Page:United States Reports, Volume 209.djvu/174

 lt8 OCTOBI TERM 1907. necessary to state), and an inquiry as to that fact is a proper subject of judicial investigation.. H it turns out that the rates are too low for that purpose, then they are illegal. Now, to impose upon a party interested the burden of obi-l-g a judicial decision of such a question (no prior hearing having ever been given) only upon the condition that if unsuccessful he must suffer imprisonment and pay fines as provided in these acts, is, in effect, to close up all approaches to the courts, and thus prevent any hearing upon the question whe/her the rates as provided by the acts are not too low, and therefore invalid. The distinction is obvious between a case where the validity of the act depends upon the existence of a fact which can be determined only after investigation of a very compli- cated and technical character, and the ordinary cae Of & etat- ute upon a subject requiring no such investigation and over which the jurisdiction of the legislature is complete in any event. We hold, therefore, that the provisions of the acts relating to the entercement of the mtce, either for freight or passengers, by impoing such enormous fines and Iksible imprisonment as a result of an unsuceesdul effort to test the validity of the laws themselves, are unconstitutional on their face, without regard to the ciuestiun of the insufficiency of those rates. We also hold that the Circuit Court had jurisdiction under the cas already cited (and it was therefore its duty) to inquire whether the rates permitted by these acts or orders were too low and therefore confiscatory, and if so held, that the court then had jurisdiction to permanently enjoin the railroad com- pany from putting them in force, and that it also had power, while the inquiry was pending, to grant a temporary injunc- tion to the same effect. Various affidavits were received upon the hearing before the court prior to the granting of the temporary injunction, and the hearing iteclf was, as appears from the opinion, full and deliberate, and the fact was found that the rates fixed by the commodity act, under the circumstances .existing with

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