The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1897-09-28

So0~~~~~N %@~~~~&S
although state without its consent
cannot be sued by an individual, noI
can court substitute its own discretion
! for that of the executive officers in mat
ters belonging TO their proper jurisdic-
ton, yet when a plain official duty. re-
curing no exercise Of discretion, is 10
| be performed and performance refused
any person who will sustain personal in
| jury by suca refusal may have man.
| damu5 10 compel lis performance, and
when such duty is threatened to be vio-
! lated by some positive official act, any
person who will sustain personal injury
thereby, for which adequate compesa-
ton cannot De had at law, may have an
injunction 10 prevent it. In such cases
the writs of mandamus and injunction
are somewhat correlative 10 each other"
In the case Of Cunningham against the
Macon and Brunswick Railroad COM
pany, reported in the 1O9th L. s., the
court. referring to the case % Board Of
Liquidation VS.. Macom5, supra, uses the
following language:
''In the opinion in that case the Ian
guage used by Mr.. Justice Bradley well
and tersely expresses the rule and its
limitations. and then quotes APPROX
ingly the language used by Justice Brad
ley in that opinion.
In the case Of Allen vs.. the Baltimore
and Ohio Railroad company, il being one
OF the celebrated Virginia coupon cases,
the court again quotes the language Of
the decision in Board of Liquidation VS..
Macomb approvingly, as well as the
other cases OF like character that had
been Heretofore decided by the supreme
court
The case of Haygood VS.. Southern, re-
ported in the 117th L. s., is case that
seems 70 ba relied upon by the defend
ants 10 show that suits of the character
now under consideration is prohibited
by the eleventh amendment to the con-
e.itution Of the United States. The SUI
preme court in that case, on page 90,
uses the following language:
"The principle which governs in the
cases that are cited must be carefully
distinguished from that which rules in
that of Osborne vs. the Bank of the
len vs Baltimore and Ohio Railroad
company, 113 L. s., distinction which
was pointed out in Louisiana vs., Gumel.
1l9 u. S, 436. The rule for such cases
is well stated by Mr.. Justice Bradley. in
Board Of Liquidation VS.. Macomb, and
is as follows Then quoting the Ian
guags used by Justice Bradley in that
case with appreciation. ;
In re Ayers, reported in the 12Sd q.
s., and which Is the case relied upon
with seeming entire confidence by the
counsel for the defendants in this case,
the court uses the following language:
But this IL not intended in any way
to impugn upon the principle which JUS
titles suits against individual defendants
under color Of the authority Of uncon-
stitutional legislation by the state, who
are guilty Of personal trespasses and
wrongs, nor 10 forbid suits against Of
ficers in their official capacity, either TO
arrest or direct their official action by
injunction or mandamus, where such
suits are authorized by law and the act
20 be done or omitted is purely minis
terial. in the performance or commission
Of which the plaintiff has a legal inter-
est. In respect TO the latter class Of
cases we repeat what was said by this
court in Board OF Liquidation VS.. Ma
comb. 90 L. s.. 531.' The quoting the
language of Justice Bradley In that case.
In the case OF Scott VS.. Donnell, re-
ported in 165 L. s, the court uses the
following language:
Where a suit is brought against de-
PENDANTS who claim TO act as officers Of
a state. and under color of an unconsti
tutional statute commit acts of wrong
and injury to the property Of the plain
tiff. 10 recover money or property in
then hands unlawfuily taken by them
in behalf OF the state, or for compensa-
ton for damages, or in a proper case
for an injunction TO prevent such wrong
and injury. or for a mandamus in like
case TO enforce the performance OF a
plain legal duty, purely ministerial, such
case is not within the meaning OF the
eleventh amendment to the constitution
an action against the state"
One of the most authoritative cases
upon this subject is Reagan VS.. Farm
er's Loan and Trust company, 154 L. s,
132, in which that eminent jurist, Justice
Brewer. used the following language:
''NeitheG Will the constitutionality o.
the statute. II that be conceded. avail
70 Dust the federal court OF jurisdiction.
y valid law may be wrongfully admin
isterei by officers of the state, and 50
as 70 make SUCH administration an IL
legal burden and eXacuon upon the liz
divdual. \ tax law, as il leaves the
legislative hands, may not be obnoxious
20 any challenge, and vet the officers
charged with the administration OF that
valid tax law may 50 act under il in the
matter Of assessment or collection as 70
work an Illegal trespsss upon the prop
erty rights Of the individual. They may
20 beyond the powers thereby conferred.
and when they do so the fac; that they
are assuming 10 act under valid law
will not Dust the courts Of jurisdiction
- restrain their excessive and Illegal
acts. Nor can
i, be said in such a case that relief is
obtainable only in the courts OF the
STATE. For i may be laid down az a
general proposition, whenever a cItj-
zen % a state can go in;o the courts OF
state 10 defend his property agains.
the Illegal ac,s OF is officers. a citizens
of another state may invoke the ju-is-
6iction Of the federal courts ID main
tain a like defense. 4 state cannot lie
M ~f-izNr % a-,-1ar