The Montgomery advertiser., 1909-04-07

rate claimed to bs connscatory should he tried to ascertain fts effect upon the
 os pnrsusd sy ySdss Newman in that ease. we think, is to be commended.
 The records before us consist mostly of afiidayits kiving opinions relating involved iD sisd and intricate sSei facts. % There has been no opportunity to <cross-ex. anime the ,ad1ants-a time-honored means of ascertafninE the truth. The mitted to be in force. one day. There has been no practical test of the rates by observation of 7. their effect. We have not before us even the result of by the several Alabama railroads which are not contestfng but obeyine these laws. There has been no refer ence to Master. deliberate investiga, conf,rmatory decree. After such de- liberate and careful contradictory trial. the courts. ae we have seen, nave sometimes held that the validity of the could only be settled by the practical test Of It's actual trial .
 The several records. as presented ID this court. contain about 4.ooo closely to quote # UT condense 1t, and have conclusions alter an attentive consid- eration. Ordinarily. sin bill seeking in support of 1t. we find statements of fact based on Knowledge. These bills are filed to en5oin rates that have nev- CT gone Into effect, and are necessarily lions. The ultimate fact sought to be placed before tho court is what per cent, if any. of net earnings would ac- crue to the complaints respectively on nsrassass Int ass Susinsss S roRs'y tss yrates joined were enforced.
 Answer Depends On Value.
 The answer must depend on the az tual value of the property devoted to the intrastate business, and the net amount that would be earned on the was in operation. this. of course. de- enue from such business and the actu- al expense of conducting 1t. Take 1t at all ciear--that by opinions of ex- perts the value of the property is as- certa!ned, and that the cost of doing one hundred dollars worth of such able certainty, so that the net gain of uncertainty that is not answered by a reference to last years profits. to- be done under the lower rates. and this show. May 1t not be possible-in- deed. does not all experience suggest rates will increase the amount of bus. mess, and, therefore, the earnings?" Chicago and c, T. Railway Company vs. Wellman. 143 U. s. 339, 343.
 ous decisions of this court refusing to reverse interlocutory decrees granting injunctions pendente lite. and announce ing that the making of such decrees x.yiAb f~. th. ff.dfn ton of the lower court. and that 1t would not be interfered with unless violative of some rule of equity pro- cedure. and unless under all the circum- stances. the injunction was improvi- dently granted. Lehman V. Graham, l53 Fed 39, and cases there cited. Such Is the general rule that has been arl- nounced in ordinary suits between par defendant could be fully protected by bond in case the injunction on the final hearing was dissolved. It has never been applied by this court in case rights of the defendants or others having interests could not be so pro- tected; where the defendants were re- strained from the exercise of a right conferred by statute which was prfma facie valid; and where the granting of an injunction would prevent a practi- cal test that would probably be neces- and finally decided. Clearly. this rule should not control in case like this where the purpose Is to arrest the op- eration of law on the ground that Il is a-rule in equity In ordinary cases that the masters findings approved by the lower court must be treated as un- assai1able so far as 1t depends upon conflicting testimony. or upon the cred ibility of witnesses. or so far as there Is any evidence consistent with the findings. Davis v. Schwartz, l5S U: SelS sst that i the sstabiisssa @ S u ruis was % not applicable to case where the com piainants sought to enjoin an ordi- nance as conftscatory. This court. ' ter It's discretion or judgment by. any artificial rules as to the weight of the masters findings, however useful and well settled these rules may be in or vile Water Company, supra We think that on appeals from orders an nulling statutes which are prima facie valid. their validity depending on facts pellate court-and responsibility which 1t cannot avoid--to examine the whole case on the law and the facts. We do not mean to say that the deeis- to great weight, or that as practical question, it may not sometimes be treated as conclusive. But where the usual result of an interlocutory in-
 
 the law for a long period. and where the dissolution of the injunction Is the only means of obtaining practical test, which may at last be necessary. the ends of justice will be prompted by an examination of the merits by the appellate court.
 Cases. of course, may occur where the rates are apparently so fagrantly unjust, so in conflict with experience and common knowledge as to what is right, as to seem unfair and proba bly, confiscatory on their face. In such inv stances. It may be that the sworn bill. with proper averments and with the afftdavits of experts as to their opin- Ions. would be sufficient to overcome the prima facie presumption that the rates established by legal authcrtty are valid. But where the rates are not manifestly unfair, where 1t may be that in their practical enforcement they may not greatly lessen the income and may possibly increase 1t, 1t seems to us unreasonable that the law should be suspended on such procedure. Take, for illustration, the passenger rates of Z Ia cents per mile established by the acts in question here, The rate before the act was 3 cents. Whatever the final trial may show, che change does not seem to us so unreasonable that the presumption of its validity should be overcome without the test of its practical trial. or. at least. without the