The Montgomery advertiser., 1908-01-15

up the main issue, the granting of the temporary injunctions. He held that the bills were nothing more nor less than an action against the State. This was forbidden by the Constitution. He contended that Circuit Court of the United States could not suspend a law or the State. He had evidently devot- ed deep care and research to this part or his argument. He discussed the va . rlous phases of the issue and presented strongly the claim of the State that such action could not be taken.
 He based his argument on the con- stitutional declaration that the State could not De sued. In support of that ne LOOK up the Fitts vs. Melee case. mhIch contains an opinion that has played more or less prominent part In all the controversy that has ragged around the powers of the Federal Gov ernment. This decision of the gu. preme Court he contended, held that suit against a State official charged with the enforcement of a State law was in efreet suit against the State
 sThe attorneys on the other side had been looking into this same case and Senator Spooner and Gregory L. smith asked him together if the case in ques- tion vas not on an act allowing a toll bridge charge. and which provided that the informant in the case was to re- ceive s20. They asked furthermore if the defendant in this case had not been indicted under general law. These questions were designed to show that the law involved in the Fitts vs McGee case was different from the law involved in the cases under dis cussion.
 COntrOversIed Classics.
 Colonel Garber contended that the doctrine of the Supreme Court that wAk A- ject of suit. either directly or indi- rectly had never been modified.
 He alluded to that oither case which has become a classic in rate litigation the Smith, -Ames case of Nebraska He quoted too, from the Texas case of Reagan wherein the Corporation Com mission of Texas was restrained by a suit brought by stockholders of a rail- road to prevent the Corporation Com mission from enforcing a legislative rate which was claimed to be confis- catory. The injunction in this case was granted and the Supreme Court affirmed the action of the lower court in issuing the injunction. Reading from the opinion Colonel Garber ex- plained that it did not in any way modify the doctrine previously laid down by the Supreme Court that a State could not be sued either directly or indirectly by suits brought against officers charged with certain duties. That doctrine had not been modified or qualified and 1t still prevailed.
 Provisions are made in the State law for bringing a suit in equity against these rates" said Col. H. [. Stone. land if a suit in equity is brought in a State Court will it not have to be brought just as we are try ing to bring it here in the Federal Court"
 Gregory L. Smith supplemented this question by asking. And while we are perfecting an appeal in, the State Court which will take sixty days in a suit of equity what will become of the pen aIties that will pile up against us?"
 The attorneys regarded this as a per tlnent question because in the bills of the Louisville and Nashville it is set forth that in these sixty days the penalties against the road according to the State laws would amount to $522, ,0O0, 900.
 Colonel Garber said that the Legis- lature had provided way for the acts to be tested in the State courts. But neither that nor any Federal law abro- gated the doctrine that a suit could not be brought against a State.
 Colonel Garber ceased speaking at 5:45 o'clock. He announced that he would probably require another hour this morning to finish his argument. Court will meet this morning at 9:3O o'clock.