Staunton spectator. [volume] (Staunton, Va.) 1849-1896, 1885-03-04
The Norfolk Decision Again.

ted States Circuit Court at Norfolk, Judge
Bond stated orally the views of the court,
leaving Judge Hughes.to reduce them to
writing. The deliberately prepared opinion
has now been published. We have careful
ly perussd and pondered it, and find no rea-
son to modify our criticism as heretofore
expressed. 1t seemsItoi us to be not only
unsound, but replete with inconsistencies
and sophistries which it does not require
Philadelphia lawyer to detect. The court
mainfestly strains and struggles to reach a
foregone conclusion.
There were really but two!points discuss
ed and passed upon by the court These
were, first, whether as a Federal Court it
had jurisdiction of the suit; and, second,
whether assuming that it had jurisdiction
of the case) the Court could grant the
remedy, by way of injunction as asked by
the plaintiff,
AS to the first question, the jurisdiction
of the court, it resolved itself into the single
inquiry whether this suit brought by Par
sons, citizen of New York, was against
citizens of Virginia, or ngainst the State of
Virginia. A citizen of one State may
sue a citizen of another State in the Fed
eral Courts; but no citizen can sue a
State in any court unless by the express
consent of the State. The question, then,
was whether the defendants, the Auditor
and revenue officers, could be sued as in
divlduals or whether suit against them,
as officers of the State, was not substantial
ly suit against the State itself. Judges
Bond and Hughes held that it was not a
suit against the State. In giving Ills rea-
sons for this Judge Hughes labors and pants
most painfully. You can see the sweat in
great beads on his judicial brow. And no
wonder; for eighteen months ago, in the
case of the Baltimore and Ohio Railroad
Company against Allen, Auditor, he decid-
ed this identical point differently, and re-
fused the application for an Injunction
Judge Bond afterwards granted the injunc-
ton, and the case is now pending, on ap-
peal, in the Supreme Court of the United
States, and is set for hearing in March next.
Judge Hughes attempts, Intellectually we
think, to show that the holding of the Uni
ted States Supreme Court in a recent case
Cunningham against the Macon and Bruins
wick Railroad Company settles the law in
favor of Judge Bond, and adversely to his
view, in the case against Allen, Auditor
But so far from this being the fact, our
reading of the opinion of the Court in this
Cunningham case leads us to the contrary
conclusion. The Court there say that mas
much as Georgia was practically the owner
of the Macon and Brunswick Railroad Com
pany, it was substantially suit against the
State of Georgia, and that therefore the
Federal Court had no jurisdiction. Not
only so, but in that very case the Court, in
rendering it's opinion, cites with approba
ton the opinion of the Federal Court in a
Louisiana case in which it was held:
''That as the State could not be sued or
made party to such proceeding, there was
no jurisdiction in the Circuit Court cit her
by mandamus at law, or by decree in
Chancery, to take charge of the Treasury
of the State, and, Selling the hands of the
Auditor and Treasurer, to make distribution
of the funds found in the Treasury in the
manner which the court may think just"
Now, does not the Federal Court in this
Norfolk case ''seize the hands of the Audi
tor and Treasurer" of the State of Virginia?
1t is our belief that if this Norfolk case,
or any other similar case, is taken to the
Supreme Court, the decision of Bond and
Hughes will be reversed. The United States
Supreme Court has shown a disposition, of
recent years, to recede from the extreme
length to which it went during the war, and
some years afterwards, and to return to
sound views touching the limitations of the
Constitution and the reserved rights of the
States.
Upon the second point, as to whether the
Court could grant the remedy asked for,
even if it assumed jurisdiction of the case,
Judge Hughes is more sophistical, if that
were possible, than upon the first point
The thing which the plaintiff wanted was
compulsory writ to coerce the Auditor and
tuO OdA-COilCOuOA w 1CCltC LIE COAPoAAS'
The writ usual in such cases is the maanda-
mus. But the mandamus is a common l0ao
aerit, and the Revised Statutes of the
United states (section 914) have declared
that in common lao cases the practice in
the courts of the United States shall con-
form to that employed in the States, re-
spectively, in which the United States
Courts are held SO that the Virginia Stat
ute which takes away nsandamus in coupon
cases in the State Courts, necessarily takes
it away in coupon cases in the United States
Courts held in Virginia. It was necessary
therefore, Ito use common phrase) to
whip the devil around the stump. And SO
Judges Bond and Hughes held that they
could grant relief on the equity side of the
Court, and award an injunction. But an
injunction usually tor6ids the doing Of a