The Montgomery advertiser., 1909-01-10
FIGHT HAS BEGUN
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  regulating the sale of liquor were al- ready effective. He contended that 1t was Inconsistent that Q general prohib- ition bill be in effect concurrently with special acts when the penalties provided were in conflict. He cited the instance of Montgomery County to show that if both the general prohibition act of 1907, and a prior local act affecting this territory were in operation. a vio- 1ation could be punished in different de- grees for the same offense He added that this was only one of several in- stances in the State where provisions of the local act contained provisions re- pugnant to the general law.
 Mir. Martin Speaks.
 At the conclusion of MT. Weifs argu- ment, Assistant Attorney General Thomas W. Martin arose as the first speaker for the State. He attempted to answer every point of attack made by the counsel for complainant He first paid special attention to the question of Jurisdiction. Mir. Martin declared that 1t was no question to be passed over lightly, and insisted that every srgu- ment of the counsel opposing was un- sound on this score.
 It was urged that the bill of the N0Qh DICWtA& SOhtRahy W@o sa~s-@s.-8 more nor less than a suit against the State and an effort to enjoin criminal prosecution, before the validity Of the act in question had been tested In the highest State courts.
 "The bill merely alleges a demand by complainant for permit to do business as a foreign corporation" said MT. Martin. "Even if the law ia void. this will not entitle the complainant to dc la lnh AtarfftA &. ouires every seller of liquor to obtain a license from the Judge of Probate." The speaker declared that the remedy of the corporation was fin seeking fi~ cense from the Probate Judge, and up- on his refusal to grant 1t, mandamus could be asked in a State court. MT. Martin insisted that the Federal Court. as a court of equity, could not enter tain an application to entoin prosecu- tion for a criminal offense in this in- stance. and cited several decisions.
 Question of At Length.
 Answering the attack on the bill H. self. which Mir Well made on account of alleged violation of Section 04 of the state constitution MT. Martin de- clared that Section 64 was not framed with a view to requiring every amend msnt to be entered on athe Journal al length together with the section g. mended. the formallty For which the complainant eontended. lie also de- clared that Section 45. provides that no law shall be amended by reference Co It's title only. but so much thereof as Is amended shall be reenacted and pub lished at length, but that, in amending the Carmlchal Bill by reference to It's title only. no violation of the conBti- tuition was effected, as it was not law but a bill that was amended.
 He defended the amending by refer ence to title only by announcing that such had been the custom since time immemorial in regard to bills. Re- spending to the charge that the use of an alternative in Section twelve rendered that section untenable. Mir. Martin declared that the appearance of tive sections. with the word "or" bet ween only added force to the section, and did not make it invalid.
 Mir. Well had set forth that the con fiict between the general prohibition hill and the local acts as to the dif- ferent penalties rendered the act in- valid. Mr. Martin stated that the bill was absolutely good so far as the penalty feature was concerned. Me said that "it is altogether immateriai that for the same act different punishments may be imposed. This Is at present the law" Mir. Martin cited several instances of effective laws wherein the penalties are varied for instance the common case where the penalties for offenses of various nature become greater with the continued occurrence of the offense. He said that the act punishes the iofense of retailing liQ- uor by a fine of not less than $50 or more than S500. such offense being mIsdemeanor. But. he says. if the penalty features of the law be strick-- en out together there remains In the act the declaration that It's violation shall be a misdemeanor, and Section 7622 of the Code of 1907 punishes a misdemeanor when no other punish ment is provided by fine of not more than $500 and by Imprisonment for hard labor for not more than six months.
 Voluntary Violations.
 Mir. Martin attacked the plea of the complainant that the enforcement of the prohibition law would wreak ir- reparable damage. He said: The averment in the bill of irreparable damages is besides the mark. If the statue for violations of which the pro- secutions are about to be instituted are valid, the damages, however irrepar- able. are due. not to prosecutions in a legal sense, but to the complainants own voluntary and unlawful act Grim inals have no standing anywhere to complain of detrlment to their persons, absence of estates resulting directly or indirectly from their prosecution and conviction.
 There are three cases In which pro- secutlons for alleged violations of criminal laws may be enjoined; but in all such cases the injunction is granted as incidental and anciilary to the exercise of Judgement and scknow- ledge equity Jurisdiction; as wher a criminal proceeding is instituted by a party to a suit already pending in a court of equity to try the same right Tn issue in any suit; and where the prosecution is against the officer of Chancery for an act done In pursuance of the courts order; and those In which prosecutions under void statute will destroy or impair the pro- perty rights to !rreparable injury of the owners
 "In the case at the bar no right of property is related by the proposed prosecution directly or indirectly. As- suming the invalidity of the statute the utmost that win be involved will be trespass to the person of the de. fendant. Courts of equity are without power to enjoin such trespasses that inpinge upon ones constitutional rights of life, liberty. and the pursuit of happiness"
 Mir Martin quoted decisions of the