The Montgomery advertiser., 1909-07-08

Sno reductlOn or iucFehsc VI ~tSss --.~ hence had not attempted forbidden delegation of Legislative power.
 Parry DefenAant.
 .sThe opinion of the Court ef Ap- peals. however, did not pass upon what might be the duty or lower or the court, if the commission cted uh- reasonably in the exercise Of the pow CT, making repeated orders reeuC'ms specific rates from time to lime, wniie thev are being contested and testi- monv isl being taken. preparatory 10 6nal decree. It seems different prin- ciples would necessarily apply ease of that kind. than wnere feou. lions are made by the Lesisiasa,e self pending contest Of the paruua
 rates before the court. The Les,s'a lure could not be made party " es,, uEe this. Here, the railroad com nnIssion Ia necessarily party ceien Aant. and occupies that reiauon
 welI sa the status of being tho
 ,,ositv of the power to reonce
 from time to time. Taking mtg ev en. stderation this dual relation eounmission and the nature oL .ne to froyersy. 1t would seem ineUtapS
 sr,,nw that a court of equity has she .S~rt to charge the conscience oA . ar.v hefore 1t not to exercise ts
 csvsr Tn such manner. in the riehM- .srv stares of the litigation, as 10 up- rress its opponent by chansius the is.ue from time to time, "n VII orrt further result of impeas ;..uas be- in It's efforts to bring the
 fore 1t to final decison. ~. che hill
 @rhe demurrer to so much ot the
 .. seeks to have superseded or
 nasd inc acts prescribing the ra.es Se,,,,,e,ned of, etc. on the kfou
 that the court has no power 70
 pend or supersede an act oI 'ne not islature. which is legisiatiVe a" a Judicial function. must De =, ruled Section 21 of the Dec.a. .,sSars, Rights in the Constitution or Aap o, n ia true. declares that no power ol susnending laws shall be exercised e1, cent by the Legislature Tne weh Known history and intent of this con stitutional provision make its mean ine clear. 1t has no reference what ever to the admitted power ana au.y of the courts to annut ana fetuso " eration to statutes which transSIe.e the fundamental law. To noio o.ne .e
 wise. would require the court to anirm that if had no power to arrest the ex- secution of A statute, or limit or stop its operation, when h ad5udged IL 10 he unconstitutional--ap power and outX which in this day Is universally aa- mitted. and is now beyond the pale of controversy. Besides. the statutes here under review are assaiied for violation of the Consultation or the United States. and no provision In q State Constitution can limit the extent of the judicial power of the United States in dealing with them. if found to violate the fundamental law.
 .arhe parts of the bill to which the demurrer relates. seek, among other things, a perpetual injunction. annull- ing and suspending the rates prescribed by the statutes hereinbefore recited,' etc. If. on final proof, 1t be shown that the rates are unreasonable or con fiscatory, 1t would be the duty of the court to prevent, sor enjoin, the execu- ton of the statutes, without prejudice to the right of the authorities, if sub sequent conditions justified 1t, to seek to have the rates enforced in the fu- ture. Such, indeed, is the form and ef. feet of the decree which the Supreme Court declares must be entered when the effect of rate statute Is adtudged unreasonable or confiscatory.
 ''It is perfectly accurate. therefore. in law and common pariance. to declare that an act is 'suspended or supersed- ed when suck decree is made. A statute which is denied force until fu- ture events may rightfuiiy bring ita power Into play, ts certainly 'supersed. ed and suspendeA' in the meantime. The allegations and prayer of the bill in this respect are not objectionable le on any grounds, and in its last anaiya- Is the criticism now made of them has no stronger foundation than play upon words. Mainly. a decision that a statute is unconstitutional. or that It's operation upon a particular person is forbidden by the constitution. and a consequent decree that 1t shall not be executed as to such person. is the exercise of the Judicial. not of the leg islatfve function The nature of that Junction Is not changed or convertad in the power of suspendinx law be- cause the necessary result of decIar- ing the act unconstitutional ia to deny It force and operation.
 Must Be OverruIed.
 The demurrer to so much of the oiiI as seeks to enjoin sheriffs. clerks and solicitors from making arrests. is- suing summons and complaints. pro- curing indictments and prosecuting and imprisoning defendants servants. etc. must be overruled. Ex Parte Young. 20s U, S., 12s, L. & N R %. vs. Railroad Commission of Ala Dama. ct al, 157 Fed 925
 Fhe necessity for making sheriffs solicitors and clerks parties is mani Test from the allegations of the bill. which sets forth facts of which this eourt can also take Judicial notice, though not mentioned. Taylor ys. Barclay. Sim. 213. The Circuit Court of the United States by the fiI ing of the bills had obtained exclusive Jurisdiction to determine the reason ableness of the rates whose enforce ment was contested. ani every other matter, civil or criminal, which arose In the case regarding the enforcement or denial of the property right in- vowed. No other court, State or Federal, after that, could rightfully draw the same matter before it, no matter how attempted. and by enter taining and deciding civil suits or criminal prosecutions for violations of the rate statutes. oust the jurisdiction or this court, and enable the defend ants or any other person to defy its orders. or punish the officers or ser wants of the carriers for doing that which the orders of this court ad- Judged they had a right to do
 The bill alleges positively that the officers and servants of the carriers will be arrested, indicted and prose cuted by the solicitors and sheriffs. and civil suits commenced. in every instance in which carriers depart from the tariff of rates fixed by the statutes; that such officers have threatened to issue summons and com plsint. to procure indictments, and to arrest and imprison the defendants s servants. whereby the Jurisdiction of this court would be busted, and the very matter before it tried and deter mined in other courts. causing com plainant to be subjected to a multi DiicttY of suits and frrena ra hla do,,,