The Montgomery advertiser., 1908-03-30

cnar&es which not competent have avafled themselves of the terms of the preliminary Injunction, and the orders heretofore made enjoining suits against some of coniplainants in this court to recover any excess in the rates chaEged them, and have thus be- sHns sRey dc si so or not the % % commodity i Rate Act is az effective and binding, as to completed transactions under that act, ta.~s II sssr had prs sssa rspsised fasis ya,d A strictly speaking. voidable, and not void, entil % declared. the only escape of the carriers from the liabilities thus nlinatiop of the fnvalidity of that act, was m force. This object of the suit islaticn. iistsa q TSe risnt off action as to 1t after "suit fs commenced" to be rid of such liability cannot De taken away rsasons. Sseanss Section 55 of the Con stitution of Alabama ordains after suit has been commenced on any cause of action, the LeEislature shall have no power to take away such cause of ac- ton etc. A cause of action may con sisf as we'll in the right of the pla.n- tiff In a sist to maintain a bill to get rid of an obligation threatened to be enforced against him by the defend ant therein, as in the right of plain tin to Institute such suit against dsbt sIsnorn OF perform o 0R sos other % oSlsstion ton a 'iii ike s1 that sought to ss enforced sy the sats scs is Where 70 b IsmS s sd to remove cloud upon a title. which is purely U defensive proceeding.
 In United States States '; aa, ssnoonsr Lissls Chief Justice Marshal said: Tt is general principle that Jurisdiction once vested, Is not diyested although a state Of things should arse in which original jurisdiction could not be ex- ercssed.P In that case, it was con tended that the coi,. had lost It's ju- thinss to be condenined. that the stipu. p lation substituted for the. vessel was 50 irreguiarly taken. that 1t could not, be enforced and. therefore, could not Justice Msrshaii said, "The court viii not render Judgment which operates on nothing. but this reason VIII not will have any effect whatever. if, for making . seizure, sor damages. De de-
 The iurisdict:on of this court to pass sPv siven Sy the constitution and laws Of the united ,vsu s,ates; asa ssats is laws. If. the iegsiiature. instead of
 sa@sti ituling, tae EigHth Group Act for the Commodity Rate had repealed the 1 rate in it's place. the liability for the excess rates charged before that act was repealed, if that act be valid.
 would remain npon the % carrier and and court to determine the question re- mains, HoliingswortS V Virginia.
 3, Dallas IS. which is cited to support the contrary vie view has no application
 was adopted 1t destroyed all Judicial power to render judgment against the State. except where ti consented to be juriadiction over the cause whithdrew It. and necessarily, therefore, all ju- dicial power over 1t was at an end.
 The only mode shs n wsioh os state sws power here would be by such absolute. destruction Of the subject matter of the litigation. that any judgment as VIS to any ny matter arising 'et out of fths ths repealed statute. This was attempted here. but the legislature had no pow CT to relieve the carrier of liability. excess rates, while the repealed law was in force, and no power to take away the jurisdiction of this court to give him against 1t. if entitled there
 fmmateraaI whetAer statutes Allow
 ing state to Be Made Party Valid or
 x. It is argued that the last en- l peaIed the former mode of contesting rates. and substituted an appeal by the the chancery court. where the state of Alabama is made the adversary par- ty. must fall entirely because the Con-
 ciares. @rRe State shsil never" never be T. made defendant in any court of law or equity" Holmes v. state. 100 Ala.
 holds. i4s Ala, sss. t is not neces-
 sary, however. to pass upon that ques- ton. The decision pf 1t either way. would not control the. disposition of vitiated in toto because the State is made a defendant, yet. if it coufne the carrier to the exclusive mode there prescribed. It would be unconstitutional
 tutionai. and does not provide an ex-
 elusive remedy. It is communicative original bill In equity under the gem eral law of the State. against whoever
 makes and enforcaA rates. Aside from this. the right to maintain these bills in the court is determined by the Constitution and laws of the United States, and cannot be controlled by
 the statutory methods provided by Penalties Under System for EnfOreing Rate Laws Void.
 xI. In Louisville & Nashville R. R.
 e., et al. '. Railro9d Con, Commission of court said: Mindful of the irrepar- able and multiplicity ot suits, which would be imposed up on the carrier if 1t resisted the enforcement of rates 1t considered unreasonable, and had no other mode of testing the rAason- ableness of rates than meeting indict- ments as they are found and suits as brought, the Legislature of Alabama wisely provided mode of settlement. by bill lin equity against the Comnlis-
 sion and the Attorney General which,
 in one suit would settle every ques-
 ton, and bind the State, the public
 and the carrier alike, and authorized
 the court in the Iueanwhile. to sus- pend the execution of the rate laws.
 This enabled the carrier upon proper gers. to obtain judicial ascertsinment of its rights, without hazarding Its
 whole estate upon the rightfulnsss
 of It's challenge of the rates. Without would deter the carrier from going into court at all, and practically des- troy it's right to a judicial review. as effectualIy as if the statute had in so many words denied rights to resort to the courts. Statutes making no such provisions as ours for contest of q right of property without risking such loss, would be un uTfcOnstitutional."
 The repeal of the statute then In force, and the enactment in lieu of it for the suspension of the rata statute and consequently. of the penalties, pending contest, and leaving liability for them if the contest is unsuccess- full. and so framed in it's details, as to prevent any timely resort to court rorize the carrier from resorting to the courts, creates the very state of af- fairs, which the court then said could not be brought about if the Consti-