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


 the good will of their business is being destroyed. and they are prevented from making large profits which they other wise would make, and that defendants are unable personally to respond for the amount of damages inflicted; whereby complainant Is daily compelled to suffer irreparable injury, for the re- dress of which 1t has no adequate rem edy at law. They Insist that the court not only has jurisdiction. but is under duty to determine the questions raised, and that the prohibition law being un- constitutional, there is no public policy which forbids wholesalers and retailers to buy and sell complainant's beer, and the court cannot consider that question In determining compliments rights in the premises.
 It is also insisted, since nothing but a pure question of law is involved, which cannot be varied on the final hearing, that this court is now bound to act on it's own Judgment as to the constitutionality of the prohibition law, and if it be of opinion that it is in- valid, must, ex debito justiciae, grant the relief here prayed, upon the same principles which governed the court 8 action in the railroad rate cases here and the action of the supreme court of the United States in the similar case from Minnesota.
 Concurrent Action.
 Under the constitution and laws Of the United States. the circuit courts of the United States have original cogni- zance, concurrent with the courts of the several states, of all suits of civil nature at common law and in equity, where the matter In dispute exceeds, exclusive of interests and costs, the sum of value of 5000, in which there is controversy between citizens of different states. citizen of Indiana may therefore, other conditions per- hitting, litigate with citizens of Ala bama in a federal court here any ques- tion which he might litigate if he were the plaintiff in a state court. The con- stitution and laws giving the citizens of another state the right to resort to the federal court here to settle a dispute with a citizen of this state, the court has no power to cast such suitor out of it's portals, because he seeks to liti- gate in the federal court a right de- pendent solely upon the construction or validity of the statutes of this state.
 It must not be forgotten that the cir cult courts of the United States in the exercise of such concurrent jurisdic- tion are, for all practical purposes, courts of the states in which they sit, and their functions under such cir cumstances, are to enforce the rights of the party according to the laws of the state, just as the courts of the state in exercising jurisdiction concurrent with the circuit courts of the United States, in certain cases under the con stitution. laws and treaties of the fAo ct ntaf of the United States. In this way the state and federal courts reciprocally support the authority of the state and federal government, and for these pur- poses, these courts constitute one judi cial system. Cohens vs. Virginia, 6 Wheaton, 264.
 The exercise of jurisdiction by the state and federal courts, in this class of cases, has always been governed by considerations of comity and the de- sire upon the part of each to avoid trenching upon the province of the other; but where 1t is essential to the ends of justice, and the necessities of the particular case require it, a federal court may and sometimes must pass upon the constitutionality of a state statute in advance of the courts of the state, although the sole issue may be whether the legislature of the state, in the passage of the statute has con formed to the mode required by its con- stitution In the passage of laws.
 The Habeas Corpus.
 The spirit in which the federal courts should deal with such matters has been exemplified in many decis- ions of the federal courts. The writ of habeas corpus is one of the most sacred writs in our jurisprudence. Fed eral courts and judges have authority, and are under duty, to grant writs Of habeas. corpus whenever persons are deprived of liberty in violation of the constitution and laws of the United States; yet so great is the solicitude of the courts of the United States not to interfere in advance with matters of this kind, where the execution of the laws of a state is concerned, that the supreme court has decided the federal courts should refuse to issue the writ in such eases. and put the parties to their remedy by writ of error from the supreme court of the United States to the high est court of the state, ex- cept in extreme cases where the opera tion of the government might be im- peded or persons are imprisoned by state authority for obedience to the laws orf orders of the courts of the United States and the like. The gen. erai duty of the federal courts in such cases is marked out by the supreme court in Felton vs. the Bank of the United States, 101 U. s. 143, where it is said: Tt is an appropriate duty which this court Is called upon to perform very often, to protect rights founded upon the constitution laws and treaties of the United States, when those rights are invaded by state authority, but 1t is a very different thing for this court to declare that an act of the state leg islature passed in the usual forms nec- essary to its validity. is void, because that legislature has violated the con stitution of the state. It has long been recognized by this court that the high est court of the state is the one to which such questions properly belong, and though the courts of the United States in exercising concurrent juris- diction must decide for themselves though the question has not been pre- yiously considered by the state court, if would be indelicate to make such de- cisions in advance of the state courts unless the case imperatively demand ed it."
 It Is said in Michigan Central Railroad ys. Power, POI U. s., 24S-2S1: 'Undoubted- ly federal court has the Jurisdiction, and when the question is properly pre- scented. 1t may often become It's duty to pass upon an alleged conflict between a statute and the state constitution. even before the question has been considered by the state tribunals. At the same time the court will be reluctant to do so. :
 And this reluctance becomes more imperative when the statute has been be- fore the highest court of the state and