Изображения страниц

plainants showing a prima facie case of irreparable injury, if the operation of the statute be not suspended, while the interests of the public can be protected by the exaction of bonds to refund amount of any excess rate if complainants finally be cast in the suit, preliminary injunction against the enforcement of the rate legislation issued upon those terms.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, 8 303.] 10. CARRIERS—REASONABLE RATES.

One of the most satisfactory modes of arriving at the harmful or beneficial effect, upon the revenues of corporations, of the operation of the statutes reducing rates, is to take the gross and net income for the years just preceding the enactment of the statute, if it be probable that the business will continue in substantially the same volume, and at the same cost, and compare the results in the prior years under the prior laws, and the results which would have been effected, if the reduced rates had been ap

plied to such business. 11. SAME.

In order to ascertain whether the reduced rates would be harmful or beneficial, the court may, in case of doubt, order them tested by actual operation; but such experimentation with the property of any one is never justifiable in any case, where the facts presented on the preliminary hearing show only a moderate income under the former law, and a very strong probability of deficiency, or scant earnings, at best, under the re

duced rates. 12. STATES-ACTIONS AGAINST.

A suit against an individual, although he be a state official, to prevent him from effecting the destruction of property, or the impairment of property rights, under color of an unconstitutional law, is not a suit against the state, within the meaning of the eleventh amendment to the

Constitution of the United States. (Syllabus by the Court.)

In Equity.

The Seaboard Air Line Railway, the Atlantic Coast Line Railroad Company, the Kansas City, Memphis & Birmingham Railroad Company, the Southern Railway Company, Central of Georgia Railway Company, the Nashville, Chattanooga & St. Louis Railway Company, the Louisville & Nashville Railroad Company, all foreign corporations, the Western Railway of Alabama, the Alabama Great Southern Railroad Company, the Mobile & Ohio Railroad Company, the Atlanta & Birmingham Air Line Railway Company, and the South & North Alabama Railroad Company, domestic corporations, operating railroads in this state, filed their bills in the United States Circuit Court for the Middle District of Alabama, on the 25th day of March, 1907, against the Railroad Commission of Alabama and the Attorney General of Alabama, praying on final hearing to suspend and enjoin the enforcement of four statutes passed at the present session of the Legislature. One of these statutes fixed 212 cents per mile as the maximum rate for intrastate passengers. Another classified and fixed the maximum rates for intrastate transportation of 110 commodities. Another provided that the rates in force on the 1st of January, 1907, should be the maximum intrastate freight rates on the articles not included in the other statutes. The fourth statute provides that the bringing of a suit by a foreign corporation in the federal court "shall ipso facto forfeit all its right or license to engage in or carry on business, originating and terminating in this state, of freight or passengers, and its right or license to engage in or carry on such business in this state shall by said act itself be revoked and shall cease.” The statutes as to freight and passenger rates provide severe penalties for their violation in each instance by fine or imprisonment, and other laws make it the duty of the Railroad Commission and the Attorney General to enforce the provisions of these statutes. All the corporations, both domestic and foreign, sought relief against the three firstnamed statutes. All the foreign corporations sought relief against the statute forbidding their doing a domestic business in consequence of bringing a suit

in this court. Only two of the complainants sought a preliminary injunction to prevent the enforcement of the act which makes the rates in force on the 1st of January, 1907, the maximum freight rates thereafter, and they asked a preliminary injunction against its enforcement. As no order was made in those cases pending further investigation, no statement is necessary as to the rights claimed by them in that behalf. All the complainants asked a preliminary injunction against the enforcement of the statute reducing the passenger rates and the rates on 110 commodities. Each of the bills alleges that the enforcement of the several statutes would either confiscate complainants' property or deprive them of any adequate return on the value of the property devoted to intrastate business or deprive them of property without due process, deny to them the equal protection of the laws, and impair the obligation of contracts. A restraining order was issued on the 30th of March, 1907, and the hearing for preliminary injunction went over until the 8th of May, 1907. No answers having been filed in the cases, the issue of preliminary injunction was taken up on the allegations of the sworn bills of the 8th of May, 1907; no opposing evidence by way of affidavit or otherwise being offered.

L. F. Parker and John P. Tillman, for St. Louis & S. F. R. Co.

A. P. Thom, Alex. P. Humphrey, and James Weatherly, for Southern Ry. Co.

H. L. Stone, Gregory L. Smith, and Geo. W. Jones, for Louisville & N. R. Co.

John P. Tillman, for Atlanta & B. A. L. R. Co. and Seaboard Air Line Ry. Co.

A. G. Smith, for Alabama Great Southern R. Co.
A. A. Wiley and W. E. Kay, for Atlantic Coast Line R. Co.
Claude Waller, for Nashville, C. & St. L. Ry. Co.
Lawton & Cunningham and R. E. Steiner, for Central of Georgia

Ry. Co.

Geo. P. Harrison, for Western Ry. of Alabama.
E. L. Russell and S. R. Prince, for Mobile & O. R. Co.

Alex. M. Garber, Atty. Gen., R. W. Walker, H. C. Selheimer, S. D. Weakley, Horace Stringfellow, and F. S. White, for respondents.

JONES, District Judge. These preliminary injunctions concern matters of vast public moment. The court had no opportunity at the time they were granted to file an opinion, and does so now. Clearly, if the act of March 6, 1907, which, upon the institution of these suits, ipso facto forfeits the right of complainants to do intrastate business, can be upheld, there is no equity in complainants' bills, except as to antecedent transactions in domestic commerce. After the taking effect of the statute, if it be constitutional, complainants would have no right to enjoin the enforcement of rates in future for carrying on business, in which they would then have no right to engage. The question is one of pure law, and lies at the very threshold of the litigation. While courts are reluctant on preliminary hearing to pronounce upon the constitutionality of a statute, litigation frequently presents phases, of which this is an illustration, when a court is compelled to do so. The obvious fact that the statute recks little of consequences, and that its enforcement would disorder industry, trade, and travel, and entail great hardship and loss in many ways upon communities and thousands of individuals, by depriving them of their usual means of transportation in their intercourse and commerce within this state, sheds no light whatever upon the authority of the Legislature to enact the statute. The wisdom or unwisdom of the statute is a question the Constitution commits solely to the discretion and judgment of the lawmakers. The courts, whatever may be their view of the policy of a statute, must uphold the enactment, regardless of consequences, unless the Legislature in its passage infringed some express prohibition or necessary implication of the state or federal Constitution. Unless thus restrained, the legislative power of the state is supreme.

Section 240 of Constitution of Alabama. Among other provisions of the Constitution of Alabama, bearing upon this matter, is section 240, which ordains:

“That all corporations shall have the right to sue, and shall be subject to be sued in all courts, in like cases, as natural persons."

This provision is found at the close of the article regulating “foreign corporations” and “corporations chartered under the laws of this state." The framers of the Constitution were well aware that from the foundation of the state foreign corporations had exercised the right to resort to the federal court. If there had been a purpose to prevent their doing so in future, naturally those who made the Constitution would have said so in so many words, or at least limited the right to sue "in all courts of the state.” They chose, however, in conferring the right to use the broad words “all courts. There is nothing which authorizes us to reject the popular meaning, in which sense, unless the contrary in some way appears, words in the Constitution must always be taken. Clearly these sweeping words refer to all the courts which dispense justice in the state, and give to “all corporations” the right to enter every court in which a natural person could sue. Aside from the construction which must result from the rule that the framers of a Constitution know the force of words, and employ fit language to express their intentions, reasons are not far to seek, if the court could search for them outside of the plain and unambiguous words, to show that the intent of the authors of this provision was to apply the words "all courts” to the federal, as well as state, courts. The “stranger in a strange land” always values the right to resort to the tribunals which the Constitution of our forefathers wisely provides for him, if he becomes involved in litigation in his adversary's home. Strangers frequently will not invest their money or do business in communities which are known to be hostile to this policy of the Constitution. This section, by giving foreign corporations the constitutional right to resort to "all courts” on equal terms with natural persons, whom other sections give the absolute right to resort to all courts, would prevent future Legislatures from hampering the right to resort to the federal courts, as had been done in some other states. It would be an assurance to all who thought of casting their fortunes with us that Alabama would not depart from its traditional policy, and expel foreign corporations if they chose to exercise the same rights as natural persons to resort to the federal courts. Natural persons and domestic corporations can resort to a federal court in cases arising under the Constitution and laws without subjecting themselves, so far as the state laws can affect the right to suit in a federal court, to any forfeiture of the right to pursue any business; while under the identical circumstances the foreign corporation can be expelled from the state. Five domestic corporations have filed their bills attacking this same rate legislation. Under this statute they lose no right whatever by so doing; while ipso facto it forfeits the right of the foreign corporations to use property worth millions of dollars in domestic business because they brought a like suit here. If the Legislature may subject a foreign corporation to loss or damage for bringing such a suit here, when no such consequence can attach to a domestic corporation or a natural person, it needs no argument to prove that the right of the foreign corporation to sue "in all courts in like cases," is not the same as that of "natural persons." The statute destroys the perfect equality in this respect which this section exacts, and subverts the declared policy of the Constitution. There is nothing in the nature of the suit which can justify putting the foreign corporation in one class, and other suitors in a different class, in order to attach different consequences to the bringing of suits by them in a federal court. If, however, it were a case where, ordinarily, the Legislature might classify them differently for such a purpose, legislative power to so classify was denied, when the Constitution itself, by a mandatory provision, put all kinds of corporations in one and the same class with natural persons, and gave them the same, identical right as to waging suits “in all courts.”

Prerogative to Expel Limited. The otherwise absolute prerogative to expel a foreign corporation at will is, by this provision, shorn of all power to expel a corporation, because it resorts to any court. The arms of the prerogative cannot reach out and throttle the enjoyment of rights which the Constitution declares shall exist and shall be enjoyed. The constitutionality of a statute leveled at the enjoyment of a right "must be determined by its natural and reasonable effect” upon the exercise of the right. Henderson v. Mayor, 92 U. S. 259, 23 L. Ed. 543; Chy Lung v. Freeman, 92 U. S. 275, 23 L. Ed. 550. It is also a maxim of constitutional law that "what cannot be done directly, cannot be done indirectly.” Cummings v. Missouri, 4 Wall. (U. S.) 277, 18 L. Ed. 356. A statute which declares that a corporation is ipso facto expelled, because it resorts to a federal court, or any other court, is ipso facto a defiance of the constitutional provision; for it is an attempt to expel the corporation for doing something which the Constitution gives it an express right to do. The Constitution is the sovereign. The government it regulates can have no prerogative to take away that which the sovereign gives. Else, what the power or good of the Constitution? The Legislature by this penalty upon the exercise of the right, which it cannot directly take away, cannot despoil a corporation of the enjoyment of a right the Constitution gives it. Greene v. Briggs, 1 Curtis (U. S.) 327, Fed. Cas. No. 5,764; Almy v. California, 24 How. (U. S.) 173, 16 L. Ed. 644. The penalty is aimed at the exercise of a constitutional right. The statute puts in the same plane wrongful and vexatious suits and meritorious and successful litigation. It is not an endeavor to prevent vexatious and unfounded litigation by imposing a penalty in event of failure

of the suit. It is a mere naked effort to terrorize foreign corporations
and thus prevent them from resorting to the federal court in any event,
whether rightly or wrongly, by imposing enormous penalties if they
do so, no matter how well-founded their cause of action. This phase
of the matter, quite apart from the limitation the Constitution puts
upon the discrimination in this respect between foreign corporations and
natural persons, places the penalty outside the pale of the Constitu-
tion, and compels the court to strike it down. To effect the expulsion
of the foreign corporation, there must be some valid declaration of
the legislative will to that effect. The only statute we have is not only
unconstitutional, but it acts automatically, only upon the happening of
the suit. Even if it were valid, it contains no command and expresses
no policy whatever as to the expulsion of the foreign corporation in any
other event, or for any other cause. The only expression of the legisla-
tive will is that the bringing of the suit ipso facto expels the corporation.
It stops there. There is silence as to the legislative will in every
other particular regarding the expulsion of foreign corporations. The
Legislature having no power to pass the enactment, the statute is a
mere nullity, and the right of the foreign corporation to remain stands
as though the act had never been passed. We cannot bring the dead
statute to life, and say that, as the Legislature had power to expel the
corporation for some other reason, we must construe this unconstitu-
tional statute, which ipso facto expels the corporation in one event
only, as stretching out to any other cause, and, because some other
reason might exist, ipso facto expelling the corporation for that other
'reason. If the court did that, it would usurp the legislative prerogative,
and create and invent a command which the Legislature never gave,
or intended to give, in order to nullify the constitutional veto upon
the statute actually passed. State v. Buckley, 54 Ala. 622; United
States v. Reese, 92 U. S. 214, 23 L. Ed. 563.
Construction of Constitutional Provision by Supreme Court of Alabama.

More than a quarter of a century ago the Supreme Court of this state, in Railroad Company v. Morris, 65 Ala. 199—which involved a discrimination between the rights of a domestic corporation and a natural person in the courts-after referring to a provision identical with section 240 and various other provisions repeated in the present Constitution, declared:

“The clear, legal effect of these provisions is to place all persons, natural and corporate, as near as practicable, upon a basis of equality in the enforcement of their rights in the courts of this state, except in so far as may be otherwise provided in the Constitution.

Nor can it be permitted that litigants can be debarred from the free exercise of this constitutional right by the imposition of arbitrary, unjust, and odious discriminations, perpetrated under the color of establishing peculiar rules for a particular occupation. Unequal, partial, discriminatory legislation, which secures a right to some favored class or classes and denies it to others, who are thereby excluded from that equal protection designed to be secured by the general law of the land, is in clear and manifest opposition to the letter and spirit of the foregoing provisions."

The same question, involving a discrimination against a foreign corporation as a suitor in the courts, came before the Supreme Court

[ocr errors]
[ocr errors]
« ПредыдущаяПродолжить »