The Montgomery advertiser., 1908-01-18
FITTS AGAINST MCGEE
 CASE HAULED OUT AGAIN
Is Made Basis of Contentious of
 Both Sides.
yadse ID. weaisiey and Hoa. Greg sry l.. Smith Occupied Attention of cosrs--ser.tor sDooner and MT. selheimsr Speak
 Teaay.

aH.
 we are not fighting shadows. We are not fencing with ghosts" declared Gregory l.. Smith. in his argument in behalf of the complaining railroads in the eFderal Court yesterday.
 In this he was advancing the claim of the roads that their property is en-' dangered by the new railroad acts, with their scattering enforcement provisions, and at the same time he sought to refute the stream of argu- ment that has flowed out of the Fitts against McGee case--that the roads are in no danger and that the court is without Jurisdiction in the pending case.
 Mir. smith had many decisions which he brought forth for consi9eration of the court, sustaining his argument that the roads had very properly applied for an injunction and the court had very properly granted 1t.
 Tie day was notable in the hearing, for the argument of Judge s. D. Weak ley was delivered for the state. Ihe address of Judge Weakley, together with that of MT. Smith, have been looked forward to with no little ex- pectatton and interest for, in. the minds of the court room crowd. they were looked upon as special champions or their respective sides, being better equipped from a long study or tne a up a more spectacular light These two speakers made the day one Of un- usual interest and no expectations "erS disappointed. ment and he adduced some new points for his side He took up the rsss against McGee case, which has become shop worn with so much handling put he explained that 1t was q mater or racaasihv for A discussion of the issue without reference to Fitts against mc- Gee would be like playing Hamlet With Hamlet left out He turned the case around and gave his explanation or the doctrine illustrated by the case, from which he dVew the lesson that the Ift- fration in the Federal Court Is suit aratnst the State proposition Whieh has been the storm center of the en-
 An Arrest of LeRisIatfOn.
 Fsut. he added a new arrow to ms culver yesterday. He contended tnas the issuance of an injunction Dy tne Faderni Court preevnting an action py @ha Railroad Commission is an arrest of lewislation. And this, he said, was forbidden by the Supreme Court ol ths united States. He contendea that .ns FafIroad Commission was vested Witn Ierislatfve functions which were dele- gated to them by the Legislature ana ba hald that the arrest of those rune 4iona was also an arfess of Legislation.
 Senator Epooner, sitting close oy' suggested that the functions Q. tns Taniiroad Commission were "adminisrra- eive'' not Legislative "whereupon he and Judxe Weakley had pleasant inter nhanga over which one of them was frvinm to uuibble over words.
 Mir. smith presented clean cut, lu- cid argument, which first dealt wipn the shop-worn F'itts against Mc6ee case n4 a Tcra him. from which he cited author ft,aa To show that in this single decis- Sor alone was the doctrine, of which so raueh had been said, countenanceo On the other hand. he quoted rom many decisions by both the SupreMe Court and the United states Cour, v show that the court had hewed close 4c inc line when it was called upon 70 enforce the Fourteenth Amendment. lie contanded that the courts would not countenance any indirect method or getting around the Amendment and do- ing what it was directly forpidden MT MT. smith ably presented what he caIIad the injustice of the provisions of legislative acts which subjected the roads to a multiplicity of suits and ex- cessiye penalties. This was what the Legislature had vouchsafed the roads when they had to give them something for the due process of" law promised by the Constitution. t-
 TOday'a Plans.
 Judge weakley will, beginning at le o'clock this morning. complete his ar eument. It is possible that Senator Snooner will speak at the afternoon sit- tare of inc court. Henry c. Selheimer, os fhe states counsel, Is yet to speak, siao The hearing will undoubtedly Tun into next week and when 1t IS conoieted the court will take up, for eonsideratson, afiidaYits which have been filed in the case . m wni9h in dsscrshes sng
 Mir smith began his address with the opening of the court It had been expected with some interest. He mas been more familiar, perhaps, with the