The Montgomery advertiser., 1909-01-14
Judge Jones Denies Restraining Order. TELLS BREWING COMPANY 10 GO INTO STATE COURTS Federal Court is stiI Open, Hstate
 Is Slow.. bees Net Pas. On Ceastitutionanty of Prohibition Statute. But
 Hints at InvaI-
 idity.


 which exists between Federal and state courts Judge Thomas c. Jones. of the United States. Circuit Court. Wednesday afternoon denied the ap- plication of the Cook Brewing Com pany. Of Evansville. Ind. for tempor- sry injunction.' restraining the enforce ment of the General Prohibition Act. In rendering his opinion. however, Judge Jones touched but briefly upon the constitutionality of the act. leaving that question rather. to the state courts. He intimated that he consider ed the act unconstitutional, without positively saying so.
 The assailants of the law may be said to be in the same position as be- fore entering the application for relief by injunction. For by the decision. Judge Jones grants to them the privi- lege, in case prompt hearing is not granted in the state courts. to renew their fight before the Federal court.
 Counsel for the complainant contend claimed in their application for the writ. As an evidence of this, they point to the fact that Judge Jones still holds open the doors of the Federal Court if the state courts do not, in a reasonable time, determine the constt- tutiona1ity of the law. .On the other hand Attorney General, Garber and associate counsel for defendants claim complete victory in the decision. They declare that the injunction was denied, and that Is all there is to it.
 Judge Jones did not deny by his de- cisfon, Federal jurisdiction in the case. Tn his opinion he referred at length to an opinion rendered by Prestdent- elect Taft as a Judge of the Federal Court of Ohio, in a case involving siuni- lar principles of law. He polluted out that Judge raft, was reluctant to inter feras with the enforcement nf ~ skaae law. uutil every remedy offered by the sfate courts had been exhausted He showed that Judge Taft, after despair ing of prompt action by the state courts, rendered. decision declaring the law in question unconstftutionaf but after the State Supreme Court had upheld 1t, promptly reversed his former ruline. to make 1t harmonious with %hat of the highest court of the state. RuIe of InJunctions.
 sThe rule to be extracted from the decisions as to intunctions which inter fere with the execution of the laws nassed for the protection of the morals and peace of the state, especial ly where the sole issue is not as to the power of the state to pass the. law put oniy whether 1t has been passed in conformity with the state constitution says Judge Jones. lis that the FederaA court should refrain from passing upon the statute in advance of decision bv the highest court of the state. ex- cent in very extreme cases. where the nature of the right sought to be vlndi' cated before the Federal Court impera- lively demands it's Intervention ip ad- vance," .,. Judge Jones as to whether the case a. bar was one of these extreme cases that demanded relief before the state courts had been resorted- to. In effect inc decision denies the urgency of the Cook Brewing Company case 10 thts ex tent and therefore the Federal court steps aside temporarily to let the state court of highest resort pass on sns unless this right is given the com" niainant in reasonable time the com nany can renew their motion.
 TudRe Jones remarked upon the sim ilsrity of the brewing company case with the Alabama rate cases. declaring that similar principles were involved. And yet. he stated, there were diner- AnCeS, oarned. as the prohibition case did not, the Interruption of an occupation which was not harmful, but which on the other hand, were laudable. The Legis- lature had a power to regulate rates. he said, but not to prescribe rates which should be confscatory or oppres- sive. ..---., even if the prohibition law was declar- ed invalid the Cook Brewing Company would have nothing on which to rest their rights alleged. They would be without license from the State and Judge Jones asks whether the good will" built up in this State by the com Niainant could be said to exist without Suthority to sell their product to the wholesalers and retailers who them selves are without license.
 If the State Supreme Court should hold the law invalid on the appeal from mandamus proceedings that would re- vIve the license law of the Code and give the company and its agents chance to procure authority. But until all this is determined the Federal Court Is in the position of waiting.
 Long Opinion.
 The opinion embraces some 4.nnn vords' and was read slowly and delib- erateIy by Judge Jones from the bench in the court room at the Federal build-
 
 on both sides of the case together with many spectators, who were anxious to ret the result of the hearing. About thirty minutes was consumed in read ing the opinioH-
 Directly after the opinion was deliv- cred counsel for the complainant D. s., Troy J. T. Lefcher and Lee H. We'll stepped over to the side of the room where stood Attorney General Garber. Assistant Attorney General Thoss W. Martin and Armistead Brown to shake their hands in congratulation. It was recognized on both sides that the case had been ably conducted. an aclxnowl- edgment Of this being made in the de" cision itself. .4
 Counsel for complainant said that the application before Judge A. D. Sayre. -o of the Montgomery city court, would he pushed witt. earnestness This is a pro ceeding to compel Probate Judge J. B. Gaston to issue a license to W. y. John son. A similar proceeding has been in. etituted in Dallas county and 1t is pos- sible that the latter case will first reach the Supreme Court as 1t would be first in the call of the latter tribunal. Tn these~ proceedings th0 aonR4ttu&taa-