Baxter Springs news. [volume] (Baxter Springs, Kan.) 1882-1919, 1890-07-26
ANOTHER DECISION.
Judge Philips Decides an Original
Package Case.
Furthef Proceedings Against Package
Agents stopped-Judgment OF the
Supreme Court Law Until
Congress Acts.

TOPEKA, Kan. July 1.-Two decis
ions by Judge Philips, CT the United
States Federal Court of Missouri, in the
original package cases were filed al
three o'clock yesterday afternoon
The first opinion, covering twenty.
i've pages OF type writing, is in the
cases OF Bernard Tuchman against r
B. WEIGH, county attorney and 81
lands Yount against the same. Tuch.
man is tho agent OF the Anheuser.
busch Brewing Association OF st. Louis,
Mo-, and Yount is the agent OF the 10.
seph Schlitz Brewing Association OF
Milwaukee, Wis. The facts which led
to this litigation are briefly these: The
brewing companies shipped large guam
titles OF boer to their agents at To-
peka, who were also non-residents
OF the State. For selling this beer
in the original packages in which
they were shipped the agents were ar
rested under criminal prosecutions for
violating the local Prohibitory law OF
the State. At the same time the county
attorney filed petitions against them in
the local district court to have their
places of business declared nuisance
and the agents enjoined from further
using the houses. On these petitions
the judge Of the court made an order of
injunction, without any bond OF indem-
nifty being required Of the county at
torney or the State and without any no
tice to the agents or tho brewing COM
panies. Tuchman and Yount thereupon
applied to the United States Circuit Court
Tor release under the writ OF habeas
corpus and. on hearing before Judge
Caldwell, United States Circuit Judge,
they were discharged from arrest on
the ground that under the recent de-
cision of the Supreme Court in the
Iowa case the brewing companies had
a right to import beer into the State
and the agents had the right to sell the
same in the original packages in which
they came and that the agents had not
otherwise sold beer. The county attor-
ney threatening to continue to so prose-
cute the agents and to have them ar
rested in the State court for violating
the order Of injunction therein granted
by resuming business as heretofore
after their discharge by Judge Caldwell,
they filed their bill in equity in the
United States Circuit Court, charging
that the purpose OF WEIGH was to so
harass and annoy the agents by having
them arrested for contempt as to pre-
vent them from pursuing their lawful
business and destroy the same and ask
ing to have him en- oined therefrom.
The Attorney-General of the State APP
peared and demurred to this bill. Judge
Philips by order OF the Circuit Judge
sat with Judge Foster in the hearing Of
these cases and wrote the opinion.
The first question discussed is as to
whether or not this is suit against the
State, and as such interdicted by the |
Eleventh amendment of the Federal |
Constitution, which declares that the
State can not be sued by private citi-
zen without consent The opinion
discusses the earlier decisions of the
Supreme Court which held that in de-
termining the the question of jurisdic-
ton under the Eleventh amendment
they should look to the record alone.
and it was the party named in the rec
ord and not 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
Rs 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
unless against the State, it
may be deemed as proceeding against
the State. The case of Ayers, Attorney
General OF Virginia, 123 U. s. 443, is
hen reviewed, in which although the
'uit was against the Attorney General
Ind other officers of the State, yet, as ,,
he real purpose was to enforce q right
ounded in contract, to which the State
lone was a party, and any Judgment
endered could be effectual only rs i,
gainst the State for breach of contract :
which the State alone could perform, )
he suit is still in substance though not I
n form suit against the State. =
The opinion then proceeds to discuss
he true ground of distinct on, so far as =
he protection of the Federal Constitu-
ion is concerned, between the contract .
.ghts Of the complainant and other \
ights of person and property and shows :
hat broad line of demarcation sepa- :,
ates from such cases as that OF Ayres :,
nd others against the officers in name .
ut against the State in effect in which ;,
he decree required by affirmative Of Il
cial action on the part of defend Il
nts the performance Of the obligation :,
hich belongs to the State in its political ;,
spacity. and those in which suits in :,
luity are maintained against defend y,
ats who while claiming TO act as officers a,
the State, violate and invade the -
,raonal riphta of the citizan updar "