The Montgomery advertiser., 1908-01-18
Argument Is Continued
 ln Raiiroad Hearing.

legisiatfon adopted by the Alabama Legislature In 1907 than any of the att torneys who have spoken. In his ca- pacity as District Attorney of the Louisville and Nashville he examined all the railroad bills that were pre- scented to the Legislature from its be- ginning to it's end He was credited with having a wide legal information upon them and their bearing. sNor in these respects was his argument dis appointing. He met the expectations and the large crowd in the court room heard luminous discussion of the is- sues involved. ' Mir. Smith spoke clearly and distinct fly and his address was followed with out the least trouble. He alluded to the case as the most momentous with which he had ever been connected and one of the most momentous in the his- tory of legal jurisprudence in the State. ItSwas momentous, not only in the dollars and cents involved. but in the principles and issues wrapped up in it. The issue is one in which all citi- zens are interested. In it's adjudica- ton was involuved the very existence of the common carriers.
 Almost Satirical.
 The speaker did not have much to say of the laws in themselves, confin- ing his argument largely to the bear ing and effect of the Legislation, but his attitude to the acts was almost sa- tirical. He alluded to the laws as those passed "during a time of great political excitement" and he said that if such laws as those under discussion could be passed in times of political excitement what laws might not the Legislature pass under similar stress.
 MT. Smith strongly argued the fact that the welfare of the people and the welfare of the roads are interwoven. If the roads are prosperous the State is prosperous. He contended. too, that if the roads are not allowed to charge a rate that will permit them to live, the welfare of the State will inevitably be affected. A law which will cripple q common carrier will cripple the State as we'll.
 A False Doctrine.
 Mir. Smith set aside a considerable part of his argument to reply to the claims that were advanced in the light of the case of Fitts against McGee. He alluded to the firm way in which the attorneys for the State chung to the doctrine of that one decision.
 'All their equity" said Mir. Smith, "is wrapped up fin that one decision."
 He refuted the doctrine that because the Attorney General and the members of the. Railroad Commission were de- prived of the power of enforcing the acts, that the intent and purposes of the acts could be carried out In such a view there is no scope for the deter imitation of the great issues of the pro- tection of private property. He asked how any legislative act could rob a constitutional provision of its binding force. An act depriving the Attorney General and the Railroad Commission of certain powers could not rob the fourteenth amendment of it's power to protect the property of citizens. Be- cause of that one decision. a Legisla- ture was not authorized to pass laws evading constitutional provisions. for the protection of property.
 Mir. Smith took up the more numer- ous decisions of the Supreme Court in the interpretation of these provisions. He alluded particularly to the decision of the court in the case of Reagan against the Farmers Trust Company, which involved issues, similar if not identical. with those before the court. He cited. too. the decision of the court l in the case of Prout against Starr and made aliusiou to the familiar case of Smyth against Ames.
 | Mir. Smith argued strongly tho injus- 1 tice of the multiplicity Of suits that were authorized and permitted under the rate legisIation. The Legislation had taken away the rights of the roads
 
 as which they might be subjected to q multiplicity of excessive penalties. Was that allowing the roads due process of [ Iaw?' he asked. The excessive penal ties would strangle the roads if they l appealed to the State codrt.
 Is There Any Dangerg Mr. Smith rapidly reviewed the bis tory of the anti-railroad Legislation to l the adoption of the acts which permit ted their enforcement by any person. prospective passenger or shipper. by any solicitor. sheriff or clerk of court. He asked:
 sWas .our property in danger? Were wes hot subject to tresspass and tn- turies. v Frequent declarations were should be carried into effect. Then we-- applied for the injunctions. We applied when we saw our property In danger. Were they going to be en- forced. Are we fighting shadows? Are we fencing with ghosts? No. the Supreme Court has declared that we are fighting real issues"
 MT. Smith laid special stress upon decision of the Alabama Supreme Court Tn the case of Fillmore vs. Field decision which was rendered last November In that decision it was held that the States could not commit l tort, nor could 1t authorize it's ser want to commit a tort. Therefore, a suit to prevent a servant from commit ting a tort was not suit against the State.
 | Mir. Smith entered into an able dis cussion of the nature and scope of sup | plementaI bills. His contention was that the bills filed by the roads in November were in every sense entitled to the power and privilegeNof original | bills.
 l The State roads were entitled to the filing of the supplemental bills | to get the additional protection need I cd, New sources of danger to the | property of the complainants had means of warding off that danger.