The times. [volume] (Richmond, Va.) 1890-1903, 1895-04-24
ruy sourn CAROLINA CASE.

The Injunction which United States
Circuit Judge Goff has awarded against
the officers of the State Of South caro-
lima. from Governor down, against any
movement on their part 10 execute the
act of the South Carolina Legislature
providing for the election of Constr
tutionaI Convention. is going to raise
some questions that Will give great
deal OF trouble.
The eleventh amendment to the Const-
tuition OF the United States forpids
r-ntted states Court to entertain jurisdic-
ton Of a suit against one of the states
of this Union. This amendment nrsl
came before the supreme Court OF inc
United states for judicial construction
some sixty or seventy years ago. in the
celebrated case OF Osborn V. the Bank Oh
the United States. In that case the
state of Ohio had enacted statutes which
aimed at driving the Bank Of the United
States out OF ohio, in order that inc
banks of that State might have a mo-
nopoly of its banking. The bank OF the
United states applied to the United states
Court for an injunction 10 restrain inc
officers of the state Of Ohio from put
ting the act into force and effect ana
they replied that they were, in substance
and effect, the state of Ohio, and that the
suit was therefore SUIT against the
state of Ohio, and barred by the eleventh
amendment The Supreme Court of the
United States held, in a very famous
opinion, delivered by Chief Justice Mar
shall, that in order to suit being one
AGAINST state, the state must either
be a party to the suit. named as such
on the record, or an indispensable party
to it,. IL. therefore, held that as the
act of the Legislature of Ohio was III
violation of the Constitution OF inc
United States, the officers OF the s'a'e
could be enjo.ned.
This rule was followed by that Court
in the case of Davis V. Gray, decided
few wears after the war, in which the
Governor of the state of Texas was en-
TONED from executing an act or the
Texas Legislature which, in effect, robbed
a railroad company of public land that
had been granted to At.
In the subsequent case Of Allen V. the
Y and O. railroad, the United States
Court enjoined the Auditor OF the STATE
Of virginia from executing a Jaw OF the
state of Virginia which comnanded him
to refuse her coupons in payment oil TAX
es. and to levy for the taxes. and collect
them. IN spite of The tender of the cou-
! mons. In the Supreme Court of the
United States 1t was pleaded for the Au-
aitor that he was practically the state oil
Virginia, and that the suit was, there
fore. one against the State, and barred
by the eleventh amendment. But the
court denied the claim, and adhered to
the rule laid down in Osborn V. the Bani
and Davis V. Gray.
subsequently, the Attorney-General OF
Virginia was committed to jail for con
te,npt of court committed in dissolvinl
an iniunctive order of the United States
| Court which forbade him to enforce
law of the state of Virginia. claimed &c
be in violation of the Constitution OF th'
United States, and when his cast
case came before the Supreme Court OF Tn
limited states, that tribunal modified tn
rule that had been established IN Osborn
y. the Bank. and held that the suit II
tits last case was one against the STATE
of Virginia. and therefore barred b.
the eleventh amendment. In this last cas-
eek parte Ayers, the Court said the
rule thereafter would turn upon the
question whether in given case, thu
state was really the party substantial
" interested, and II she were, that TN
su,t would have to be considered as ont
against her. whether she were name'
I'm the record or not, or whether sh
was an indispensable party or not. l
has always been thought by the bes
informed that this decision was littl
indefinite and political. The rule in Os
horn v. the Bank was plain and intel
ueible one. and all men knew under
exactly when a suit was and when
was not one against a state. But IL
man can say when suit is one agains
state under The new rule.
IL will undoubtedly be claimed that tn
South Carolina suit is one against tn
State. but what the Supreme Court vii
hold upon that question, under its ne'
rule. il is not given to mortal man I
forcknow.