The Iola register., 1890-07-25
ANOTHER DECISION.
Judge Philips Decides an Original
Package Case.
Further Proceedings Against Package
Agents stopped-Judgment OF the
Supreme Court Law Until
Coagress Acts.

TopEKA, Kan. July 1.-Two decis-
icns by Judge Philips, of the United
States Federal Court of Missouri, in the
original psckage cases were filed at
three o'clock yesterday afternoon.
The first opinion. covering twehfy-
i've pages of type writing, is in the
cases of Bernard Techmzn against r
B. Wesch, county attorney, and Ell
Landis Yount agsisst the same Tuca-
man Is the sgest of the Anheuser-
Busch Brewing Association of ST. Louis,
No, and YoUnt Is the agent of the Jo-
seph Schlitz Brewing Association Of
Milwaukee. Wis. Tie facts which led
te'this litigation are briefly thess; The
eeewing companies shipped large guam
Sties of beer to their agents st To-
reka, who were also ncn-residents
sf the S+aso. Fer selling this beer
tin the original packages N which
they were shipped the agents were ar
rested under criminal prosecutions for
violating she .lecal Prohibitory law OF
the STATE. At tle same tme'she county
attorney filed petitions seainst them in
the loSSi diSsrict court TO have their
places of Business dectgred nuisance
and the agetys enjoincd 'frsm further
using the honses. On these petitions
the Jacge eftae court made an order es
injusctioR, W ithout any bond OF inden,-
nity deing required st tf-e county a.
torEeyor tba State aUa without any 40
ticeJo the agents or the SJrewing oem-
pazies. Hchman aE5 Y5z Mt thereuson
Applied ootne United States Circuit Court
fer release under she 's-rit of haSeas
cs~sss ard. on hearing before Aldge
Caldwell, United States Circuit Judge,
they were discharged sSrom arreet on
the ground that Urder the reces,t de-
Sisien oof the SgH-ersp Court IN the
goyva@ease the brewing companies had
Srrfghs TO import iEge- into the State
=1ssd the agents had the right to scll the
SSame N the original packages in which
-thsy-came and that q agents had not
-otherwise sold beer. The county attor-
>ney threatening 10 ecntinue TO 80 prose-
~cute the agents an to have shem ar
-rested in the State court fer violating
the order of in ;anstion therein granted
by resuming eEsfness as heretofore
they filed their sasill in equaty in the
United States 'Ci-ouit Court charging
that the purpcse"of Welch svas to so
T, harass and sEnoJ the agents by having
them arrested fsr contempt ias to pre-
vent them from pursuing eteir lawful
business and destroy the sane and ask
ing to have hinHen Joined tke-efrom.
The AttorRey<General of TIE State ap-
peared and demurred to this bill Judge
Philips by o-de- of the circuit Judge
sat with JudgeESoster in tae hearing of
these cases &H6'wrotc the spinion
The first question diseased is as ez
whether or n61nhis is s0is against the
State. and as SS1ch intend ictei by the
Eleventh amendment OF the Federal
Constitution ~sh.ch declares that the
State can ne1sSs sued By 3 private citi
zen without < consent The opinion
discusses s515s earlier decisions of the
supreme Cours which he6i that in de-
termininC Sko'<he questieR of jurisdie-
tion under tie Eleventh amendment
they should lcok to the record alone,
and it vas II party Hszled in the rec
ord and uoe zIe party who might be
back of the ,SsSe. The u ore recent rul-
ings of the >sapreme Court, however
are that W51eze the others sued, s8ch
as the GoSerRcS and ottS- State officers
have no rexli1 terest in sle controversy,
and the StsSe alone is tS be affected by
the Judgment. and the De cree would be
imperative III less agaisEt the State, it
may be desnsa' as a proceeding against
the State III case ofsk Ters, Attorney
General o. VGgInia, IL q. s. As, is
then reviewer, in whfuL although the
suit was SSaiast the As.orney-GeRscaI
and other 0c6oe-s of the State, vet, as
the real pSrpsss was to eaforce q right
founded in sc,nSract, :orR,Iich the SSzte
alone was q e=arty. and any Judgment
rendered o5ElS be effectuaI only as
against the SEte for bre1 "a of contract
which the S&5e alone could perform,
the suit is sill in substance though zSt
n form sStIEg gainst the State
The opjRiGzgaen proceSds to disczss
tie true grozIE5 of diS:ine1 on. so far as
tie protectiaE ST the Federal Constit-
"a n is concs ned. betweez the contzAce
rights of the com plainsslt and othe-
rights of pers0L and proy9ty and shoEE
that broad EiI-e of demxrca ton sep%
arlG others aCais Z the osfcers in name
but against t5e State in eject. in whick
the decree rsFAired BY Affirmative of (
ficiSl action aE the part Of defend 7
ants the performances of tAs obligation !
whiSI belongs teesae State il 4 Is political I
cspadty, and these in whisa suits in /,
equiS- are maintained agaiast defend /
antss ho while o2aizaing TO scs as officers /!
of TIE State, rSa-ate and Ayade the |
personal rights u the citissn under |
color,e- authority zzhich in eject is un- /
constitutional anE hoid- In &s latter
case the officer caG MOT shield himself 1
from iEEivfdnal resi- possibility or the I
restraints 2 powers @t the court bT taking
shelte- kshind tie S5aate law in conflict |
with the-sgpreme ls&,ef the la,G
Nothing. the opiRiaZ declares can be
interpoSen between sch a defsldant
and the ,o5liyation kS owes to ths Con-
sututioE ant laws of zLe United S.-tes.
which can shield hjR from thei. Just
authority stke extent and limits of
which the rGRvernmerr of the United
States, By means OF its lSdiciary. inser-
pRets and appEes for its4,f The State
has no power - impart 20 him imm.a-
mtg from responsibility "a the supreme I
authority Gf the United States. TIE
State of Kansas is not aarty to this
recosd and the iniunctioE. if granted.
operates not upon the State Is such, but
upon WEIGH u persoHam. Nc obligation;
IN Law or morals rests upon she county
to do that which woz,d be yio-
iatiye,ef the supreme law of the land, and
20 right of the Stase can be invaded