Central of Georgia Ry. Co. v. Railroad Commission of Alabama

161 F. 925, 1908 U.S. App. LEXIS 4412

• Court: District Court, M.D. Alabama
• Decided: March 21, 1908
• Status: Published

Opinion

JONES, District Judge

(alter stating the facts as above). These cases involve the rights of the owners and the public in the use of vast' properties devoted to state and interstate commerce, the relations of the states to the United States, the extent of its judicial power in the enforcement of the Constitution and laws, the power of the state under its own Constitution, and the rights of citizens under both the state and federal Constitutions. Counsel were invited to present their views unhampered by any limitation as to time or the mode of raising the issues, and the court has had the benefit of able and extended discussion at the bar.

If it be true, as respondents insist, that these cases are suits against the state, the bills must be dismissed, regardless of the merits of the grievance disclosed. Looking to the record, we find that complainants, who are citizens of other states and citizens of this state entitled to come into this court by reason of the federal question, seek to prevent certain citizens of Alabama from doing acts, under color of its laws, which complainants claim will illegally destroy a property right, protected by the Constitutions both of the state and of thé United States. More fully stated, the case is this: Complainants are common carriers. Being engaged in that calling, it is competent for the Legislature to fix their maximum rates. The Legislature has done so. The rates so fixed are prima facie lawful. The Legislature has no power to fix rates which are unreasonable. The courts are the final arbiters of such questions. The carriers claim that the rates fixed are illegal, in that they do not permit' an adequate return on the value of their property, and will deprive complainants of their property without due process of law, in violation of the fourteenth amendment and provisions of the Constitution of this state for the protection of property rights. Respondents insist the rates are reasonable, and permit an adequate return upon the value of the property, and threaten by civil suits against the carriers, and by indictments and prosecutions against complainants and their servants, to compel the carriers to observe the statutory rates. This is the entire scope of the controversy between the parties before the court. Plainly, in form, at least, the cases fall within the very letter of any definition of “cases in equity,” and “controversies between citizens of different states,” of which this court is given jurisdiction by the Constitution and laws, and the state is not sued.

The Bills are Not Suits Against the State.

In Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 390, 14 Sup. Ct. 1047, 1051, 38 L. Ed. 1014, the insistence was that the suit was against the state. The Supreme Court said :

“We are unable to yield to this argument. So far from tire state being tbe real party in the ease and upon whom the judgment effectively operates, it has, in the pecuniary sense, no interest at all. Going back of all matters of form, the only parties pecuniarily affected are the shippers and the carriers, and the only direct pecuniary interest which the state can have arises when it abandons its governmental character and as an individual employs the railroad company to carry its property. There is a sense, doubtless, in which it may be said the state is interested in the question, but only in a governmental sense. It is interested in the well-being of its citizens, in the just and equal enforcement of its laws; but such governmental interest is not a pecuniary interest which causes it to bear the borden of an adverse judgment. Not a dollar will be taken from the treasury of the state, no pecuniary obligation of it will be enforced, and none of its property will be affected by any decree which may be rendered. It is not nearly so much affected by the decree in this case as it would be by "n injunction against officers staying the collection of taxes; and yet free.- ..." and unquestioned exercise of jurisdiction, of courts, state and federal,' has been indulged in restraint of collection of taxes illegal in whole or in part.”

In Missouri Railway Co. v. Missouri Railroad Commission, 183 U. S. 53, 60, 22 Sup. Ct. 18, 46 L. Ed. 78, it was insisted that the state was. the real plaintiff, and, as the state was not a citizen within the meaning of the removal acts, a mandamus proceeding to compel the railway-company to observe the rates could not be removed to the United States Court on the application of the railway company. The Supreme Court, however, held that the state was not the real party, and that the suit, other conditions permitting, could be removed. It said:

“It is not an action to recover any money for the state. Its results do not inure to the benefit of the state as a state, in any degree. It is a suit to compel compliance wiih an order of the Railroad Commissioners in respect to rates and charges. The parties interested are the railway company on the one hand and they who use the bridge on the other — one interested 1o have the charges maintained as they have been ; the other, to have them reduced in compliance with the order of the Railroad Commission. They are the real parties in interest, in respect to whom the decree will operate.”

It was also urged in that case that the “state had a direct pecuniary interest in the result of the litigation by virtue, first, of its possible liability for the costs, and, second, because, if the litigation were pushed to the extreme, there might be penalties imposed which would, when collected, possibly inure to the school fund of the state.” The Supreme Court decided that did not alter the nature of the suit. It said:

“Whatever may be the result of any subsequent or ancillary proceeding, the direct effect of this suit is to obtain a decree of the court commanding the railway company to comply with the orders of the Commission. Such a decree is similar to the ordinary decrees of a court of equity. Tt is a familiar rule that a court of equity may enforce compliance with its orders and decrees by penalties upon the delinquent. So that, if this possible pecuniary result is sufficient to make the state the parly plaintiff, it would follow 'that in Missouri the state is the real party plaintiff in every equity suit, because in every equity suit penalties could be imposed. Neither can it be held that the state’s voluntary assumption of the costs, if the litigation is adverse to the Railroad Commissioners, makes it the real party plaintiff. That is simply an incidental matter, and does not determine its relation to the state, any more .than its payment of the salary of the judge, the fees of the juror, or any other expense of the litigation. We are of opinion, therefore, that the party named in the record as the plaintiff is the real plaintiff, and that the voluntary assumption by the state of the costs in some contingencies of the litigation, or the indirect and remote pecuniary results which may follow from disobedience to the orders of the court, do not make it the party to whom alone the relief sought inures, and in whose favor a decree for the plaintiff will effectively operate.”

The same ruling was made in Smyth v. Ames, 169 U. S. 518, 18 Sup. Ct. 418, 42 L. Ed. 819.

In McNeill v. Southern Railway Company, 202 U. S. 559, 26 Sup. Ct. 724, 50 L. Ed. 1142, the Supreme Court reiterated the doctrine of the earlier cases. It said:

“We think the real object of the bill may properly he said to have been the restraining of illegal interference with the property and interstate business of the railway company; the asserted right to interfere which it was the object of the bill to enjoin being based upon the assumed authority of a state statute, which the bill alleged to be in violation of the rights of the railway company, protected by the Constitution of the United States. In this aspect, the suit was not in any sense a suit against the state.”

Statement of Respondents’ Regal Propositions.

II. Respondents answer that the reason of these decisions cannot control the disposition of the supplemental bills, since the officials whose action was enjoined in the cases cited were “specially charged” with the execution of the laws; that this feature is wholly wanting in the supplemental bills, though it is positively averred in them that the state officials will enforce the rate legislation; that the officials who are defendants have now no official power to enforce the rate legislation; and that the laws which authorized them to be sued have been repealed. They insist the supplemental bills are suits against a sovereign state, of which this court has no jurisdiction. They go further, and urge that the original bills, which it is now admitted were not suits against the state at the time the)'- were filed, have now become such suits, because, subsequent to their filing, the Legislature has stripped the defendants therein of all power to enforce the rate legislation, and repealed the legislation which permitted them to be made defendants in a suit by the carrier to determine the reasonableness of the rates. Irrespective of these defenses, they assert that the due process of law for which the Constitution provides is satisfied here, no matter h'ow inadequate may be the remedy at law for the full protection of the right asserted, if in each case as it arises complainants be afforded in that particular case a fair trial in a court of justice according to the usual modes of procedure applicable to cases at law. While they do not assert in so many words the doctrine as the court here puts it, they inevitably deny, either that the usual remedies of equity in such cases form any part of the “law of the land,” which complainants are entitled to invoke, or, else that the state, in its discretion in ordering persons and things within its dominions, may so adjust the relations of officials to the execution of a statute that no court can prevent its immediate enforcement, although the statute be unconstitutional and the officer be about to execute it, and the arrest of such action of the official be absolutely necessary, at the very threshold of the litigation, to save a property, right from destruction. Counsel raise many other important questions which will be noticed in the order of their presentation.

By None of the Tests can the Bills be Held to be Suits Against the State.

Alabama is a sovereign state, except in the particulars wherein its rights and powers are curtailed by the Constitution of the United States. -The full sovereignty of Alabama is not vested in any one of the departments of its government, or in all of them combined, since the people have retained some of their power. Const. Ala. § 36. The government of the state is not to be confounded with the state itself. One is the servant; the other is the sovereign. Under our free institutions, no official can truthfully declare, “I am the state.” The Constitution of the state distributes the sovereign power of the people among three co-ordinate departments, giving each so much of that power as deemed requisite to the accomplishment df the task committed to it. These three departments combined, save as limited by the state and federal Constitutions, represent the sovereignty of the people of Alabama. All the powers of these departments are subject to the checks and limitations of the Constitution of the state and of the United States. Within the scope of their delegated authority, the acts of state officers are the state’s acts. When they transgress the limits of their authority, it is not the state which acts, “for as it can act and speak only by law, whatever it does say and do must be laivful,” but is “the mere wrong and trespass of individuals, who falsely speak and act in its name.” Poindexter v. Greenhow, 114 U. S. 290, 5 Sup. Ct. 914, 29 L. Ed. 185. II the acts of officers of these departments, outside of the scope of the power intrusted, cannot be effectively stayed when necessary to save the liberty and property of the citizen from illegal invasion under color of state laws,' because such proceedings are suits against the state, which the citizen cannot maintain, there is an end of real constitutional government and liberty, and the enthronement in their stead of official absolutism. “The Constitution deals with substance, not shadows. Its inhibition was leveled at things, not the name. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding.” Cummings v. Missouri, 4 Wall. 277, 325, 18 L. Ed. 356.

Scrutinize as we may the insistence here, the acceptance of the argument in support of it inevitably leads, in its final complexion, to the fatal admission that somewhere in our constitutional system a safe shelter can be found for legislative evasion of its most sacred commands. Stripped of sophistry, the naked proposition is that the power of the Constitution to protect a property right must surrender to the deftness and cunning of the draughtsman in adjusting the relations of the officer to the execution of an unconstitutional statute; that the phrase maker, not the fundamental law, determines whether a constitutional right has any virtue. Mr. Justice I,amar, in an elaborate review of the decisions on this subject, in Pennoyer v. McConnaughy, 140 U. S. 1, 11 Sup. Ct. 699, 35 L. Ed. 363, declared:

“The general doctrine of Osborn v. Bank of United States, 9 Wheat 738, 6 Ij. Ed. 204, that the Circuit Courts of the United States will restrain a state officer from executing an unconstitutional statute of the state, when to execute it would violate the rights and privileges of the complainant which have been guaranteed by the Constitution and would work irreparable damage and injury to him, has never been departed from.”

In Prout v. Starr, 188 U. S. 537, 23 Sup. Ct. 398, 47 L. Ed. 584, the court declared:

“It. is the settled doctrine of this court that a suit against individuals for the purpose of preventing them, as officers of the state, from enforcing an unconstitutional enactment to the injury of the rights of the plaintiff, is not a suit against the state within the meaning of [the eleventh] amendment.”

In this respect, the principle applied in the great judgment of Chief Justice Marshall in Osborn v. Bank, decided years before the adoption of the fourteenth amendment, has always been enforced. The effect of the fourteenth amendment upon the scope of the eleventh amendment was not directly passed upon by the Supreme Court, although involved in some cases, until the case of Prout v. Starr, supra, where it is said:

“It would he most unfortunate if the immunity of the individual state against suits hy citizens of other states, provided for in the eleventh amendment, were to be interpreted as nullifying other provisions which confer power on Congress, * * * all of which provisions existed before the adoption of the eleventh amendment, which still exist, and which would be nullified and made of no effect if the judicial power of the United States could not he invoked to protect citizens affected hy the passage of state laws disregarding the constitutional limitations. Much loss can the eleventh amendment he successfully pleaded as an invincible barrier to judicial inquiry whether the salutary provisions of the fourteenth amendment have been disregarded by-state enactment.”

The Supreme Court has settled, beyond the pale of further controversy, that when the state is not an actual party to the record, and the judgment in the suit cannot take the state’s property, or fasten liens upon it, or direct the disposition of funds in its treasury, or compel the state, indirectly, by controlling its officers, to perform any contract, or to pay any debt, or to govern the exercise of any discretion vested in the official in the execution of valid statutes, the state is not a real party, and the proceeding cannot be held to be a suit against the state. The state is not a party here. No decree which can be rendered here can invade its rights in any of the particulars named. The supplemental bills are not, therefore, in any sense suits against the state. Poindexter v. Greenhow, 114 U. S. 284, 5 Sup. Ct. 903, 962, 29 L. Ed. 185; Pennoyer v. McConnaughy, 140 U. S. 1, 11 Sup. Ct. 699, 35 L. Ed. 363; In re Tyler, 149 U. S. 164, 13 Sup. Ct. 783, 37 L. Ed. 689; Tindal v. Wesley, 167 U. S. 204, 17 Sup. Ct. 770, 42 L. Ed. 137; Davis v. Gray, 16 Wall. 203, 21 L. Ed. 447; Prout v. Starr, 188 U. S. 537, 23 Sup. Ct. 398, 47 L. Ed. 584.

If we give any force whatever to the purpose which called forth the. eleventh amendment, it destroys all foundation for respondents’ argument, which one of complainants’ counsel aptly describes as an assertion:

“If you make it anybody’s business to enforce the legislation, a suit to prevent it is not a suit against the state. If you make it nobody’s special business, and anybody can enforce the law, then a suit to stop it is a suit against the .state.”

Certainly, if, as the courts have repeatedly held, it is no invasion of the sovereign’s prerogatives to prevent ljis chosen minister from obeying an illegal command which he is specially charged to execute, what warrant is there, in any system of logic, for claiming that this same • sovereign can have any just cause of complaint, when restraining hands are laid upon an official to prevent his doing a like illegal act, as t'o which the sovereign has laid no special command upon him?

Whether or Not Officer is “Specially Charged” to Execute the Statute, Whose Enforcement is Enjoined, Cannot Determine the Nature of the Suit or the Extent of the Remedy.

It is undeniable here, if complainants prove their bill, and Cor the, purpose of this hearing it must be assumed that they may, that they will suffer irreparable wrong, unless they can immediately arrest the action of private individuals and the officials under the invalid statutes. Whether an officer or private individual be “specially charged,” or whether it be left to his discretion, to enforce the unconstitutional statute, sheds no light whatever upon the validiy of the statute, or the nature of the case, or of the wrong suffered, and cannot alter in the slightest degree the scope of the suit, or the effect of the judgment which may be rendered as to the execution of the statute. The injury and the wrong are the same in both cases. The character of the duty, and the validity of the statute which exacts it, are not changed by the fact that it is imposed by a special statute, instead of being fixed by the general law. The duty is the same in each case. When the contingency arises which calls for the performance of the duty under the general law, the officer is as peremptorily charged to execute it as when the duty arises under a special statute; and when he acts the consequences are the same, whether he acts under the compulsion of a special duty or simply volunteers to put the laws in motion. The officer’s relations to the execution of the statute are material only in determining in the particular case whether he is a proper or necessary defendant to the suit to arrest the operation of the statute. The presumption from the special charging of the duty is that the officer will perform it, and, is therefore, the equivalent of an allegation that he will attempt to execute the statute. He stands, as regards the threatened property right, in the same attitude as the officer, who, though not specially charged, nevertheless threatens to enforce the statute. If the circumstances of the case, and the nature of the right about to be invaded, are such that the acts of the officer will result it) irreparable injury and a multitude of suits unless his action he restrained, the courts must restrain an officer who, though not specially charged, threatens to execute the statute, just as it would an officer who is “specially charged,” and upon the sanie principle upon which it would proceed against a private individual, who threatened a like wrong.

Legislative Cunning Cannot Overthrow the Force of a Constitutional Provision.

III. Every well-informed layman is aware that the great purpose of all civilized government is to protect life, liberty, and properly. The protection of rights of property is next ill importance only to protection of life and liberty. Indeed, there is little real liberty where rights of property are not respected and enforced. All enlightened governments seek to secure these rights from impairment by arbitrary acts of government, as well as from invasion by private individuals. Nowhere is this duty of government to protect property rights more emphatically proclaimed than in our state Constitution of 1901, which, in section 35, declares:

“Tbe. sole object and. only legitimate end of government is to protect tbe citizen in tbe enjoyment of life, liberty and property, and when tbe government assumes other functions, it is usurpation and oppression.”

The purpose of the fifth and fourteenth amendments to the Constitution of the United States is to prohibit, pn every foot of American soil, all illegal acts of government, state or federal, invasive of the right to life, liberty, or property. Our constitutional systems, which parceled out the sovereignty of the people among separate and independent de-' partments, each of which was forbidden to enter the orbit of the other, had left little play for the arbitrary exercise of the executive prerogative concerning the enjoyment of thesé rights. These amendments were designed chiefly to secure the enjoyment of these rights against arbitrary exercise of legislative powerj and to give effective protection against such assaults upon the fundamental rights of the citizen, whenever attempted under the forms of law. It is well settled that a state cannot do or effect indirectly what it cannot do or effect directly, and that, in whatever language a statute may be framed, its purpose and its constitutional validity must depend upon “its natural and reasonable effect” upon the right involved. Henderson v. Mayor, 92 U. S. 259, 268, 23 L. Ed. 543; Joseph v. Randolph, 71 Ala. 499, 46 Am. Rep. 347. “It is the duty of the courts to be watchful of the constitutional rights of the citizen. A close, literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it were more in sound than in substance.” Boyd v. United States, 116 U. S. 616-635, 6 Sup. Ct. 524, 535, 29 L. Ed. 746.

Effect and Purpose of the Statutory System for Enforcing Rates.

The statutes whose execution is here prayed to be arrested involve the business of carriers transacted in very many places, upon hundreds of miles of railway, in the operation of which a multitude of trains and thousands of. employés are engaged. They transport daily thousands of passengers and thousands of parcels of freight. The transportation of every passenger and every piece of freight, and demanding or receiving greater compensation than the prescribed rates, is made a separate offense. The carrier, in a day’s business, if it does not observe the rates, yvill necessarily commit several thousand violations of the statutes, for each of.which he is subject to a fine of not exceeding $2,000; and his employés, who knowingly engage in any violation of the rates, are subject to a fine of not less than $100 nor more than $500 for each offense. So far as the nonobservance of the statute involves a private wrong, any person may bring his civil action to redress it, and may swear out warrants for violations of the rate statutes so far as they constitute public offenses. No one who reads the history of the times aright can fail to realize that these suits and prosecutions would be begun and relentlessly pursued until the carrier put in the rates. Under such conditions, nonconformity to the rates for a single day would result in the forfeiture of the carrier’s property worth many millions of dollars, and subject his servants and employés to arrest and imprisonment, preventing the carrier from discharging his duties to individuals and the public. The inevitable outcome of the situation thus brought about by the legislation, if the rates be unreasonable and respondents’ contention be correct, is that the carrier must at once observe the statutes, and thereby be deprived of property without just compensation, or else, in order to avoid the taking of his property, must refuse to obey the statutes, and thereby assume the frightful burden and costs of defense of a multitude of indictments in the law courts, in different places, at the same time, which, even if successful, would entail as great losses as the injury resulting from obedience to the statute, and, in addition, be forced to wager his entire property upon the successful outcome of his defense at law. Under this deliberately planned system of laws for enforcing the rate legislation and hampering the defenses thereto, the carrier, no matter what course he takes, is confronted with ruin.

Only a cursory examination of the practical operation of the statutes passed at the called session is needed to demonstrate that their intent is not only to enforce the rates, but also, as far as possible, to take from the carrier all effective means for the protection of his rights, if he desires to contest the rates. The design of the present statutes is to compel the rates to be put in force as soon as promulgated, no matter how destructive the result, by withholding any effective means to prevent the enforcement of rates until they have long been in operation. In the interval elapsing, under the present statutes, between the promulgation of the rates and the time when the carrier can get into the chancery court and have the rates enjoined, there must, in any event', be many days’ delay. During that interval, as we have seen, he has no means of defense against the rates except by meeting innumerable suits at law and indictments and trials in the criminal courts. He is not permitted, as other persons would be under the same circumstances, to submit to the statutory rates and perform the service under protest, and sue to recover the balance necessary to make a fair reward for the use of his property. This mode of defense is deliberately prohibited. The demand or receipt of rates greater than those prescribed by statute is made as grave an offense as the refusal to transport at the rates fixed by statute, and necessarily every such suit would subject him to the statutory penalties. Under the present statutes, there is no tribunal which can absolve the carrier from the penalties incurred while he is contesting the rates in the courts. If the court of equity enjoins the execution of the statute, under its equity powers, pending final decision, and the carrier be cast in the suit, he remains exposed to the numberless penalties incurred while the case was in the courts. Every way of escaping this peril is blocked against him. A failure to observe the rates for a single day to make a test case, would subject his property to confiseation. He must incur that risk to make a test case of any sort, no matter how short the test. If one test case be made, he must observe the rates thereafter, in order to prevent confiscation from future penalties, during the long period necessary to determine the right in the courts. If, to conserve all his rights, he resists from the outset, he must waste his substance in meeting innumerable assaults upon the right, although successful in finally beating them off'in the courts. There is nothing in the nature of the right the carrier asserts, or the act out of which it grows, which can justify the erection of such barriers to its assertion. The service, the act of transportation for which the reward is claimed, whatever may be said of the charge for it, is not only lawful in itself, but laudable. The law requires it to be performed. The carrier’s only offense is that he differs with the authorities as to the reasonableness of the reward the statute allows him for the use of his own property. It is the mere assertion of a conscientious difference of opinion as to the worth of the service. The exercise of the right is not harmful in itself, does not imperil either life, liberty, or property, nor the public peace or morals, or revenues of the state, and does not defy its authority. No one is guilty of a defiance of the law who seeks to test the validity of a statitte in an orderly way in the courts of the country. No other property owner, no other person who renders service to another, is so hampered in the defense of a property right in the courts of justice, and subjected to such heavy burdens, even when he makes good his defense, and to such .frightful penalties if he fails. It is idle to say that the carrier can be lawfully put in this plight, when he seeks to vindicate such a right in the courts, because he exercises a public calling, and has been granted a franchise by the state. The right to demand an adequate reward for the use of one’s property is as much under the protection of the Constitution as a man’s house or farm. True, the nature of the carrier’s business and the obligations resulting from it to the public are such that he may incur liabilities and suffer penalties regarding the conduct of that business, which could not be entailed or enforced, under like circumstances, against persons not so engaged. When he comes into a court of justice to defend his property right, he is not exercising his calling as a carrier at all, but insisting upon a constitutional right secured to all alike. Justice must be done, without respect of persons, and is not subject to classification.

State Cannot Pfevent Resort to Equity, in Proper Case, Either Under Its Own Constitution and Laws, or Under the Constitution and Laws of the United States.

Viewing' the question solely under our state Constitution, it is not competent for the Legislature to take from the property owner the right of resort to a court of equity for preventive remedies for the protection of a property right, if his case falls within the established principles upon which courts of equity usually administer such relief. From its earliest history the state has administered equitable remedies in its courts of chancery. Authority to administer such relief in cases falling within equitable cognizance is inevitably included in the judicial power, which the state Constitution and laws vest in the courts of chancery. Whether or no the Legislature can abridge this equity power of the courts, by providing exclusive remedies at law, it is certain the Legislature cannot so legislate regarding a right, if it falls within the protection of a court of equity, that the property owner, who is not given an adequate remedy at law, can be shut off from a seasonable resort to the chancery court for the exercise of its usual preventive remedies, when necessary to preserve a property right from destruction. The fourteenth amendment and the state Constitution alike require “the law of the land” to be administered in the courts of Alabama. The state courts of equity have always intervened for the protection of a property right, when necessary to save it from irreparable injury.

In these cases, however, the right to resort to equitable remedies does not at all depend upon the Constitution and laws of Alabama. The equity power to afford such relief, in proper cases, is part of the judicial power brought into being by the Constitution of the United States, a large part of which is distributed to the Circuit Courts of the United States, which are under duty and have authority to afford all those remedies for the protection of a property right which were administered by the High Court of Chancery in England at the time of the adoption of the Constitution of the United States. Although, therefore, the state law may afford an adequate remedy at law in a particular case, or, as in these cases, attempt to prevent any efficient remedy in its own courts of equity, yet, if the case properly falls within the principles upon which the High Court of Chancery in England at the time of the adoption of the Constitution of the United States gave a remedv, the courts of the United States cannot withhold it. Mississippi Mills v. Cohn, 150 U. S. 204, 14 Sup. Ct. 75, 37 L. Ed. 1052.

Right of Federal Court to Enjoin Illegal Use of State Power to Destroy a Constitutional Right.

IV. Section 1 of the fourteenth amendment ordains:

“Nor shall any state deprive any person of life, liberty or property without due process of laws; nor deny to any person within its jurisdiction the equal protection of the laws.”

Congress is given power “to enforce” its provisions “by appropriate legislation.” It has enacted “appropriate legislation,” under which the courts enforce, the rights secured by this section. In Chicago & Burlington Railroad Co. v. Chicago, 166 U. S. 226, 233, 17 Sup. Ct. 581, 583, 41 L. Ed. 979, it is said:

“It must be observed that the prohibitions of the amendment refer to all instrumentalities of the state, to its legislative, executive, and judicial authorities, and therefore whoever, by virtue of public position under a state government, deprives another of any right protected by that amendment against deprivation by the state, violates the constitutional inhibition, and as he acts in the name and for the state, and is clothed with state power, his act is that of the state. This must bo, so, or, as as we have said, the prohibition has no meaning, and the state has clothed one of its agents with power to annul or evade it.” Ex parte Virginia. 100 U. S. 339, 25 L. Ed. 676; Neal v. Delaware, 103 U. S. 370. 26 L. Ed. 5670; Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064. 30 L. Ed. 220; Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896.

It is a maxim of constitutional law that, when “the end is required, the means are given.” Authority and duty to prevent an evil inevitably carry with them authority and duty to overcome all the means by which, that' evil can be accomplished. The amendment is directed against the wrongful use of state power. It is the wrongful use of state power, ánd not who uses it, which determines when the prohibitions of the amendment apply. Citizens may swear- out warrants of arrest, and go before gránd juries and secure indictments, in order to enforce penalties, and-thus compel submission to state statutes. The citizen, it is true, is not ordinarily vested with state power; but in this instance valid laws of the state permit him to put state power in motion to enforce the statute. The result is, to quote the language of one of complainant’s counsel:

“Any one can sweep across the state like a blizzard or sirocco, and with bis informations consume the property of these defendants. The enforcement of the acts does not depend upon the officers of the state. They have put it in the power of anybody to enforce them.”

When the Legislature ^refrains from putting any special duty upon the officer, and expressly denies him power to enforce a statute, and leaves the state power to enforce the statute solely in the keeping of private citizens, and the citizen avails himself of the state power thus left at his. disposal, can it reasonably be affirmed that state power has not been used, and wrongfully used, to that end, if the statute be invalid? Is not the individual, pro hac vice, made the state’s officer in the initial steps for enforcing the invalid statute? Whether this be so or' not, when warrants are sworn out, indictments found, or suits brought to enforce an unconstitutional statute, valid laws of the state are set in motion to enforce that statute, and declare the duty, as the case may be, respectively, of clerks, to issue summons and capiases, of sheriffs to serve summons and complaint and to make arrests, and of the solicitors to prosecute indictments. These lawsuits, indictments, arrests, and prosecutions are the means for. bringing about the forbidden end. Without the use of such instrumentalities, the invalid enactment cannot be enforced, and the wrong cannot be accomplished. If the use of these instrumentalities be not restrained, the wrong will be done. The defense, to be effective, must be as broad as the assault,. and deal with it in every form. It is inevitable, therefore, that the courts, in order to pr,event the consummation of the wrong and to perform their duty under the Constitution of protecting property rights, must not only have the power, but must exercise it, to enjoin the lawsuits, the arrests, and the prosecutions. The exercise of such power is not only “appropriate,” but it is the only means for the effective prevention of such wrong. In the exercise of such power in preventing the wrong, the court exerts no unusual or extraordinary authority, but simply follows ancient principles of justice, brought over by our ancestors from across the seas, and applies them to new conditions created by modern affairs and industrial development; and new state policies, whereby state officers are prevented from taking any steps, of their own motion, to bring offenders to justice. If the Constitution is to be followed, the court must arrest the wrongful use of the state’s machinery of justice, put in motion by private citizens to enforce an unconstitutional statute, whenever necessary to prevent invasion in that way of rights the amendment secures, and on the same principles upon which it would interfere, when put in motion by officials specially intrusted with the duty of enforcing the illegal enact-' ment. If such proceeding against individuals wrongfully using state power to accomplish the forbidden end could be treated as suits against the state, the fourteenth amendment would necessarily authorize them. It was adopted long after the eleventh amendment. While both must be given a distinct field of operation as far as possible, yet to the extent of irreconcilable conflict the latest expression in the Constitution of the sovereign will of the people must control in all cases, where deprivation of property is attempted, without due process of law, by aggressive or affirmative action of state officials. If we hold that the protection of the amendment can be eluded, when private persons, and not officials, set state power in motion for the illegal destruction of a right it protects, it involves the maintenance of the baleful constitutional doctrine that the supreme law of the land can be halted and rendered helpless by the mere form in which the wrongdoer chooses to clothe his defiance of it.

The fourteenth amendment was not involved in Poindexter v. Green-how, supra, though it was in Chicago & Burlington R. R. Co. v. Chicago, supra. Some have criticised the doctrine declared in those cases, as to when the action of state officials is the action of the state, as involving the inconsistent assertion that the action of an officer outside of the Constitution and laws of the state is not the action of the state, and yet, nevertheless, when the officer does so act, such conduct on his part’ is state action, which invokes the operation of the fourteenth amendment. The inconsistency, however, is more seeming than real. It is true that an unconstitutional act is no law, and the courts must ordinarily treat transactions under it as though the statute had never been passed. Yet, when the officer sets the state’s machinery of justice in motion to enforce an unconstitutional enactment, he accomplishes his purpose by the use of valid laws of the state. Whether the particular statute sought to be enforced he unconstitutional or not, the laws of the state which provide for arresting, Indicting, prosecuting, and punishing persons charged with offenses against the state are valid laws of the state, and state power is used in such prosecutions, in law and in fact, as effectually as when the prosecution is for the violation of a valid enactment of the state. It is, therefore, literally true, in the constitutional sense, although the effort be made to enforce an unconstitutional enactment, that the acts of state officers in the courts to that end are acts of the state, and wrongful use of its power, within the purview of the fourteenth amendment.

Pitts v. McGhee Controlled by Subsequent Decisions.

V. In answer to all this, respondents cite Fitts v. McGhee, 172 U. S. 516, 19 Sup. Ct. 269, 43 L. Ed. 535, and sturdily insist that it forbids the court to entertain these bills. Whatever doubt arose at one time as to the exact scope of the doctrine of that case has long since been dispelled by subsequent decisions on all the questions of which it treats. If it were not for the zeal of counsel in urging their insistence, the court would not make other answer than the citation of those decisions. The uniform doctrine of the Supreme Court at' the time of that decision had always been that a suit against an officer of the state to arrest his action under an unconstitutional enactment which threatened irreparable injury to a property right secured by the Constitution and laws of the United States is not a suit against the state, and the opinion in that case is careful to state that it is not intended to “impinge upon the principle” which justifies such suits. Reagan v. Farmers’ Loan & Trust Company, supra, holds that a suit like this is not a suit against the state, and it is cited without disapproval in Fitts v. McGhee. The subsequent cases of Prout v. Starr, Gunter v. Atlantic Coast Line, and McNeal v. Southern Railway Co. likewise hold that such suits are not suits against the state, and Fitts v. McGhee is cited in them as authority for the ruling. It is equally clear that the court did not intend in Fitts v. McGhee to lay d jwn any invariable rule that a court of equity has no power, in any event, to enjoin the execution of an invalid statute by criminal proceedings, when necessary for the protection of a property right, nor to hold that equity could not afford such relief when no other injury was to be apprehended than the institution of formal judicial proceedings to enforce the invalid criminal statute. That was the very situation in which the Supreme Court held such relief was proper in Reagan v. Farmers’ Loan & Trust Co., Smyth v. Ames, and Prout v. Starr, supra. In Smyth v. Ames the Supreme Court affirmed an order which enjoined the Attorney General, as Attorney General, “from bringing or aiding in bringing or causing to be brought any proceeding by way of mandamus, injunction, civil action, or indictment to enforce” the provisions of the statutes there under consideration. In the still later case of Mississippi Railroad Commission v. Illinois Central Railroad Co., 203 U. S. 335, 27 Sup. Ct. 90, 51 L. Ed. 209, the Commission “threatened by suit to enforce the order” to stop certain trains at certain stations as ordered by the- Commission. The statute affixed a penalty of $50 for each time the railroad .company failed to stop its trains in obedience to the orders of the Commission. The equity of the bill was based upon the. fact that “complainant would, therefore, be compelled to comply with the order, or be subject to a multiplicity of suits for penalties arising from each and every violation of the order, which imposed a direct burden upon interstate commerce,” etc. The resort to judicial proceedings in the courts of the state was the only action threatened, and was what the Supreme Court held was properly enjoined. In Reagan v. Farmers’ Loan & Trust Co., supra, Smyth v. Ames, supra, and Scott v. Donald, 165 U. S. 107, 17 Sup. Ct. 262, 41 L. Ed. 648, decided before Fitts v. McGhee, and in other subsequent cases, the Supreme Court has held there is no adequate remedy at law in cases of this kind. One of the latest cases on this point is Cleveland v. Cleveland City Railroad Co., 194 U. S. 517, 24 Sup. Ct. 756, 48 L. Ed. 1102, where the Supreme Court said:

“Respecting the contention that the case presented by the record was not within the jurisdiction of the equity court, it suffices to say, in view of all the controversies, confusions, risks; and multiplicity of suits which would result by the resistance of the respondents to the enforcement of the ordinance, and in view of the public interest and the vast number of people to be affected, the case is one within the jurisdiction of a court of equity.”

The doctrine applies with much more force to the operation of a trunk line of a railway traversing the entire limits of a state. Counsel say that the street railroad cases ought not to give the rule here, since a municipal corporation, and not the state, was the defendant. That fact, however, can make no difference in the righteousness of the principle or its application here. This is not a suit against the state. The same observations apply to the cases of Davis & Farnum Mfg. Co. v. Los Angeles, 189 U. S. 207, 23 Sup. Ct. 498, 47 L. Ed. 778, and Dobbins v. Los Angeles, 195 U. S. 223, 241, 25 Sup. Ct. 18, 49 L. Ed. 169, where it was ruled, where property rights will be destroyed. unlawful interference by criminal proceedings under a void law or ordinance may be reached and controlled by a court of equity.

Counsel for respondents argue that the decision in Prout v. Starr went off on the ground that Prout was bound by a stipulation made b)r his predecessor, upon which judgment had been rendered, and from which no appeal could then be had, and that the decision is not, therefore, authority on the other point. That view is untenable. Prout insisted the proceeding against him was a suit against the state, and that the federal court could not enjoin him from enforcing the criminal laws of the state in the state courts. It was necessary to decide both questions. If the original proceeding against Prout’s predecessor had been a suit against the state, the court below would have been without jurisdiction to entertain it, its orders would be void, and the Supreme Court wottld not. have enforced the stipulation against Prout. If the controlling issue had been whether the judgment on the stipulation was res adjudicata as to a party who stood in privity with the original defendant, the court would not have gone beyond that question. Its habit is to refrain from discussing grave constitutional questions when possible to avoid them. It was .necessary in that case to discuss the eleventh amendment, and the court, for the first time, treated of the bearing of the fourteenth amendment upon the eleventh amendment, and spoke of evasions of the “salutary provisions” of the former, under the cloak of the latter, when the citizen sought relief from official wrongs under color of unconstitutional statutes. It is sought to withdraw these cases from the influence of the doctrine of the Prout Case, because the .Attorney General there was enjoined after the statute had been declared unconstitutional. Power to perpetually enjoin its operation after final judgment inevitably carries with it the power to maintain the status quo until the facts can be ascertained upon which the validity of the statute at any time depends. United States v. Shipp, 203 U. S. 563, 27 Sup. Ct. 165, 51 L. Ed. 319. Otherwise, in cases like these, where the nature of the investigation compels long delay before any final judgment can be pronounced, the citizen would, in the meantime, be without any protection from the operation of an unconstitutional statute. The Constitution affords an ever-present protection to life, liberty, and property and has just as much power to protect a property right against the operation of an invalid enactment the moment after its passage as at any other period. Mr. Justice Harlan concurred in the subsequent cases cited, which decided all the points covered by Fitts v. McGhee. He concurred in the result in Prout v. Starr, though not “in all the reasoning” upon which it was based. That great judge, instead of concurring as he did, would certainly have dissented in some one óf the decisions we have cited, if he had intended ’to enunciate in Fitts v. McGhee any doctfine contrary to the principles declared in the subsequent cases.

Fitts v. McGhee Analyzed.

VI. Moreover, a careful analysis of the facts in Fitts v. McGhee will show that the court did not intend to decide, and did not in fact decide, any new doctrine as to’ what constitutes a suit against the state. The bill in that case was twice amended, but in each posture of the bill as amended it was a suit against the state. It was a mere effort of the owners of an incorporated bridge company to settle in a suit against the state and the state officials, who were not shown to be personal wrongdoers or to have threatened any personal wrong, the constitutionality of the statute which fixed rates of toll alleged to be confiscatory, etc. The dismissal of the state from the bill, and afterwards of the Governor, whose term had expired, leaving the controversy with the Attorney General, at the time the supplemental bill was filed, and then bringing in the solicitor, did not change the nature of the suit in this respect, so as to authorize the complainants in such a suit to obtain , relief against the enforcement of the alleged confiscatory statute. Complainant’s case, as made by the original and amended bills, leaving out of view for the present the supplemental bill, to which different considerations apply, was in substance this:

. “We are the owners of an incorporated bridge. The Legislature, after chartering us, fixed rates of toll which are confiscatory. Numerous persons who used the bridge have threatened to sue us before .iustices of the peace for penalties inuring to them only. These same persons have threatened to procure the Governor and Attorney General to commence mandamus proceedings, and to institute suits for the forfeiture of the bridge franchise, in order to compel us to observe the confiscatory rates. We know, of course, that .the Governor and Attorney General have nothing to do with these statutory penalties, which can be recovered only in a personal suit by the individuals aggrieved. We cannot affirm that either of these officials has been approached by the persons who used the bridge to bring either of the apprehended legal proceedings; much less can we say that these officials are about .to do so. Nevertheless, while we have no better basis than our fears, we do fear that our property rights will be violated by the action of.the Governor and Attorney General; and we therefore ask the court to prevent these officials, and all other persons, from taking the apprehended proceedings, so that in such a suit we can test our rights with the public and fix the status of our bridge as to the .tolls.”

When the case went to the Supreme Court, counsel for the bridge ■company denied that the suit was in reality one against the state, and ■cited a number of cases to sustain their view. The court replied:

“The officers in those cases had either ‘committed or were about to commit ¡some specific wrong or trespass to the injury of plaintiff’s rights,’ and these officers thus became personal wrongdoers. You do not charge any personal wrong on the officers here. They did hot appear ‘to be about to commit’ ¡any wrong, and you have not shown that they are under any duty to enforce the statutes of which you complain; nor have you alleged in any way that .they are ‘about’ to put these laws in execution. You are, therefore, suing them only in their purely representative capacity, and not as individuals, who, as officials, under an unconstitutional statute, have done or threatened to do you any wrong. When the state’s officers occupy that attitude, you cannot sue them in their purely representative capacity, without regard to any threatened wrong on their part, in order to dictate the policy of the state government as to the execution of the statute concerning your bridge. Under such circumstances, your suit against these officials is nothing but a suit against the state.”

That was the turning point in the case, and it was to emphasize the distinction between the attitude of the officials in the cases cited and that in hand that the court spoke of the officers being “specially charged,” “specially directed,” or holding “special relations to the particular statute” alleged to be unconstitutional. The court was merely defining these “special relations” to an unconstitutional statute, which would authorize a suit against the official to prevent his execution of it, without falling within the reason forbidding suits against the state. This test was several times emphatically declared. It was, in the language of the court, that the officers “were committing or were about to commit some specific wrong or trespass to the injury of plaintiff’s rights.” It is a self-evident fact that “specially charging” the officer could not, of and in itself, effect the wrong. The officer must in fact attempt, or be about to attempt, the execution of the statute, so' that, if not prevented, wrong would be done. If he is not “specially charged” to do’ it, and has not threatened to do it, there can be no ground upon which to place the apprehension of injury, or upon which to base a suit on that account. The court did not intend to assert that there was any legal difference betweeen the wrong and the remedy, simply because the wrong was consummated in one instance by an officer “specially charged,” while in the other the' same wrong was consummated by an official who, though not “specially directed,” nevertheless executes an unconstitutional statute, in the exercise of the option the law left him. in that respect. The solicitor was brought into the case long after the suit was commenced against the state, and the Governor and Attorney General merely as such, and not as personal wrongdoers, of which suit, for the reasons stated, the court never had jurisdiction. Mr. Justice Harlan was careful to say that:

“Whether the owners of the bridge and the plaintiffs, as their representatives, were denied by the state fair and reasonable compensation for the use of their property by the public, was a question which could not be considered in this case. That is not a matter to be determined in a suit against the state; for of such a suit the court could not take cognizance.” '

The suit, as thus presented, being still a suit of which the court could not take jurisdiction at the time the supplemental bill was filed, it was immaterial whether the statute relating to the tolls was valid or invalid. The court in that kind of a suit had no authority to determine and protect the right. Hence the solicitor, although he was acting, and, if the toll statute were confiscatory, had become a wrongdoer, within the meaning of the- decisions cited to the court, could not. be brought into the case by the supplemental bill, for the purpose of testing the statute, for two reasons: The court had no jurisdiction in that case to determine the validity of the right which was claimed to be destroyed by the prosecution of the indictments; and, in the second place, the court never having obtained jurisdiction of the matter to which the indictments related, though they were found long after the equity suit was commenced in the federal court, the state court obtained prior jurisdiction. It would have been entirely improper, therefore, to interfere with the solicitor’s prosecution of these indictments. In prosecuting them, he neither violated any valid order of the court, nor did he seek by the indictments to transfer to another tribunal the trial of the “very matter” of which the equity court had first acquired jurisdiction. If that had been the posture of the matter, the equity court would have had the right to maintain its exclusive jurisdiction, by injunction against any criminal or other proceeding which sought to transfer the very matter which stood for judgment before it to some other court. This is the doctrine stated in Harkrader v. Wadley, 172 U. S. 148, 19 Sup. Ct. 119, 43 L. Ed. 399, which is cited in Fitts v. McGhee, regarding the authority of a court of equity to interfere against criminal proceedings, under an invalid statute, when invoked to protect a property right. While many of the expressions in the opinion in Fitts v. McGhee, supra, “went beyond the case,” and were not “necessary to the ascertainment of the very right in question,” the judgment there was rested upon the two controlling ^considerations we have pointed out, and the case is, therefore, reconcilable with the doctrine of the subsequent and prior decisions that when an official is _ “about” to execute an unconstitutional statute, to the injury of a right-secured by the Constitution, the suit to arrest his action is not a suit against the state.

Jurisdiction of the Court Not Affected by the Repealing Laws.

VII. The original bills have not been converted into suits against the state by reason of any legislation enacted at the called session, or because, since their-filing, the defendants have been stripped of all official power to enforce the rate statutes. The original bills charge that the defendants in them will do so. The defendants, however, are proper parties, irrespective of any duty or purpose to execute the rate statutes. The Railroad Commission is still the rate-making power. The state statutes endeavor to leave the Commission practically supreme in that respect. Save in -the matter of enforcing rates after they are made, it is not' shorn of any of its original authority. By the filing of the original bills this court has obtained exclusive jurisdiction to determine whether the statutes attacked therein can have any present or final operation, and, among them, whether the statute, which makes the rates in force on January 1, 1907, the maximum rates, save wherein other statutes have reduced them, shall finally be enforced or denied operation. The subject-matter of the controversy before the court, in view of the challenge of the right to confine the carrier to the rates in force on that date, necessarily presents a controversy as to the rightfulness of any reduction below those figures. If the Commission, one of the defendants in this litigation, were at liberty at this stage of the proceedings to step within the disputed area as to the reasonableness of the tolls, and make reductions, it would utterly defeat the power of the court to maintain the status quo pending final decision, unless it made new orders on further supplemental hills concerning what is really only another form of raising a question which is. already pending in the court, and which it still has the right to decide.

■‘It'is- the policy of our laws — indeed, their express command — that litigation to determine the reasonableness of rates shall not be waged, except in suits where some tribunal intrusted with the duty of caring for the public interests in the matter of rate is made a party. The confusion, distress, and uncertainty which would result if such questions were determined in suits between carriers and private parties is apparent on the face of such a situation. There might be collusion. The burden of contesting rates would deter private parties from undertaking it'. To leave such issues to be determined in suits by private parties, which would be prosecuted in different localities, in great numbers, in different courts, at the same time, in which variant decisions would frequently be reached, even on the same state of facts, would result in business paralysis and legal pandemonium. Uniformity and fixedness, which, next to the reasonableness and fairness of the rates, is so essential to the welfare of all who deal with the carrier or buy and sell in the markets, would be utterly destroyed. It was the realiza - tion of the evils of allowing such matters to be tested in suits between private parties, so often adverted to in the decisions of the courts, which caused the Legislature of Alabama, in the first instance, wisely to provide for 'a suit against the Railroad Commission and the Attorney General in a court of equity, wherein, by one comprehensive suit, the whole matter could be contested and adjusted in a way which would hind the carrier, the shipper, the passenger, and the public authorities alike. The legislation enacted at the called session, so far as concerns the parties to such litigation, substitutes the state itself as the adversary party in an appellate proceeding whenever an appeal is taken from an order increasing rates, and, when the carrier appeals from an order reducing rates, makes the Railroad Commission the appellee. That is the only change in its policy as to the parties with whom the contest as to rates shall be waged. The original defendants in these suits are not rendered improper parties in the further progress of this litigation, which was initiated in the very mode invited at the time by the state statutes, because subsequent-statutes endeavor,-at one and the same time, to effect the same wrong originally complained of by a different means and to take away the remedy given for the redress of the original wrong. The suits, when brought, were well brought against the proper defendants under the law in force at the time, even if it be conceded that the right to maintain the suits depends upon the state law. Rights lawfully acquired under a valid law while in force are not destroyed by the repeal of the act which gave them. The presumption is, when a statute is adopted providing a new mode for redressing an existing property right, that it is not imended to operate retrospectively upon pending suits, unless the words of the statute force that conclusion. However that may be as to a case pending in the state courts, state statutes cannot legislate out of the equity court of the United States a case, properly brought therein, to enforce a right secured by the Constitution and laws of the United States.

Original Bills Not Abated, but Supplemental Bills Well Filed.

VIH. The original bills have not abated, and do not require any revivor, by reason of the repeal of the commodity rate statute and the substitution of another schedule of fates, or by the withdrawal from the Commission and the Attorney General of official power to enforce the rates statutes, or by. the repeal of the act which authorized them to. be sued. The legislation passed at the called session affects the subject-matter of the litigation in the original bills in one respect only. Those bills sought to arrest the operation of the statute which forfeits the right of carriers to do intrastate business if they venture into this court to test the reasonableness of the rates, and also to arrest the operation of the statute fixing passenger fares at 2% cents per mile, and the statute forbidding any increase of rates above those in force on the 1st day of January, 1907, as well as to enjoin the commodity rates. The grievance alleged as to the commodity freight rates might be stricken out' of the bills, and still leave a perfect cause of action as to the other matters, which the subsequent legislation has not affected in any way. The original bills have merely become “defective” in the sense of equity rule 57, because, as originally filed, they set up a grievance as to the rates embodied in the commodity rate act, whereas, in consequence of the change in the legislation, the grievance as to the freight rates after the legislation at the called sessions is as regards, what are known as the “Eight Group Acts,” which take the place of the former freight rates. The change in legislation has happened sub- . sequently to the filing of the original bills, and after they were at issue. The parties have not 'Changed. The subject-matter of the litigation, remains absolutely unaltered, and the right to relief as originally pray-. ed is perfect as to three of the grievances. The bills as to three matters. need no support from the supplemental matters. The grievance as to the new matter is different in degree, and not in kind. The scope of the relief prayed is not enlarged. This is not a case where the right asserted on either side has gone out of a party to the suit, and must, therefore, be waged thereafter with a different person, who is to be brought into the litigation. Under such circumstances, neither justice nor technicality will be' subserved by refusing to allow the question to be raised by supplemental bill. If the new matter had been brought' forward, as respondents insist should have been done, b)f an original' bill in the nature of a supplemental bill, such a bill would be so closely related to the case made by the original bill that the court would unhesitatingly consolidate the-suits.. The supplemental bills are properly' filed as such.

IX. There is another view equally conclusive of the right to maintain the original bills, regardless of the repeal of the commodity .rate act and the act authorizing suits 'against the Commission. While the commodity rate act was in force, the carriers failed to observe it. The court enjoined shippers from bringing suits to enf.orce it, providing, in the meanwhile, for the protection of their rights by exacting indemnifying bonds, and, allowing shippers to file claims for excess charges in this court.' The carriage of every parcel of freight, under such circumstances, has ripened into an executed contract to pay each shipper any éxcess rate collected, if the rate statutes be not adjudged invalid.' Each of these shipments, being an executed contract, gives a vested right of action for the excess charges, which it is not competent for the state to hake away. M. & G. R. R. Co. v. Peebles, 47 Ala. 317. Shippers not only did business with the carrier upon the terms specified in the orders made on the issue of the preliminary injunctions, hut, as permitted by those orders, have filed their claims against some of the complainants to recover the excess in the rates charged them,-and have thus become quasi parties to the suit. The commodity rate act is as effective and binding, as to completed transactions under that act while it, was in force, as if it had never been repealed. As the statute is prima facie valid — strictly speaking, voidable, and not void, until so declared — the only way of escape for the carrier from the liabilities thus incurred is to bring his suit to procure a judicial determination of the invalidity of that act, as applied to him, during the time that it was in force. The object of the suit cannot he defeated by a repeal of that statute. The right of action after “suit has been commenced” to be rid of such liability cannot be taken away by subsequent legislation, among other reasons, because section 95 of the Constitution of Alabama of 1901 ordains:

“After suit lias been commenced on any cause of action, the Legislature shall have no' power to take away such cause of action,” etc.

A cause of action may consist as well in the right of the plaintiff in a suit to maintain a bill to get rid of an obligation threatened to be enforced against him by the defendant therein as in the right of the plaintiff to institute such a suit against a defendant to compel him to pay a debt or perform any other obligation. A familiar instance of a cause of action like that sought to be enforced by the original bill, as to the commodity rate act, is where a bill is filed to remove a cloud upon a title, which is purely a defensive proceeding. In United States v. Schooner Little Charles, 1 Brock. 347, 355, Fed. Cas. No. 15,612, Chief Justice Marshall said:

“It is a general principle that jurisdiction, once vested, is not divested, although a state of things should arise in which original jurisdiction could not be exercised.”

In that case it was contended that the court had lost its jurisdiction by losing possession of the things to be condemned; that the stipulation substituted for vessel was so irregularly taken that it could not be enforced, and, therefore, could not be considered as a substitute for the thing seized. Chief Justice Marshall said:

“The court will not render a judgment which operates on nothing; but this reason will not apply in any case, where the judgment will have any effect whatever — if, for example, the liability of the officer for making a seizure, for damages, be dependent on it.”

The Supreme Court has always so held. Kirby v. American Soda Fountain Co., 194 U. S. 141, 24 Sup. Ct. 619, 48 L. Ed. 911; Cooke v. United States, 2 Wall. 218, 17 L. Ed. 755.

If the Legislature, instead of substituting the “Eight Group Act” for the “Commodity Rate Act,” had repealed the latter absolutely, enacting no other in its place the liability for the excess rates charged before that act was repealed, if that act be valid, would remain upon the carrier, and, that being so, the jurisdiction of this court to determine the question remains. Hollingsworth v. Virginia, 3 Dall. 378, 1 L. Ed. 644, which is cited to support the contrary view’, has no application here. When the eleventh amendment was adopted, it destroyed all -judicial power in a court of the United States to render judgment against the state, except where it consented to be sued. The power which created the court withdrew its jurisdiction over the cause, and necessarily, therefore, all power to render judgment was taken away. The jurisdiction here i is not given by state laws, and they cannot take it away, and a cause of action still remains. The only way in which the state laws could affect the exercise of federal judicial power here would be by such absolute destruction of the subject-matter of the litigation that no right remained to be settled as to any matter arising out of the repealed statute. The repealing statute has not accomplished that condition of affairs. The state has no power to relieve the carrier of liability, under completed transactions, for the excess charges while the repealed law was in force, and no power over the jurisdiction of this court, once it has attached, to give the carrier relief in that respect, so long as that liability remains.

Immaterial Whether Statutes Allowing State to be Made a Party in Certain Cases is Valid or Not.

X. It is argued that the last enactment of the Legislature, which repealed the former mode of contesting rates and substituted-an appellate proceeding in the chancery court of Montgomery county, or other state court having like jurisdiction, wherein.the state of Alabama may appeal in certain cases, and the carrier may also- appeal from the orders of the. Commission reducing rates, in which latter event the Railroad Commission shall be the appellee, is void in toto, because the suit authorized against the Commission is, in effect, a suit against the state, and section 14 of the Constitution of the state of 1901 declares that the state shall never be made a defendant in any court of law or equity. Holmes v. State, 100 Ala. 291, 14 South. 51; Girls’ Industrial School v. Reynolds, 143 Ala. 585, 42 South. 114. It is therefore insisted that there is now no valid law which authorizes any proceeding in equity by the carrier, which is necessarily confined to remedies at law against the grievance of.which it complains. It is unnecessary, however, to discuss that branch of, the question further than to say that a proceeding against the Commission in a court of justice to settle the reasonableness of rates is not a suit against the state, for the reasons heretofore stated. If the laws of the state providing for a review at the instance-of the carrier in reality permitted a suit against the state by allowing the Commission to be sued, the. statute, under the influence of the decisions', cited above,- would be void in toto. - - If the statute is not void as involving authority to sue the state-, yet, if it prescribes an exclusive mode, the statute here would, nevertheless, be unconstitutional in that event also, since it is so framed as to prevent the carrier from having seasonable resort to preventive remedies of the courts to protect -a property right, from destruction. If the act be constitutional, and does not provide an exclusive remedy, it is cumulative merely, and effective .only as prescribing the mode of obtaining equitable relief in, the-state-courts against the enforcement of rates. The procedure there laid down cannot, of course, affect the procedure in the courts of the United States in equity cases, which in no wise depend upon state statutes.

Penalties Under System for Enforcing Rates Void.

XI. In Louisville & Nashville Railroad Co. et al. v. Railroad Commission of Alabama et al. (C. C.) 157 Fed. 944, the court said:

“Mindful of the irreparable injury and multiplicity of suits which would be imposed upon the carrier, if it resisted tlio enforcement of rates it considered unreasonable and had no other mode of testing the reasonableness of rates than meeting indictments! as they are found and suits as brought, the Legislature of Alabama wisely provided a mode of settlement, by bill in equity against: the Commission and tlio Attorney General, which in one suit would settle every question, and bind the state, tlio public, and the carrier alike, and authorized the court, in the meanwhile, to suspend the execution of the rate laws. This enabled the carrier upon properly indemnifying shippers and passengers, to obtain a judicial ascertainment of its rights without hazarding its whole estate upon the rightf'nlness of its challenge! of the rates. Without some such provision, our rate laws would deter the carrier from going into the court at all, and practically destroy its right to a judicial review as effectually as if (he statute had in so many words denied its right to resort to the courts. Statutes making no such provision as ours for contest of a right of property without risking any such loss would be unconstitutional.”

See, also, Seaboard Air Line Railway Co. v. Railroad Commission et al. (C. C.) 155 Fed. 798.

The repeal of the statutes then in force, and the enactment 'in lieu of them, of a statute which makes no provision for the suspension of the rate statute, and, consequently, of the penalties, pending contest, and leaving liability for them if the contest is unsuccessful, and so framed in its details as to prevent any timely resort to a court of equity for injunction, and to terrorize the carrier from resorting to the courts, creates the very state, of affairs which the court then said could not be brought about if the Constitution he observed. The Constitution of Alabama of 1901 (section 13) declares that:

“All courts shall be open, and every person for any injury done him in Ms lands, goods, person or reputation shall have a remedy by due process of law, and right and justice shall be administered without sale, denial or delay ; that excessive fines shall not be imposed, and that no one shall be deprived of life, liberty or property without due process of law.”

When it is declared that the eburts shall be “open,” something more was commanded than sessions of the court, at stated times, to hear and determine cases when brought in the courts. If a private person, claiming the right to have another use his property in a particular way for his benefit, should tell the owner of the property, when he went to law to prevent the enforcement of the claim, that the claimant would destroy his estate if he did not win his lawsuit, hé would commit a serious offense both in law and in morals. The statutes here put the state in the attitude of making just such a threat. These statutes attempt to declare as the law of the land that a citizen may go into the court, if he wishes, for the protection of a right, but, if he* fails, all his property shall pay the forfeit, no matter how bona fide his resort to the judicial tribunal. Such threats, clothed in the form of law, close the doors of the courts to most suitors as effectually as when physical force is used to drive them away. The usual results are shown in the petitions filed by the Southern Railway Company and its allied lines to withdraw the injunctions issued on their original bills. Justice, under such conditions, is not administered without sale. The legislation drives the property owner, against his will, either to stay out of the court or else to pay as the price for entering the court the value of the property he will lose, if unsuccessful in the suit. The penalties are designed to prevent resort to the courts. Different considerations might apply if the penalty were exacted after the owner, of the property had been given.his day in court. Of course, the general power of the state to prescribe penalties for the violation of its laws is not denied; but the scheme under which such penalties are en* forced must have some just relation to the lawfulness of the conduct to be prevented and the nature of the right sought to be penalized. Defenses left open to all other persons similarly situated, to protect the exercise of a property right in the courts, must not be closed to him upon whom the penalty is visited. When a statute fixes a penalty upon the property owner for failure to perform a duty for the reward fixed by the statute, and prevents him from performing that duty under protest, and punishes him for going into the courts to recover his quantum meruit, the statute is neither more nor less than an effort to punish a suitor for resorting to the courts in defense of his property rights. The Legislature has no power to visit upon the property owner, for going into the courts of his country for the protection of a property right, any consequences other than those which ordinarily attach to all other persons under like circumstances, where they are the unsuccessful plaintiffs in civil suits.

Excessive Fines.

The command regarding the imposition of fines is addressed more directly to the courts, but also imposes limitations upon the exercise of legislative power. The Legislature must not coerce the discretion of the .judges, by fixing the minimum fine on conviction so high as to compel an excessive fine. The courts, in the exorcise of the discretion the statutes give as to the amount of the fine, must not impose fines so heavy as to be out of all proportion to the nature and degree of the offense and the object sought to be accomplished by the penalty. The business here, upon the doing of which the penalties are imposed, is an entirely lawful one, and so is the act of transportation for which the reward in excess of that fixed by the statute is demanded. Tha only offense is the endeavor to obtain a larger amount than the statute fixes as the reward for the service. It is the occupation, at last, .which is affected, and intended to be affected. The numerous penalties are really designed to punish the carrier for doing business at all, if there be a demand for more than the statutory charge. In dealing with the0business, it is not treated as one business, but is carved up into as many businesses, for the purpose of punishment under the statute, as there are transactions in a given day. Making a test case even for a single day subjects the carrier to heavy fines for thousands of transactions. ' It could be fined over $1,000,000 a day. The imposition of a fine of $1,000,000 a day for the failure of a railroad company to take out a license to transact a business, which is lawful in itself,' would “shock the conscience” of an ordinary man. That, in substance, is what the penalties are designed to accomplish, for they really strike at the right to do business at all if the statute is not observed. The tests the authorities lay down for determining whether a fine is ex-, cessive, in a given case, are quite unsatisfactory. They all unite, however, in declaring, if the amount of a fine will shock the conscience, it is “excessive” in the constitutional sense. The reasons why such penalties cannot be enforced are powerfully stated by Air. Justice Brewer, in Cotting v. Kansas City Stockyards Co., 183 U. S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92, which, though dicta in that case, are unanswerable. The same conclusion has been reached in a number of cases in the Circuit Courts. Mercantile Trust Co. v. Texas Pacific Railway Co. (C. C.) 51 Fed. 529; L. & St. L. R. R. Co. v. McChord (C. C.) 103 Fed. 216; Consolidated Gas Co. v. Mayer (C. C.) 146 Fed. 150; Ex parte Wood (C. C.) 155 Fed. 190. The Supreme Court of Alabama decided the same principle years ago in S. & N. A. R. R. Co. v. Morris, 65 Ala. 194, and has enforced it- in a number of cases as late as Randolph v. Builders’ & Painters’ Supply Co., 106 Ala. 501, 17 South. 721. See, also, Wally’s Heirs v. Kennedy, 2 Yerg. (Tenn.) 554, 24 Am. Dec. 511; Holden v. James, 11 Mass. 396, 6 Am. Dec. 174; Missouri v. Lewis, 101 U. S. 22, 25 L. Ed. 989; Railroad Co. v. Ellis, 165 U. S. 150. 17 Sup. Ct. 255, 41 L. Ed. 666. The scheme of penalties for which the statutes provide is unconstitutional, as matter of law, in view of the known, direct, and inevitable effect of the penalties upon the right at which they are aimed. The indictments, arrests, and suits for penalties have no warrant of law to support them, and must be enjoined, as would any other illegal act which threatens irreparable injury, irrespective of the reasonableness of the rates prescribed. The provisions of the statutes on these subjects are not so dependent or intermingled as to leave any room to doubt the Legislature intended to enforce the rule of action the statute prescribes as to the tariff rates, although the penalties for their nonobservance might be stricken down.

Statutes Preventing Use of Gates at Stations to Keep Out Intending Passengers, When Tickets are Not Sold at Statutory Rates.

XII. Another statute, whose constitutionality is challenged, is that which provides, when the carrier fails to keep for sale or to sell on demand at passenger stations tickets at the rates prescribed by the statute, or such as may thereafter be prescribed by the Commission, it shall be unlawful for the carrier to maintain any fence or gates to prevent intending passengers from reaching the trains, under a penalty of not less than $200 nor more than $1,000. So far as the statute undertakes to impose punishment for the nonobservance of any rate the Commission may fix in lieu of the one prescribed by the statute, it is unconstitutional for the reasons hereinafter stated. Its validity is further questioned, because “the natural and reasonable effect” of the statute is to prevent a carrier who does not sell tickets at the prescribed rates from using fences and gates against the crowds of sight-seers and idlers who generally go about trains at stations: The carrier would have no practical means of identifying, intending passengers, except their declarations, and many persons who had no purpose to take passage on the train would not scruple to assert they intended to do so-in order to gain entrance to the stations. The inevitable result would .be the carrier, for fear he might use the gates against the wrong persons, would not use them against any one who claimed to be an intending passenger. All persons who chose to go about arriving and departing trains, and declared their purpose to take passage, could and would enter the stations and swell the «crowds on the inside, creating conditions of danger against which railroad carriers always find it neccessary to guard in populous localities, both in their own interests and in furtherance of the public safety. If the statute had said in so many words that a carrier who refused to sell tickets at the prescribed rates should not take proper precautions for the protection of life and limb on his own premises, no one would doubt its invalidity. That would be a species of outlawry. The statute inevitably accomplishes the same result by indirection. Punishment of the carrier or its servants for refusing to keep or sell the tickets would have accomplished all. the ends of the statute, if lawful. It is the direct and natural mode of compelling observance of the duty. The duty to be enforced is primarily due to a private individual, and it is not a legitimate exercise of the police power to so frame a statute, designed to enforce such a duty, that its execution unnecessarily involves danger to life and limb of the public, and deprives the owner of property of the right to police it for a lawful purpose. But, this aside, if the schedule of rates sought to be enforced is unreasonable, the prohibition against bars and gates, and the penalty for using them against passengers, is unauthorized and illegal, and execution of the statute could rightly be enjoined pending inquiry as to the facts, which determines whether it can ever be treated as a law.

The justification attempted for those features of the statute which declare that it shall be no defense to a suit to recover forfeiture for keeping intending passengers out of stations, that, a restraining order pendente lite has been granted against the enforcement of the rates, or that the Carrier has been enjoined from putting the rates in force, rests on the theory that, the statute having authorized intending passengers to use the state’s name and declared that the suit shall be the state’s suit, no court can have the power to enjoin the bringing or prosecution of such suit, no matter what the equities of the particular case. This theory is plainly untenable. When a state becomes a plaintiff, although the suit is brought to redress its own rights, it is bound by the rules of justice ordinarily applicable'to other suitors. It cannot demand of the court in which it brings its suit to uproot the law of the land for it, or to depart from the principles upon which justice is administered between man and man. Walker v. United States (C. C.) 139 Fed. 409. The courts, both state and federal, have jurisdiction to determine whether the rates fixed by the Legislature or the Commission are just and reasonable, arid enjoin their enforcement as the facts of particular cases may warrant. When a court, either state or federal, has obtained jurisdiction of the person and subject-matter, its judgments and decrees as to the validity of rates are just as binding upon the state as upon private individuals. There is no power in the General Assembly to declare, when suits are brought by the state, that decrees of courts in prior suits regarding the same subject-matter of litigation shall not be respected, or that orders made in such suits to preserve the status quo as to rates pending inquiry as to the facts shall in subsequent suits be treated as nullities. Any doctrine which upholds such power necessarily sustains legislative authority to destroy the judicial power and independence, and ignores the Constitution, which forbids the Legislature to exercise any power properly belonging to the judiciary. Besides, the suits for which the act provides are in no proper sense the state’s suits. The state, as such, has no pecuniary interest in the transportation of the passenger, or in the breach of duty to him in the refusal to sell tickets at the prescribed rates; or in any other way save the general concern the government has in the welfare of the people, which relation never makes the state the party really interested in the suit. The fact that the state may, in certain contingencies, share in the recovery, does not make the suit the state’s suit. Missouri Railroad Co. v. Railroad Commission, 183 U. S. 53, 22 Sup. Ct. 18, 46 L. Ed. 78. The courts always look behind the form to the substance of the proceeding. When the state merely lends its name to an individual, no immunity of the sovereign can be set up to prevent the court in which the litigation is waged from disposing of the case according to its equities and merits between the real, substantial parties to the suit. The proceeding not being a suit by the state, a court of equity may control the suit after it is brought, or enjoin the bringing of it, when equitable principles and the nature of the case render it essential to the ends of justice, just as it would in cases between individuals. As said by the Supreme Court of the United States in Curtner v. United States, 149 U. S. 673, 13 Sup. Ct. 989, 37 L. Ed. 890:

“Tlie same principle must be applied as If the litigation were between private parties.”

That case reiterates the doctrine applied in the prior case of United States v. Beebe, 127 U. S. 338, 8 Sup. Ct. 1083, 32 L. Ed. 121. See, also, Miller v. State, 38 Ala. 600.

Every Person Bound by Decree in Suit with Public Officials Adjudging Proper Rate.

XIII. Similar legislation along this line in another statute is based upon the idea that the shipper or passenger is not a party or privy to the judgment rendered by the courts in suits against public officers to determine the reasonableness of rates. The general principle that one not a party or privy to a judgment is not bound by it is, of course, admitted; but the principle has no application to decrees and orders made in this class of cases. The property, the manner of whose Use is involved, is devoted to a public use, and, in consequence, all persons desiring transportation over it, have certain rights in the property. It is held under a franchise granted by the state. The property is impressed with a servitude. The servitude is for the benefit of every one who may have occasion to demand transportation, and the burden -is imposed upon the owner to operate the property for the public at just and reasonable rates. Primarily the owner may fix the reward he 'will claim; but, as this may be unjust and unreasonable, the Legislature may intervene and fix just and reasonable rates. When the Legislature does prescribe rates, it determines,-subject to final judgment of the courts, the status of the property as regards a public right in these respects. A suit by the carrier to enjoin the enforcement of rates, waged with a public officer, is an effort by the owner of the property to fix its status as to the public in, this respect. The judgment rendered in such a proceeding determines that status. Every member' of society is represented in that proceeding by the public authorities, and is bound by the judgment, though not a formal party to it. It is “a case where the few represent the many.” In this respect, though it is not, strictly speaking, a proceeding in rem, the suit has many of the characteristics of such a proceeding, and the judgment rendered therein, like the judgment in bankruptcy, which fixes the status of insolvency, or the judgment of naturalization, which adjudges the status of citizenship, binds all the world as to that status. No one can assail such a judgment or decree on collateral attack, except for want of jurisdiction in the court which rendered it. It is not meant to declare that a person or community aggrieved by a rate in fact unreasonable or unjust, approved and fixed by public authority, is without remedy ; but he cannot change the status of the property, and of the rights of the public therein, as fixed by decree of a court in a proceeding to that end, by his private suit .against the carrier, who is observing the rate declared by the court to be proper for the time being, and in that way overturn the effect of the judgment as a determination of the status of the property. He must first appeal to the public authorities to change the rate. Being unsuccessful in that, in a proper case, he can doubtless resort to his bill in Chancery against the carrier and the representative, of the public in the matter of rates, to have their enforcement enjoined as to him, and it may be, as to all other persons similarly situated, on the grounds stated, or because changed conditions make the rates improper. The Constitution putting the duty upon the carrier to transport at just and reasonable rates, and without unjust discrimination, and giving every person the right to demand such service, it cannot be that any person or community injured by unjust or discriminatory rates can be deprived of all judicial remedy against such rates, because the ratemaking tribunals approve them and refuse to change them.

Commission is Administrative Body, and Exercises Only Administrative Functions.

XIV. The nature of the power exercised by the Commission in making and unmaking rates pf its own, and whether power can be conferred upon the Commission to make and unmake rates made by the Legislature itself, and to substitute Commission-made rates in their stead, has'been much discussed at the bar. It is conceded, of course, on all sides, that authority may be conferred upon an administrative body, to fix a schedule of maximum rates; but some of respondents’ counsel claim that the power exercised by .the Commission is legislative, and therefore the court cannot properly restrain pendente lite promulgation of Commission-made rates, changing the rates now before the court, whatever it might do after such changes are promulgated. Complainants deny that the power exercised by the Commission in fixing rates is legislative, and earnestly insist that the Legislature cannot confer unconditional power upon the Commission to alter rates fixed by the Legislature itself, and to set up others in their places in their discretion, and assert that in consequence of the exercise of such power by the Commission much more favorable classifications and rates have been fixed for other carriers in ail respects similarly situated as complainants, whereby they have been denied the equal protection of the laws.

The delegation of legislative power to the Commission would plainly violate the fundamental law of Alabama. In Schultes v. Eberly, 83 Ala. 242, 2 South. 345, Clark & Murrell v. Port of Mobile, 67 Ala. 217, and Mitchell, Judge, etc., v. State ex rel, etc., 134 Ala. 412, 32 South. 687, the Supreme Court of Alabama has emphatically declared that the delegation of legislative power, except to municipal corporations, to which by immemorial custom a part of the legislative power of the state has always been delegated for the purpose of local administration, is wholly inadmissible. The Railroad Commission docs not fall within the exception. It is not a municipal corporation, nor an agency for local purposes. Section 343 of the Constitution of Alabama of 1901 reads as follows:

“The power and authority of regulating railroad freight and passenger tariffs, the locating and building of freight and passenger depots, correcting abuses, preventing unjust discrimination and extortion, and requiring reasonable and just rates of freight and passenger tariffs, are hereby conferred upon the Legislature, whose duty it shall be to pass laws from time to time regulating freight and passenger tariffs, to prohibit unjust discrimination on the various railroads, canals and rivers of the state, and to prohibit the charging of oilier than just and reasonable rates, and enforce the same by adequate penalties.”

When the section was under discussion in the constitutional convention of 1901, it was moved to amend the section so as to confer the power upon the Railroad Commission. It was objected, if this were done, it would take the power from the Legislature and put it within the keeping of the Commission. The amendment was voted down. The chairman of the committee reporting this article of the Constitution explained that the section, with the exception of the inclusion of canals and the power as to the location and building of freight and passenger depots, was taken verbatim from a section of the Georgia Constitution of 1877; the purpose in so doing being to authorize the Legislature to confer the same power, if it saw proper, upon the Commission of Alabama, as was conferred by the statutes of Georgia upon the Georgia Commission. There had been much agitation of this question at former sessions of the Legislature, as well as in the public prints and on the hustings, and the adoption of this section of the Georgia Constitution, and statutory power for the Commission as in that state, were urged as a remedy for the prevention of 'the evils of unreasonable rates and unjust discrimination. Georgia, whose Constitution contained the provision which now forms section 243 of our Constitution of 1901 provided by statute for a Railroad Commission whose duty it should be to make just and reasonable rates of freight and passenger tariffs. It was sought to enjoin the execution of the statute on.the ground that it was- unconstitutional, since, under the Constitution, it was the duty of the Legislature to regulate the freight and passenger tariffs and it had delegated the power to the Commission. The Supreme Court of Georgia, however, in Georgia Railroad Co. v. R. R. Commission, 70 Ga. 694, sustained the statute. It said:

“It certainly was not contemplated that the details of rates to be fixed over many miles of railway in this state should be settled by the Legislature. The many influences that combine to cause changes in the ever-varying vicissitudes of trade and travel were neither overlooked nor forgotten by that body. The utter impossibility of controlling, by the Legislature, just and proper schedules for various roads, with their differences in length, locality, and business, appears to us to be so clear and manifest as that to have entertained it would be absolutely absurd, and especially so when it is remembered that schedules just and right for the months of winter may be ruinously unjust and wrong for the months of summer, and that such as are proper for the year of the meeting of the General Assembly might, in the succeeding year, well-nigh bankrupt every railroad corporation in the state.”

The court further held that the Georgia act authorizing the Commission to make rates was not a delegation of legislative power. On this point it said-:

“The difference-between the power to pass a law, and the power to adopt rules and regulations to carry into effect a law already passed, is apparent and strikingly great; and this we understand to be the distinction recognized by all the courts as the true rule in determining whether or not in such cases legislative power is granted. The former would be unconstitutional, while the latter would not.”

If the words of the section left any doubt as to its proper construction, that doubt would disappear in view of its history, and the familiar rule that a constitutional provision, copied from the fundamental law of another state, is presumed to have been adopted with the settled interpretation it had received in the state of its origin. Aside from ■this, it is clear from its language that the section does not authorize -the grant of legislative power to the Commission. In the first place, the “power and authority” are “conferred upon the Legislature.” The duty is put “upon the Legislature,” and the particular mode by which it shall be discharged is also specified. The Legislature must discharge the duty by the passage of laws. It must pass these “laws from time to time.” These laws are the means to cure “extortion and unjust discrimination.” The purpose is plain, whatever 'instrumentalities may be employed to execute these laws, that the duty imposed upon them shall be merely to enforce the rules of conduct prescribed by these particular laws, under and according to the laws which impose them. The language and 'spirit of the section- forbid us to impute to the framers of the Constitution any purpose to confer any power upon the Legislature to delegate to a Railroad Commission or any other department of government the exercise of the legislative function of declaring “what the law shall be.”- Giving power to a Railroad Commission- like ours to fix rates is sustained because it is a mere administralive body for ascertaining, in accordance with rules the law itself promulgates in advance, what, under the facts and circumstances of the particular cases, are just and reasonable rates. The conferring .of ' power upon the Railroad Commission here to promulgate rates is not the delegation to that body of the power to make the law. The common law, the statutes, and the decisions of the courts have already declared the rules which fix the reasonableness of rates. The duty put upon the Commission is to apply rules and principles the law has already prescribed to the facts of particular cases, and by the application of these rules to the particular facts to ascertain as matter of fact what are just and reasonable rates in the given case. Undoubtedly the power which declares the rule of action and fixes the principles which determine when rates are reasonable is legislative, while the power exercised by the Commission in applying the principles the law has already declared to the facts of particular cases, to ascertain and declare reasonable rates, is judicial in its nature. The Commission, however, is a mere administrative body, or executive auxiliary. The fact that the exercise of judgment and discretion are requisite to the proper discharge of the duties committed to it does not make it a judicial body, in the constitutional sense; for the exercise of such faculties is requisite to the proper discharge of the duties committed to every functionary, and does not necessarily determine to which of the great departments of government it belongs. The Railroad Commission, in the exercise of its ordinary authority, in making and unmaking its own rates is a purely administrative body, and does not exercise legislative authority. The power being administrative, the court: may enjoin its enforcement pendente lite, whenever essential to the ends of justice. The reason why it was held improper in Smyth v. Ames and Reagan v. Farmers’ Loan & Trust Co., supra, to make a final decree enjoining the future exercise of power to make rates, was not because the power by a commission is legislative. It was held improper there, because the court itself, having no power to make rates, could not set up any rates of its own in lieu of the rates stricken down, and circumstances might so change as to make rates which are unjust to the carrier at one time perfectly just and reasonable at another. Aside from these considerations, injunctions in these cases against the future reduction of rates by the Commission will be entirely proper, if the Commission has no legal power to reduce the maximum ra1.es now fixed by law.

XV. Has the Legislature attempted to delegate legislative power to the Commission in the authority conferred upon it to make and unmake rates and classifications established by statutes? The act of August 9, 1907, provides in the first section:

“That in all eases where any classification o£ railroads or of any articles of freight or any maximum rates or charges for the transportation of passengers or freight over any railroad in this state, have been, or may hereafter be prescribed by statute, or any prevailing rates or charges for sncli transportation have been, or may hereafter be, by statute made the maximum rates or charges, the Itailroad Commission of Alabama shall have the power and is hereby authorized to change such classifications and such rates or charges, or any of them, from time to time as conditions may, in its judgment render expedient or proper so to do, whether the effect of such changes be to increase or reduce any of tile rates or charges, and to establish and order to be put in force in lieu thereof any new classification or rate or charge which it may deem reasonable and proper; and the classifications, rates or charges so established by it shall be the lawful classifications, rates or charges until further changed by said Railroad Commission.”

Like power is given as to the rates and classifications in the acts known as the “Eight Group Acts.”

Legislative Power has been Attempted to be Delegated to the Commission as to Change of Statutory Rates and Classifications.

XVI. The will of legislators never becomes the law, unless expressed in the mode and form the Constitution' commands. The Legislature, in framing a statute, may provide for its unchanged opera* tion until it is repealed, or it may provide for contingencies arising after it goes into effect, which in its wisdom may require change in the law, and provide for the change, in view of the happening of these contingencies, upon the occurrence of which the lawmaker himself declares in the statute what the change shall be. But, whatever the intent of the lawmaker, a statute, in order to ripen into a law, must always be a perfect expression of the legislative will, upon every contingency with which the statute deals, as it leaves the hands of th'e lawmaking power. When the Legislature declares its will as to contingencies, it may lawfully make the taking effect of the statute in the first instance, or its suspension or abrogation afterwards, and the substitution of some other law, depend upon the ascertainment of some particular state of facts by an executive officer. But, to be a perfect expression of the legislative will as to these matters, the statute itself must ascertain or prescribe a state of facts which constitute the condition or contingency upon which the change may be made, and what change shall be effected in the prior law, when that' contingency is ascertained. Under a statute so. framed, the Legislature has delegated no legislative authority to the executive officer. . It has simply made use of his services to ascertain a state of facts, upon the ascertainment of which the Legislature itself declares, in advance, its own judgment as to “what the law shall be” under the changed conditions. The contingency upon which the change shall take place in the operation of a law.must be a state of facts which the Legislature either ascertains in so many .words, or defines or prescribes by general definition, and upon the finding of which state of facts the Legislature, and not some other body, forms the opinion, and declares that it is expedient and proper to change the operation of the law. The propriety and expediency of changing a law is the very question which the Constitution commits exclusively to the wisdom of the Legislature, and it must express its own judgment and will in the statute as to these questions. If the opinion or judgment of some other department as to the happening of some undefined event, and the effect such event should have upon the legislative policy, is to determine whether there shall be a change in the law, it is the judgment and will of the officer as to the expediency of a change, and not the opinion and will of the lawmaking power, which effects the changes. The statute here makes the expediency and propriety of a change, which shall be made when the officer so determines, depend solely upon the discretion and will of an executive officer, and not upon the happening of any state of facts upon which the Legislature itself has passed its judgment and uttered its commands. The statutes in that posture are neither more nor less than a legislative declaration that there shall be a change in the legislative will because an executive officer deems it expedient, and that because the executive officer so wills thereafter the legislative will shall be only what an executive officer prescribes. This is nothing more nor less than the entire abdication of the duty of the Legislature to determine the expediency and propriety of legislation, and the surrender of legislative power to an executive officer, to use as he pleases in the future.

The court has struggled hard to find some way, consistent with obedience to the Constitution, to avoid the consequences and inconveniences, both public and private, which must follow from striking down the powers here attempted to be conferred upon the Commission. Finding no escape on principle, the duty of the court is plain. It must enforce the Constitution. The Legislature doubtless intended in the passage of these statutes to leave the whole matter of rates and classifications in the keeping of the Commission, and thought it had done so. It could have done so by an absolute repeal of the schedules and classifitions fixed by it, leaving the Commission, as an administrative body, to work out under rules and principles fixed by the Constitution, the statutes, and the common law, what are reasonable classifications and rates, in view of 1lie facts in the particular cases with which the Commission, deals. The Legislature could also have retained the “Group Acts” as a general guide for the Commission, and yet given the Commission power to change them, by providing in those statutes that upon the happening of a certain state of facts therein declared or defined, not upon the mere opinion or judgment of the Commission on undefined conditions of which the commission is the sole judge, and upon which the Legislature itself made no declaration “what the law shall be,” the Commission’might thereupon change the classifications and rates, within certain limitations, which the statutes themselves would state or define. But nothing of that kind was provided for in any of the statutes. _ The Legislature lias not repealed or changed them. The constitutional trouble with the statute is that the legislative power has specifically declared its will upon the wisdom and expediency of the particular classifications and rates, and put them upon the statute books as the law of the land. It takes the lawmaking power to repeal or change a law, as well as to make a law; and the power of repealing or changing a law, or substituting another law in its stead, cannot be delegated to any other department, much less to a statutory board. Turn the proposition over as we may, and scan it from every constitutional point of view, we arc always confronted with the fact that, in order to change the laws now in existence as to rales and classifications, they must be repealed or altered by the legislative power which made them. The legislative power which made them has not repealed or altered them. It has merely attempted to let another body undo what the Legislature has done. It has not declared in any of those statutes its own will as to “what the law shall be” on any changed state of facts which the lawmakers have defined or prescribed, nor, when that state of facts is ascertained, what shall be either the nature or extent of the changes which -the lawmakers will shall result therefrom, except that the wisdom and judgment of the Commission shall be the legislative will as to the change. On these questions, upon which the Legislature must speak if the Constitution be obeyed, it has declared no wiil of its own as to “what the law shall be.” It has simply declared to the Commission that it is authorized, for any reasons it may think.of sufficient importance, to unmake what the Legislature has declared to be the law of the land, and set up other standards of its own, which shall stand as the law until again changed by order of the Commission. In short, it has referred the whole matter of “what the law shall be” to the Railroad Commission as a “committee with power to act,” and .declared that the legislative will as to the future shall be whatever the Commission may will and declare.

Of the.wisdom of the Legislature’s determining for itself what are just and reasonable rates and classifications, and imbedding those rates and. classifications in statutes, whereby they become the law of the land and cannot be altered except by an act of the lawmaking power itself, the Legislature must determine for itself; but, when the Legislature does so determine, the Constitution fastens upon their act, and provides the only mode.in which the requirements of such enactments can be undone or changed. While some inconvenience, both public and private, must result from following the Constitution in this case, the evil is of small consequence as compared with the greater evils which would result in allowing such departures from the fundamental law. It is vital to the welfare and happiness of the people that the law shall not be made and unmade, or changed, save by the lawmaking power itself. To-day it is.the carrier and those who deal with him who are attempted to be subjected to the doctrine that administrative officers may change the law as enacted by the Legislature, and prescribe different rules of conduct from those made by the supreme lawmaking power, varying the law according to their own notions whenever, “in their judgment,” it is “expedient and proper so to do.” If such power can lawfully be conferred upon administrative officers iri these cases, it cannot be denied to executive officers in other cases. It is an alarming doctrine to proclaim in a free country that the laws for the control of the rights and business of citizens, under the complex conditions of modern life, can be made to give place to different obligations and rules made by executive officers, “whenever conditions may, in their judgment, render it expedient or proper so to do.” The whole matter is exhaustively discussed in Field v. Clark, 143 U. S. 694, 12 Sup. Ct. 505, 36 L. Ed. 294, wherein is quoted with approval the words of the Supreme Court of Ohio (Railroad Co. v. Clinton County Com’rs, 1 Ohio St. 88) that:

“The true distinction is between the delegation of power to make a law, which, necessarily involves a discretion as to what it shall be, and the conferring of authority and discretion as to its execution, to be exercised under and in- pursuance of law. The first cannot be done; to the latter, no valid objection can be made.”

In the one case the official overrides the law and substitutes his own judgment for it; in the other, he does not change the law, but merely conforms to it. A late instructive case is State v. Great Northern Railway Company, 100 Minn. 445, 111 N. W. 289, 10 L. R. A. (N. S.) 250. Our own cases of Mitchell, Judge, etc., v. State ex rel., etc., 134 Ala. 392, 32 South. 687, and Harlan v. State ex rel., 136 Ala. 155, 33 South. 858, are conclusive on this point. Whether the legislative department of a state, under its Constitution, can delegate legislative power, involves no federal question. The decisions of the highest court of the state are binding upon the federal courts on such a question. New cases can be found wdieue a Legislature has ever attempted to authorize any other department of the government to strike down an explicit legislative command, and substitute, in its unshackled discretion, some other command; and no case can be found where such an attempt ever succeeded. See State v. Morris County, 36 N. J. Law, 72, 13 Am. Rep. 422.

Preliminary Injunction Discretionary.

XVII. Complainants have the undoubted right to restrain the operation of the rates, if they will not produce a just return upon the value of the property devoted to intrastate commerce. The right, as a matter of law, is unquestioned. The only issue is whether the facts as ultimately shown will entitle complainant to injunctive relief on final decree, in this class of cases four dominant factors, roughly staled, must control the exercise of the court’s discretion: First, what is the value of the property devoted to intrastate service? Second, what is the fair nee income from the operations of the carrier, if done at reasonable rates, without unjust discrimination, after deducting cost of service, and excluding in the accounting credit to the carrier for inrerest paid on mortgages which represent debts incurred in the purchase of the property, or money which went into its construction, and any charge made out of the income for permanent improvements of the plant ? Third, what percentage of profit upon the fair value of the property devoted to intrastate business is equitable and just, in view of the hazards of tile business, the locality and conditions where it is carried on, and other matters which enter into the cost and value of the transportation done by the’particular carrier? Fourth, what, in view’ of the issues raised by the parties and the proof submitted on the; hearing, is the probability as to the adequacy or inadequacy of jusi compensation, from observance or nonobservance of the rates; and what will be effect upon the rights of the contending parties of granting or -withholding the preliminary injunction?

In tlie earlier cases, when it was held that the Legislature could fix any schedules of rates it deemed proper, so long as it did not take the carrier’s property by depriving him of any profit whatever, there was no ground to enjoin the enforcement of rates because the probable margin of profit was small, if it appeared there would be some profit. When, however, the earlier decisions were abandoned, and the Supreme Court declared tiiat the Legislature could not make rates which would not permit “adequate” or “just” compensation, and that the courts were the final arbiters of such questions, a different rule necessarily arose. The preliminary injunction was no longer to be denied merely because the proof shows some profit. The pertinent and controlling inquiry necessarily changed. The question then arose, in view of the legal presumption that statutory rates are reasonable, whether the volume of profit probable on the face of the situation creates, prima facie, a fair preponderance of probabilities that the business done under the reduced rates would afford adequate or just compensation upon the real value of the property employed i,n the business. In Tilley v. Railroad Company (C. C.) 5 Fed. 641, Justice Woods, under the doctrine then prevailing, held the court had -no power to interfere with the rates, so long as any profit was probable. It was apparent in that case there would be a considerable profit. The Georgia Commission claimed the schedule allowed 8 per cent, upon the value of the property. The railroad company claimed that the value of the property was assessed entirely too low, and that the result of the tariff of rates upon the value of the railroad as fixed by the commission would amount to confiscation. So far as the percentum of compensation was concerned, it was really a difference between 8 and 10 per cent, profit. It being apparent that there would in any event be some profit, Justice Woods held, of course, that the courts had no power to interfere; for there could be no confiscation when there would be some profit. What he decided was that, some profit being apparent, and whatever it was being sufficient, if it amounted to any profit at all, the only way to determine whether the amount would be so small as to work confiscation, as claimed, would be to try the rates. Justice Brewer, while circuit judge, in Railroad Co. v. Dey (C. C.) 38 Fed. 664, quoted Justice Wood’s language, saying:

“I do not indorse it as of universal application, but only under the circumstances of the present case. Where the effect of the rates is doubtful, with a probability that they will prove compensatory, and the amount of business to be thereby affected is .comparatively small, I think the courts may as well wait for the test of experience.”

In that case 4 per cent, of the local traffic was affected.- Here the whole intrastate tariff is involved, and the aggregate sum of the reductions is very large. When Judge Brewer spoke of the rates proving “compensatory,” he was speaking of‘them in the sense in which he used the term “compensatory” in a former case between the same parties (35 Fed. 879, 1 L. R. A. 744), in which that judge decided:

“The right of judicial interference exists when the schedule of rates established will fail to secure to the owners of the property some compensation from their investment. As to the amount of such compensation, if some compensation or reward is in fact secured, .the Legislature is the sole judge.”

Judge Brewer found on the second hearing there was “a probability” there would be sufficient income, according to the standard then prevailing, or, in other words, that the carrier would get “some compensation,” all he was entitled to receive under the law at that time, and therefore refused the preliminary injunction. Under the present rule, when it is shown that the carrier will derive “some compensation,” it does not at all follow that it is adequate, and therefore does not necessarily raise any controlling presumption, in the particular case, that the carrier will receive such reward as the Constitution secures to him. Judge Brewer’s decision in that case is, therefore, direct authority that, although it be apparent on the facts presented the carrier will receive some compensation, yet, if there is a probability that it will not amount to adequate compensation, there should be no experimenting, in the preliminary stages of the litigation, to determine the justice of a tariff which involves the whole body of rates.

Mr. Justice McKenna, then circuit judge, declined to experiment with grain rates in Southern Pac. Co. v. Board of Commissioners (C. C.) 78 Fed. 238. Circuit Judge McCormick declined to speculate as to the effect of rates in the cases reported in the Supreme Court under the title of Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. Ed. 1014. Circuit Judge Shelby did the same thing in Palatka Waterworks v. City of Palatka (C. C.) 127 Fed. 161. Circuit Judge Pardee declined to experiment with rates in L. & N. R. R. Co. v. Railroad Commission (C. C.) 123 Fed. 947. In Cotting v. Kansas City Stockyards Co., 183 U. S. 79, 80, 22 Sup. Ct. 30, 46 L. Ed 92, Circuit Judge Thayer dealt with a bill to enjoin the enforcement of charges for slaughtering cattle, and after final hearing dissolved the injunction and dismissed the bill. Yet he ordered the injunction reinstated, if appeal should he taken, in view of the heavy loss which would fall upon the stockyard companies if his decree should be reversed. His course met with the approval of the Supreme Court, which, in Hovey v. McDonald, 109 U. S. 150, 161, 3 Sup. Ct. 136, 143, 27 L. Ed. 888, discussed the power of the court “to order a continuance of the status quo, if the purposes of justice required it.” The court there said:

“This -power undoubtedly exists, and should always bo exorcised when irremediable injury may result from the effect of the decree as renderedbut it is a discretionary power, and “its exercise or nonexercise is not reviewable here.”

'When complaint is made of threatened irreparable injury from the enforcement of reduced rates, there is no more legal or moral duty on the part, of the court to decide that question against the complainant, by putting the rates in force at once, than there is to adopt a like course in the preliminary stages of any other litigation, when irreparable injury is threatened to any other kind of property right by any other means. Each case must depend upon its own facts and circumstances, and no useful purpose will be subserved by attempting to analyze the cases where the courts have tested the reasonableness of the rates by putting them in force, and where they have declined to do so, in the preliminary stages of the litigation. The duty of the courts is to protect property rights, and not speculate with them, pending investigation of the facts upon which the ultimate right depends, when the equities are matter of doubt, and there is any reasonable probability of irreparable injury if temporary relief be withheld. When a decision putting rates in force in the earlier stages of the litigation may amount to a practical denial of the right, although the complainant finally succeeds, a court of equity, especially when it can fully guard all the rights of both parties, meanwhile, should preserve the status quo as to the rates until final proof enables it to determine where the right lays, and gives it the means of making a final determination of the rights of the parties, which wi-11 justly settle and protect them from the beginning, without' requiring either to hazard loss meanwhile. As has been frequently pointed out by other courts, what is said on this subject in San Diego Land Co. v. National City, 174 U. S. 754, 19 Sup. Ct. 804, 43 L. Ed. 1154, has reference only to the principles which govern the court in interfering with rates on final decree on full proof. The question of the duty or power of the court to preserve the status quo pending final decree was neither involved nor decided in that case. It would undermine one of the most beneficent and ancient principles of equity to hold that a court of equity, although it finds that there is a fair probability of irreparable injury, is yet, nevertheless, powerless to prevent it, .unless it can go further and see beyond all doubt, in the preliminary stages of the litigation, that complainant is entitled to final decree. Such a doctrine would in effect require the court to render a decree as to the final right in the preliminary stages of the case, at a time when it has no means of determining the ultimate rights of the parties.

What Per Cent, of Profit is the Carrier Entitled to Earn Upon the . Investment ?

XVIII. No court has undertaken to determine any exact percentage of profit which the carrier is entitled to earn upon the value of the property devoted to the service. It depends upon so many contingencies that the courts have deemed it best to lay down general principles only, and leave their application to the facts of the particular case. The general doctrine is stated by the Supreme Court in Smyth v. Ames, 169 U. S. 546, 547, 18 Sup. Ct. 418, 434, 42 L. Ed. 819:

“The basis of all calculations as to the reasonableness of rates to be charged by a corporation must be the fair value of the property used by it for the convenience of the public; and in order to ascertain that value the original cost of construction, the amount expended in permanent improvements, the amount and market value of its bonds and stocks, the present, as compared with the original, cost of construction, the probable earning-capacity of tlie property under the particular rates prescribed by the statute, and the sum required to meet operating expenses, are all matters of consideration, and are to be given such weight as may be just and right in each case. What the company is entitled to ask is a fair return upon the value of that which it employs for the public convenience; and, on the other hand, what the public is entitled to demand is that no more be exacted from it for.the use of a public highway than the services rendered by it are reasonably worth.” _

The carrier is made by law an insurer of freight, and is required to use the highest degree of skill known to the art to prevent injury to passengers. It must have and keep its equipment up to the standard of modern excellence. Necessity and policy alike demand that it maintain a sufficiently high standard of wages to attract and retain the services of competent and faithful men in all its departments. Its business is in a degree hazardous when best conducted, and shares for good or ill the fortunes of the communities and localities it serves, and it must maintain and increase its facilities as their wants require. In all these matters its interests and those of the public are in a large sense, legally and morally, identical. If a schedule of rates does not permit the carrier to earn a sufficient income to properly discharge these duties, the rights of the public, as well as the private interests of the owners, are invaded. The right to remuneration for the cost of whatever is requisite to maintain its service so as to meet the just wants of the public and fully discharge the duties exacted of it by law, is, therefore, as vital to the public welfare as to the well-being of the property owner, and when we state the rights of the carrier, and enforce them in that respect, it is only another mode of stating and enforcing the rights of the public. The same principle is applicable to the right of the carrier to earn a fair amount, above the cost of service, upon the value of the capital employed in the business. It is well said in Beale & Wyman, Railroad Rate Regulation, § 406:

“It ought always be plain that those who invest their funds in some public employment are going to get a fair per cent upon their investment, because unless' they are assured of this, they will employ their money elsewhere, and many enterprises necessary for the public convenience will not be undertaken, nor will existing plants be extended. It is, then, not only due consideration for the rights of others who have already invested their money in public service companies, but also an enlightened selfishness with a view to the future, which dictates the policy that a reasonable return upon the value of the property used in the public service shall be held to be protected, by the Constitution.”

While the Supreme Court has not fixed any particular percenturo of net profit the carrier is entitled to demand when his charges Cor the service are just, the state courts and the lower federal courts have generally adopted as the standard of an adequate return at least as high a measure of profit as the current rate of return upon enterprises of a similar character in the localities where the carrier’s business is transacted. In L. & N. R. R. Co. v. Brown et al., Railroad Com’rs of Florida (C. C.) 123 Fed. 947, Judge Pardee held that a railroad company in that state, so long as its rates are reasonable, and its business is done without unjust discrimination, is usually entitled to earn an amount on the value of its road devoted to intrastate business equal to the legal rate of interest in that locality. In New Memphis Gas & Light Co. v. Memphis (C. C.) 72 Fed. 952, it was held that a gas company has a right to earn such gross revenue as will enable it to pay all legitimate operating expenses, to pay interest in valid fixed charges upon bonds or securities, so far as they represent expenditures actually made in good faith, and to pay reasonable dividends on stock that represents actual investment in the enterprise. In Spring Valley Waterworks Co. v. City and County of San Francisco (C. C.) 124 Fed. 574, where the rates fixed would not permit annual net earnings of over 4.4 per cent, on the value of the property employed in the service, it was held that the return allowed by the schedule of rates was too low to be reasonable and just, in view of the annual net income from capital invested in similar large enterprises on the Pacific Coast, which earned not less than 6 per cent. In Milwaukee Electric Railway & Light Co. v. City of Milwaukee (C. C.) 87 Fed. 577—585, where it was shown that 6 per cent, on real estate mortgages and like securities was the prevailing rate, it was held that a schedule of rates which prevented earning that much upon the value of the property was unreasonable. The leading authorities are collected in Beale & Wyman, Railroad Rate Regulation. See Re Advance in Freight Rates, 9 Int. Com. Com’n R. 382; Canada Southern Railway Company v. International Bridge Company, L. R. 8 App. Cas. 723; Troutman v. Smith, 105 Ky. 231, 48 S. W. 1084; Cotting v. Kansas City Stockyards Co., 173 U. S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92.

Some interesting questions have been here mooted, which do not call for decision, at least at this time. In Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819, the Supreme Court declared that:

“What the public is entitled to demand is that no more be exacted from it for the use of a public highway than the sérvices rendered by it are reasonably worth.”

When the rights of the public are protected by a schedule of just' rates in that respect, has the Legislature the power, in the face of the prohibitions of the fourteenth amendment, to go further, either by fixing an express limitation in the statute, or by necessary operation of the rates for which it provides, and prevent the carrier from earning any profit above a certain- percentum of the value of the property, although its business be done at just and reasonable rates for the services, and without unjust discrimination? Lochner v. New York, 198 U. S. 45, 46, 25 Sup. Ct. 539, 49 L. Ed. 937. Has the state any such right under its own Constitution? Section 243 of the state Constitution of 1901 vests “the power and authority” of preventing "unjust discrimination” and of “requiring just and reasonable rates” in the Legislature. The section specifically prescribes how this power shall be exercised. It declares that the duty of the Legislature shall be “to pass laws from time to time” regulating freight and passenger tariffs, and to “prohibit unjust discrimination,” and to “prohibit the charging of other than just and reasonable rates, and to enforce the same by adequate penal ties.” It particularizes the evil to be prevented, and specifies the mode of preventing it. Does or does not the affirmative grant of power as to this particular subject, and the mandatory requirements as to the mode in which it shall be exercised for the purpose of “requiring reasonable and just rates of freight and passenger tariffs,” by necessary implication withdraw from the Legislature any power over the subject other than to require just and reasonable rates ? The power to fix reasonable charges for the service is born of necessity, and specially conferred, to prevent extortion and injustice by the carrier, who is bound to serve customers who are compelled to deal with him. When that result is effected, is not all further power over the subject exhausted? If the Legislature attempted to go further, would it not assume these “other functions” which section 35 of our state Constitution characterizes as “usurpation and oppression”?

The property of railroad corporations belongs to the individual stockholders. The Constitution of the United States, leaving out of view for the present the equivalent provisions of the Constitution of the state,- not only forbids the denial of their right to just compensation, but shields them as. well against the denial of the equal protection of the laws. The state fixes 8 per cent, per annum as the return for the use of property in the shape of loans of money, the medium by which the value of property and its various uses is measured, and does not in any way, save by the requirement as to just and reasonable fates, attempt to limit the percentum of profit gained upon the value of the property invested in street railway, waterworks, gas, electric, telephone, and telegraph companies, and manufacturing establishments in all their variety, mining enterprises, cotton compresses, cotton mills and other like enterprises. In this state of the law, can the owners of railroad property be made the subject of invidious discrimination in this respect, in order to limit the extent of their profit upon the value of the property used by them, by the enforcement of a schedule of rates, affecting the owners of railroad property alone, which prevents them from earning the usual current' profit from the use of their property, which the owners of other property used in like investments are permitted to earn upon the value thereof? Would, or would not, that be a denial to them of the equal protection of the laws ? That question was mooted, but' not decided, in Covington Turnpike Co. v. Sandford, 164 U. S. 598, 17 Sup. Ct. 198, 41 L. Ed. 560. See, also, Cotting v. Kansas City Stockyards Co., 183 U. S. 79, 22 Sup. Ct. 30, 49 L. Ed. 92; Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220; Smith v. L. & N. R. R. Co., 75 Ala. 449-451; Cooley, Constitutional Limitations, §§ 484, 486. Our state Constitution of 1901 (section 238), while reserving the power “to alter, amend, or repeal” the charters of corporations, is careful to provide that the power shall be exercised “in such manner, however, that no injustice shall be done the stockholders.” While the Legislature of the state has no power to “alter or amend or repeal” the charters of foreign corporations, these complainants purchased their property under laws which provided that they should be subject in all respects to the laws of Alabama as the property and franchises of domestic corporations, and the state, as regards the rates of foreign corporations and the profit gained from their intrastate business, may exercise the same power over them as it can over its own corporations.

Whatever may be the proper decision of these questions, it is clear that the fundamental law, both state and federal, compels the Legislature to regulate rates “in such manner that no injustice shall be done” to the property owner. He must have “just” compensation. Any schedule of rates is forbidden which produces injustice. The quantum of injustice is immaterial. There must be “no injustice.” All will admit that a schedule of maximum rates which confines the carrier’s reward for the service to the amount expended in the physical act alone of receiving, moving, and discharging passengers and freight, without computing in the cost of that service the value of the use of its stations, tracks, roadway, bridges, and the service of its staff of officials who direct its business, would do injustice, both to the public and the carrier. It would not only take from the carrier the ability to discharge his important duties to the public, which the law imposes upon the highest considerations of the general welfare, but deprive it as well of any return for the use of a very large portion of the property it employs in its business. To conserve the rights both of the carrier and the public, some return must be allowed the carrier for the use of every portion of his property necessarily employed in the business. When so many different kinds of property and service are involved simultaneously in the movement of the same freight or passenger train, it is impossible to ascertain, with any sort of mathematical certainty, what is the precise cost of rendering any particular service. The best standard which the courts and business men have been able to find for testing such questions is to ascertain whether, when the service is done at just and reasonable rates, the carrier obtains for the service as a whole a fair return upon the value of all the property employed in the business. The courts have, therefore, generally taken as the standard of proper return the legal rate of interest, contrasted with the current rate of profit from the use of other property in like kinds of business. While the percentum of profit allowed upon loans of money between private individuals is not, in many respects, a fair standard for determining just profits from the use of other kinds of property under conditions of greater hazard, yet the rate is the result of long experience, and is tantamount to a legislative declaration that such measure of profit is in general a just return upon investments in property. The evidence shows that the current rate of profit upon property used in business enterprises similar to railroads gives a net income, upon the value of such property, not lower than 8 per cent, per annum. Whether we take the legal rate of profit by way of interest on loans of money, or the rate of profit which common experience shows to be the average, and, therefore, approximately a just, return from the use of other forms of property, both modes lead to the same result. We can find no better standard by which to measure what is a fair and just return for the use of railroad property under the conditions governing the business of conducting railroad transportation in this state. The court, therefore, holds that these complainants can rightly complain of any schedule of maximum rates which prevents them from earning, upon the fair value of that portion of their property employed in intrastate business, a profit, above the necessary expense of conducting such business, equal to 8 per cent, per annum upon the value of the property so employed, so long as the business is done without unjust discrimination, and at just and reasonable rates. Any schedule of maximum rates which prevents them from earning that much net profit, under those conditions, denies that just compensation which the Constitutions, both state and federal, secure to them.

Why Preliminary Injunction Should Issue.

XIX. Voluminous evidence has been offered as to the effect of the reduced rates} and the court has given much, time to a very careful examination of the mass of testimony offered on that point. The labors of the court in this respect have been lessened by the exhaustive comments of counsel on both sides as to the tendencies of this mass of evidence. It would be impossible, without writing a book, to deal with .all the phases of the testimony which counsel have presented and urged ih support of their respective contentions upon the facts.

On a preliminary hearing the court should refrain, as far as possible, not only from expressing, but from forming, any opinion as to the final merits. In passing upon this branch of the case at this time, the court will deal only with the dominant features which appear prima facie to be clearly established by the evidence. The value of the property employed in the business is one of the main factors upon which the reasonableness of the rates depends. The value of this kind of property depends upon so many considerations that testimony as to its value is largely what is denominated “opinion evidence,” in which there is generally a wide margin of honest difference. Upon one valuation of a railroad the income under a schedule of rates may be entirely insufficient, while upon a less value it may be adequate. So, too, in finding what constitutes the net results of domestic business, as distinguished from interstate commerce, much depends upon the methods of keeping the accounts, and whether what is really one business is treated as the other business. All these are disturbing factors in the calculation. Until the court can ascertain the value of the property, as well as what method has been adopted in determining what is state and what is interstate business, it cannot determine whether any particular calculation leads with any certainty to the truth of the disputed issue. In argument counsel for respondents, tacitly at least, admitted upon the evidence as it now stands that the Nashville, Chattanooga & St. Touis .Railway Company, under the rates prescribed, would conduct its business at an absolute loss. The resistance to a preliminary injunction has been mainly directed to the cases of the Rouisville & Nashville Railroad Company, the South & North Alabama Railroad Company, and the Central of Georgia Railway Company. It is insisted in each of these cases that there has been a radical error in the mode of determining what constitutes interstate business, much of which it is insisted is in reality domestic business, and should be so treated in the calculations in ascertaining the volume of profit' from domestic business. It is also insisted, as to the first two of the companies last named above, that the valuations put upon the property used in intrastate business are entirely too high, and that upon a fair valuation, and a correct method of keeping books, and treating as domestic business everything which is really such, the return upon the proportion of value devoted to intrastate business will be adequate. The affidavits filed on these points, mainly on the part of the complainants, make a printed volume of several hundred pages, dealing with the history of the railroad companies concerned, from the time of the building of the roads down to the present day, showing the vicissitudes of the various properties, and contain elaborate statements as to details, including the method of keeping accounts and of conducting business, the character of the tonnage, the cost of transportation, and the reasons which justify the present' rates. Upon premises each draws from this evidence, respondents insist that it does not appear that complainants will not receive an adequate return under the reduced rates, and, therefore, they should be tried now; while complainants present a series of calculations showing, on the contrary, that in the most unfavorable view permissible under the evidence against complainants, some of them will have a net income of about 1 per cent., while others will conduct their business at a loss of hundreds of thousands of dollars.

One of the most satisfactory tests, aside from putting a tariff into operation, as to the effect a reduction in rates, would have upon the business of the carrier, is to take the business for two or three years preceding, if it can be assumed that the future business will be conducted at the same cost and in the same volume under like conditions, and then see what effect the reductions, if applied to the business, would have had upon the income of the carrier in these years. The Supreme Court has approved this method as a very proper one. The evidence shows, without conflict, that the two years preceding the legislation of which complaint is made were the most prosperous years in the history of the carriers, and tends to show that during those years none of the complainants, though operating under a higher schedule of freight and passenger rates than those enacted at the last session of the Legislature, earned much above 3 per cent, per annum upon the value, which they insist is the true value, of their property devoted to intrastate commerce, and most of them much less. Indulging the widest possible latitude against complainants, under the evidence as to swollen estimates as to the value of the property, and errors in crediting income from certain classes of freight to interstate business, instead of domestic business, the evidence leaves scarcely any room to doubt that the most favorably situated of the complainants, under the reduced rates, will not earn as much as 4 per cent, upon the real value of their property devoted to interstate business. The calculations complainants make in the case of the Central of Georgia Railway Company are based upon the valuation of the property as fixed by the authorities for taxation. It is further alleged that the classifications made in the “Eight Group Act” are purely arbitrary, and wholly unjustifiable under the existing conditions, and that the effect of the scheme of classifications and rates is to give large advantages to other carriers, similarly situated as complainants, who decline to continue to litigate the rates, while invidious burdens are imposed upon the carriers who insist upon asserting their rights in the courts. If this be true, it would nullify the whole scheme of rates as to the complainants, regardless of the reasonableness of the rates complained of. Linde» these circumstances, is the court justified, in the exercise of a reasonable discretion, in ruling that the reduced rates shall be put into actual operation, pending final ascertainment of the facts upon which their reasonableness depends ?

In 3 High on Injunctions, § 1513, it is said:

“If the question of fact upon which the injunction depends is evenly balanced upon affidavits on motion to dissolve, the motion should be denied, and the injunction retained until the final hearing.”

In 22 Encyc. 978, the rule is thus stated:

“So, where the dissolution would work irreparable injury to the complainant, or greater injury to him than its continuance would cause to defendant, the injunction should be continued. If the continuance would work no injury, but will merely maintain the status quo, the injunction will not be dissolved.”

Other authorities state the rule:

■‘That whore there are questions of doubt on the facts, on which additional light is requisite to satisfy the court before deciding the rights ol' the parties, the dissolution of a restraining order should not bo granted.”

Indeed, this is the general language of the authorities, especially when, as here, the injunction is not ancillary to some other relief sought by the action, but is itself the principal relief desired, and a refusal of a preliminary injunction would be pro tanto a denial of the right, for the time being, no matter if complainants succeed on the final decree.

The whole country at this time is suffering from a severe depression, particularly in manufacturing and industrial enterprises, which has been fully reflected in its effect upon transportation companies. Their traffic has greatly fallen off, though there has been a general improvement, which it is to be hoped will continue; hut the important fact cannot be lost sight of that the conditions now, or as they may reasonably be expected in the near future, are not near so favorable to the railroad companies as when the original bills were filed in these cases. The carriers have been compelled by the falling off of their business to curtail expenses in every possible way, and dispense with the services of hundreds of faithful employes. The general business of the country has not yet recovered from lack of confidence, which was the cause of the currency panic. This is a presidential year, when there is always a disposition on the part of men to wait before entering into new business enterprises. Who can prudently affirm, in view of all these considerations, that a reduction in the rates will produce more business, or, granting that it would, that the loss in rates would not more than counterbalance the increased profit in volume of business ? The probabilities all point to decreased volume of business. If the new rates are enforced, pending final decree, the entire aggregate burden of the loss, although complaiuants may finally succeed, will be concentrated upon the carriers, and there is no way in which they can save themselves from heavy losses, except by preventive remedies now. On the other hand, the parties from whom the old rates are exacted pendente lite are numerous, and the injury, even though they lost the amount in each individual case, would be comparatively small. Is there any reason here why a preliminary decree cannot be made, which will not subject either of the parties to any risk in the final outcome, whatever it may be, and will mete out to' each his exact right? The court can do equity between the parties in such a situation as this, at the present stage of the litigation, by making a decree which absolutely protects the rights of both parties. It will, therefore, order a preliminary injunction, upon the carrier’s executing bond, with surety in an amount which the court will fix, to-reimburse shippers and passengers for any excess rate exacted of them during the litigation, if complainants fail to make good their contention that the rates are unreasonable.

States’ Rights Not Involved.

XX. Nothing seems plainer than that “states’ rights” are in no wise involved in the relief given in these cases. The principle here applied is older than American institutions. Life would be intolerable in any government, claiming to be at all free, wherein the citizen had no effective redress against wrongs done by officials in the name of the law. No Anglo-Saxon people would ever submit to such a condition of affairs. While the people of the mother country submitted, as was inevitable, under their form of government, to the inviolability of the persoji of the monarch, and held him to be above the process of the law, and declared the “king could do no wrong,” they nevertheless, from a very early period in their history, emphasized the instinct of personal liberty by the demand that the king’s ministers be held personally responsible for any wrong done in his name, though they acted on the direct order of the sovereign, and made that doctrine a part of the British Constitution. The fiction that the king could do no wrong was completely offset by the other fiction that when he did wrong he had been badly advised, and that those who gave the bad advice were the responsible authors of the wrong. Centuries ago, the “law of the land” took the place of the “pleasure of the king,” and the House of Commons impeached the advisers of the king, and the courts punished the lesser officials, and shielded the subject from their arbitrary acts. In our country no one person or department, or all combined, can embody the sovereignty of the people, or claim that they constitute the state. The departments of government, like the king, must act by agents, and the authority of those agents is bounded by the Constitution. When they exceed the limits of their trust, the law imputes their illegal acts, not to the state itself, but to the agent, who no longer speaks for the state, but becomes a trespasser and wrongdoer, who “falsely speaks and acts in its name.” The principle is the same, whether applied to the acts of officials of the state or of the United States, and its maintenance is essential to liberty and free government. Can tbe righteousness of the principle change to unrighteousness, because one tribunal, rather than another, in a particular case expounds and enforces its teachings? The Constitution of the United States towers above the governments both of the states and of the United States. The doctrine has been repeatedly declared by the Supreme Court of the United States that:

“Nothing can be interposed between the individual and the obligation he owes to the Constitution and laws of the United States which can shield or defend him from their just authority; and the extent and limits of that authority the government of the United States, by means of its judicial power, interprets and applies for itself. If, therefore, an individual, acting under the assumed authority of the state, as one of its officers, and under color of its laws, comes into conflict with the superior authority of a valid i law of the United States, he is stripped of his representative character and subjected in his person to the consequences of his individual conduct The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.” Ex parte Ayers, 123 U. S. 443, 8 Sup. Ct. 164, 31 L. Ed. 216.

The objection to interference with unlawful acts of state officers by the federal courts, therefore, amounts only to this: There is nothing wrong in the principle itself, but the wrong is committed because a tribunal established by the fathers, in the exercise of its unquestioned jurisdiction over “controversies between citizens of different states” and cases involving the application of the Constitution, applies this great principle to prevent citizens of Alabama from doing wrong, under color of an unconstitutional act, to citizens of this or a sister state. But how can it be a violation of the rights of the state for that tribunal to exercise such power, when the Constitution of the United States gives the jurisdiction in express terms? The argument, in its last analysis, is a protest against the principle of the Union, which creates tribunals in every state to which in certain cases citizens of the particular state as well as citizens of other states may resort for the protection of their rights. That the Constitution gives such power is not matter of fair dispute. The jurisdiction is given in so many words. Certainly the states surrendered all the powers which the Constitution confers upon the government of the United States. The lack of federal courts was one of the great evils which “crowned the defects” of the Confederation, whose fatal weakness and discord for a time caused lovers of liberty to despair of the experiment of republican government, and finally forced the states to take refuge from themselves in the Constitution, whereby a government supreme in its sphere was set up over the state governments and the people of the states. The right of the citizen of one state to sue a citizen of another, and sometimes of citizens of the same state to sue each other, in the federal court, if they desire, is imbedded in the Constitution, and cannot be destroyed without repudiating that instrument. The reasons which made the right a valuable one were universally recognized at the time, and few reflecting people will now deny that local conditions, of which these cases present striking illustrations, may make it eminently proper for the citizen to have a constitutional right in certain classes of cases to choose the forum in which to test his rights. The right of a federal court, like the right of a state court, in a proper case, to strike down a void legislative act, whether of Congress or of the state Legislature, in no way impugns “the right of a state to control its own affairs.” It is vital to the protection of life, liberty, and property, and the pursuit of happiness that the Legislature, neither state nor federal, shall “control local affairs” by methods and means which the Constitution condemns. The people have never committed to either government any power to control local or general affairs outside of the law. or in defiance of the safeguards prescribed by the fundamental law. No thoughtful man wishes any person, no matter how humble, to bow to the behest of officials who have no valid authority for their exactions. Surely the state can have no interest in the execution of an unconstitutional law. When one of the state’s statutes is refused operation by a court, whether state or federal, because it transgresses the fundamental law, state sovereignty is not insulted or its authority defied. The judgment of a court arresting affirmative action on the part of an officer in the execution of an unconstitutional act to the injury of the citizen does not interfere with any property of the state. It does not utter any command to the state. It does not «compel the state to pay any debt or perform any contract. It does not control the exercise of any discretion committed to the officer under any valid laws; for the state can have no policy contrary to that of the fundamental law, and no citizen or official can- ever be intrusted with, or have .any discretion to trample down, any of its commands. How, then, and wherein, is it possible for “states’ rights” to be involved, much less assailed ?

There are two grounds for the jurisdiction of the court in these cases: The first is that they invoke the application of the Constitution and laws of the United States; and the second is that the suits are “controversies between citizens of different states.” If the fourteenth amendment had never been adopted, this court, in the suits wherein the plaintiffs are citizens of different states, could, by virtue of the constitutional provision giving jurisdiction of such suits, have afforded, in the administration of the state Constitution and laws, the identical relief which is now. granted. Moreover, as to the controversies between citizens of different states, this court, if it had been administering the Confederate Constitution, would have had authority in the administration of the Constitution and laws of Alabama to grant the relief which has been so far afforded in these suits. The fourteenth amendment created no new rights, but simply created another power to protect them. All of its prohibitions as to the deprivation of life, liberty, and property without due process of law, and the denial of the equal protection of the laws, had been incorporated into our Constitution when the state was admitted into the Union. The able men who formed the Constitution of the Confederate States were quite familiar with the doctrine of the great cases of Osborn v. Bank, 9 Wheat. 738, 6 U. Ed. 204, and Ableman v. Booth, 21 How. 506, 16 L. Ed. 169. There is not a line in the Constitution of the Confederate States, where it deals with suits against the state or elsewhere, that indicates any purpose whatever to overrule or undermine the principles of these great decisions. Certainly, the.Constitution of the Confederate States may be said to embody the principles on that side of the struggle which ended at Appomattox. It was not a struggle, in any sense, against the principles of the Union, but rather a'n effort by a part of the people of the United States, for reasons deemed satisfactory to themselves, to set up a separate government for certain of the states, which adopted as their fundamental law the fundamental law as made by our fathers, as construed by the Supreme Court at the time-the Confederacy was formed. This was the spirit and the plan of government for which the people of those states then struggled. Yet some, forgetful of the history of the country and the devotion of the people of this section of our common country to the principles of the Union, now seek to revive the embers of a buried strife, and appeal to the tender memories which the heroism and sacrifices of those days always evoke to bolster up the contention that the true principles of states’ rights requii-e men to protest that the state is outraged, when the execution of an unconstitutional statute is arrested by one of the courts of our common country, if it happen that the responsibility of administering the fundamental law in that case falls upon the federal, instead of the state, court. Those who .teach this doctrine also shut their eyes to the fact that one of the many causes which finally culminated in the civil strife was the resistance in some quarters of the Union to the enforcement by the federal courts of rights which the Constitution guaranteed, and whose enforcement by the federal courts was 'characterized then, as now, in some quarters, as unwarranted meddling with “local affairs” and an “insult to the sovereignty of the state.” The just balance between the powers of the state and federal governments as to the execution of the laws of the Union and of the states in proper cases by the federal courts had been settled as firmly as a judicial decision could settle anything, long before the unhappy days of the Civil War, by the great judgments of Story and Marshall. Some words of Chief Justice Taney, who was a firm supporter of the rights of the states, may here be appropriately recalled:

“Nor is there anything in the supremacy of the general government or the jurisdiction of its judicial tribunals to awaken the jealousy or offend the natural and just pride of state sovereignty. Neither this government nor the power of which we are speaking were forced upon the states. The Constitution of the United States, with all the powers conferred by it on the general government and surrendered by the states, was the voluntary act of the people of the several states, deliberately done for their protection and safety against injustice from one another. * * * And their anxiety to preserve it in full force, in all its powers, and to guard against resistance to or evasion of its authority on the part of a state, is proved by the clause which requires the members of the state legislature, and all executive and judicial officers of the several states (as well as those of the general government), shall be bound by an oath or affirmation to support the Constitution. This is the last and closing clause of the Constitution, and inserted when the whole frame of government, with the powers hereinbefore specified, had been adopted by the Convention, and it was in that form, and with those powers, that the Constitution was submitted to the people of the several states for their consideration and decision. * * * Now, it certainly can he no humiliation to the citizens of a republic to yield a ready obedience fo the laws as administered by the constituted authorities. On the contrary, it is among his first and highest duties as a citizen, because free government cannot exist without it. * * * Nor can it be inconsistent with the dignity of a sovereign state to observe faithfully, and in the spirit of sincerity and truth, the compact into which it voluntarily entered when it became a state of the Union. On the contrary, the highest honor of sovereignty is untarnished faith. And certainly no faith could be more deliberately and solemnly pledged than that which every state has pledged to the other states to support the Constitution as it is, in all its provisions, until they shall be altered in the manner which the Constitution itself prescribes. In the emphatic language of the pledge required, it is to support this Constitution.” Ableman v. Booth, 21 How. 506, 524, 16 L. Ed. 169.

In accordance with the understanding with counsel, the court will not now make any decree or order as to the motions and pleadings which were proposed to be filed at the time of the argument. They will be treated as filed of that date, and upon some day upon which counsel may agree among themselves, after they have had opportunity to examine this opinion, the issues they desire to make may be presented in such mode as to them seems best, and formal judgment will then be rendered in conformity to this opinion.

NOTE. — The Supreme Court handed down its decisions in the Minnesota (Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, 52 L. Ed. —), and North Carolina (Hunter v. Wood, 209 U. S. 205, 28 Sup. Ct. 472, 52 L. Ed. —), rate cases after the above opinion had been filed and printed for distribution among counsel. Otherwise, the court would merely have cited those decisions, instead of discussing at length the points wherein the cases involve the same constitutional questions.