The Birmingham age-herald., 1913-05-07

issued thereon against Charles Hender-
son, Leon MeCord and Frank Julian
respondents, to show cause why they
should not be punished for contempt foe
violation of injunction.
"Cahaniss & Bowie of Birmingham,
Ala, and W. A Colston OF Louisville
KY, for complainant
Samuel D. Weakley of Birmingham,
Ala. and r. c, Brickell attorney general
state of Alabama, of Montgomery Ala,
for respondents.
"Grubb. district Judge. This matter was
submitted for decision upon rule served
upon respondents, who are the mem
bers of the railroad commission of Ala
bama, to show cause why they should
not be punished for contempt in violat-
ing the terms of a permanent injunction
that was heretofore issued in the cause
enioining the respondents from taking
any steps to enforce certain rate sta
tutes enacted by the legislature of Ala
bama, known as the maximum freight
act, the eight group acts and the maxi
mum passenger rate act. The alleged
violation of the injunction consists in
the making of an order by the commits
sion requiring the complainant to put
into effect a passenger rate of 214 cents
mile for adults and rate of IL cents
for children, and the serving of the or
der on the complainant.
History of Case
THE facts and history of the case, In
which the injunction was made perma-
nent, are fully stated in the statement Of
facts and the opinion in the report of
the original case Il. & n. r. r. Co VS.
Railroad Commission, 1856 Fed 5000. The
order of the commission asserted to con-
stitute the contempt was made on the
10Th day of February. 1918. and its ef-
10 ~ tha nj n
and after March 619lS to put In effect
between all points on its railroad In Ala
bama a standard passenger rate of 215
cents per passenger mile for adults and
rate of IL cents per passenger mile
for children not over u nor under five
years Of age, and providing that com
plainant's proportion of joint passenger
rates between points In Alabama should
not exceed the standard rates prescribed
The final decree by which the injunc-
ton was made permanent was rendered
April 2, 1912 but postponed the restora-
ton of the rates which were In effect be-
fore the statutory rates went into eff
feet until April 15 1912.
1.-THE commission, in answer to the rule,
present three propositions any one Of
which, if resolved In its favor, would
result in denial of the relief asked for
by the complainant In the petition upon
which the rule issued. They are % thai
the making of the order complained of
was a legislative or quasi-legislative act,
and for that reason one that would have
been beyond the jurisdiction of a court
of equity to enion. and for that reason
one, the making OF which could not sus
tain a contempt proceeding; (2l that the
injunction was directed against the en-
forcement of all the rate statutes in
their entirety, and that the commission
was not enjoned from putting In force
any one of them separately; and go
that the making of the order complained
of was not an enforcement of the statu-
tory passenger rate act, but an exercise
of, the commissions independent power
of establishing reasonable rates and
fares.
Could Not Be Contempt
Il. It is contended by the commission
upon the threshhold that the making of
the order could not have been a con-
tempt. since the court was without iuris-
diction. to enjoin the railroad commission
from making such an order-it being the
exercise of a legislative function-as much
so it would be without jurisdiction to
enjoin the legislature in advance from
passing an act establishing a like rate.
This may be conceded to be the law.
However, the final decree awarding the
permanent injunction did not attempt to
enjoin the commission from making such
an order Its effect was to enioin the COM
mission from taking any steps against
complainant or its agents to compel it to
observe or to enforce any of the said
several acts of the legislature. While,
therefore, the mere making of an order
having the effect of establishing the statu-
tory rate may not have been violation