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

sion in Montgomery in the next 40 days. Yours sincerely,
 ..THoMAs G. JONES"
 Legislature Called.
 "Ffnally, the governor yielded to what he termed superior power,' and deter mined to call an extra session of the legislature to legislate the case Of the railroads out of the court, That 1t was his purpose at one time to use force IS shown in an interview which he had some time afterwards with President Roosevelto wherein the governor stated in substances: If the President did not call down his judge here he would have trouble in Alabama and received the emphatic answer from the President that if he made any trouble in Alabama the President would see that 1t did not last long, The main work of the extra session consisted in repeating the laws which made it the duty of the railroad com mission to see to the execution of the rate statutes, thinking in that way there would be no one to enjoin in order to preserve the property rights of the com plainants, against the numberless arrests which could be made on the affidavts of private citizens. It was so arranged that shippers and passengers could use the name of the state on the theory that such
  could not be enjoined, and it was also provided, strange to say, as the legisla- ture cannot exercise judicial power, that in such suit the court should not re- spect any prior order which had been made about the same matter in any court
 "The carriers were prevented from talk ing the ordinary precautions to protect the life and limb of passengers at sta tions if they did not conform to the rates. bo nJ5 fad N1aSsiHnafi0nS were repealed and new rates and classifications with a slight increase were adopted In place of them. The carriers which re- mained in the courts Immediately nled supplemental bills, attacking these stat utes. A restraining order was issued ana the hearing of the motion for prenm- mary injunction was finally set for the 9th of January, 1908. A ten days argu- ment was had in which some of the most eminent counsel in the United States took part, and the parties oHered aHi- davits and counter affidavits almost up to the time the case was decided by the lower court on the Fist day Of March' 1908, granting a preliminary injunction.
 Penalty Features Invalid.
 ''The penalty features of the rate stat ute, as the supreme court hao pelore decided, were held invalid, and most or the other statutes named, except those changing the rates and classif1cations, were decided to be unconstitutional, ana 1t was held upon the prma facie case made by the evidence offered, the court ought to issue a preliminary in1unctlon against the enforcement of the rates In April 1908, an appeal was taken, and finally argued before the court Of ap- peals in the spring of 1909. The cir cult court of appeals overruled the man contention of the defendants, that the suits were suits against the state, hold- ing the court had Jurisdiction or the suits and to enjoin the operation or the rates, and to prevent interference by any other court or officer by civil suits or by prosecution and trial Of railroad operations by criminal proceea- ings, by whomsover attempted
 "Indeed. the supreme court of the Unit ed States had already settled the whole question. in a case wherein the court held that the attorney general of Minne- sota was in contempt of the federal court which had already taken jurisdiction to determine the same question even by afterward bringing civil suit Tn tho courts of the state. In one matter only did the court of appeals hold that the lower court erred in matter of law. The lower court held that the statutory rates could not be changed by the commission unQGr the general ltIIllS Ol lilV PonSi conferred, to-wit, whenever conditions rendered 1t expedient and proper with out involving an unconstitutional delega- ton of legislative power, and that the statute should not have left 1t to the uncontrolled judgment of the commis- sion, but to the ascertainment of some state of facts which the legislature it. self prescribed, for which position there were numerous authorities-but the court of appeals held they were not controlling and reversed the lower court on that point Two of the judges held that the presumption of the correctness of the rates was not so strongly and clearly overthrown by the evidence as to over come the presumption, and therefore, that the lower court erred in the exer- else of it's discretion in enjoining the en- forcement of the rates pending final hear ing. The other judge dissented, holding that the evidence required the grant, ing of the preliminary injunction.
 'In the majority opinion 1t was held that the mode of procedure in taking the evidence on the preliminary bearing should 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 affidavits as Is frequently done. not having asked for oral or oth- CT examinations of the witnesses, 1t be- ing conceded tacitly at least, that It would not be fair to test the reason- ableness of the rates by their result in abnormal times, when there was panic and depression.
 Final Hearing of Cases.
 ''The long litigation has at last come to the point where issue has been joined ana the parties are getting ready to take testimony on the merits The final re- suit will depend upon a cold array of facts and figures, evidence as to which will be taken before the masters and come before the court with their find ings and recommendations and no man can foretell what should be the result on final hearing, until that evidep.a is taken. In the whole course of the pro- ceedings the lower court and for that matter the upper court mas never rem dered any judgment or expressed any opinion whatever as to the reasonable ness of the rates, except that the lower court on the evidence before it on pre- liminary hearing held the rates appeared prima facie to be unreasonable and the upper court that this did not appear so strongly as to justify the preliminary injunction. The only order the lower court has ever made which touched re- motely on that point was at the instance of the commission when the court or- dered the Louisville and Nashville and s. & N A. R. R. Go. to put in low CT figures in what were known as "group" or "zone' rates. No fair-mind- ed man can find in the decision of the court of appeals anything that can be tortured into justification of the gov ernor's contention that the decision was a "rebuke' to the lower court, or a re- flection upon the ability of motives of