The Birmingham age-herald., 1913-07-25
Judges Shelby and Grubb
Concur Refusing Injunc-
ton Against Alabama
Railroad Commission
ROADS RECOURSE
NOW is APPEAL TO
SUPERSEDE DECREE
Another Important Step in Confirm
ing Commissions Power to Say
What Rates Shall Be Charged
by the Railroads OF
Alabama


uuntsviiie. July 24.--fspecIal)-- Cir
.,,,t .Iydre David 5. shelby and Dis
frfct Judge w. i. Grubb as judges OF
the United states district court for the
Middle district of Alabama today de-
MED the motion of the Louisville ana
Nashville Railroad company for an IN
junction against the enforcement or
a. cents passenger rate on Its lines
In Alabama ordered by the Alabama
railroad commission.
The temporary restraining oraer
heretofore granted the railroad was
dissolved, effective August II, 1913.
unIess the raiircnd appeals aud
supersedes the decree of the district
court II viii be required TO adopt the
2ix cents rate ON that date.
The motion was heard in Atlanta on
June 23 before Circuit Judges Pardee
and shelby and District Judge Grubb.
opinion. were written by Judges shell
by and Grubb.
The Louisville and Nashville Railroad
company will also be compelled to re-
fund to all passengers who have pur-
chased tickets on its lines in Alabama
since the granting of the temporary
restraining order about two months
ago. the difference of one-half cent
per mile in the purchase price, under
the terms of the indemnity bond OF
$4,000 given by the railroad company.
The decision in the case covers about
60 typewriteen pages.
Judge Don A. Pardee of Atlanta, the
third Judge who sat at the hearing,
did not sign the decree, nor did he
write an opinion.
The decree was made public stimuli
taneously In Huntsville. Birmingham
and Montgomery.
Judge shelby In his opinion divides
the railroads contentious under -four
heads, the most important of which is
the fourth, relating 20 the charge of
/ confiscation.
Judge Grubb Adds Remarks
Judge Grubb eoncurs in the opinion
and adds some remarks regarding the
FIRST and fourth contentious of the
plaintiff.
Judge Shelby first takes up the COM
plant that the order of the Alabama
railroad commission is violative of the
federal constitution which he does not
sustain The plaintiffs arguments are
then stated under the following heads
and are disposed of by the court in
order
q. 1t is contended that the decree OF
this court tJudge Jones). rendered
April 2, 1912. is res judicata, and estops
the commission from making the order
which is here sought to be enjoined.
%. It is contended that the order of
the commission should be enjoined be-
cause It is a burden on or an inter-
ference with Interstate commerce.
"s. 1t is eontended that the order
should be enjoined because it was made
without proper notice to the plaintiff
that it was not granted an opportunity
to defend.
Most Important Contention
"a. The fourth and chief contention
of the plaintiff is that the intrastate
passenger rate fixed by the commission
is confiscatory. not allowing an ade-.
1
s devoted to the public use, and that the
commissions order is, therefore, VIOLA
tive of the federal constitution.
IF the order made by the commits
sion had fixed general schedule OF
rates covering the intrastate operations
of the carrier taken as a whole, this
contention would certainly present the
controlling question. Such question was
presented, In Smyth VS.. Ames. 169 u. S.
466, and in Simpson, ct al vs. Shepard,
229 U. S. The controlling question in
such cases is whether or not the state
has overstepped the constitutional limit
and made the rate so low as to deprive
the carrier of it's property without due
process of law. This case--the case
made by the supplemental bills to
be distinguished from cases which in
volve all or practically all of the in
trastate passenger and freight rates
charged by railroad. The order sought
to be enjoined-and which is the only
subject of controversy before us-re-
ouires the plaintiffff to put into effect
in Alabama an intrastate passenger
rate of " cents mile for adults and
IN cents mile for children.
Fair Return on Value
"The great volume of evidence sub
nnitted relates to the issue-necessarily
involved in the main case--as to wheth-
er or not the railroad was earning un-
der the general schedule or rates then
In question fair return on the value
of it's property devoted to intrastate
public service. The solution of that
question in favor of the plaintiff
would not be conclusive against the
defendants in the instant case. because
1t is limited to intrastatesa passenger
rates. 1t might be true that the plain
tiff would fail to secure an adequate
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