The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1897-03-20

Governor Of State, and whether the
writer believes in government by injunc-
ton:
MIR. SMITHS ABLE ARGUMENT.
Gainesville, n. c.. March 16. 1897.
To the Editor: l am requested to re-
spond to the following enquiries:
81 What do you think of the PROPOSE
ton forbidding Governor or Attorney
General to bring suits to regulate cor
porations for fear it will disturb the
market for the sale of bonds controlled
by J. Pierpont Morgan and the Roths-
childs?
80. Do you believe in government by
injunction?'
My opinion of the proposition involved
in the first question is that it is an open
attack upon the sovereignty of the
State. whether the bonds are controlled
by Morgan and the Rothschilds, or any
one else The fact that these foreign
and nonresident capitalists are behind
this extraordinary proceeding may in
tensify the Indignation Of our people. but
does not affect the principle. as their in
divdually is in hiding behind corpora
ton. A foreign corporation has the same
status in court in suit against the State
as a nonresident individual has.
AS | understand the matter. the pur-
pose of the injunction prayed for is to re-
strain the Governor and Attorney-Gen-
eral from bringing suit to test the validity
Of the 99-year lease Of the North Carolina
Railroad made by the directors to the
Southern Railway Company.
Whether the directors ought, under all
the circumstances. to have made the
lease, or whether they had the power to
do so, without proper authority from the
State, seems to be an open question:
and as it is of great Importance to the
people of the State: and as the Executive
officers of the State believe that the
lease ought NOT to have been made and
is illegal, then it would be their duty in
the proper exercise of the functions Of
their office, to institute whatever pro-
ceedings may be necessary to protect the
interests of the State. To restrain them
from doing so would not only appear to
be in violation Of the 18th amendment to
the constitution Of the United States, but
would also most clearly appear to be an
open attack upon the sovereignty of the
State.
Under our system, the Executive is one
of the three coordinate departments OF
the government, and can no more be
legally restrained in the exercise of It's
functions than can the Legislative or
Judicial departments
If we are to have government by in
junction, why was not the Legislature
enjoined by Judicial decree. from en-.
acting any law against the validity of the
lease? To have done 80 would have
been no more an arbitrary stretch Of
Judicial power than was exercised when
the Executive was restrained from
bringing suit to annul the lease.
can injunction will be granted against
public officers only to prevent breach
of trust affecting public franchises OR
SOME ILLEGAL ACT under color or
claim OF right affecting injuriously the
property rights of individuals without
corresponding public benefit, or to pre-
vent multiplicity of suits" Note to Miss.
VS.. johnson, supra. Lawyers Edition Z.
S. Supreme Court Reports, 437.
The cases of Osborne VS.. Bank, 8
Wheat 13S, and Davis vs.. Gray, 16,
Wal. 203 have been cited as authority
for the position that the Governor and
Attorney General might be properly re-
strained. These cases have no applica-
ton here because there was a Federal
question in them both.
In the former, upon this point, G. j.
Marshall in delivering the opinion Of the
court, says: THE question. then, is,
whether the constitution of the United
States has provided tribunal which can
peacably and rightly protect those who
are employed in carrying into execution
the laws Of the Union from the attempts
of a particular State to resist the execu-
| ton of those laws"
/ now quote from the Syllabus of
Davis VS.. Gray, supra, upon the point in
question:
SO. A Circuit Court of the United
States in a proper case in equity may
enioin State officer from executing a
State law in conflict with the constitution
or a statute Of the United States, when
| such execution will violate the rights OIL
the complainant"
So it appears that the ground upon
| which the injunction was granted in
| those cases does not exist in the proceed
ings in which our Governor and Attorney
| General were restrained.
But Notwithstanding there was Fed
eral question involved in Davis vs.. Gray,
| supra, the court was not even then
unanimous in the decision. Z. j. Chase
and Justice Davis dissented, and Justice
| Hunt did not hear the argument and
| did not participate in tie decision.
With reference to this case, Justice
Miller in Cunningham VS.. Macon and
| Brunswick Railroad Company, 100 U.
S., 446, in delivering the opinion of the
court, says: Though there are some ex-
pressions in the opinion which are I'M
favorably criticised in the opinions OF
both the majority and the minority OF
this court in the recent case Of United
States VS.. Lee, 106 u, S., 1856, the ac-
ton OF the court has not yet been over
| ruled"
But it IL clear that in enjoining the
Governor OF the State in the perform
ance Of one Of his Executive functions,
| the case goes to the verge Of sound doc