Document Type

Response or Comment

Publication Date

1921

Abstract

It has often been held that a party may obtain a judicial determination of his rights in respect to legislation alleged to be invalid, by means of an application to a court of equity for an injunction restraining the enforcement of the statute. Ex parte Young (1907) 209 U. S. 123, is the leading case of this type. There, a railroad rate statute was involved, which required compliance by all railroad companies in the state, under the threat of heavy penalties. The railroad actually violated the provisions of the statute after an injunction had been obtained by a stockholder restraining the company from complying, and prosecution for the violation was prevented by an injunction against the attorney general. The latter injunction, it must be noted, was an effective and appropriate order, because acts of violation were in fact taking place which would otherwise have called forth action by the attorney general. The injunction could not, therefore, be looked upon as anything but a genuinely operative remedy. Truax v. Raich (1915) 239 U. S. 33, Michigan Salt Works v. Baird (1913) 173 Mich. 655, and other like cases, were all similar in this respect. In each, the act for which the prosecution was feared had been committed, and the injunction was employed as a protection against a presently possible prosecution.


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