Louisville & N. R. Co. v. Railroad Commission

JONES, District Judge

(after stating the facts as above). On the day set for the hearing of these motions, the Attorney General appeared; and, while avowing the highest respect for the court, and friendship for the presiding judge personally, expressed the opinion that the questions raised on the rule to show cause had been “prejudged” by the opinion rendered in granting the restraining orders, and therefore asked leave to withdraw any further appearance in this particular matter. Reciprocating the feeling of friendship and respect expressed by the Attorney General, the court freely granted his request, but verbally repelled from the bench, without unkind comment, the injustice of his position. The opinion on the granting of the restraining orders enunciated no view of the law which had not already been solemnly adjudged before in decisions made in these cases in 11 separate orders which were submitted to counsel, and to which they did not then object. Those orders enjoined threatened criminal prosecutions by state officers. The alleged threats by solicitors and sheriffs raised the same presumption that they would endeavor to enforce these laws as flows from the “special charging” of the respondents to the original bill with such a duty. It was also known to counsel that in Express Co. v. City of Ensley (C. C.) 116 Fed. 756 , the presiding judge some years before had decided that a court of equity had undoubted authority to enjoin criminal prosecutions for the protection of a property right when imperiled by the execution of void statutes or ordinances. It was well known to everybody that the court prior to issuing these restraining orders had decided in an elaborate written opinion in these very cases that it had jurisdiction of the subject-matter, that it had the right to enjoin the criminal proceedings threatened, and that the suits were not suits against the state. Seaboard Air Line Railway Company et al. v. Railroad Commission et al. (C. C.) 155 Fed. 792 . Moreover, in the opinion on the restraining orders against the sheriffs and solicitors, it was stated that the court had “necessarily” heretofore decided those questions, and all expression of opinion as to any new matters which might be raised by the answers was expressly pretermitted. Moreover, their answers were on file when the Attorney General asked to withdraw, and they did not attempt, even remotely, to raise any new questions. Every court is bound to follow its own decisions, if it deems them sound, until overruled by higher authority. Otherwise, there would be no certainty in the law. *951 If a subsequent case arises involving the principle applied in the prior case, the judgment in the prior case must necessarily control the subsequent case. This, as eyery one knows, is not “prejudgment” in any sense, either moral or legal, but merely the application to the case of the law as pronounced in the prior case. When a court has solemnly adjudged a principle of law, especially, as here, in other stages of the very case, it is not required by the subtlest obligation of even the most delicate rule of ethics to refrain from expressing adherence to its former decisions, in discussing further interlocutory orders it is called to make, because a party insists that the principle of the former decision was wrong, and insists on silence on the part of the court, w'hen the question is again brought forward by way of rehearing, until reargument can be had. For some months after the bills were filed in this court to test the reasonableness of the rates there was acquiescence on all sides in the exercise of jurisdiction by the court, and a general disposition to treat the matter as a purely judicial question to be settled in the court. Subsequent events in North Carolina, however, quickly changed the situation, and set the pace for like action here. Accordingly numbers of officials who had participated in the discussions and the rewards of the hustings began to insist that the question was purely political, which had been finally decided at the polls, and that any inquiry upon the part of the courts into the justice of the legislation deserved savage denunciation as an invasion of the rights of the state and an unwarranted meddling with local affairs. Portions of the press incessantly re-echoed these cries. The Governor, in public utterances, insisted that state officials should disobey the orders of the court, and proceed to arrest and try the operatives of the various railroads on criminal charges in the state courts, if they did not immediately put in the rates prescribed by the statutes. Clashes of authority seemed imminent, and threatened widespread proportions and manifold evils. Under such conditions, it became the highest duty of the court to make public statement of its reasons for granting the restraining orders, and thus to destroy, as far as possible, the force of misrepresentations by which reckless agitators sought to bring the ignorant into collision with the authority of the court, and at the same time to call to the support of the law the sustaining power of a just public opinion, which would be increased and strengthened when taught how little real ground of complaint existed against the action of the court. Silence at such a time, in view of the evils to be averted by prompt appeals to the reason of men, would have been most culpable.

After the withdrawal of the Attorney General, the solicitor for Montgomery county, who expected to be represented by the Attorney General, obtained an adjournment and employed counsel, who very ably argued in support of the contention set up in the answers of the solicitors and sheriffs. These answers are, in effect, a plea to the jurisdiction, based upon the insistence that Fitts v. McGhee, 172 U. S. 516 , 19 Sup. Ct. 269, 43 L. Ed. 535 , applies to and controls the case made by the amended bill, and that it is a suit against the state in violation of the eleventh amendment. It is not necessary in order to sustain the jurisdiction here to critically analyze that case. If it be conceded to reach as far as respondents claim in the sweep of its influence, the doc *952 trine In that case is in no way hostile to the principles upon which jurisdiction is maintained here. The original bill enjoined the enforcement of rates alleged to be- confiscatory, which the defendants were specially charged with the duty of enfoicing, was plainly not a suit against the state even under the doctrine of Fitts v. McGhee. The amended bill merely presents a case where the sheriffs and solicitors, in the language of that decision, “are about to commit some specific wrong” by enforcing the provisions of statutes which the original defendants had been enjoined from enforcing, and which had not only been attacked as confiscatory, and therefore enjoined pendente lite, but had also been suspended absolutely by authority of the state statute pending the hearing. There was no valid operative law upon which to base the threatened prosecutions. The restraining orders against the sheriffs and solicitors therefore fell with the very letter of the exception' made in Fitts v. McGhee as to officers of the state who, under the authority of unconstitutional enactments, were committing “or about to commit some specific wrong or trespass to the injury of the plaintiff’s rights.”

A state statute, during the period of its suspension, can have no legal force whatever. It stands during its suspension as though it had never been, or had been declared unconstitutional. What is popularly known as “the outlaw statute” — the statute forfeiting complainant’s right to do intrastate business if it brought suit to test the rates in a federal court — had already been declared unconstitutional, and the rate laws complained of had been formally suspended under the authority of the state statute, as well as the equity powers of the court, pending investigation of the facts which would determine whether the statutes could be treated as law at any time.- No discretion whatever was vested in these officers to prosecute for violation of the suspended statutes, and the plain law of the land made it their duty not to attempt to do so. Yet, if they did so, they would unlawfully put state power in motion,-and thus effect results, which, under Fitts v. McGhee and all other cases, they can be enjoined from accomplishing. There is a manifest distinction between Fitts v. McGhee and the present case in several most vital aspects: First. There was no state law in Fitts v. McGhee, as here, under which the owner of the bridge there could by bill in equity initiate litigation with representatives of the public to test the reasonablehess of the toll, and by pursuing the mode the state law pointed out, not only bind every one by a decision in that one case, but, while the litigation was pending, could secure a suspension of the statute complained of, and thus destroy, pending final decision by the court in which the proceeding was brought, all basis of authority anywhere for any claim that the law had been violated by not observing a suspended statute. Second. In that case no court of competent jurisdiction, armed with power'to determine “the very matter in dispute,” had first obtained jurisdiction, and therefore enjoined prosecutions by indictment before any had been found in the state court, in order to prevent the transfer of the trial of the reasonableness of the rates to another forum,. and thus acquired ancillary jurisdiction to prevent' subsequent proceedings, in order to preserve, the exclusive jurisdiction obtained by the commencement of the, suit in the federal. *953 court. Harkrader v. Wadley, 172 U. S. 148 , 19 Sup. Ct. 119, 43 L. Ed. 399 ; Taylor v. Tainter, 16 Wall. 366 , 21 L. Ed. 287 ; Julian v. Central Trust Co., 193 U. S. 112 , 24 Sup. Ct. 399, 48 L. Ed. 629 . Third. That case did not involve, as does this, irreparable injury, both public and private, from the disturbance of the operation of a great inland highway of commerce by incessant arrests of the operatives and officers whose discharge of their duties at all times is absolutely essential to the movement of domestic and interstate commerce, and' the prompt dispatch of the mails. The arrest of the tollkeeper in Fitts v. McGhee was hardly more than a private injury, and did not interfere in any way with the movement of domestic and interstate commerce, or impede the passage of the comparatively few persons or things using this local highway. The opinion in Fitts v. McGhee admits, as did the respondent to the original bill, that a suit against state officers, “specially charged” with the enforcement of an unconstitutional act, to prevent its enforcement, is not a suit against the state. That being the posture of the case on the original bill, Fitts v. McGhee is in no sense authority for the proposition that the proceeding is converted into a suit against the state when the bill is amended so as to reach other officers, not specially charged, but who threaten to enforce a statute, which is absolutely without legal virtue for the time being, and thereby work, without any warrant of law, irreparable injury and wrong to a property right. It stands to reason that the power which may arrest the agent specially charged by the state to carry out an illegal mandate, without overstepping the bounds of the eleventh amendment, does not run counter to that amendment when it enjoins an agent of less dignity, intrusted with no duty to the state, who attempts or threatens, without legal warrant, to destroy the property rights of the citizen, by putting the machinery of justice in operation to enforce an invalid statute.

The contention that a state officer cannot be restrained by injunction ■of the United States court from enforcing fate statutes by criminal prosecutions was overruled by the Supreme Court of the United States in Prout v. Starr, 188 U. S. 537, 543 , 23 Sup. Ct. 398, 47 L. Ed. 584 , and the same ruling was made in Smyth v. Ames, 169 U. S. 466 , 18 Sup. Ct. 418, 42 L. Ed. 819 . There can be neither criminal law nor duty to enforce it unless there be crime created by some valid operative law of the state. In Prout v. Starr, supra, the Supreme Court, referring to the insistence of the Attorney General of the state in that case that he “could not be restrained by injunction from enforcing the criminal laws of the state,” said “that contention is only another phase of the same question,” referring to its observations in another part of the ■opinion, where the court said:

“It would, Indeed, be most unfortunate if tbe immunity of the individual states from suits by citizens of other states provided for in the eleventh amendment were interpreted so as nullifying other provisions of the Constitution 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 be invoked to protect citizens affected by the passage of state laws disregarging these constitutional limitations. Much less can the eleventh amendment be successfully pleaded as an invincible barrier to judicial inquiry *954 whether the salutary provisions of the fourteenth amendment have been disregarded by state enactments.”

in the same opinion the Supreme Court refers to the case, among others, of Fitts v. McGhee as an example in which the judicial power of the United States has secured state immunity from suits in “proper cases.” The Supreme Court there held that an injunction against the Attorney General of Nebraska to prevent prosecutions for to recover penalties for violation of a state rate statute did not present “a proper case” in which to apply the doctrine of Fitts v. McGhee, supra. It emphatically held that Fitts v. McGhee had no application whatever to such a case. In the case of Davis & Farnham Manufacturing Company v. Los Angeles, 189 U. S. 217 , 23 Sup. Ct. 500, 47 L. Ed. 778 , which is subsequent to Fitts v. McGhee, the Supreme Court says, without qualification it would seem:

“If there be jurisdiction in a court of equity to enjoin the invasion of property rights through the instrumentality of an unconstitutional law, that jurisdiction could not be ousted by the fact that the state had chosen to assert its power to enforce the statute by indictment or other criminal proceeding.”

In the still later case of Dobbins v. Los Angeles, 195 U. S. 241 , 25 Sup. Ct. 22, 49 L. Ed. 169 , the Supreme Court declares:

“It is well settled that where property rights will be destroyed, unlawful interference by criminal proceedings under a void law or ordinance may be reached and controlled by a decree of a court of equity.”

The same principle has been repeatedly declared by the state courts, and by none more emphatically than the Supreme Court of Alabama, in Port of Mobile v. L. & N. R. Co., 84 Ala. 115 , 4 South. 106 , 5 Am. St. Rep. 342 ; City Council of Montgomery v. L. & N. R. Co., 84 Ala. 127 , 4 South. 626 . See, also, Lottery Co. v. Fitzpatrick, 3 Woods, 222 , Fed. Cas. No. 8,541; City of Hutchinson et al. v. Beckham et al., 118 Fed. 401 , 55 C. C. A. 333 ; Central Trust Co. v. Citizens’ S. R. Co., 80 Fed. 218 .

This is unquestionably a case in equity. The court has jurisdiction, not only because it is a controversy between citizens of different states, but because the case involves the application of the Constitution and laws of the United States. If it be a case in equity, equity can undoubtedly administer its usual preventive remedies by injunction or otherwise, if necessary, to prevent a multiplicity of suits and irreparable injury pending final decree. The Supreme Court of the United States has declared that:

“The proper, if not the only, mode of judicial relief against the character of rates established by the Legislature, or by its commission, is by bill in chancery asserting their unreasonable character and their conflict with the Constitution of the United States, and asking a decree of the court forbidding the corporation from exacting such rates as excessive or establishing its right to enforce the rates as being within the limits of just compensation for the services rendered.” Railway Co. v. Gill, 156 U. S. 649 , 15 Sup. Ct. 484, 39 L. Ed. 567 ; Chicago R. R. Co. v. Minnesota, 134 U. S. 419 , 10 Sup. Ct. 462, 33 L. Ed. 970 .

Indictments for not observing the rates prescribed by statute would not settle the reasonableness or unreasonableness of the rate except in the particular case. The basic fact which furnishes the test of the rea *955 sonableness of the rate is the value of the property devoted to the public use. In ascertaining this value, thousands of items of railroad property must be inventoried and valued. Next must be ascertained the proper cost of conducting the business, which involves an examination of books of account, and whether items of expense have been correctly charged, and whether items have been included in operating expenses which should have been charged to the capital account. A trial by jury of such issues is cumbersome, and would be long drawn out and expensive. A law court has not the proper machinery for conducting such investigations. One Jury would find one way, and another jury another way, even on the same state of facts, according to the credence they gave to witnesses who testified before them. Public sentiment might be so strong in one locality that a jury would uphold as reasonable a rate, which, in another locality, another jury would pronounce unreasonable. The rates, if established by verdicts of juries, would vary, even on the same state of facts in the same locality. Carriers, shippers, and passengers would have no certain means of ascertaining their respective rights. If the carrier were indicted and acquitted in a given case, it would not be binding upon the state, upon the same state of facts, in another prosecution. For a noted case of great hardship, see Boyd v. Alabama, 94 U. S. 648 , 24 L. Ed. 302 . The number of prosecutions, if the carrier refused to put in a rate, would vary according to the intensity of feeling in particular localities, and a multitude of prosecutions would be instituted in the courts in different localities at the same time. Although the rates prescribed might be unreasonable, and their enforcement might amount to the taking of private property for public use without just compensation, the carrier would ordinarily be forced to observe these statutory rates rather than encounter the burdens and cost of resistance. If the loss to his business were so great that the exigency drove him to resist the enforcement of the rates, he would have to assume all these burdens, and, in addition, risk all on the hazard of the outcome, unless a court of equity can suspend the prosecutions pendente lite. Mindful of the irreparable injury and multiplicity of suits, which would be imposed upon the carrier if it resisted the enforcement of rates it considered unreasonable, and had no other mode of testing the reasonableness of rates than by meeting indictments as they are found, the Legislature of Alabama wisely provided a mode of settlement by bill in equity against the commission and the Attorney General, which in one suit would settle every question, and bind the state, the 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 rightfulness of its challenge of the rates. Without some such provision, our rate laws would deter the carrier from going into court at,all, and practically destroy its right to judicial review as effectually as if the statute'had in so many words denied its right to resort to the court. Statutes making no such provisions as ours for contest of a right of property without risking such appalling loss would be unconstitutional, for the reasons given in the opinion of Justice Brewer in the Kansas City Stockyard Cases, 183 *956 U. S. 79 , 22 Sup. Ct. 30, 46 L. Ed: 92; Consolidated Gas Co. v. Mayer (C. C.) 146 Fed. 150 ; and therefore be rightly enjoined without regard to the reasonableness of the rates themselves. It is unnecessary to inquire at this time whether, under the doctrine declared in Gunter v. Atlantic Coast Line Ry. Co., 200 U. S. 275 , 26 Sup. Ct. 252, 50 L. Ed. 477 , the state has made itself a party by appropriating money, and authorizing the Governor to employ attorneys to defend the suit. However that may be, it is not material here. It is the state which the Constitution forbids to deprive any one of property without due process-of law. A state cannot effect such results by the action of any one of its departments or all of them combined. A state can act only by and through its officers. It cannot impart to any of its officials a power which the state itself does not possess, nor by their action force results-it is forbidden directly to accomplish. It may be “the king can do no-wrong,” but his ministers may be both controlled and punished. Whatever form the action of state officers may take or its legislation assume, regarding an admittedly lawful use of property, the state cannot so-frame its laws, civil or criminal, or so regulate the action of its officers, as to put, it beyond the power of a court of equity, on timely invocation of its jurisdiction, to preserve the property and property rights of the citizen pending final decree against irreparable injury, in consequence of the operation of laws which are, or may be ascertained to-be, invalid. No one can in reason deny that a court which has the power to declare a statute unconstitutional may not also, where the ■constitutionality of the statute depends upon a state of proof which can be determined only after judicial inquiry and hearing upon controverted facts, likewise suspend the execution of the statute in a proper case to prevent irreparable injury, until it can be ascertained whether the statute constitutes the law of the land, and is therefore to be enforced, or is merely a transgression against the Constitution, and therefore to be condemned. United States v. Shipp, 203 U. S. 563 , 27 Sup. Ct. 165, 51 L. Ed. 319 . Otherwise the rights intended to be safeguarded by the “salutary provisions” of the fourteenth amendment would in many cases be destroyed before they could be determined in the courts, and would exist in name only. The form of state action is immaterial. It is the forbidden results to which the Constitution looks, and against which it provides. Prout v. Starr, supra. Mr. Justice Brewer in Reagan v. Trust Co., 154 U. S. 389 , 14 Sup. Ct. 1047, 38 L. Ed. 1014 , which case is reaffirmed in Smyth v. Ames, the latter being reaffirmed in Prout v. Starr, supra, which is later in point of time than Fitts v. McGhee, and is referred to therein, held that a suit against state officials acting under color of unconstitutional statutes, in a proper case, “where the remedy at law is inadequate, for an injunction to-prevent such a wrong and injury,” is not, within the meaning of the eleventh amendment, an action against the state. That is now the settled doctrine of the Supreme Court.

It is the veriest legal and moral misnomer to call an injunction against prosecutions about .a rate charge an interference with “the-power of the state to punish crime.” The issue grows out of an admittedly lawful use of property in the transportation of persons and', things, and in the performance of a duty the state exacts. The car *957 rier has the legal right to charge the worth of the service. What the service is worth is a matter of honest difference of opinion. A certain charge or demand for the value of service rendered in the lawful use of property is by the statute made an offense. Insistence by the carrier upon the amount he claims as the just reward is not even a breach of the peace. The penalty for not observing the statute is imposed for the violation of a civil duty, due primarily only to the shipper or passenger. The offense is quasi penal at most. The penalty is prescribed tQ compel the property owner to forego the assertion of a disputed property right in the courts, in the first instance, as- well as to force observance of the statute after it is ascertained that the property right claimed has no legal existence. Enjoining prosecution for such an offense until it can be ascertained whether an offense has, in fact, taken place, leaves open and untouched the whole broad domain of state power to legislate for the preservation of the peace, morals, health, welfare, and liberties of the people, and the protection of the revenue and dignity of the state government. Here the court has not only stopped the prosecutions under its equity power, but, under the express sanction of laws of the state, has suspended the operation of the statutes, pending ascertainment of the facts upon which their operative force must at any time depend. When the state’s laws are suspended pursuant to authority given by its own laws, the state laws have been observed, not disregarded, even if the. unwarranted concession be made that the judicial power, under the Constitution of the United States, could not in a case like this prevent the enforcement of the statutes pending final decree. One who is entitled to sue in the federal court may invoke its jurisdiction in equity whenever the established principles and rules in equity permit such a suit in that court; and he cannot be deprived of that right by any action of the state. Smyth v. Ames, 169 U. S. 466 , 18 Sup. Ct. 418, 42 L. Ed. 819 .

It is equally well settled that:

“Jurisdiction of the federal courts sitting as courts of equity is neither enlarged nor diminished by state legislation, though by it all differences in forms of action be abolished, and all remedies be administered in a single action at law, and so far, at least, as form is concerned, all distinction between law and equity be done away with, yet the jurisdiction of the federal courts sitting as courts of equity remains unchanged. We have repeatedly held that the jurisdiction of courts of the United States over controversies between citizens of' different states cannot be impaired by the laws of a state which prescribe modes of redress in their courts, or which regulate the distribution of their judicial powers. If legal remedies are sometimes modified to suit the changes in the laws of the states- and the practice of their courts, it is not so with equitable. The equity jurisdiction conferred on the federal courts is the same as that the High Court of Chancery in England possesses, is subject to neither limitation or restraint by state legislation, and is uniform throughout the different states of the Union. * * * That jurisdiction, as has often been decided, is vested as part o-f the judicial power of the United States in its courts by the Constitution and acts of Congress in execution thereof. Without the assent of Congress, that jursidiction cannot be impaired or diminished by the statutes of the several states regulating the practice of their own courts. * * * Conceding it to be true, as stated by the learned judge, that the full relief sought in this suit could be obtained in the state courts in an action at law, it does not follow that the federal court sitting as court of equity is without jurisdiction. The inquiry rather is whether by the principles of common law and equity as distinguished and defined in this and the mother *958 country at the time of the adoption of the Constitution of the United States the relief here sought was one obtainable in a court of law, or one which the court of equity was competent to give.” Mississippi Mills v. Cohn, 150 U. S. 201 , 11 Sup. Ct. 75, 37 L. Ed. 1052 .

The amended bill presents, as did the original bill, a case of threatened arrests, in many places and in a multitude of instances, of officers and operatives of railroads thousands of miles in length, which feed the commerce of the most important cities of the state and traverse its entire length. Thousands of the employés subject to threatened ay-rest are engaged at the same time alike in intrastate and interstate commerce, and in the delicate operation of handling and running hundreds of trains daily. If complainant’s servants may be arrested wherever found, in any of the numerous counties which their roads traverse, wherever any one chooses to swear out a'warrant, or procure an indictment, it would inflict untold harm upon every private and public interest which -is served by the carriers in their business. Not only intrastate commerce, but the orderly transit of interstate commerce, both of passengers and freight, and the prompt carriage of the mails, would be disordered and delayed, and the usefulness of the railroads to the public, measured by the requirements of modern industry and the economic necessities of our people, in a large measure destroyed. The employer has a property right in the services of his workman in his business, so long as he is willing to serve. He may maintain an action against any one who entices his servant to leave him, or by force or fraud prevents the servant from doing the master’s work, when that is the design of the interference with the workman. This right of the employer in the services of his workman is protected by the sanction of our criminal laws against the efforts of all persons to destroy the relation, so long as the master and his workman desire that it shall’ continue. The arrests here threatened, with the disasters we have pointed out, it is important to remember are to be made under a statute which has been declared unconstitutional, or under statutes the operation of which have not only been enjoined, under the equity powers of the court, but suspended under the authority given by the state statute itself pending investigation of the facts upon which their validity ultimately depends. There is now no more authority to prosecute for nonobservance of these suspended laws than there would be to indict for violation of a statute which had not taken effect when the indictment is found. The suspended laws have not now, and can never have, force and effect in the future until the suspension is abrogated by the tribunal to which is intrusted the power to suspend the laws. Every arrest under these statutes while they are suspended is therefore a trespass upon the rights both of the employer and the workman. These arrests are to be made to prevent the carrier from carrying on a business in a way which is lawful, at least during the period of suspension. They are threatened in order to coerce complainants to abandon a right to protection of writs of a court of competent jurisdiction which have been issued to prevent a multiplicity of suits, and irreparable injury pendente lite, and to break down and defy the authority of a court of the United States to administer the rights of parties in a suit of which it has jurisdiction.according to the usual modes of pro *959 cedure in equity. These arrests ought also to be enjoined because they would be efforts to transfer the very matters in dispute to some other court, and thus defeat the exclusive jurisdiction of this court. They ought to be enjoined for the further reason that, under the circumstances of these cases, the threatened arrests would be “endeavors” to “obstruct or impede” the due administration of justice in these very cases, in violation of a criminal statute of the United States. Under such circumstances, the attempt to justify such arrests under color of state authority or to use state power to effect them, and thereby to defeat and undermine the jurisdiction of the federal court, which had. first obtained jurisdiction of the subject-matter and parties, is neither more nor less than an effort to make nullification and sedition respectable by lending them the name of the state of Alabama to accomplish their purpose in defiance both of the Constitution and laws of the state and of the United States. It would impute both bad faith and dishonor to the state to conclude it intended, notwithstanding the statutes had been suspended in the mode its laws provide, that carriers who had' complied with the laws in that respect should nevertheless be treated as criminals during the period of that suspension.

The authorities are unbroken and numerous to the effect that in cases like this equity must intervene by its preventive remedies. Osborne v. Bank, 9 Wheat. 738 , 6 L. Ed. 204 ; Davis v. Los Angeles, 189 U. S. 217 , 23 Sup. Ct. 498, 47 L. Ed. 778 ; Dobbins v. Los Angeles, 195 U. S. 223 , 25 Sup. Ct. 18, 49 L. Ed. 169 ; Smyth v. Ames, 169 U. S. 466 , 18 Sup. Ct. 418, 42 L. Ed. 819 ; Reagan v. Trust Co., 154 U. S. 362 , 14 Sup. Ct. 1047, 38 L. Ed. 1014 ; Detroit v. Detroit Citizens’ Street Railway Co., 184 U. S. 368 , 22 Sup. Ct. 410, 46 L. Ed. 592 . As Story observes:

“If, indeed, courts of equity did not interfere in cases of this sort, there would be a great failure of justice in this country.” Story’s Eq. Jur. § 928.

There is no difference in the issue sought to be raised by the prosecutions asked to be enjoined and the issue pending in this court on the bill in equity as to these rates. They present the identical question. The same proof in either court will defeat or maintain the rate. No greater or less degree of proof is required in either. No proof can possibly be offered upon the trial of an indictment as to the rates which would not be competent evidence in a civil suit concerning them. A judgment either way in criminal prosecutions concerning them would not bind the state or the public. A judgment either way in the equitv suit will determine the whole question as regards the state, the public, the customer, and the carrier. To quote the language of the Supreme Court:

“Tbe same rights are involved in the civil and criminal cases, and the legal questions involved are the same.”

See Harkrader v. Wadley, 172 U. S. 167 , 19 Sup. Ct. 127, 43 L. Ed. 399 , where the court, in declining to allow interference with the indictment in that case, puts its refusal upon the distinct ground that “the fallacy in the argument of the appellee in the present case is the assumption that the same right was involved in the criminal case in the state court and in the equity case in the federal court.” *960 It is also to be observed that the indictment there asserted an offense against the law of the state, “the validity of which is not assailed.” That the Supreme Court of the United States considered the very same question involved in the indictment for a violation of a rate law and a prior suit in equity to test it is obvious on perusal of its decision in Prout v. Starr, 188 U. S. 544 , 23 Sup. Ct. 401, 47 L. Ed. 584 , where it speaks of “an attempt to transfer the very matters that stood for judgment in the federal court to the state court by filing a bill in the matter.” Such a course, it said, “might bring about conflict between those courts, and create the confusion so often deprecated by this court.” Peck v. Jenness, 7 How. 612 , 12 L. Ed. 841 ; Orton v. Smith, 18 How. 263 , 15 L. Ed. 393 .

These matters aside, respondents finally insist that they are in no wise bound by the direction of the Governor as to the institution of criminal proceedings and the arrest of persons for the violation of these statutes, and that, as no overt act has been charged against them, they cannot properly be made parties defendant to the amended bill. It is unnecessary to determine how far the solicitors and sheriffs would be bound by the directions of the Governor in this respect, but, assuming respondents’ view of the law in this regard to be correct, it does not meet the case. It is true the amended bill sets up as matter of inducement, or as a motive for the threatened action of respondents, that the Governor has charged or will charge them to make the arrests and institute the proceedings; but the allegation is positive, after reciting the reasons for complainants’ belief, that respondents “will cause complainants’ officers, agents, and servants to be arrested, indicted, and prosecuted for said charges, refusals,” etc. The respondents have been careful to refrain from any denial of what they purpose, notwithstanding it is positively charged that they will make the arrests, and put on foot the prosecutions. They know their own intentions. The answers of the respondents are identical, and their attitude is evidently dU rected by one mind. It is usual in matters of this kind, even where the action of private persons is concerned, when it is sought to defeat the issue of a preliminary injunction to disavow any intention, when it is positively charged, to override and defy the orders of the court. If such a disavowal be incumbent upon a private citizen under such circumstances., how much more is it requisite when the allegations concern the actions of a class of officers who are emphatically peace officers, bound by the highest moral and legal considerations to respect and obey the orders of the courts. The omission to enlighten the court on this point is not due to oversight or inadvertence. Under these circumstances, and in the light of matters of common knowledge recited in the amended bill, but of which the court may also take judicial notice, what is the only natural inference to draw from the answers, which challenge only the jurisdiction of the court to make the orders and carefully refrain from any disclaimer of intention to make the arrests, although it is flatly charged in the bill? Under such circumstances, the court must believe they will make the arrests unless restrained, and enjoin them accordingly. A contention like the present is fully answered *961 by the Supreme Court in Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 82 , 22 Sup. Ct. 592, 46 L. Ed. 808 , where it is said:

“It Is further contended that the bill does not disclose any actual proceeding on the part of the city to displace complainant’s rights under the contract, that mere apprehension that illegal action may be taken by the city cannot be the basis of enjoining such action, and that, therefore, the Circuit Court did right in dismissing the bill. We cannot accede to this contention. It is one often made in cases where bills in equity are filed to prevent anticipated and threatened action. But it is one of the most valuable features of equity jurisdiction to anticipate and prevent a threatened injury, where the damages would be insufficient or irreparable. The exercise of such jurisdiction is for the benefit of both parties — in disclosing to the defendant that he is proceeding without warrant of law, and in protecting complainant from injuries which, if inflicted, would be wholly destructive of his rights.”

There is no real difference in principle between the injunctions issued on the original bill and those now prayed. The difference is of form only, in that the sheriffs and solicitors are made defendants by name in the amended bill, instead of being included, as in the original injunctions, under the designation, “other persons.” The injunctions sought follow the lines the Supreme Court held proper in Reagan v. Trust Co., supra, and Smyth v. Ames, supra, both of which as to the nature of the specific relief granted went further in their terms in some respects than the injunctions now asked. Let an order be entered granting the preliminary injunction as to all the defendants who have been served, and fixing a further day as to the defendants who have been served.

The case made by the amended bill of the South & North Alabama Railroad Company is the same in its facts as that of the Louisville & Nashville Railroad Company. Like orders will be entered in it also.