The Montgomery advertiser., 1907-09-05

silent on the subject. Without such l provision in the State statutes for contesting the validity jf rates the enormous penalties fixed in the stat utes upon each transaction, hundreds and hundreds of which take place daily upon a railroad. would confsca.e | the entire property in few days and l by species of Illegal statutory duress, absolutely prevent the carrier from go- ing into court at all. and thus deprive the suitor of all benefit of the pro- lection of the Constitution, and disarm the court of all power to use the strong arm of equity to prevent ire parable injury, while the final rights of the parties are being ascertained. Statutes. making no such provision | as ours would be manifestly unconsti- tutional, for the reasons staed by MT. Justice Brewer in the Kansas Stock Yard cases, and by Judge Lacombe, in the matter of the gas rates in New York. Tt is unnecessary to determine at this time, whether under the doctrine | declared In Gunter vs. Atlantic Coast Line, 200 U. S, 275, the State has made | itself party by appropriating money and authorizing the Governor to em- ploy attorneys to defend this suit. How ever that may be, Is not material here. It is the State, which the ConatItdtion forbids to deprive any one of property without due process of law.
 The State can only act by and through It's officers. It cannot impart to any or It's officials power which it does not possess. nor bring about indirectly, snrough them. results 1t is forbidden directly to accomplish.
 Ministers May Be Controlled.
 While the King can do no wrong ms ministers may be both controlled and punished. Whatever form the acts of State officers may take, or its leg isiation assume, regarding the lawful use of property, the State cannot frame its laws, civil or criminal, or regulate the action of it's officers, so as to put 1t beyond the power of a court of equity, on timely invocation of It's ju- risdiction, to preserve the property and property rights of the citizen agalnst irreparable injury, pending final de- cision, by enjoining and Restraining enforcement of dnconstItutipnal stat utes, or statutes which may be found unconstitutional, or illegal acts of State officers done under color thereof.
 otherwise, the rights intended to be safeguarded by the 'salusary Irovis- ions of the Fourteenth Amendnlt Ut would, in many cases, be destroyed be- fore they could be determined in the courts, and would exist in name cnIy. The form of State action js lmn,ate-
 
 which the Constitution looks, and against which 1t provides. Prout vs. Starr, supra. MT. Justice Brewer in Ragan vs. Trust Company, I54 U. s. SS9. which case Is reaffirmed in SI,yth vs. Ames, the latter being reaff, med In Prout vs. Starr, supra. which is later in point of time than Pitts vs. McGhee. and which is referred to therein, held that 8 suit against State officials acting under, color of uncon- stitutional statutes iffNa proper case, where the remedy at law is inade- quate, for an injunction to prevent such a wrong and injury is not within the meaning of the Eleventh Amendment an action against the State. The is- sues raised by the answer in this re- spect are settled adversely to the de- fendants, beyond the pale If conu O. versy, by repeated decisions of the Su- prme Court.
 '1t Is really a legal and moral mis- homer to call an injunction against prosecutions about a rate charge, an interference with the power of the State to punish crime. The issue grows out of the lawful use of prop- erty in the transportation of persons and things, and in the performance of a duty the State exacts. What the | service is worth is frequently q matter Of honest difference of opinion.
 offense is Not Penal.
 'Insistence by the carrier upon it's | rights in this regard is not even a breach of the peace. and the penalty | imposed is for the violation of civil l duty, due primarily only to the ship l per or passenger. The offense is quasi-penal at most. Royal vs Vir- giniab 146 United States 5S3; Southern | Express Co.,, vs. Ensley, 116 Federal | Reporter, 756. The whole broad do- main of the power of the State to legislate for the preservation of the peace, the morals and welfare of the people, as well as the protection of its revenue and the dignity of its govern ment is left wholly untouched.
 Besides here the court which stops | the prosecution mot only under its equity power, but under the express sanction of a statute of the State, has suspended the operation of the statutes, pending ascertainment of the facts upon which their operative force at any time must depend. No rights whatever of the State, its officials, or the public. | have been improperly interferred with, as to any law whatever, civil or crimi- nal.
 The court in these cases Is only exercising a power. which courts of equity have used for ages. operating in personam on the conscience of par ties, to forbid the exercise of apparent ly legal rights where it is unconscienti- ous so to do, and may result In ir- reparable injury. It is common for courts of equity to restrain prosecu- ton of rights in the courts of law, in criminal as well as civil cases. where Of prOnartV