The Montgomery advertiser., 1909-01-14

. - q . s I .rs ' state and Federal. courts. .ins this olaas Of cases. has aIwAys been soverned by eonsidsrstions of .conity and the de sire upon the part of each to avoid trenching upon the province !. of the other; but where it is essential'sto the ends of justice, and the necessitfes of thes particular case require h. | Fed pass upon the @constituttonality sof .a state statute in advance Of the courts
 of the State. although the sole issue
 may be whether the Legislature Of the
 State. in the passage of 'the statute
 has lconformed to the mode required by
 It's ConstttutionS In the pasase of laws.
 4 The spirit in which. the EFeoerai
 courts should deal with such matters
 has been exempiified in many dectsfons of the Federal courts. The writ of
 habeas corpus is one of the most sacred ,writs in. dur Jurisprudence yFeferei
 courts and judges have Authority, ana
 are, under. duty, to- grant 3writss of ha-
 beas corpus whenever persons. are de-
 prived of liberty in violation of the
 Constitution and laws of the United States; yet So great Is the sQlicitude. .of fhe courts of the United states mot to
 Interfere In advance with matters of this kind. where the execution sof the laws of a. State is concerned, that the Supreme Court has declared the Fed eral courts should refuse to issue the writ in such cases, and put the parties to their rsrnedys by. sssit Of error from the Supreme Court of the United States tp the xhfg gheste court of the state ex- cept in extreme cases where the. opef- ations. of the Government, might be- iIh- peded,. or persons are imprisoned by {. State, & authority for obedience to the laws or orders Of the courts of the United States and < the .iilxe..
 "Thes general duty ;, of the Federal cpurfs in such casestis mar ked out by Bank Of the. United States. 1ei fU., g.. f4s.. where ritfis stated: Tt Is an ap- ptopriate duty which this court is called upon 10 perform very often. to protect rights 'foupded upon the Con- stitution. laws and treaties Of the United States when those rights, are invaded by State authority. but 1t is "a very different thing for this court to declare that an act of the State Leg isiatures passed In the usual forms nec- essarXfto its validity. Is void, because that Legislature has violated the Con- stftution of the State. It 2 has long beenfrecognixedi by tfis court that the highest court of the State is2 the one to which such qnestionsi pfDperiy be- long, and though the courts of the United States In exercising concurrent S~teDAs~shCAA hh0sN QCCtQ0 kVhf,gs AlN&4t~ selves though < the question has, not been previously considered by the State .eourt,. it would be indeiicate to make such decisions in Advance of the State courts, .ualess the case imperativeiy de- tnanded it.' ss,.A
 ss''rn Michigan Central Railroad co, vs, Powers. 201 U. s.. 2s1. ;it'5is said: !:
 Undoubtedly . Federal Court has the Jurisdiction, and when the question is nHnRAFIV ME0aAmtAA. tt NHfaNaf come its dutysto pass upon an, alleged conflict between' q statute and the State Constifution. even before : the question has been considered by, the State trtbunafs;s At the same time the court will be reluctant to do so: - - And this reluctanee becomes more ifn- perative when the statute has been before the highest court of tthe State, and decision rendered upon the as- suinption that 1t lis valid. i, ana this, al- though the direct question of validity was not @presentedi nor determined. 's;
 -st isa 7" 0A@Res Judge Taft i, Y 2 : 'Circuit Judge Taft, in ;western Union Teiegraphs Company rvs.s Foe. si Fed, 4e8. expressed the embarrasg- judges of the Federal Court, at having to decide such questions in advance of q decision by the highest court of. q State. On that account, Judge Taft for several months held a case. under advisement, which involved only the validity of State statute according to It's Constitution and laws. and finally rendered Judgment in the case after long waiting evidently because he dee spaired of any; early decision by the highest court of, the state. and was pressed by counsels not longer to delay q Judgment. the withholding 4of which mi9it taopafdize an admitted propefty right. : Having held the particuiafsiew inf question 'unc0nstftutionAle and the highest court of the state havinES af- terwards sustained it's validity before the case. Judge Taft promptly srevere- cd his former ruling .to make, itx xhar- InnnGous, with that of the, highest court of the State. See. .observAelcns, by New: man Distfict JudKet in Christian Moer- lin Brewing Co., vs., filll. let al, not yet reDprted., s,>f 5es. >.} dseisi6ns as, to. injuhstions which. in- terferes with the execution of the laws passed aor the protectton of the ncf- als;. and. peace of State, especially where the sole tissue ryis not as tto the power of the State to pass the law, but only whether 1t has been passed in conformity to the StateS Constitution. Is that the Federal Court should re- IT8tn PADbAH6 ,dPOu tAOt SlAeHlp in advance. of a. decision blythe high est court of the State. except in veey extrems cases, where the nature of<th6 right sought Co be vindicated before the Federal Court, imperatiYeiy de- n1ands its intervention in advance. Whether the present. case presents an example of that kind will be consid- cred later. ,'-'N { 2 <. " z,
 ..'Tnis case and the rate; cases. in- votve in some. respects principles com mon ito both < but the rule in the rate eases does, not, give the law which com trols the issue: of preliminary in- junction, in, this case. The, difference between -thertwo' cases is, in some im- porta4it elements, very great and vital. The rate cases concernedl in- teFruption of occupations which were not harmful or tnoxious in any way. On the contrary, the carrying on of the business of the carrier was lauda- ble, and promotiye of the public veal. and the performance of It exacted by the laws of the Etate. The Legisla- ture had no power as in this instance, at its own mere pleasure to prohibit the carrying on of the occupation, It's whole power was confined to prop erly regulating the rates. It had no power s4 whatever to. prescribe rates which would be c0nfiscRtory and op- nPeasive Whether or nok the rate