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

legislature wisely provided the mode by bill in equity against the commission. which would settle everything in one suit, and bind the state, the public and the railroads. Under the constitution and laws of the United States, the carrier could file such a bill. though the state laws were silent on the subject. Without such provision in the state statutes for contesting the validity of rates, the enor- nous ptnaltles fixed in the statutes upon each transaction, hundreds and hundreds of which take place daily upon a rail- road, would confscate the entire proper tyiin a few days, and by species of il- legal statutory duress, absolutely pres vent the carrier from going into court at all, and thus deprive the suitor of all benefit of the protection of the constitu- ton, and disarm the court of all power to use the strong arm of equity to prevent irreparable injury, while the final rights of the parties are being ascertained. Statutes making no such provisions as ours would be manfestly unconstitutional for the reason stated by MT. Justice Brewer in the Kansas stock yard cases and by Judge Lacombe in the matter of the gas rates in New York.
 It 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 a party by appropriating money and au- thorizing the governor to employ attor- neys to defend this suit. However that may be, is not material here. It is the state which the constitution forbids to deprive anyone of property without due process of law The state can only act by and through it's officers It cannot i'm part to any of it's officials power which 1t does not possess, nor bring about in- directly, through them, results it Is for- bdden directly to accomplish. While 'the King can do no wrong" his ministers may be both controlled and punished. What form the acts of state officers may take, or It's legislation assume, regarding the lawful of property, the state cannot frame it's laws. civil or criminal, or regulate the action of it's officers so as to put it beyond the power of a court of equity, on timely invocation of it's Jurisdiction. to preserve the property and property rights of the citizen against ir- reparable injury, pending final decision. by enjoining and restraining enforcement of unconstitutional statutes or those which may be found unconstitutional, or illegal acts of the state officers done under color thereof. Otherwise. the rights in- tended to be safeguarded by the ''salu- tary provisions of the fourteenth amend- ment would, in many cases, be destroyed before they could be determined in thv courts and would exist in name only. The form of state action is immaterial It Is the forbidden results to which the constitution looks, and against which it provides. Prout vs. Starr, supra MT. Justice Brewer, in Reagan vs. Trust Co. 154 U. S., SS9 which case is reaffirmed in Smyth vs. Ames, the latter being re- affirmed in Prout vs. Starr, supra, which is later in point of time than Fitts vs. McGhee. which Is referred to therein, held that suit against state officials acting under color of unconstitutional statutes in a proper case, where the recedy at law is inadequate, for an in- junction to prevent such wrong and injury is not, within the meaning of against the state" The issues raised by the answer in this respect are settled adversely to the defendants, beyond the pale of controversy, by repeated decisions of the supreme court.
 1t is really a legal and moral msnomer to call an injunction against prosecu- tions about a rate charge an interfer- ence with the power of the state to punish crime" The issue grows out of the lawful use of property in the trans portation of persons and things and in the performance of duty the state ex- acts What the service is worth is fre- uuently a matter of honest difference of opinion. Insstence by the carrier upon it's rights in this regard is not even a breach of the peace. but the penalty im- posed is for the violation of a civil duty, due primarily only to the shipper or pas- senger The offense is quasi-penal at
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