Newspapers / The Charlotte Observer (Charlotte, … / Sept. 12, 1907, edition 1 / Page 3
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i. . t ia ; : are f i t' i Uil, fro::i taot-j v. here l. -a u.:.-n; .;3 s re a, Sue c."'.oia!., v ' Mi .;-- r;-t coi..' Unite su.'.-t o;..i.;n..t t'. e Elate., "The first . class is where t suit is brought against the e. .rc-rs cf the State, ad represc-ut-4.: .the Slate's action and liability, and thus 'making It, "though not a par ty to the record, the real party against wihioh 'the Judgment will bo operate as - to compel dt to specifically perform its contracts." The. other olass Is 'wihere a suit la brought against & Ce-ndajits who, claiming; to act as offi cers o-f the State, and luttder the color of an unconstitutional statute, commit wAa of wrong exri injury to the rights and property of he plaintiff acquired unider a contract wlto -the State.' 1 Such suit, whether brought to - recover money or property in the hands f such : defendants, Unlawfully taken7 by them in behalf of the " State, or' for compensa tion to damages, or, In a proper case s where ithe remedy at law la inade quate, Tvr an injuuvuuu mi picicm " Buflh wrong or Injury, or for a man damus, In a"nke case, to enforce upon ith defendant the iperformanicp of a i (plato legal duty, purely .ministerial, is not, within the meaning of the elev '. enth amendment,' n action against . the State." x , . REASONING OF C0UBT. The (reasoning of tttie court In this case 1 thus etated: -, i "So (far from the State being the only real party In interest, and upon . wham alone the Judgment effectively operates. It has. In a pecuniary sense, no Interest at all. Going back of . all . onabtera ,of form, the only parties pe k ouniajily ftffeoted are the shippers and oairnlers, and the only direct pecuniary f interest which the State '-can have ; arises when It abandon Its govern mental cTiaraoter and, aa an tndividu- al, employs the railroad company to carry Its property. There Is a sense doubtless, in wUich it may .be said he i State da interested in the Question, but I only a governmental sense. It is in- ' terestea in tne wen-oemg, oi, lis cui- sens; 4n the Just ana actual eniorce rnent of all Its laws; but mtdh, govern- Omental Interest Is not the pecuniary Interest which causes it to bear the burdens -of v. an adverse v Judg- the treasury of he Stae, wo pecuni- ary obligation of It will be enforced, -. none ef its property affected by any ' decree Which may be rendered. It is not nearly so much affaoted by the oe s cree tn his -case as It would be by any injunction against- officers etaylng f fh rAHectlon of taxes, and yet a fre quent and . unquestioned exercise of JuxlMtonoa of courts, state ana "eral, to la' restraining the collection of f taxes, illegal In wWoie or tn pare -- The case of Smyth v. Ames (16 V. S. 466), was a suit in equity In the Circuit Court of the United States of Nebraska, The ; complainants were citizens of Massachusetts, "and stock- were named as defendants, with, cer tain citizens of Nebraska - and .? the . Attorney General, Secretary of State "Auditor of Public .Accounts, State Treasurer, and Commissioner of Pub- -" Ho Lands, constituting the board ' of transportation of -, Nebraska. The 4 aet of Nebraska permitted tha board of transportation to fix rates, which ! It did. The suit was to restrain the ' enforcement of the rates. An lnjunc- "tlon-was obtained, restraining the ra irroadslrotnptrt tin g in effect the rates prescribed, and the State offl- . clals . from prosecuting any suits In i violation of the penalty clause 'of the act. The Supreme Court of the United States affirmed the decision of the lower court and held Ne braska law of 1893 to regulate rall- - roads, classify freight and fix rates, etc., to be void, as repugnant to the United States constitution, "as pro hibiting railroads in that State from receiving reasonable and Just com pensation, and depriving .them of property without due process of law ; and of the equal protection of the laws." - In this case it was . said by the court: .'.'It is the, settled doctrine of this court that a suit against Individ uals foi the purpose -: of preventing them as; Officers of a State from en- lorrlni an iincnnsfitntlnniil nnart.. ment to the injury of- the righta of the plaintiff, is not a suit against the State within the meaning , of that amendment,". And, ; at a time when so much is said in thia "State about the reverence-due to legislative en actments, it may be appropriate in this article to further quote the elo quent vindication i by Mr. Justice Harlan of the duty and power of the courts In upholding the fundamental JUSTICE HARLAN'S VINDICATION p.No one," he, says, "we take It, will -contend that a State enactment is in , harmony with that Uarw simply be cause the Legislature of the State nas acia.rn iiin tn ha h na r for .that would make the State Leg islature the final judge of its enact ment, although the constitution of - - ""m miu nw tang lnnue In pursuance thereof are the supreme law of the land, anything in the con stitution or laws of any state to" the contrary notwithstanding. The idea that any Legislature, State or Feder--al, can conclusively ( determine for thA AMnlA ainA , I . . . . What it enacts in the form of law. or what-lf authorises its agents to do, Is consistent with the' i fundamental law,(is -tn opposition to the theory of our Institutions. The duty rests upon all courts... Federal and State, . when their Jurisdiction is properly invoked, to see to It that no right secured by the supreme law of the land is im paired or destroyed by legislation. ..inis function and duty of the Judi- . aary.dlstlngulshes the American sys tem from all other systems of gov- -r.?,fnt- Th. PMtty of our in- -enjoyed undef-them- depend.: in no BWall degree,- upon the power givn to the Judiciary to declare null und c& all legislation that, is clearly rri)j?,nant to the "upreme law of the land. , - -' - , , . , i ,' The constitution ,n the North Carolina railroad suits, the circuit Judge, Whether or not they were In effect suits against the State. LomeI?y4 to hl 8Tat work,ron eoulty Jurisdiction, - declares: , "It: i not enough that the Stat shoul6 have a mere interest In the vindication of ir !aws,i ?r In their enforcement as affecting the 'public at large, or as they affect the1 rights of -individuals or corporations, but tt must be an in terest of value to lierself as a dlsUnct entity of value in a material sense." in order to be a suit against the Bute: but. on the other hand, where officers acting under. an ; unconstitutional law Mil Injure i substantial property rights, an injunction will not ' be refused merely because they are SUte officers, and the same Is true when they threaten to act in excens of authority." JUDGE PftrrCHARD'S OPINION. Judge Prltchard held they were not tits against the State. He may or may not have been right. The Supreme Court of, the Unltjed dates alone -can Don't 1 afraid to iff v ChsrnbPrialn's rousli Remedy to ymir rhildron. It r-mi-tnlnn n cpiiMn. at (ter hurmfu) lrnir It. slwav-4 cures.. For aali ev W. 1 Hand & Co. It !:-.'"' te or .j.jtcrf-1. here to t f... i i e oriufva of the Court cf the Ln,;e.3 t;au-3 an Trout vs. .-r.-t (l&i U. S., 537), th;s ka'e- liif" t : i. . '! law: "it is the settled doctrine of this court that a suit against individuals. jfor the purpose of preventing them, as ot.icers of a State, from enforcing an unconstitutional enactment to the in Jury of the rights of the plaintiff, la not . a suit against the Slate within the meaning -of that amendment." 'The coiujtltuaon of the United States with the several amendments thereof," must be regarded as one In strument, all of whose oro visions are to be deemed of equal validity. It weuld, indeed, be most unfortunate If the .Immunity of . the' several States from suits by eitlzens of other States, provided for In the eleventh amend ment, were to be Interpreted as mill! fying , those other provisions which confer power on Congress to regulate commerce among the several : States, which forbid the States from-enter ing into any treaty, alliance or con federation, from passing any bill of at tainder, ex post facto law, or law Im pairing the obligation of contracts, or. without the consent of Congress, from laying any-duty on tonnage, entering Into anyv agreement or compact with other States, er from engaging In war. all of which provisions existed before the adoption of the eleventh amend ment,3 which etill exist, and hieh would be. nullified and made of no ef fect 'If 'the judicial power of the Unit ed States could not be Invoked to pro tect citizens affected by the passage of Stare laws disregarding these con stitutlanal limitations, Much less can the eleventh amendment be pleaded as an Invincible barrier to judicial m quiry whether the salutary provisions or the 'fourteenth amendment ; have been disregarded by State enactments. Onr the other hand, the Judicial power of the United States has not been In frequently exercised tn securing to the several States, In proper cases, the im munity Intended bv th . eleventh f amendment. Hans vs. Louisiana, 134 U. S. 10 ;North Carolina vs. Temple, 134 U. S. Z2.";V,..y ;, V:. . AS TO THE CONTENTION ABOUT .-?vi:f'iisvTHE.FACT.Vnyi :?$ 'Jt was contended by : the railroads as to tne tacts that, if the act went Into effect pending Judicial review, they would suffer a Kreat deorlvatlon of their income, and, If they finally prevailed In the litigation their dam age would be irreparable, for, In that event, there would, be no remedy to them save to sue each passenger to re cover back the difference in the price of the ticket sold. . Considering that there are perhaps ten thousand tickets sold dally in North Carolina and that tne litigation will, probably take two years before it can finally be determin ed by the Supreme Court, the conten tion of the railroads as to the Irrepar able damage, If they -prevail. Is simply unanswerable. :) On the other hand, by requiring tne , raitreaas in selling a ticket at the present rate to issue a coupon for the difference between that rate and the rate fixed by the Legisla ture, to be redeemed by the railroads If the act is held to be constitutional, the traveling (publio could be protected against loss. The defendants contend ed that no injunction should issue as the facts presented to the court did not warrant Injunctive relief. There were facts presented to the court by the railroads in support of the allega tions of their bills of complaint, on the motion for injunction, showing the rates as fixed by the Legislature would practically, -deprive them of any in come from dntra-Stafe business. To ,the contrary, the defendants presented the reports of the railroads made to the State corporation commission, that tended to prove that the domestic business, at the legislative : rates, would be remunerative. ' DID NOT PASS ON MERITS. " It la not the purpose of this article to discuss the facts. The circuit Judge did not pass upon the merits nf the case.-' It was only necessary at the pre liminary hearing that he should bo sat isfied the Issues were mado in good faith and. that an Irreparable damage would be done to the complainants, if their contention finally prevailed, for him to have been Justified in making the Interlocutory orders he entered. He followed the established practice in referring the case to the standing master to take evidence, when each side could examine and cross examine Witnesses, and directed him to And the facts.. In the meantime, he con tinued the Injunction, requiring large Donas rrom tne rauroaas, enjoined tne enforcement of the -rate bill, and pro vided for coupons to protect the traveling public. This was the grava men of his offense to the State of ficials, the yellow journals and the State's rights doctrinaires. His act was a constitutional exercise of .his judicial discretion. The fact that in certain Western circuits the United States cir cuit Judge. In a railroad rate case, re fused the injunction, and that in New York another United ', States circuit judge, in the Consolidated Gas Com panies case, granted a similar Injunc tion. 1s not indicative of - what the court should or ehould not have done in the North Carolina cases. Perhans the Western Judge, on the facts pre sented to Judge Pritchard In the North Carolina cases, might 'have granted the injunction, perhaps Judge Prltchard, upon the facts presented to the Western Judge in the case before him, might have, refused the injunc tion. Each case stands upon Its own merits and the Judge grants or refuses the Injunction as he miy conciud the facts warrant. It Is his dd'y to pre vent any " irreparable damage or f rong to either oarty to. a suit before t im; pending Judicial investigation. It is not essential that he pass up in the facts or declare the act uncostitu t!r.3l before granting the ini.mctlon. Ha grants It to prevent " wrvn belnf doin pending Judicial review. .The Ce lay in this review Is the delay of the court,' which must necessarily investi gate the issues joined before determin ing them, - .. w, ,,. WAS JUDGE PRITCHARjyS ACT UNPRECEDENTED? ; Was Judge Pritchard's act unpre cedented? -. ' ' .' Let us see, In a very able paper by Mr. Harrison Standlsh - Bmalley Ph. D-, of the University of Michigan,- published In Jhe "Annals of the 'American Academy 6f , Political and Social Science," for March, 1907, on the subject of "Rate Control Under the Amended W. Inter-State Commerce Act," the authoi' ! discusses the 'pro posed provisions to expedite Judicial review. The author says: i s V '"It was generally : acknowledged In Congress that... while Judicial re view 1s inevitable and in some ways desirable, - It nevertheless , '; presents some disadvantageous features. "The merits of the question, how ever, were Uttle considered, for the discussion speedily took the form of a so-called constitutional debate. The right of Congress to limit the Judicial power was called Into question. It was argued that while Congress could create or' abolish the Federal Courts, other than ' the. Supreme Court. It could not prevent them-whlle exist ing, from exercising all Judicial func tions, both legal and equitable, which existed when the constitution was adopted, -.and ', which included the power to Issue injunctions. On the other Jiand,Jlt was contended that Congress In creating any particular cowru could confer on them whatever i ! . -. v. .'1 . r. '! c. a v i l. X t 1 1-1 1 13 very -v .- u'i 1 II, i much to 'be r -retted. If may be adued th'it the doubt of its constitutionality is due not so much to the consideration suggested above as to something else, The contention that Congress ia witn- out power to limit the authority of the lower Federal courts is not gen erally accepted as sound, and proba bly would not be upheld by the Su- preme Court But there is another ground on which the railroads could base their- claim to the temporary injunction. There is no doubt tjat they are entitled, under the , const! tution, to a reasonable Income from their business. And there is no doubt that if compelled fer a year or so to operate rates too low to yield that income, they would be In a sorry plight. Wnen the vceurta had de termined that " the ? rates were un reasonably low. their only remedy would be to sua each shipper for the difference between : the charge paM and the reasonable charge, and this would result in a multitude of trivial and unprofitable suits.' All this has been repeatedly recognised by the courts, which declare that a railroad suffers irreparable Injury If it must operate unreasonable rates -pending judicial review; Therefore the courts have held that in order to protect the company In . Its constitutloaal rights, injunctions must he issued at the outset to stay the enforcement of rates. This right to equitable relief is. now inrmiyy established. -Tnus we find the Supreme Court approving a decree of injunction issued by a cir cuit courts to restrain the enforcement of rates made by a State commission. although the State law declared that the rates should be in force pending a judicial review, indeed, we find the court going even farther. - In Chicago, Milwaukee ; and i St. Paul Railway Co.' vs. Tompkins (17 I U,1 8. 157), a temporary injunction was is sued at the outset, but after a thor ough ' trial the lower court . declared the rates to be reasonable and denied a perpetual injunction. Upon appeal, however tha Supreme Court directed that the restraining order ibe contin ued, pending a final decision of tne case. This illustrates how zealous the court Is in protecting the cons tltutional rights of the railroads. In view of the dicta and the practice of the court it may be asserted with some confidence that a statute deny ing the temporary Injunction in rate cases .would be overthrown iby the court' on the ground that, in effect, it prevented tho courts from-pro tecting the railroads in their censtl- tutlonal rights.- Nevertheless, It is to be regretted that the action, or lnac tion, of Congress has prevented a definite determination ; of this very tmportant question." V .' SUPREME COURTS VIEWS In the case which he cites, of Chi cago, Milwaukee and St , Paul Rail road vs. The Railroad Commission ers of South Dakota, the - Supreme Court of the United States says; "Few cases are more difficult or perplexing than those Which Involve an inquiry whether the rates pre scribed by a State Legislature for the carriage of passengers and freight are reasonable. And yet this difficul ty affords no excuse for a failure to examine and .solve the questions In volved. It has often been said that this is a government of laws, and not of men: and by this court, in. Tick Wo. vs. Hopkins, 118 U. S., 866, 869, 30 L. ed. ? 20, 6 Sup. Ct Rep.. 1664: 'When we consider the nature and theory of our -institutions of govern ment, the principles upon which thoy are supposed tor rest,' and review the history of their development; we are constrained to conclude that they do not mean to leave, room lor the play and action of purely personal and arbitrary power.' , ; --.",,'--'; -s- "when we recall that, as estimat ed, 'over ten thousands of millions of dollars are invested in railroad prop erty, the proposition that such a vast amount of property Is .beyond the protecting clauses of the' constitution, that the owners may be deprived of It by the arbitrary enactment of any Legislature, State or nation, without any right of appeal to the courts. Is one which, cannot for a moment be tolerated. Difficult us are the ques tions involved in these cases, burden some as the labor is which they cast upon the courts, no tribunal can hes itate; to respond , to the duty of in quiry and protection cast upon it by the constitution." . - ' (R, R. Comm. cases, lit U. S., 807, sub. noro. Stone va Farmers' L. 4 T. Co., 29 L. ed. 636, 6 Sup. Ct. Rep". 83, sss, 1181; dow vi, Beideiman, 125 U. S 680: Georgia R. & Bkg. CO. vs. Smith, 128 -U. S. 174; Chicago M. & St. P. Co. vs. Minnesota, 114 U. S 41!; Chicago & G. T, R. Co. vs Well- man, 143 U. S., 839: Reagan vs. Far mers' Loan & T, Co., 154 U. S., 862: St. Louis St S. F. R. Co. vs. GUI, 158 U. S.; 649 Covington & L. Turnp. Co. vs. Sanford, 16 U. &, 678; Smyth vs. Aymes, 169 U. S., 466.) '".:V'V';-v "It is often said that the Legis lature is presumed to act with full knowledge of the facts tipon which Us legislation is based. , This is un doubtedly " true, but . when tt 'as sumed from that, that Its judgment upon those facts is not subject to In vestigation, the inference is carried too far. Doubtless, upon mere ques tlons of policy, - its conclusions are beyond Judicial consideration. Courts may not inquire whether any given act is wise or unwise, and only when such act trespasses upon vested rights may the courts intervene, A single illustration will make this clear: It is within the competency or the Leg islature to determine when and what property shall be taken for public uses. That question Is one of policy over whlch the courts' have no Juris diction but if after determining that certain property shall he taken for publio uses, the Legislature -proceeds further and declares that only .a cer tain iprlce shall oe paid for It, then the owner may challenge the validity of that part of the act, may contend that his property is taken without due compensation,- and tne legislative de termination .of value' does not pre clude an investigation In the proper Judicial tribunals. The. same prin ciple applies when vested rights of property are disturbed by a legisla tive enactment in respect to rates." -. - LEGALITY OF HIS COURSE. , It has been said that His Honor Judge Pritchard should not have granted the Injunction until he mad pawed upon the validity of the act, and, not at all, If he held-the act to be constitutional. , On the contrary, If he had (held the act to be valid and dismissed the bill before him, ; he would have been Justified by preced ent in continuing the injunction, pend ing an appeal to the Supreme Court of the United States, under the au thority of Cutting vs Goddard, (188 U.' S., 79). The State of Kans&s paw ed an , act regulating the charges of - the Kansas- City Stock-Yards Company. The com plainant, a citizen of the Stats ' of Massachusetts and a stockholder in the company brought his suit-in the Unit ed States Circuit Court for the district of Kansas, : against the ' Kansas City Stock-Yards Company, a State corpo ration, certain ortlcers of that com- ? ' yot Sprained Ankle. A snrained ankle may be cured In shout one-third the time usually required, by applying ,, Chamberlain's Pain ,J?n1m IroeLy, and fivlrj It abrvlute rest. For sale by V'. L. Hand A Ce. , :' c. . i cf i.s a..- , .1 ;....t t .a rt, t ,w . v .. .. .tutionai, as it c .;i 1 H' ' . ty of the company, lie obUuu-u a tumpor-J'y inj-inction aiu.t the ciifon-ement of tlie a-t. The act cor.tj.Ined the provision that any person violating any of its pro visions should be guilty of a misde meanor, and, upon conviction, should be fined for the first offense 8 100., for the second offense, not more haa 8200, for the third offense, not more man jsoo and oy imprisonment in Jh county Jail not exceeding six months lor eacn osense, and cor every subse quent offense, not less than $1,000 and by Imprisonment for six months. The case was referred to a special roaster to take testimony and report his And ings as to aU matters and things in is sue. The circuit judge, after the hear ing of the master's report and the ar gu merit of counsel, held the act to be valid and dismissed the bills of com plaint In the opinion of Circuit Judge Tbaxqr, there was the following order, which was also embodied 1n the final decree: : v "-. "The great importance of the ques tlons involved -in these cases - will doubtless occasion an appeal tP the Supreme Court of the United States, where they will be finally settled and determined If, on such appeal, the Kansas statute complained of should be adjudged invalid for any reason and in the meantime the statutory schedule of rates should be enforced the stock-yards company .would sus tain a great. and Irreparable loss," Un dersuch circumstances, as was said by the Supreme Court in Hevey vs McDonald. 189 U.S.. 161.it la tha rlrht and duty of the trial court to maintain if -possible, the status quo pending an appeal, if the questions at issue are Involved in doubt and equity rule 93 was enacted tn recognition of that right. The court 1e of opinion that the cases at-bar are of such moment with doubt as to Justify and require an exercise of the . sower in question. Therefore, although the Mils rwill be dismissed, yet an order will at the eame time toe entered restoring and continuing la force the injunction which was heretofore granted for the term of ten days, and if in the mean time an appealshall be taken such in junction .will be continued in -force un til the appeal is heard and determined In the Supreme court ox the united States; provided that, in addition to the ordinary appeal bond, the Kansas City Stock-Yards Company shall make and file in this court its bond m the Venal sum of 8200,000, payable to the clerk of this court and his successors In office, for the benefit of whom it may concern, conditioned that in the event the decree dismissing tne Dims is affirmed, it 'will,' on demand,, pay to the party or parties entitled thereto, all overcharges for yarding and feed Ing live stock at its stock-yards In Kansas City, Kansas, and K'ans&s City, Missouri, wttiieh it anay have enacted In violation of Para. 4 and 5 of the Kansas statute relative to stock -yards, approved March 3d, 1897, eince an in Junction was first awarded herein, to- wlt, on AprU , 1897; and that it will in Irke manner pay such over charges, If any, as It may continue to exact In violation of said statute our tag the pendency of the appeal, said obligation to become void u tne stat ute in question shall be pronounced invalid -bv the Supreme Court" This exercise of his aiscreuon in continuing the Injunction under the ciroumstancea was tacitly approved by the Supreme Court of the united States in its opinion In the case, in these words: "Th learned iudre. in deciding the case, appreciated A the importance of the questions rnvciveo,, ana aruvougn denylnr the relief sought cy toe piain tiff, exercised his power of continu ing the restraining order untn suon time as these questions could be de termined." ' ' - - "Had h done otherwise the Kan sas City Stock-Yards Company would have suffered irreparame joss, to mi extent of several hundred thousands of dollars, for. on review of tne case, the Supreme Court head the statute to ha i.nrormtJtutlonali . Tt 1 oosaible. from tiie adjudicatea cases, State and Federal, to give in- nii.mrs hl instances or tne issuance i injunctions substantially under simi lar circumstances to the recent North r.miimn irlt. but It is deemed un necessary It Is a primary ground of the equity Jurisdiction that-injuncnons may issue to prevent irrepamaoie aim in r wronsr. to avoid a multiplicity of suits as to the same matter, and in (Continued on Page Ten.) vour Heart or Kidneys, then try this rlter Coffee ImiUtlon Dr. Shoop s Hea th Coffee, vr. mipopnas cio.o y ' ,.1A T..,e. anil UlkOll PnffM III flavor and teste, yet it has not a sing e sraln of real Coffee in it. 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The Charlotte Observer (Charlotte, N.C.)
Standardized title groups preceding, succeeding, and alternate titles together.
Sept. 12, 1907, edition 1
3
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