The Montgomery advertiser., 1909-07-08
Judge Jones Rules on
 DemurrerS.
COMPASSION MAY REDUCE RATES
Refuses to Lift Injunction Against
 Officials.
Better For Court To Prevent Adinis- serial 0fficer Doing UnIawful
 Act Than To Bring Official
 Into Court After Act.

cd States Circuit Court. of the Mid ale District of Alabama yesterday ren- dered an opinion oyerruiing the de- murrers of Attorney General A. M. Garber and other attorneys for the Railroad Commission in the Alabama rate case. and again holding that the suits were not suits against the State.
 The demurrer of Col Garber for the Railroad Commission was sustained in one respect. the Commission was per- mitted to reduce rates if it found the necessity for so doing. But Judge Jones refused to lift the injunction from circuit clerks. solicitors and sher- iffs, as prayed for in the demurrer. He held that 1t would be better for the court to prevent ministerial of fcer from doing an unlawful act. than to.wait for a ministerial officer to com init an unlawful act, and then bring him into court to account for his aa- tions.
 The opinion like the others drawn up by Judge Jones in the rate cases is able and exhaustive. In particular the opinion rendered yesterday discusses the contention that the suits are suits against the State. He holds to his original ruling that that action to pre- vent an agent of the State from doing an unlawful act while performing the duty of an agent of the State is not a quit against the State. He points out that even in monarchical countries, where 1t was held "The King can do DO wrong" that the law could never Sheless step in and prevent the agent of the King from committing a wrong.
 Judge Jones reiterates his ruling that the Federal Court now has ex- elusive Jurisdiction over the suits growing out of the rate acts of the Legislature. And in holding that the plaintiff railroads have the rights for protection from actions by solicitors, clerks and sherifrs. Judge Jones points out that they quote from the chief ex- ecutive officer of the State, declarations as to the duties Of the officers of the State and his purpose to. charge them as to these duties. The Judge holda that If complainant has any tights so be protected, certainly such allera- tions would entitle 1t to injunctiye relief against such illegal acts"
 The opinion of Judge Jones follows in full:
 Substance of Demurrers,
 This case is submitted on demurrers to the supplemental bill, by members of the Railroad Commission of Ala bama, and the numerous parties de- fendant named as sheriffs, solicitors and clerks of courts. The alterations Of the bill are fully set forth in the re- port of the cases under the style of The L. and N. Railroad Go. vs. Rail- road Commission of Alabama ct al, 1S7 Federal 944. and the Central of Geor- gia Railway Co. vs. Railroad Commits sion of Alabama ct al, 161 Federal 925. The grounds of demurrer assigned are numerous, but the substance of them only need be here stated.
 The demurrers by the Commission challenge so much of the bill as seeks relief by enjoining the Commission 7 from reducing freight and passenger rates below those in force at the time of the commencement of the suit, on the ground that such relief 'restrains legislative action on the part of the Commission. and also because the statute conferring the power to reduce rates Is a valid enactment of the State. and no facts are shown why the Com mission should be restrained pending the litigation The members of tne Commission further demur to so much of the bill as seeks to have 'superse- ded or suspended the acts of the Leg islature prescribing the rates com plained of, on the ground that this court has no jurisdiction or power to suspend or supersede an act of the Legislature of Alabama and also be- cause the suspension of an act of the Legislature Is a legislative and not a judicial function
 "The defendants named in the bill as sheriffs, clerks, courts. solicitors and deputy solicitors, and each class of State officers. separately and severally. demur to so much of the bill as seeks to enjoin their exercising their func- tions in performing their duties as of- icers of the State of Alabama respec- lively, on the following grounds: They have no such connection with the en- for cement of the statute as would jus tify making them parties defendant; the making of them such parties as representatives of the State, is an at- tempt to make the State a party de- fendant, and to sue the State in contra vention of the eleventh amendment to the constitution;' anu such injunction against the parties defendant, as pray ed by the bill. would amount to re- , straining the State courts from acting in cases brought before the courts. and also amount to an injunction against action by the State grand juries; also because clerks of courts do not ini- tiate civil or criminal proceedings, and perform their duties under the orders of the courts of which they are respec- lively clerks They also demur to so much of the bill and prayer for i'm junction as seeks to restrain all other executive and ministerial officers. State, County. and municipal not specifically named in. the bill, who are empowered to make arrests and execute warrants, etc. on the ground that it is not shown that the unnamed parties, not parties to the bill, bear any relation to or privity with. or are properly represent ed by the officers named and there is no allegation of conspiracy between the unnamed persons and those who named as defendants.'
 Former Ruling.
 "Jones District Judge: Every ques- ton now raised by the JeSnurrsrs, though then presented in a different mode. was decided adversely to rho re- epondents. in Central of Georgia Rail- way Company vs. Railroad Commission of Alabama. ct al. 161 Federal 925, and on appeal, the Court of Appeals sustained this courts ruling upon the matter raised by demurrer. except as to the injunction to prevent the com mission from making future reductions in the rates before the court, pending the final hearing.
 "The considerations which controlled this court in issuing that injunction were, that as the statutes made the
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