The Globe-republican., 1890-07-23
ENJOINED.
Further Proceedings Against
Package Agents Stopped.
Question of Comfy and an Argument of
observation-disclosures of the SUI
preme Court Stands Until
Congress Acts.

TOPEKA, Kan, July 1.-Two decis-
ions by Judge Philips, Of the United
States Federal Court of Missouri, in the
original package cases were filed at
three o'clock yesterday afternoon
The first opinion, covering twenty
five pages of type writing, is in the
cases of Bernard Tuchman against r
B. Welch, county attorney, and Of
Lands Yount against the same. Tuch-
man is the agent of the Anheuser-
Busch Brewing Association of St Louis,
Mo-, and Yount is the agent of the Jo-
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 beer 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 a 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 the brewing COM
panies. Tuchman and Yount thereupon
applied to the United States Circuit Court
for 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
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- Joined therefrom.
The Acknowledgement of the State ap-
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 interdicteG 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 req
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
as the Governor and other State officers,
have no real interest in tie 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 proceeding against
the State. The case of Ayers, Attorney
General Of Virginia, 1913 U. s. AS, is
then reviewed, in which although the
suit was against the Attorney-General
and other officers Of the State, yet, as
the real purpose was to enforce a right
founded in contract, TO which the State
alone was party, and any Judgment
rendered could be effectuaI 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 a suit against the State.
The opinion then proceeds TO discuss
the true ground Of distinction, so far as
the protection of the Federal Constitu-
ton is concerned, between the contract
rights of the complainant and other
rights of person and property and shows
that a broad line of demarcation 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 of 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, violate and invade the
personal rights of the citizen under
color of authority which in effect is IN
constitutional and void. In the latter
case the officer can not shield himself
from individual responsibility or the
restraining power of the court by taking
shelter behind the State law in conflict
With the supreme law of the land.
Nothing, the opinion declares. can be
interposed between such a 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