The Birmingham age-herald., 1912-09-05

quence now save as 1t discloses its animus. The four judges in the two courts which passed upon the prelim- mary injunctions were equally divided in opinion as to their propriety.
 ITEM NO. 3.
 Another effort to delude and deceive you is contained in the assertion that the rates could not be confiscatory. because the railroads out of their earnings in ntra and interstate business have paid moderate dividends on the value of their whole property. No one knew better than the former governor that the only issue involved in the rate cases vas whether the rates permitted a sufficient return upon the value of that part of the prop erty of the carrier used in iis domestic business in Alabama irrespective of it's interstate commerce in Alabama and oth- CT states; that the state has no power over interstate commerce, and that gains from interstate commerce cannot be taken into consideration in determining whether the carrier is permitted by the state rates to gain a Just return upon the value or that part of it's property used in domestic commerce. Some of the railroads were engaged in both kinds of commerce Tn oth- CT states as well as Alabama. and all the railroads whose lines lie wholly Tn Ala bame were engaged also i'i interstate commerce. the value of which roughly
  their domestic or intrastate business. The only earnings the state can regulate are those from the use of that propierty of the carrier devoted to intrastate cof1- merce Nevertheless. the baccalaureate orator would have you believe that the decisions sinned against the people of Alabama because they conformed to the constitution of the United states.
 ITEM NO. f.
 "Auother effort is made to gull and de- ceive you. in the frantic assertion of the baccalaureate that all that IS necessary to again enforce the rates which nave heen perpetually enjoined, alter an eX- haustive investigation and In the llght or the experience of long actual trial, IS to call the legislature together Tn extra session, when it could re-enact the old rates, reverse the decree complained ot by a legislative edict to that effect. i'll the shape of a legislative resolution 'ap- proving of the decision of the appellate court'-which, as we have seen, cannot possibly touch upon the merits of the final decree-'decaring that three years continual and actual trial under the state made rates the railroads have paid their dividends. their earnings capacity mas IT, creased and their general conditions nave improved Would such legislative edlet, in obedience to the mandate of rartS convention. wipe out of existence ana ae- stroy the truth of the facts upon which the final decrees were based?
 Every intelligent person knows Una. neither Congress nor the legislature O. a state can set aside the decree or a court, and that legislative halls are not the proper forum for the correction of decree even if erroneous. under the constitution of the United states. as well as under the constitution or this state, the legislature has no power 10 enact any rate which will not permit the earnings of a just and reasonable return upon that part of the property of a railroad which is devoted to It's lh- trastate commerce. The main purpose of the extra session of 1907 was tc nullify the orders of high court of competent jurisdiction as to such mat ters, by indirection and legislative de- vices which the baccalaureate orator hoped coupled with threats Of forcible resistance. would intimidate court of the fathers in the discharge Of It's duties, and drive from It's portals iitl- gants who had committed no other sin than believing that they had right 10 contest in an orderly way, in the courts of the land. the validity of statutes which vitally affected their property rights The effort failed to intimidatc the court and some of the itigants who had entered it; but In the attempt the baccalaureate orator whipped popu- lar passion into a foam, and 1t was not controlled until 1t was realized that In such a contest the law and not lawless- ness would survive. and after he had brought the state to the verge of rev olution in the execution of his pur- pose to war upon the constitution of the United States. Would any patriotic man commend renewal of such an at tempt to the youth of the land? Every sane man knows such an attempt would result in something worse than failure.
 "Whether or no a legislative late when promulgated permits just com pensation upon the value of the prop erty employed is a judicial question of which the courts are the final arbiters. The facts of the particular case and not the declarations of the rate maker, determine whether the rate can stand. Neither the legislature nor any other state agency can by its mere fiat en- force an unjust rate. If the rate does not permit the earning of just com pensation the constitution annihilates 1t, and the state has neither the legal nor the physical power to enforce IL against the decree of a court of com petent jurisdiction adjudging the rate invalid. Of what avail then to call an extra session? If there be objection to the decree, upon the evidence as 1t stood at the time of the issuance of the perpetual injunction, the remedy is by appeal to higher court which alone has authority to reverse the perpetual injunction If, however, circumstances have so changed since the rendition of the final decree as now to make the rates reasonable and just, on proof of that fact the court would restore them. That contingency was provided for in the final decree, which, in ordering n perpetual injunction against the rates complained of followed the rule which the supreme court says must be ob- served and gave leave to the defend- ants to apply to the court by petition or otherwise for a further order in that behalf, and 10 that end, and for that purpose the court retaains jurisdiction of the causes Smythe vs. Ames, 160 U. S. 466 Nothing but mad hate and ambition could advise the calling of an extra session to nullify rate decision, or see in such a remedy any element of regard for the welfare of the people of the state.
 ITEM NO. }.
 Another wilful and deliberate attempt to deceive you, is found in the charge, plainly implied and intended to be con veyed in the baccalaureate. that the judge who rendered the decisions vas indebted to the Louisville and Nashville railroad or other railroad influences for his seat or. the bench and therefore the decisions must be vicious. The circumstances of my appointment and how approvingly 1t was received are and were well known. To use the works of ex-President Roose- welt. who made the appointment: No railroad and no railroad official had any