Fitts v. McGhee
An act of the general assembly of Alabama, approved February 9, 1895, prescribed certain maximum rates of toll to be char ed on the bridge across the Tennessee river between the counties of Colbert and Lauderdale, in that state, and known as the 'Florence Bridge.' It also declared that should the owners, lessees, or operators of the bridge, by themselves or agents, demand or receive from any person a higher rate of toll than was prescribed, he or they should forfeit to such person $20 for each offense, to be recoverable before any justice of the peace or notary public and ex officio justice of the peace of either of the counties named.

When that act was passed the cases of Samuel Thomas against Memphis & Charleston Railroad Company and Central Trust Company of New York against Memphis & Charleston Railroad Company were pending in the court below; and on the 14th day of February, 1895, Charles M. McGhee and Henry Fink, receivers of the Memphis & Charleston Railroad in those causes, having first obtained leave to do so, filed a bill in the name of themselves and the railroad company against 'the state of Alabama, William C. Oates, as governor of the state of Alabama, and William C. Fitts, as attorney general of the state of Alabama.'

After setting out their appointment as receivers; the order of the court below authorizing the institution of the present suit; the official character of the several defendants; the ownership by the Memphis & Charleston Railroad Company of the bridge in question; the above act of February 9, 1895; the manner in which that company acquired the right to construct and own the Florence Bridge; the charters of the railroad company granted by Tennessee and Alabama; the purchase in 1850 of the bridge by the railroad company under the charter granted by Alabama, and its management of the bridge under the charter of the Florence Bridge Company,-the plaintiffs averred that the act incorporating the bridge company was a contract between the state and the owners of the bridge; that the rights acquired by that company under its charter passed to the Memphis & Charleston Railroad Company; that the rates of toll fixed by the act were arbitrary, unreasonable, and amounted virtually to the confiscation of the plaintiffs' property; and that the act was in violation of the constitution of the United States, in that such a legislative enactment deprived the owners of the bridge of their property without due process of law, and denied to them the equal protection of the laws.

It was further alleged that the clause in the act imposing a penalty for demanding or receiving higher rates of toll than those prescribed was intended and had the effect to deter the plaintiffs from questioning by legal proceedings the validity of such legislation.

After stating that they were remediless except by a bill in equity, the plaintiffs prayed that 'process of subpoena be issued to and served upon the state of Alabama, the said Wm. C. Oates, as governor of the state of Alabama, and Wm. C. Fitts, as the attorney general of the state of Alabama,' requiring them, 'in behalf of the state,' to answer the bill, and that 'an injunction be granted prohibiting and restraining the said Wm. C. Oates, as governor of the state of Alabama, and the said Wm. C. Fitts, as the attorney general of the state of Alabama, and all persons whomsoever, from instituting any proceeding against the complainants or either of them under the forfeiture clause above set out in the second section of said act of the general assembly of Alabama.'

Subpoenas to appear, answer, or demur to the bill were issued and served upon defendant Oates, as governor, and upon defendant Fitts, as attorney general, of the state. A subpoena was also issued against the state, and served upon the defendant Oates, as governor.

A temporary injunction was issued, restraining and enjoining William C. Oates, as governor of Alabama, and William C. Fitts, as attorney general of the state, and 'all persons whomsoever, from instituting or prosecuting any proceedings' against the plaintiffs, or either of them, under the forfeit re clause contained in the above act of February 9, 1895.

The defendants appeared specially for the purpose of moving, and did move, that the bill be dismissed upon the ground that the suit was one against the state, and prohibited by the constitution of the United States.

The plaintiffs, by leave of the court, amended their bill by adding thereto paragraphs to the effect that frequent and numerous demands had been made by persons on foot, on horseback, and in vehicles of the tollgate keeper at the bridge to pass them over at the rate of toll fixed by the act, and upon the refusal of the tollgate keeper to permit them to pass by the payment of the rates so fixed, and his requiring them to pay the rates of toll fixed by the plaintiffs, they had paid the tolls so required of them under protest, and had threatened to institute suit or suits against the plaintiffs under the penalty clause of the act, and had also threatened to procure proceedings to be instituted in the courts by the governor and attorney general in the name of the state, by a mandamus or otherwise, to compel the plaintiffs to pass people over the bridge at the rates fixed by the act; that those persons had also threatened to procure proceedings to be instituted in the name of the state for a forfeiture of the franchise of the Memphis & Charleston Railroad Company in and to the bridge property because of the failure and refusal to observe and obey the requirements of the act in reference to the rates of toll to be charged over the bridge; and that the persons so protesting and threatening suits were too numerous to be made parties to that suit. Special reference was made to William H. Gilliam, a resident citizen of Colbert county, Ala., as one of the parties or persons who had made threats of such suits and proceedings.

The bill was amended by making Gilliam a party defendant, and by adding, before the prayer for general relief, a prayer 'that an injunction be granted prohibiting and restraining the said William C. Oates, as the governor of the state of Alabama, and the said Wm. C. Fitts, as the attorney general of the state of Alabama, and the said Wm. H. Gilliam, and all persons whomsoever, from instituting or procuring the institution of any proceedings against these complainants, or either of them, by mandamus or otherwise, to compel the observance and obedience of said act in reference to the rate of tolls fixed thereby over the said bridge, and also from instituting or procuring to be instituted any proceeding against these complainants, or either of them, for the forfeiture of the franchise of the Memphis & Charleston Railroad Company in and to the said bridge on account of the refusal to charge the rates of toll over it fixed by said act.'

Subsequently an order was made enjoining and restraining William C. Fitts, as attorney general of the state of Alabama, and William H. Gilliam, and all persons whomsoever, until the further order of the court, from instituting or procuring the institution of any proceeding against the plaintiffs, or either of them, by mandamus or otherwise, to compel the observance and obedience of the act in reference to the rate of tolls fixed thereby over the Florence Bridge, and from instituting, or procuring to be instituted, any proceedings against the plaintiffs, or either of them, for the forfeiture of the franchise of the Memphis & Charleston Railroad Company in and to the bridge on account of the refusal to charge the rates of toll over it fixed by the act.

At a later date in the progress of the cause the plaintiffs, by leave of the court, inserted the following averments in the bill:

'Complainants would further show unto your honors that at the fall term, 1895, of the circuit court of Lauderdale county, Alabama, a large number of indictments-some one hundred in number were found by the grand jury of said court against Thomas Clem and G. W. Brabson, who are the tollgate keepers at the public crossing of said bridge for complainants, t e receivers of the Memphis & Charleston Railroad Company. These indictments were found under section 4151 of the Criminal Code of Alabama, which reads as follows: '4151(4401). Any person, who, being or acting as an officer, agent, servant or employee of any turnpike company, macadamised road company or other incorporated road or bridge company, takes, receives or demands any greater charge or toll for travel or passage over such road or bridge than is authorized by the charter of such company, or, if the charter does not specify the amount of toll to be charged or taken, fixes, prescribes, takes, receives or demands any unreasonable charge or toll, to be determined by the jury, must, on conviction, be fined not more than one hundred dollars.' Complainants allege and show unto your honors that these indictments were improperly and wrongfully found against said tollgate keepers, and they are being improperly prosecuted thereby, because the rate of toll which they have charged is only the rate which has heretofore been fixed by the receivers, which was fixed by them before the passage of said unconstitutional act of the general assembly of Alabama reducing the tolls, and is the same rate of tolls which have been charged for more than twenty years by the Memphis & Charleston Railroad Company for the use by the public of said bridge, and the tolls so charged by said tollgate keepers were authorized by this court, and said indictments have been found and are being prosecuted in violation of the authority of this court and of its orders in the premises, and in violation of the constitutional rights and privileges, under the constitution of the United States, secured to the owners of said bridge in the charging of tolls before crossing it. A. H. Carmichael is the solicitor for said judicial circuit, and as such is engaged in the prosecution of said indictments.'

The plaintiffs asked that Carmichael, as such solicitor, be made a party defendant; that all needful process issue against him; and that a restraining order be issued enjoining him and all other persons from the prosecution of said indictments.

By a supplemental bill it was averred that writs of arrest had been issued upon the above indictments against Clem and Brabson, and placed in the hands of the sheriff, who in execution thereof had arrested or would arrest the said employees of the receivers. It was further alleged that these criminal proceedings were in contempt of the order of the court below appointing the receivers, as well as in violation of the injunction which the court had issued, and which still remained in force, 'enjoining the said governor, attorney general, and all persons whomsoever from instituting any suits or proceedings' under the above act of the state.

After referring to the indictments, and the purpose on the part of the state officers to proceed under them, the plaintiffs prayed that the act of February 9, 1895, be declared repugnant to the constitution of the United States, and invalid, inoperative, null, and void, and that an injunction be granted, 'prohibiting and restraining William C. Oates, as governor of the state of Alabama, William C. Fitts, as attorney general of the state of Alabama, W. H. Gilliam, and A. H. Carmichael, solicitor as aforesaid, and all other persons whomsoever, from instituting any proceeding against these complainants or either of them, their servants or agents, under the forfeiture clause set out in said second section of said act of the general assembly of Alabama'; that said officers, 'and all persons whomsoever, be restrained and enjoined from instituting, or procuring the institution of, any proceeding against these complainants, or either of them, their agents, servants, or employees, by a mandamus or otherwise, to compel the observance and obedience to said act in reference to the rate of tolls fixed thereby over said bridge, and also from instituting, or procuring to be instituted, any proceeding against these complaints, or either of them, for the for eiture of the franchise of the Memphis & Charleston Railroad Company in and to said bridge on account of the refusal to charge the rates of toll over it fixed by the said act'; and that 'the said defendants and said Carmichael, solicitor as aforesaid, and all persons whomsoever, be restrained and enjoined from prosecuting said indictment against the said servants, agents, and employees of the complainants, or from interfering in any way, under and by virtue of the color of said unconstitutional act, with the rights, privileges, and franchises and property of the complainants, their servants or agents, with regard to said bridge.'

At this stage of the proceedings the plaintiffs dismissed the cause so far as the state was made a party defendant, and amended the bill by striking out its name as a defendant, as well as the words 'in behalf of the state.' The cause was then heard upon a motion by the governor and attorney general to dismiss the bill upon the ground that the suit was one against the state, in violation of the constitution of the United States.

Upon the filing of the last amendment to the original bill, it was ordered by the court that A. H. Carmichael, as solicitor for the Eleventh judicial circuit of Alabama, be enjoined and restrained temporarily, and until the further orders of the court, 'from instituting or prosecuting as such solicitor any indictments or criminal proceedings against any one for a violation of the alleged unconstitutional act of the legislature of Alabama described in the bill.'

The next step in the proceedings was the suing out of writs of habeas corpus by Clem and Brabson, who were under arrest on process issued on the above indictments. Each of the petitioners was released upon his own recognizance in the sum of $150, conditioned that he would appear in court from day to day until discharged.

Gilliam filed an answer, insisting upon the validity of the act of the legislature which had been assailed by the bill as unconstitutional.

A decree pro confesso was taken against the governor and attorney general of the state, as well as Carmichael as solicitor aforesaid, all in their respective official capacities. But that decree was set aside, and the cause was heard upon demurrers by the various defendants. The demurrers were overruled, and answers were filed by the governor and attorney general of the state and by the solicitor of the Eleventh judicial circuit. There were also motions to dissolve the injunction granted in the case, upon the ground that there was no equity in the bill, and that the injunctions were in violation of the constitution and statutes of the United States.

The final decree in the case was as follows: 'This cause coming on to be heard, the submission at the former term of the court is hereby set aside, and, it being made to appear to the court that the defendant William C. Oates has ceased to be the governor of the state of Alabama, it is thereupon ordered that the said cause be discontinued as to him, and the cause is now resubmitted at this term of the court for final decree upon the pleadings and testimony offered by the parties, and upon due consideration thereof it is considered by the court that the complainants are entitled to relief. It is thereupon ordered, adjudged, and decreed that the act of the legislature of the state of Alabama referred to and set up in the original bill of complaint in the cause, which act was approved February 9, 1895, and entitled 'An act to fix the maximum of tolls to be charged by the owners, lessees, or operators of the road bridge across the Tennessee river, between the counties of Colbert and Lauderdale, and known as the Florence Bridge, and to fix the penalty for demanding or receiving a higher rate of tolls,' is violative of the constitutional rights of the owners of said bridge, and of the complainants as their representatives, in that it fixes a rate of tolls for said bridge which are not fairly and reasonably compensatory, and it is therefore hereby declared  o be invalid and inoperative, and the injunctions heretofore granted in the cause are hereby made perpetual. It is further ordered, adjudged, and decreed that the defendants pay the costs of this proceeding, for which let execution issue.' W. J. Wood, for appellants.

Milton Humes, for appellees.

Mr. Justice HARLAN, after stating the facts as above reported, delivered the opinion of the court. 

Notes
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