Page:The Green Bag (1889–1914), Volume 20.pdf/77

 THE GREEN BAG In a note published at the end of the opinion, it appears that subsequent to awarding the injunctional relief, complainants appeared and asked for a modification granting them the privilege of putting the new passenger rate into effect, stating that at the instigation of the governor, the state authorities were so harassing the company's agents and employees and threatening revocation of privi leges granted that it was deemed better to at once put the rate into effect than to rely on the pro tection afforded by the injunction. The court re asserts the correctness of its former decision and its ability to afford relief, but says that as com plainant itself has asked for the withdrawal of protection, nothing can be done except to grant the modification requested. The Alabama law was considered by Judge Jones in Seaboard Air Line Ry. Co. r. Railroad Commission, 155 Fed. Rep. 792, on application for temporary injunction against its enforcement. The claim that the suit was in reality against the state was interposed, but the court reached the same conclusion as Judge Pritchard had on the same point in the North Carolina case. The sec tion of the statute providing for forfeiture of the right of foreign corporations to do business in the state as a penalty for instituting proceedings in the Federal Court was considered, and held to violate the clause of the state constitution provid ing 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," and repugnant to the Federal Constitution as impairing the obliga tion of contracts, denying equal protection of the law, and depriving the railroads of due process of law. As to the suggestion that the rates be put into effect and tried, the court says that owing to the scant earnings and probable deficiencies, it is not a case for experiment, and " would be as reckless as for a physician to deny a sufficient amount of nourishment to a man in order to ascertain whether it would harm his health." Preliminary injunction was awarded on bond for payment of damages, excess rates, costs, etc. Some of the questions involved in passing on the Minnesota law in Perkins v. Northern Pacific Ry. Co., 155 Fed. Rep. 445, were similar to those noted in the preceding cases, and a similar conclusion reached on the issue as to whether the suit was against the state or the state officers. In this case, as in that of Poor v. Iowa Cent. Ry. Co., supra, the action was brought by stockholders, and not by the railroad companies themselves. The officials of the roads had refused to invoke the aid of the court and had indicated an intention to comply with the law, on the ground that they ran too

great a personal risk of being subjected to severe punishments for disobedience. This suit is dis tinguishable from the Poor case by reason of the stockholders having prior to the institution of the proceedings made demand on the railroad officials to take action. The court held that having done this, and their request being refused, they had a right to maintain the suit. In the course of his opinion, Judge Lochren takes occasion to speak of the manifold benefits the railroads have brought to the people of the Northwest, and characterizes certain portions of the legislation as " a reproach upon the intelligence and sense of justice of any legislature which could enact provisions of that kind." A preliminary injunction was awarded against enforcement of what is known as the " com modity rate " and denied as to the rest of the law, though it is said that the question as to whether the rates prescribed by it are compensatory may be determined on final hearing. CRIMINAL LAW. (Former Jeopardy.) Ga. Ct. of App. — The question of former jeopardy as a bar in a criminal prosecution, comes up in rather a novel way in two cases recently decided by the Court of Appeals of Georgia. Fews v. State. 58 S. E. Rep. 64; Burnam v. State Ib. 683. In these cases, the court applies what it terms the " same transaction test." In the first case, defendant was accused of shooting two different persons who had made no joint attack upon him and notwith standing the shooting of one immediately followed the attack upon the other, the court said that two distinct crimes were committed and a conviction for one was no bar to a prosecution for the other. In the decision in the Burnam prosecution, the court sets out a hypothetical case in which it says that " if the defendant shot at A. intending to kill him and by reason of bad marksmanship struck and killed B. whom he did not intend to kill, the transactions, the assault with intent to murder A. and the actual murder of B. are legally the same. As intimated by this court in the Fews Case, if by separate shots, the defendant wounded two per sons, the transaction would be single if the shoot ing was done in repelling a joint assault of these two persons." CRIMINAL LAW. (Negligence.) N. Y. Sup. Ct. — The sufficiency of the indictment of the general manager of the New York Central and Hudson River Railroad Company for manslaugh ter, for which he was alleged to be responsible, by reason of failure to properly perform the duties devolving upon him, was considered in People v. Smith, 105 N. Y. Supp. 1082. It was alleged that he had put an incompetent and untrained engineer