The Birmingham age-herald., 1909-04-07

sary before the case could be fairly and
 finally decided. Clearly, this rule
 should not control in a case like this,
 where the purpose is to arrest the
 operation of a law on the ground that
 1t is confiscatory and, therefore, void.
 It is a rule in equity in ordinary cases
 that the masters findings approved by
 the lower court must be traeated as
 unassailable so far as it depends upon
 conflicting testimony, or upon the cred
 ibility of witnesses, or so far as there
 is any evidence consistent with the
 findings. Davis vs. Schwartz, 155 U. s.
 631, 636. But the supreme court held
 that the established rule was not ap-
 plicable to a case where the complain
 ants sought to epjoin an ordinance as
 confscatory. This court" said MT.
 Justice Moody, Twill not letter it's dis
 erection or judgment by any artificial
 rules as to the weight of the masters
 findings, however useful and well set
 tied these rules may be in ordinary
 litigation" Knoxville vs. Knoxville
 Water company, supra, We think that
 on appeals from orders annulling stat
 tues which are prima facie valid, their
 invalidity depending on facts to be
 proved, it is the duty of the apellate court-and a responsibility which 1t
 cannot avoid-to examine the whole cese on the law and the facts. We do
 not mean to say that the decision of
 the lower court Is not entitled to great weight or that, as practical ques- tion, it may not sometimes be treated
 as conclusive. But where the usual re-
 suit of an interlocutory injunction is
 to enjoin the operation of the law for long period, and where the dissolu- tion of the injunction is the only means of obtaining a practical test which may
 at last be necessary the ends of jus tice will be prompted by an examina- tion of the merits by the appellate court
 May Be Apparently Unjust. 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 probably | confiscatory on their face. In such | instances 1t may be that the sworn | bill, with proper averments and with | the affidavits of experts as to their | opinions, would be sufficient to over | come the prima facie presumption that | the rates established by legal author | ity are valid. But where the rates are l not manifestly unfair where it may , be that in their practical enforcement they may not greatly lessen the in- come and may possibly increase it, it seems to us unreasonable that the elaw should be suspended on such procedure. Take, for illustration, the passenger rates of 21s cents per mile established
 by the acts in question here. The rate before the act was 3 cents. WhateveE the final trial may show, the change does not seem to be so unreasonable that the presumption of it's validity should be overcome without the test of it's practical trial, or, at least with : out the safeguards of an investigation in equity that usually precedes a final decree. Such statutes, not apparently extreme or unjust should not in our opinion, be suspended at all on ex parte opinion affdavits. The courts can not as rule yield their right of judgment to the opinions of interested experts who are not even subjected to cross examination. If they did so, in railroad law the regulation of rates
 would become obsolete, and in criminal
 law murder would cease to be pun ishable crime.
 Justice Moodys Words.
 We cannot refrain from quoting, in conclusion, the wise and conservative words of Mir. Justice Moody, speak ing for the supreme court in the case of Knoxville vs. Knoxville Water com pdny, supra.
 "The courts, in clear cases, ought not to hesitate to arrest the operation of a confiscatory law, but they ought to re- frain from interfering in cases of any other kind. Regulation of public service corporations, which perform their duties under conditions of necessary monopoly will occur with greater and greater Gre quency as time goes on. It is delicate and dangerous function. and ought to be exercised with a keen sense of justice on the part of the regulating body, met by a frank disclosure on the part of the body to be regulated. The courts ought not to bear the whole burden of saving prop
 erty from conf.scation, though they will , not be found wanting where the proof is
 clear. The legislatures and subordinate bodies, to whom the legislative power has
 been delegated, ought to do their part Our social system rests largely upon the
 sanctity of private property, and that state or community which seeks to in-
 wade It will soon discover the error in gain to the consumer which he would obtain from a reduction in the. rates
 charged by public service corporations, Is as nothing compared with his share in the ruin which would be brought about by de- nying to private property its just reward, thus unsettling values and destroying con- fdence. On the other hand the com panies to be regulated will find 1t to their
 lasting interest to furnish freely the in-
 formation upon which just regulation can be based"
 2. It is claimed that the statutes in