the agents of the com pany from arrest under the indictments. On appeal the supreme court was asked to sustain the action of the lower court as to the injunction against the prose- outing attorney to prevent him from en- forcing the criminal law of the state, on the authority of Smith V. Ames, supra, but this the supreme court declined to do, saying that that case and kindred cases would show that ''the defendants In each of those cases were officers of the state, specially charged with the exe- cution of state enactment alleged to be unconstitutional. but under the author ity of which, 1t was averred, they were committing or were about to commit some specific wrong or trespass to the in- jury of the plaintiffs rights" But in the present case the court said the officials of the state who had been made parties did not appear to have been charged by law with any special duty in connection with the enactment complained of. and that there was no warrant or a suit againt them merely "to test the consti- tutionaIity of a state statute In the enforcement of which those officers will act only by formal proceedings in tSe courts of the state"
 To the contention so frequently made in this class of cases, and which was the basis of Judge Pritchard's redical ruling in the North Carolina affair and more recently of that of Judge Jones in alabama, that multitude of criminal