The Birmingham age-herald., 1909-09-13

l mented excitement and passion persuad- | ing the people, that their rights were | being trampled on by the ordinary oper- 1 ation of the laws of the union, and in citing citizens and state officials to re- 1 sist the orders of a court of his eoun- i try by force at time of great pop ! ular excitement, inviting riot and sedi- | tion and consequent shame to the good name of its people.
 Judge Has No Choice.
 l ''The governor denounces me for not ! declining to sit in the cases because of former professional relations with one of the chief parties in the litigation. 1 though several long years ago. Did he | not know that 1t has always been held that 1t never rests in the discretion of l q judge whether he will sit in a case |: if he is not disqualified under the consti- tuition 1t is his duty to sit'? This Is the | language of the supreme court of Ala bama, and the rule 1t declares has been reiterated by the highest courts in all | states.
 { To use the language of the supreme 1 court of this state to disqualify him Ia judge must have a pecuniary interest in 1 the case or one affecting his individual l rights" If the judge Is not interested in the suit, or related to the parties with i In the forbidden degree, he cannot arrest the functions fhs office or tell the
 
 cases the bills were filed just before the rates were to be put in force. and if the | complaints were true, irreparable loss i would surely result unless some judge i acted at once. To whom could they ap- ply except to the resident judge of this | court? Who else could act?
 "I had tried many cases in which the | Louisville and Nashville Railroad com pany and other railroads were parties be- | fore the filing of these bills. and there was never a whisper against my abso- ,lute impartiality, though now and then some lawyer friend who represented cor | operations, suggested in the freedom which our personal relations permitted, they feared sometimes I unconsciously leaned | against them, because I had Formerly appeared for railroads in their litigation, | There were no legal reasons why should not sit in the rate cases. and I could not conjure up any moral reason other | consideration which could influence me, 1 even unconsciously to desire to decide them other than as the law and the facts would demand.
 Attempts To Defame Court. ! Nevertheless. I knew if these cases came before me and I did not flee my post of duty, there were those whose political interests to the rate question | would make them quick to defame me. | No properly constituted man, If he can honorably avoid 1t, willingly encounters l detractlon and calumny in the discharge of public duty, and sought to avoid giving even color of excuse for any crit icism by earnest endeavor to associate some other judge with me In the trial of 1 the cases.
 1 ''On the 24th of February, 1907, about | a month before these suits were brought, I wrote to Judge D. D. Shelby in New Or leans, private letter in reference to the matter. When 1t was written I never supposed that any other eye would sec it. The letter, however, illustrates how I felt, and I am willing that the people should see the wording of my inmost 1 soul in this matter. That letter was as | follows:
 Letter To Judge Shelby.
 {" Hon D. D. Shtelby, New Orleans, La. My Dear Judge am apprehensive from what learn that the railroads will file a number of bills in the circuit court ! here in the next few days to enjoln the enforcement of the statutes reducing freight and passenger rates, and the ex- ecution of statute which provides they shall be excluded from the state If they , bring a case in this court to enJoin the enforcement of the rates.
 s'I am very sorry of this for two req sons: have not had rest for long time, and will not get through with the call of the docket here until about the 18th of March. Another reason is was for years the attorney for the Louisville and Nashville railroad and you know the ant-railroad feeling here is very fierce and does not hesitate to iInpute any sort of motive to anybody who differs with it either in a public or private capacity. | I have not considered the matters in- I yolyed, and do not know what the law or the facts would compel me to decide if the cases are brought before me- am not conscious of ever being biased In the l slightest degree in passing upon railroad 1 litigation. because of the fact that some years ago I had a large practice In rep- resenting railroads. The only conscious { ness I have ever felt regarding matters of this kind was whether, in view of my former connection with the railroads I have not sometimes unconsciously leaned aeainst them. I am not conscious, how ever of ever having done that. and l know I have always followed my own unbiased convictions of duty and the law If, however, it should turn out that the railroads are entitled to any relief in these cases. and I should have to grant It.. | I \would be the object of mean attacks, and would feel better, therefore. If when l the applications are made to me for pre- | lfminary orders, as well as on the fnal trial I had you or some other circuit judge to sit with me. Is there any way I could arrange that? I will try to make the time suit your eonvenience. rours | sincerely IHoMAS O. 'Oi>Ho'
 Judge SheIby's Reply. | received the following reply from l Judge Shelby, dated at New Orleans Feo' ruary 25, 1907:
 ..Your personal letter of the 24th in- stant is received, in which you say It 1 is probable that certain railroads will file l a number of bills in the circuit court to ] enioin the enforcement of the rate legisla- ! ton, and that you would be glad to have 1 one of the circuit judges to sit with vou in the event such bills are filed Such | ga ses are always immediately carried up 1 by appeal and 1t causes great inconven- l fence here if either one of the circuit 1 iudges Is disqualified from sitting. Under l the statute if circuit judge takes any mart in the decision of a case below, as | YOU know, he cannot sit on the appeal l Much delay has been caused here in wait ing to obtain a district judge when he is | disuualified As I am in the circuit all the summer have made orders in num- her of cases that have disqualified me from sitting in them here. My colleagues have complained of this, and I am under promise not to disqualify myself when I | can avoid 1t.
 1 ..Notwithstanding the fact that you were attorney for the Louisville and Nashville railroad for a number of years, am sat- | isfied that no one in Alabama. and no one elsewhere who knows you, would im- pute. to you any improper motives in the | decision of any railroad case. I think 1t you would in any other case If however. | Vxyith unt,