
    No. 780
    OHIO COLLERIES CO. et al v. STUART et al
    District Court, N. D. Ohio, W. D.
    290 Fed. 1005.
    Decided March 8, 1923.
    104. CONSTITUTIONAL LAW.
    (1) Where a statute provides certain penalties for its violation, the repeal or inoperation of the statute does not render th!e question of its constitutionality a moot question — (2) Disclaimer of state officers ta enforce the law does not render question of its constitutionality a moot question — (3) Ohio Emergency Act of 1922 held unconstitutional.
    Attorneys — Tracy, Chapman & Welles, for Ohio Colleries Co. et al; R. R. Zurmehly and Frank E. Calkins, for Stuart et al.
   KILLITS, D. J.

Epitomized Opinion

This was an action for an injunction brought by the Ohio Collieries Company against Stuart, Prosecuting Attorney of Lucas county to restrain him from enforcing the State Emergency Act passed in September, 1922, to relieve the coal situation. This Act provided for the retention within the state of all coal mined therein and its sale for domestic consumption. In holding the law unconstitutional the court held:

1. Though a state statute is about to cease effective operation by its own limitation, the question of its constitutionality is not moot, where it imposes penalties for its violation, the right to enforce which survives its active operation.

2. Disclaimer by officers of a state of intention to enforce a statute is not sufficient to require dismissal of a suit by parties affected to test its constiution-ality.

3. The Emergency Act is unconstitutional as an interference with interstate commerce and in conflict with the federal act of September 22, 1922, providing for interstate distribution of coal.  