The Montgomery advertiser., 1909-09-13


 tng shouid have been different and that the rates should have been tested by actual operation. Those questions were not raised before me. the parties resting their case upon amdsvits. as is frequently done, and not having asked for oral or other examinations of the witnesses. ft being conceded. tacitly at least. that It would not be fair to test the reasonableness of the rates. py their results In abnormal times when there was panic and depression.
 Result Depends en Fsets.
 '"The long litigation has at last come to the point where issue has been Joined. ard the parties are getting ready to take testimony on the merits. The final result will depend upon . .,old array of facts and ngurss evi- dence as to which will be taken oetors the masters and come before the court with their findings and recommenda- tons, and no man can foreteil what should be the result on final hearing until that. evidence Is taken. In the whole course of the proceedings the lower court and for that matter. the upper court. has never rendered any judgment or expressed any opinion whatever as to the reasonabieness ot the rates except that the lower court on the evidence before 1t on preiimt- nary hearing. held that the rates prima tacie appeared to be unreasonable. and the upper court that this did not ap. pear 50 strongly as to justify the pre- liminary injunction. The only order the lower court has ever made wnicn touched remotely on that point was at the Instance of the Commission when the court ordered the L. X N. and 5. & N. A. Railroad Company to put in lower figures in what were known as group or 'zone' rates No fair-mtnded man can find in the decision of the Court of Appeals anything that cap De tortured into a Justification of the 0ov- ernor's contention that the decision was a .rebuke' to the lower court, or reflection upon the ability or motives ot the judge. Differences among judges are common. Only lately the Chief Justice of the United States sat in the Circuit Court and held that certain case was not suit against the state. The Supreme Court itself afterwards reached a different conclusion, thus overruling its own Chief Justice wno sat in the lower court.
 with this review of the facts. con idently leave-to my fellow men to de- termlns which was the truer son or Alabama and most devoted to her inter- ests and honor. the Federal Judge who stood for the constitution and laws. amid storms of detraction and pas
 
 of the State against the judge and the court: or the Governor. who. In state papers and public utterances in- weighed against the institutions of his country, denounced citizens of this and other States as law-breakers and crim. inals for exercising constitutional right. and constantly fomented excite ment and passion. persuading the peo- pie that their rights were being tram pied on by the ordinary operation of the laws of the Union. and melting citi- gems and State oficials to resist the orders of a court of his country by force at Q time of great popular ex- citement. Inviting riot and sedition and consequent shame to the good name Of its people.
 Compelled to Sit.
 'srhe Governor denounces me for not declining to sit In the cases, because of former professional relations with one of the chief parties to the litig3- ton, though severed long years age Did he not know that 1t has always been held that it never rests in the discretion of a judge whether he will sit in case If he is not disqualified under the Constitution. 1t is his duty to sit" This is the language of the Supreme Court of Alabama, and the rule it declares has been reiterated by the highest courts in all States. To use the language of the Supreme Court of this State, to disqualify him, judge must have a pecuniary interest in the case, or one affecting his individuai rights. If the judge Is not interested in the suit or related to the partieS within the forbidden degree. he can not arrest the functions of his ofiice, or tell the suitor he will not hear him. In the railroad cases the bills were filed just before the rates were to be ~~zHA AA~N true, irreparable loss would surely re-< suit unless some judge acted at once. To whom could they apply except to the resident judge of this court? Who else could act.
 q had tried many cases in which the. l.. and N. Railroad Company and oth- CT railroads were parties, before the filing of these bills, and there was nev. CT @ whisper against my absolute im- partiality, though now and then some lawyer friend who represented sorpor- ations. suggested in the freedom which our personal relations permitted. they feared sometimes I unconsciously lean ed against them, because I had form. erly appeared for railroads in their !it- igation. There were no legal reasons V hy I should not sit in the rate cases, and I could not conjure up any moral req son or other consideration which could influence me, even unconsciously, to desire to decide them other than as the law and the facts would demand.
 Expected Criticism.
 'Nevertheless, I knew If these cases came before me, and did not flee from my part, there were those whose polit- ical interests in the rate question would make them quick to defame me. No properly constituted man, if he can honorably avoid 1t, willingly encoun- ters detraction and calumny in the dis charge of public duty. and I sought to avoid giving even color of excuse for criticism, by earnest endeavor to as- sociate some other judge with me in the trial of the cases.
 "On the 24th of February, 1907, about a month before these suits were filed. I wrote to Judge D. D. Shelby, in New Orleans, a private letter in reference I never supposed that any other eye would see 1t. The letter. however. H. illustrates how felt, and am wiling that the people should see the inmost working of my thoughts in this mat ter. That letter was as follows:
 Hon. D. D. Shelby, U. s. Court oe
 Appeals. New Orleans. La:
 "My Dear Judge-I am apprehen- sive from what learn that the rail- roads will file a number of bills in the Circuit Court here in the next few days to enjoin the enforcement of the statutes reducing freight and passen- ger rates, and the execution of a stat ute which provides they shall be ex- cluded from the State if they bring a case in this court to enjoin the en- forcement of the rates.
 I am very sorry of this for two A Co