The Montgomery advertiser., 1908-03-30
FULL OPINION
 OF JUDGE JONES
fc..tinusd m Psee sIH.l

(Confinued fron Page of3-I
 force Id the opsrstions of Q trunk line or railway fraversing the enn taa, limits of a State. counsel say tns. the street railroad cases ought % r9. eipsf sG 1ive eorporasion roe s and not the state was the defendant. Ihat aaes', n tne ever can make no difference in
 rishtecusness of the principle or lts s.,,, ay, sgsinst eshfh the s State. Ths same closer vsfions npply 10 the cases of bavs and Farnksrs1 Manufacturing Compsny vs. Los Angeles. ass V. y44vs sas. ri. where 1t was ruled. where proper, fv xfrhfs will be destroyed, unieMIuL filterference by criminal ploceeahs under void law or , ora,nsn or h nuo \ court " of reached and controiisa Dy . 'o''' eaelsx cosssss, for respondents argue tna, the decision in Prout vs. StArf wsn. .a. off on the sre,gndl sre,,a,,l.taon ans1 made by ms ,,vss ssassor. upon which judgment had harn rendered, and from which no appeai could then ee had. and that ths shS other point. That view is unten- af3le. Prout insisted the proceedings arainst him was suit against tne State. and that the court could not en- }Ies }Isws of of the State in the State courts n was necessary to decide both ques- tions. If the original proceedings against Prout's predecessor wac suis aRafnst the State, the court below hau no Jurisdiction to entertain IL. It's orders would be void. and the Supreme Court would not have enforced the stipulation against Prout If the con trolling issue had been whether the judgment on the stipulation was res adjudicata. upon party who stooo in privity with the original defendanf fhe court would not have gone be- yond that question. It's habit is to refrain from discussing grave c0nsti- tutional questions when possioie so avoid them. It was necessary. in that case to discuss the Eleventh Amend mont. and the court, for the first tim. treated of the bearing of the Four ArnendrnApt, and spoke of avasions of the s.salutary proyisionse Of the for mer under the cloak of the latter, when the citizen sought relief from stitutional laws. It fs also sought to withdraw these cases from the inffu- d ence of the doctrine of the Prout cast, because the Attorney ~ General there was efjoined after the statute had been declared unconstftutional. That, how ever, can make no difference in the nature of the suit CT the power Of the court to snjoin, the execution ion, of srs statute unconstitutional. and to per. petually entoin it's operation after final Judgment, Inevitably carries with 1t until the facts car, be ascsrtatned upon which the validity Of the statute at any time depends. United states vs. Shipp. 200 U & 5e3 Otherwise. in1 the investigation compeis long delay before any final Judgment -can be pronounced, tho citizen would, In the meantime. be without any protection tional statute. The Constitution af- lords an ever present protection to life. liberty and property. and has just as much power to protect property right i,tt enactment the moment after its pas sage. as at any later period. Mir. Jus tice Harlan concurred In the snnse- SSns Ss cSssssd Sssss SH Ttss nsh vs Mcee He concurred in the result in prout vs. Starr. though not fin all the reasoning" upon which 1t was based. That great judge, instead of concurr- inr as he did, would certainly have diasented In some one of the decisions we have cited. if he intended to enun- ciate In F'itts vs. McGhee any doctfine the subsequent cases.
 Fitts va. sTeGhee Anaayaea.
 AyL Moreover, a careftil anslyeis or tHe facts In Pitts vB. MctzheS, will show that the court did not Intend to de- eide. and did not. in fact. decide any new doctrine as to what constitutes suit aaafnSt the State The Dfll in that case was twice amended, but fr each posture Of the bill as amended, 1 it was a suit against the State. It was c mere effort of the owners of an in- corporated bridge company to settle in suit against the State. and with State officials who were not shown to be per- sonal wrongdoerA, or to have threat ened any personal wrong. the consti- tutfonality of a statute which fixed rates of toll alleged to be confisca- tory. etc. The dismissal of the State from the bill, and afterwards of the Governor, whose term had expired, leaving the controversy with the At- \ forney General st the time the sup plemental bill was filed. and then bringing in the solicitor, did not change the nature of the suit In this respect so as to authorize the com plainants in such a, suit to obtain any relief against the Enforcement of the alleged confiscatory statute. Com plainant's case as made by the ortgi- nal and amended bills, leaving out of view for the present the supplemental bill. to which different considerations apply, was. in substance, this: .W4 are the owners of an incorporated bridge. The Legislature. after char tering us, fixed rates of tolls which are confiscatory. Numerous persona who used the bridge, hAya threatened to sue us before Justices Of the peace for penalties inuring to them only.