The Indianapolis journal., 1897-04-17

/ DTtStIIFU UINIUN
the case up. considering part of ii and
sending part TO be tried elsewhere.
ANSWER TO ATTORNEY GENERAL.
want to speak for moment upon the
objection presented by the attorney gen.
eral TO the jurisdiction OF this court over
the prosecuting attorney for the Nineteenth
judicial district OF Indiana. the attorney
general says that the prosecuting attorney
Is judicial officer. l deny it, l deny that
any judicial function is devolved upon him.
l deny that it would be competent TO con-
fer judicial powers upon him. Our Con-
stitution declares that the judicial power of
the State shall be vested in a Supreme
court and in circuit courts. and in such in
ferior courts the Legislature may con-
sutute The judicial power is there lodged
we nave provision of our Constitution
that judicial officer shall not be a candi-
Gate Tor any other office during the time
Ior which he has been elected to serve.
Does the attorney general suppose that
tnat would apply TO a prosecuting attor-
neyI He exercises no judicial functions.
dr,,,Is aIc Is pr9xlded for in the act which is
yers provided for there. So the clerk of
the supreme Court Is provided for and so
pther ofhcers of that class are constituted
Dy TINS provision entitled The Judiciary"
put NOBODY ever thought before that these
were judicial officers. Ii is not a judicial
act That is sought TO be restrained. Ii is an
the bringing Of suit is no more a judicial
dSI "neh the prosecutor brings il than
t;an Tnen III bring it. In considering this ques-
state think we would do well to inquire
little into the origin Of the eleventh
~ 9ienrhneht I'm 10 the Constitution. What was
Inc case or Chisholm VS.. Georgia.
very noted case and one in which principles
were enunciated that have been of ines
Siinndoie Falue-was direct suit by CHS
lOlln against the State Of Georgia to col
rect money on a claim which he held
against the State. and the opinion of the
UU,uItLpy chief Justice Jay. if / am not
rIlSttheIl-WaS that under the Constitution
persons having money claims against the
state might sue them i'm the courts of the
~ ohited states. The result was a great deal
~ u popular excitement and clamor Ii was
tnought to derogate from the dignity of The
STATES ana from their Just powers thar
thHiT th.iEeHs oI other states could sue them OF,
Is DOhuS-On express contracts or inn
pieu contracts i'm the courts of
tin r1 cnlted states and enforce their coIlec-
Statas snr4Vugh VI The The marshals of the United
Wilch the decisions have run. In ali cases
repmdiaffoV s IN she virginia case where there was a
rePuulttlon or the States obligation to
pay certain bonds, where the effect of tho
iiIiIgatlon, though brought against individ-
coIIc.ot;nls Mas 10 influence the matter of the
Dring the Stately crippling her machinery
IN some way-into a position where the
irs T1gnts or creditor of the State would be
improved. and her capacities of defense
and her control over the subject would di
minish-following naturally upon the his
.p .UIicel Iacts 10 which have alluded as to
Ihe origin OF the eleventh amendment-the
supreme Court of the United States has
neld that such suits, whatever the form
might be, were suits against a State and
could not be maintained
STATE OFFICERS DEFENDANTS.
On the other hand where there has
been no question of contract with the State.
where there has been no judgment to be
rendered against the State either directly
or indirectly, where its pecuniary interests
are not TO be affected at ALL where it Is
simply question of restraining the action
or some one of its officers, a different rule
has been applied. i call attention to the
remover case, in the 10th United States
Reports. This is an opinion by Justice La
mar; 1t is later than the Aver case upon
which Mr.. ketcham so much relied. JUS
tice Lamar undertakes to classify these
classes The first class is where the suit
is brought against the officers of the State
as representing the States action and liza
bllity thus making il, though not party
to the record. tk2 real party against which
Judgment Will so operate as to compel IL
TO specifically perform its contract. Under
that classification he puts the Aver case.
The other class is where a suit is brought
against defendants who. claiming 10 act as
officers of the State; and under the color of
of wrong and injury TO the rights and
property of the plaintiff. acquired under a
whether brought to recover money or prop
erty in the hands of such defendants. un-
lawfully taken by them in behalf of the
State. or for compensation in damages, or
in proper case, where the remedy at law
is inadequate for an injunction to prevent
such wrong. or for a mandamus TO en-
force the performance of a duty is not
within the meaning of the eleventh amend
ment. In the case of Osborn VS.. the Bank
OF the United States one of the leading in
Injunction
be issued TO restrain person who was
State officer from performing an official
act enioned by the statutes of the State
The question presented by that inquiry was
discussed in a mastery manner. on the as
sumption that the statute OF the State was
unconstitutional. and ii was held that i'm
such a case an injunction would lie. In
all these cases where state officers have
What the law required them to
do 1t was not that they were
sxeeedng the her. law Sct,Dr it newaSo not 9t
fair provisions: but that they were doing
the very thing the State law commanded
them TO do: and that they were restrained
from doing it upon the ground that the,
mandate of the State to do it was man
date at all, because it was unconstitutional.
Justice Lamar says:
''The case may then be said to fully es-
tablish the doctrine that an officer OF
State may be enjoned from executing a
statute of the State which is IL conflict
with the Constitution of the United States,
when such execution would violate and de-
stroy the rights and privileges of the COM
plainants." j pause to say that II does not
matter whether the uncOnstitutionallty Is
by reason of provisions of the United states
Constitution or the State Constitution. If
the court has jurisdiction and must decide
the question il is simply question whether
the authority under which the officer as
sumes TO act is a lawful authority. i do
not need / think. to read more from that
case / want now, to call attention to the
latest expression, so far as i know, OF the
Supreme Court upon this question. The
case cited yesterday, the Reagan case. the
Texas case-I might stop to say that II has
a bearing also upon the question of Juris-
diction and the common interests of par
ties, because there the railroad company,
upon which fare rate had been imposed
by a board of railroad commissioners, was
made a defendant. and not only so. but
il did what the Citizens Street-railroad
Company might do in this case-come in by
a cross bill and ask the same relief.
The Court-The jurisdiction in that
rested upon federal question. did ii not?
DISCUSSING THE TEXAS CASE.
General Harrson-There was. of course,
q federal question; hut We have such
question here, even if the precedent was
not of value upon that consideration. L do
not know whether my friend. Mr. Ketcham,
yesterday assumed that the attorney gen
efal of Texas was a member of this board
Of Railroad Commissioners. | think he did.
If he did, it was a mistake. The attorney
general was not a member of the board.
had nothing to do with the case under the
law. except that this special law put upon
him the duty of bringing certain suits to
enforce certain penalties. l think that an
assault upon the attorney general. the
drawing OF him Ito the feet of the United