The Birmingham age-herald., 1909-01-14
Stag Courts Must Decide Con-
 sdtudOnaIig of Law
FOLLOWS DECISION BY TAFT
Judge Jones Declares That the State Has the Right to Control Liquor Traffic for the General
 Public Welfare.

Montgomery, January 13.-(Specal.)-In refusing to grant an injunction in the case of the Cook Brewing company today, Judge Thomas G. Jones of the United States court, in effect agreed to the valid ity of the state prohibition law, though he did not pass upon the merits of the contention that the law was passed un- Brewing company had no case, in that it was not possessed of tangible property in the state.
 At the same time the judge ruled that the question of the validity of the act is a question for the supreme court of the state, remedy in the event of continued disapproval being in appeal from that tribunal to the higher courts of the United States. Following a case in Ohio, decided by President-elect William H. Taft, he held that the decision of the supreme court of the state was the last resort in a case of this kind and if an injunction should be granted and the state court hold the law valid, it would not be worth anything, while violators would be
 
 injunction is dismissed.
 It is also held that the legislature has a right to make laws in control of the H. quor traffic, and to see to their enforce ment in line with public good.
 ''The situation presents a case where the rights of the individual must yield to consideration of public welfare says the judge Tt is far better at this stage of the litigation for all concerned to wait the state" With a view of indicating his feeling with regard to jurisdiction, how ever, the judge dropped in this: Tt is not necessary now to consider what may be the ,d,tty of this court to act on its own, independent judgment, If complainant be unnecessarily delayed in getting decision from the highest court of the state'
 AS a result of agreement on the part of counsel application will be made to the supreme court of the state tomorrow to advance the litigation growing out of refusal to grant license at Selma so that a decision can be secured in short time.
 Opinion In Full.
 In the Circuit of the United States for
 the Northern division of the Middle dis
 trict of Alabama.
 The F. w. Cook Brewing company vs.
 Alexander M. Garber, Philip H. Stern,
 Horace Hood. In equity No. Zll.
 There has not been opportunity since the conclusion of the argument on Monday to prepare an opinion covering the numerous questions which have been so ably dis cussed at the bar The court is debtor to O. III ax,1 6 m Q n rllf in which they have presented their views.
 The main proposition upon which com- lainant rests the equity of it's bill Is, that the act approved November 27, 1907, ito prohibit the manufacture, sale, barter, ex- change, giving away to induce trade, and furnishing at public places or otherwise disposing of alcoholic spirituous, vinous or malt liquors or other liquors or beV- erages by whatsoever name called, which, if drunk to excess will produce intoxica- ton, except the sale of alcohol in cer- tain cases upon certain conditions and except the sale of wine for sacramental purposes" is not valid law of this state, because there was such tranSgression in it's enactment against mandatory require ments of the constitution as to amending and passing bills, that the act in question never had the force of law. The right and power of the state to pass such law, the constitution being conformed to in its enactment, is not and cannot be denied.
 Respondents strenuously insist that the act is constitutional. Conceding for the sake of argument that the enactment is in- valid, they insist that the complainant is in no position to challenge its constitu- tionality since there are other laws and certain sections of the constitution which require the complainant to perform cer- tain conditions precedent before 1t is en- titled to protection as to any business in this state, other than interstate com- merce transactions, and that the bill does not show 1t had compiled with those laws.
 They also insist that this court cannot entertain this bill, because it shows no in- yasion of any rights secured under the constitution or laws of the United States, and hinges its sole title to relief upon the allegations that the prohibition statute which if valid puts an end to complain ants case-was not passed in conformity to the constitution of the state of Ala bama, which presents a question the de- cision of which lies peculiarly within the province of the state court, that the federal court ought not to retain the case, but should remit the complainant to the state forum where alone the question can be finally determined
 Property Rights.
 
 They further insist that the court has discretion in view of the nature of the property right asserted and the public con- cern in it's exercise, to consider the harm which may result to the public from granting the preliminary injunction as we'll as that which may result to com plainant from refusing it, and, on high grounds of public policy, should with hold a preliminary injunction until the question of complainant's rights to do other than interstate commerce in this state is tested by mandamus In the state courts to compel the issue to it, or to the wholesalers and retailers, of license which respondents insist, under the cir cumstances of this case, is an adequate remedy.
 Complainant, one the other hand, as strenuously insists, for reasons ably de- bated, that the prohibition statute Is in valid. and the complainant having built up a reputation and good will for its business and products. in which 1t has expended $100,000, and being prepared to make large sales to wholesalers and retailers. who, but for the threat to