Omaha daily bee., 1908-03-18
One of Most Important Cases Sub
mitted to Court in Years.
INVOLVES POWER OF STATES
Vital to Speedy Enforcement of Laws
of Commonwealth.
FULL COURT HEARS ARGUMENT
Bill Permitting Omaha Indians TO
Prosecute Claims stands n Good
Chance OF being Enacted
Into Law.
CFrom a stair Correspondents

w ASttlNNnl lOlNs MdICn tt-NSpeeldisl~-i
many respects the most important case
that has been argued in the supreme court
OF the United States since the passage OF
legislation affecting railways, involving the
whole question OF whether a state has a
right to make railroad rates and to en-
force them in the state courts, was
presented to the supreme court today in
the case OF ex parte Nebraska. In this
presentation South Carolina, North
Carolina, Virginia, Georgia and Tennessee
are peculiarly affected because through
different proceedings they are attempting
a solution OF the same problem. Nebraska.
however, took the first and easiest way of
arriving at n conclusion whether It's state
supreme court had a right to decide upon
the legality of rates fixed by it's railway
commission.
1t was shortly after o'clock when the
case of the state Of Nebraska was called
against the federal district judges upon
| application for a mandamus transferring
the suit brought by the Commonwealth OF
Nebraska against the Burlington railroad.
back TO the state courts. Attorney
General Thompson who opened the argu-
ment for the state. was listened to intently
by the court, all of the justices being
present. In the development Of his argu-
ment Justice White who was interested,
asked the attorney general? what a
court should do II the attorney general,
proceeding to prosecute offenders under
a void statute. whether the attorney gem
eral could be interfered with by a
federal court in such prosecutions"
Thompson Makes hit.
Attorney General Thompson brought a
laugh from the whole court when he asked
to be excused from answering that qu>s-
tion because he understood that a case
from Minnesota on all fonrs with the
question asked by the justice was now be-
fore the court, had been argued but no
decision reached. He said that he was
not here to prejudge the court.
The attorney general for Nebraska ar
gued that the state, by the very terms
Of its constitution, was coVerign and had
authority to bring In its own name and
in it's own courts an original action to
enforce its own laws, He argued that this
doctrine was accepted by the great chan
cellors of England by the chancellory
court OF that country and by the various
supreme courts Of the United States. He
Insisted that the supreme court had held
in the Debs case and others that the
state as a sovereign might enter its own
courts to enforce its laws although It had
no pecunary interest in the outcome of
such suits. II was at this point that
Justice White. interrupted the attorney
general with the question above referred
to which convulsed both court and bar
stand Of Railroads.
Judge McHugh, representing the federal
district judges. followed the attorney gen
eral and argued that officers of a state
and not the state itself were parties to
the proceedings, meaning that the rail-
] -
marily instigator of the suit that
therefore the Burlington railroad be-
ing a nonresident corporation, the
suit was removable to the federal
court on the ground of diverse citizenship
Judge McHugh contended that district
judges IN passing on motion to remand
case to the state court exercised judi
cial discretion which could not be con-
trolled by mandamus and that therefore
the remedy of state officers was an
appeal and not mahdamus to remand the
cause TO the state courts.
Maxwell Evarts, representing the rail-
road company, argued much along similar
lines to Judge McIIugh. He discussed diff.
| ferent opinions of the supreme court and
cited a case Of IN re Polltz, 2O6 United
! States. TO sustain the contention Of Judge
McHugh that mandamus was not proper
| remedy
Assistant Attorney General w y. Rose
! closed for the state. He argued that the
| power to regulate commerce wholly within
! the state was left by the constitution OF
| the United States to the state itself. That
the constitution OF Nebraska conferred that
power on the state. That the state and not
| the officers had authority to exercise that
power, both by the enactment OF laws and
| the bringing of suits in equity 10 enforce
| them. He said the railroad companies had
| defied the laws in the case at bar and had
refused to put in force rates established by
the railway commission
cites Some Conditions.
Mr. Rose argued that an unlawful and
| oxtortionate rate might be as effective TO
interfere with a rate wholly within the
state OF Nebraska as the action OF mob
or a disturbance Of organized labor He
| illustrated his point by citing local con-
| dition He said freight charges between
| Nehawka and Lincoln were so high as to
prevent the marketing Of apples which
froze on the trees by reason OF the extor-
| tionate freight rate between those points,
| While the people OF lincoln were eating
| apples on which they we're paying freight
/ from New York.
''The power being in the state" said Mr.
| Rose, did not shift to the attorney gem
eral or the railway commission when re-
sistance Of railways was put to the SUI
| preme test"
Mr.. Rose rested his argument on the Debs
case. wherein the United States procured
an Injunction against Debs and other rail-
way union officers from interfering with
| interstate commerce.
Senator Brown, who listened throughout
TO the arguments Of the attorneys, sad Il
was an able presentation Of the case on
the part OF the attorney general and his
deputy; that II brought the whole subject
before the court and he would not change
the issue n he could believing that the ap-
plication for a writ OF mandamus was the
simplest and most effective remedy In the
prcmIgea.