The Montgomery advertiser., 1908-03-30
OPINION OF JUDGE JONES ON RAILROAD LAWs

c 1T S gcyernment assumes other functions,
 1t .s usurpation and oppression" The purpose of the Fifth and Fourteenth
 Amendments to the Constitution of the
 foot of American soii. ali iilesal acts Of Government. State or Federal. fn- vasive of the. right to life. E3erty or
 prsospsrty, Or conss:tut,sasl systems os
 the people among separate and inde- pendent departments. each of which
 vas forbidden to enter the orbit of the
 other, had left iiIttis play for ,rIs aroitrs. tive. concerning the enjoyment of these rights These amendments were de-
 signed chiefly to secure these r.ghts
 tive power. and to give effective pro l teetion against such assaults upon the fundamental rights of the citizen.
 whenever attempted under the forms It is well settled that a State cannot
 do or erect indirectly. what It cannot
 ever language statute may be framed. It's purpose. and it's constitu-
 tfonal validity. must depend upon its 1 natural and reasonable effect upon
 Mayor s2 u. S. 25e, 2ss: Joseph V. Randolph. Fl Ala. 4a9. 'It is the duty of the courts to be watchfui of the
 close. literal construction deprlves I them of half their efficacy, and leads to | gradual depreciation of the right, as
 if 1t were more in sound than in sub- Effect and purpose of the statutory system for enforcing rates.
 Tho statute whose execution is
 here prayed to be arrested. involves many places, over hundreds of miles away. in the operation of which multitude of trains and thousands of employees are engaged. They transport l fHnuHQndS l thousands of parcels of freight. The transportation of every passenger and
 or receiving compensation greater than the prescribed rates. Is made sepa-
 rate offence. The carrier In days l business. if he does not observe the ethousand violations of the law. for l each of which he is subject to me I of not exceeding s2,0oo; and his ern-
 violation of of the rates, are subject to a 1 fine of not less than s100 nor more than $500, for each offense. Any per-
 son, so far as the ncn-observance of 1 the statute involves private wrong. | may bring his civil action to redress l it. end may swear out warrants fof violations of the rate statutes so far
 one who reads the history of the times i aright can fail to realize that these
 suits and prosecutions would be be- \ in ths rates. Under such conditions. non-conformity, ito the rates for sin.
 gle day may cause the forfeiture of I the carriers property, worth many
 millions of dollars and subject his
 servants and employees to arrest and imprisonrnent preventing the carrier from discharging his duties to individ- | uals and the public. The inevitable result of the situation thus brought
 about by the legislation, if respondents I contention be correct. is that the car l thereby be deprived of property with | out just comp ensation, or else in order to avoid that taking of his property, thereby assume the frightful burden of the defense of a multitude of in- dictments and suits in the law courts
 In different places, at the same time, l which. even if successful. would entail ! as great losses as the injury resulting l from obedience to the statute, and in 1 addition, be forced to wager his en- I tire property upon the successful out come of his defences at law. The car rier, under this deliberately planned system of laws for enforcing the rate
 isgisiation. and for making defense
 takes, Is confronted with ruin.
 Only cursory examinatton of the practical operation of the statutes to demonstrate that their intent was
 not only to adjust the rates. but also
 as far as possible. to take from the
 carrier all effective means for the pro- l tection of his rights. if he chose to
 contest the rates. The purpose of the | present statutes Is to, compel the rates to be put. in as soon as promulgated,
 no matter how destructive their con-
 sequences, by withholding any effect i've means to prevent the enforcement
 of rates. until they have long been in
 operation. In the interval elapsing,
 under the present statutes. between the promulgation of rates, and the time l when the carrier can get into the Chancery Court, and have the rates en- | Az1.- A |. Ln n4 Aan Eawr sn1 days delay. During that interval, as | we have seen. he has no means of de- | fense against the rates except by sub
 hitting to suits, indictmsnts and trials ] in the criminal courts. He is not per | mitted, as other persons would be. un-
 der the same circumstances, to submit
 to the statutory rates and perform the
 service under protest. and sue to re-
 cover the balance necessary to make
 a fair reward for the use of his prop | erty. This mode of defehse is Gieliber-
 ately prohibited. The demand or re-
 scribed by statute Is made as grave an
 offense as the refusal to transport at l the rates fixed by the statute. and nec-
 essarily, every such suit would sub-
 feet him to ahe statutory penalties l Under our present statutes. there Is no | tribunal which can absolve the carrier
 from the penalties incurred while ne IS IS | the court of equity enjoins the exc cution of the stattue. under its equity
 powers, pending final decision. and the | carrier be cast in the suit he remains
 exposed to the numberless penalties in-
 cured while the rates are being con-
 tested No way is left open to him to
 escape this peril. 4 failure to obs
 serve the rates for a single day in orr | der to make a test case. would subject | his property to conf1scation. He must | incur that risk to make test case of | any sort. If a test case be made, he
 must observe the rates thereafter. In
 order to prevent confiscatton from fu-
 ture penalties. during the long period
 necessary to determine the test case | in court This means confiscation.
 Confiscation meets him on every ef- l fort to preserve his rights in the
 courts. If to conserve them in thetr | integrity, he does not submit, he must
 waste his substance in meeting the in-
 numerable assaults upon the right. all | though successful In beating them on
 Is there anything in the nature of the l out of which it grows. which can Jus
 tify the erection of such barriers to | its assertion. The serviee,-the act of | transportation for which the reward | is med-whatever may be said of | the charge for it--is not only lawful
 in itself, but laudable The law re- | uures 1t to be performed. The car
 rier's only oftense is that he differs 1 with the public authorities, or private persons, as to the reasonableness of | the reward the statute allows him for l the use of his own property. It IS the l mere assertion of a conscientious diff | ference of opinion as to the worth of l the service. The exercise of the right | is not harmful. in itself does not inn peril either life. liberty or property. nor the public peace or morals. or rev 1 . CNofA md