Barton County democrat. [volume] (Great Bend, Kan.) 1885-1915, 1890-07-24
ANOTHER DECISION.
Judge Philips Decides an Original
Package Case.
Further Proceedings Against Package
Agents stopped-JudGment 81 the
Supreme Court Law Until
Congress Acts. Q

ions by Judge Philips, of the United
States Federal Court of Mssouri9 in the
original package cases were filed At;
three o'clock yesterday afternoon.
The first opinion, Covering twenty
five pages of type writingO is in the
cases of Bernard Tuchman against 4
B. WEIGH, county attorney, and Of
lands Yount against the same. Taeh-
man is the agent of the AnheNaeP-
Busch Brewing Association of St Loaiss
Mo-, and Yount is the agent of the Jor
seph Schlitz Brewing Association Of
Milwaukee, Wis. The facts which 3e2
to this litigation are briefly these. TIE
brewing companies shipped large guam
titles of beer to their agents a. 70
peka, who were also non-residents
of the State. For selling this bees
in the original packages in aAicA
they were shipped the agents ~%ere a.
rested under criminal rosecu&ion@ Coz
violating the local ProhibitoaN laH of
the State. At the same tinse the coaantg
attorney filed petitions against tse8n in
the local district court to have their
places Of business declared q 4risanee
and the agents aenjoined from fuFther
using the houses. On these pesisions
the Judge of the court made all a1Et2eP OF
injunction, without any bond 90 indem-
nifty being required of tl3e cs9asy at
torney or the state and withda1S say no.
tice to the agents or the brewSDg c0Ins
panies. Tuchman and Youn5 theReap0n
applied to the United Stsstes Circuit Court
for release under the writ os babeas
corpus and, on hearing before Judge
Caldwell, United Statoss Circuits Judge.
they were discharged from Arzese ON
the ground that under the eecent De-
cision of the Supreme SQUIRT il the
Iowa case the brewing com paRiea bad
a right to port beer into she State
and the agen IS had the right "a sell eke
same in tbs original packages i,s wAich
they came and that the agents had not
otherwise sold beer. The counsy aft0r.
ney threatening to continue to SO prose-
cute the agents and to have thsm ar
rested in the State court fog Nialasing
the order@f in junction thereisl granted
by resuming business as theee E0fore
after their discharge by Judge Caldwell.
they filed their bill in equity In tine
United States Circoit Court ekafgiug'
that the purpose of Welcs cas- to 50
harass and annoy the agents ny having
them arrested for contempt a. to pse-
business and destroy the saPss ana ass
ing to have him enjoined 4heretrom.
The Acknowledgement of the State ap-
peared and demurred to this bill. Judge
Philips by order of the CiFcuit Judge
sat with Judge Foster in the heati&4e Of
these cases and wrote the Opiniois.
The first Question discussed is as TO
whether or not this is a suit agaisst tho
State, and as such interdicte6 by TIE
Eleventh amendment of the Federal
Constitution, VIII Oh declares thaS t4Ae
State can not be sued by Erivate citi-
zen without consent. The 'opihioR
discusses the earlier decisions of the
Supreme Court which held that in de-
termining the the question of jusisdic-
ton under the Eleventh amendment
they should look to the record alone,
and it was the party named in the rec
osd and aot the party who might be
back of the case. The more recent rul-
ings of the Supreme Court however,
are that where the officers sued, such
as the Governor and other State officers,
have no real interest in the controversy,
and the State alone is to be affected by
the Judgment, and the decree would be
imperative unless against the State, it
may be deemed as I proceeding against
the State. The case of Ayers Attorney
General of Virginia, G23 U. S. 443, is
then reviewed, in which although the
suit was against the Attorney General
and other officers of the State, vet, as
the real purpose was to enforce right
founded in contract, to which the State
alone was "a party. and any judgment
rendered could be effectual only as
against the State for breach of contract
which, the State alone could perform,
the suit is still in substance though not
in form suit against the State.
The6opinion then proceeds to discuss
the true ground OF distinction, so far as
the protection of the Federal Constitu-
ton is concerned, between the con tract
rights of the complainant and other
rights of person and property and shows
that broad line of demafcation sepa-
rates from such cases as that of Ayres
and others against the officers in name
but against the State in effect, in which
the decree required by affirmative of
fetal action on the part Rof defend
ants the performance of the obligation
which. belongs to the State in its political
capacity, and those in which suits IN
equity are maintained against defend
ants who while claiming to act as officers
of the State, viol ate and invade the
personal rights of the citizen under
color of authority which in effect is uns
constitutional and void. In the latter
case the officer can not shield himself
from individual RESPONSE biIity or the
restraining power OF the court by taking
shelter behind the State law in conflict
with the supreme law of the land.
Nothing, toe opinion declares. can be
interposed between such defendant
and the obligation he owes to the Con-
stitution and laws of the United States,
which can shield him from their just
authority. the extent and limits of
which the Government of the United
States, by means of its judiciary, inter-
prets and applies for itself The State
has no power to impart to hinf immu-
nifty from responsibility to the supreme
authority of the United States The
State Of Kansas is not party to this
record and the injunction, if granted,
operates not upon the State as such, but.
upon WEIGH TN personam. No obligation
in law or morals rests upon the county
attorney to do that which would be vio-
iative of the supreme law of the land, and
no right of the State can be invaded
" mi fho nfxyo