Omaha daily bee., 1909-04-19

Court % AppesIs Renders = Notsbie
0pinton.

oPiniou.
washington Herald.
An interesting sequel to the remarkable
railroad war Of nearly two years ago In
Alabama. wherein the contendins forces on
one side we're Governor Conner and the
legislature, and on the other Judge Thomas
q. Jones Of the federal court and the
Louisville a Nashville and other railrcsd
companies. has been written in a recent
opir lon Of the United States court Of APP
peals for the Fifth judicial circuit. In 1901
the Alabama legislature undertook the re-
duction of railway passenger fares 20 ga
cents a mile and the establishment Of lower
freight rates. besides providing an elaborate
system of enforcement, with heavy penal
ties, the whole warranted injunction proof
by provisions designed to place the mechan-
ism Of enforcement outside the jurisdiction
OF the federal courts.
Judge Jones. a man Of strong will and
positive Views, when applied to by the
railroads, counsel for which set up the
usual pleas OF confiscation and destruction
of property rights. ~enjoined the new statu-
tory rates in sweeping DEGREES which 0f-
fected in their terms every state official
charged with the execution OF law. For
a time IL looked as IL there would be open
conflict between the federal CO urt and the
state officials 81 Alabama, but. after a
war OF words, the matters in controversy
we're left to the arbitrsment Of the courts.
Now comes the court OF appeals 10 wipe
out every one Of the injunctions issued by
Judge Jones In pursuance OF what he be-
lieved to be his sworn duty. and in accord
ance with his conception OF the law then
existing. Since 1907. however, much water
has flowed under the judicial bridge, and
ex parte injunctions against the regulation
and fixing OF public service rates have be-
come less frequent and less approved OF IN
our higher courts. The opinion of the court
Of appeals under consideration shows
strongly the Influence Of two recent deci-
sions Of the United States supreme court,
both strongly UNFOLDING the right Of public
regulation of public monopolies and depre-
eating the interference of the federal courts
with such regulation en- ex parte claims Of
confiscation. We refer TO the opinion Of
Justice Peckham. in the New York Gas
company case. and TO that OF Justice Moody
In the Knoxville Water company case. Fol-
lowing the precedent and the reasoning OF
these two decisions, the court Of appeals
dissolved the injunctions against the Ala
bama railway rates on the broad ground
that no real case of confiscation had been
made out. that no satisfactory evidence had
been presented to the court that the lower
rates would have affected the property
rights OF the compliments. and that the
new rates were not on their face so un-
reasonable as to warrant their Injunction
without a trial. The evidence before the
court consisted merely OF affidavits giving
opinions as to the effect of rates which had
not had a days trial, There had been no
practical test of their influence over in
come, which might conceivabiy have been
favorable. An element of uncertainty ex-
listed that could only be overcome by actual
test of the new rates. The practice OF re-
curing such a test before granting an in
junction was commended. Speaking gem
orally of the attitude OF the courts toward
legislative changes in railway. rates, the
opinion says:
Such statutes, not apparently extreme or
unjust, should not, in our opinion. be sus-
pended at all on ex psrte opinion afr
davits. The courts cannot, as a rule, yield
their right of judgment to the opinions OF
interested experts who are not even sub
;ected TO cross-examination. II they did
so. In railroad law, the regulation Of rates
would become obsolete, and In criminal law
murder would cease to be a punishable
crime"
The opinion. as a whole. is a complete
vindication Of the right of the state OF Ala
hama TO regulate railroad rates, and to
have it's regulative legislation given a fair
trial. free from the intervention OF the
federal courts.