The Birmingham age-herald., 1909-01-14

AAoA
 Taft's Decision.
 Circuit Judge Taft in W estern Union Telegraph company vs. Poe, 61 Fed. 46S, expressed the embarrassment, not infre- quently mentioned by judges of the fed eral court, at having to decide such uues- tions in advance of a decision by tho highest court of a state. On that account Judge Taft for several months held a case under advisement, which involved only the validity of state statute according to it's constitution and laws, and finally rendered judgment in the case after long waiting evidently because he despaired of any early decision by the highest court of the state, and was pressed by counsel not longer to delay judgment the with holding of which might jeopardize an admitted property right. Having held the particular law in question unconstitu- tiona1 and the highest court of the state having afterwards sustained it's validity, before the federal court had lost control of the case, Judge Taft promptly reversed his former ruling, to make 1t harmonious with that of the highest court of the state (See also observations by Newman, dis trict judge, in Christian Moerlein Co. vs. Hill, ct als., not yet reported)
 The rule to be extracted from the de- cisions as to injunctions which interfere with the execution of the laws passed for the protection of the morals and peace of a state, especially where the sole issue is not as to the power of the state to pass the law, but only whether it has been passed in conformity to the state constitution, is that the federal court should refrain from passing upon the statute in advance of a decision by the highest court of the state, except In very extreme cases where the nature of the right sought to be vindicated before the federal court imperatively demands its intervention in advance. Whether the present case presents an example of that kind will be considered later.
 This case and the rate cases involve in some respect principles common to both; but the rule in the rate cases does not give the law which controls the issue Of preliminary injunction in this case The difference between the two cases is. in some important elements very great and vital. The rate cases concern in- terruption of occupations which were not harmful or noxious in any way. On the contrary the carrying on of the business or the carrier was laudable, and promo tive of the pubic veal, and the perform ance of 1t exacted by the laws of the state. The legislature had no power. as In this instance, at it's own mere pleas ure, to prohibit the carrying on of the occupation. Its whole power was con fined to properly regulating the rates. It had no power whatever to prescribe rates which would be confiscatory and oppres- sive' whether or not the rate prescribed by statute had that effect depended upon the truth of controverted facts which could not be fairly ascertained prior to the final hearing. Although the laws were leveled at the carrying on of A lawful business every single transaction in it, of which there were thousands daily was made the subject of heavy penalty and the carrier was thus placed in a position where if 1t yielded obedience 1t must submit to an irreparable loss; or else disobey the laws. and if mistaken in the justice of It's complaint against the rates, forfeit it's entire property and even if successful in the courts, incur the ex- pense of defense of a multitude of in- dictmeats, entailing burdens almost as great as would result from obedience to the law, and meanwhile be preyented practically from discharging public duties. inhicting untold harm upon the public as well as the carriers themselves. A prima facie showing having been made of IT, reparable injury to an admitted property right, the court upon exacting security for those who might be injured by a pre- liminary Injunction enjoined the enforce ment of the rates until the right could be adjudged on final hearing after full proof Nearly every property right sought to be protected in those cases found it's final sanction in the constitution and laws of the United States, questions upon which a decision of the state courts would in no way bind the federal courts. and which controlled the Judgment in the entire case, irrespective of matters wherein some of the laws were attacked solely because of their violation of the constitution of the state In the case in hand no prop- erty right whatever is involved if the pro- hibition statute be valid. So long as the state law recognizes the right to make and vend intoxicating liquors that oc- cupation Is under the protection of the law, but even then 1t Is at most a mere license to carry on an occupation which may be revoked at the arbitrary will of the legislature at any time. If the legis- lature chooses to outlaw the occupation there is no right of property in which the owner is protected by the constitution and laws either of the state or United States. Courts in dealing with the latter class of cases and exercising their pre- ventive Jurisdiction in equity in regard to interference with such occupation have on high grounds of public policy been much more reluctant to interfere than where its preventive power is invoked to prevent interference with an occupation which the legislature in no event may destroy and can only regulate especially when the exercise of the property right does not endanger the laws, health. morals or peace of the community
 Extreme Reluctance.
 In the former class of cases there is an extreme reluctance by courts of equity to interfere, while such relief is freely granted in the other class of cases where there is a fair color of claim that 1t is necessary to prevent irreparable injury North American Cold Storage company vs. City of Chicago ct al., decided by the supreme court of the United States December z, 1908, and cases there cited
 This brings us to the question whether the merits of the case in hand present such an imperlous necessity for judg- ment by this court upon the validity of the prohibition law, in advance of a de- cision by the highest court of the state, that it should, if complainant's conten- tion as to it be well founded, ex debito justiciae arrest its execution now. The answer must be found in the facts of this particular case.
 The complainant has It's principal place of business in Evansville, Indiana, and has there built up its business of brewing and manufacturing beer and other malt liquors. From there it's product has been sent out to different states of the Union and to many foreign countries. The ex- cellence of It's product is not denied nor that 1t has built up a good will in its business, which is of great value. Prior to January 1, 1908. it had agencies in Ala bama for the sale of its products and solicited orders and carried on it's busi- ness within this state. At that time it formally withdrew it's agencies, doubt