Omaha daily bee., 1899-05-30

interfere by Injunction with the parties TO
that suit. Such interference would be both
against public policy and against the comity
which ~ Is essential should exist between
the coordinate courts OF this land Let It
be borne in mind that the Douglas county
district court possesses just as ample powers
to relieve from the injustice complained Of
as does this court II the Injunction asked
can be granted. then there Is logically no
reason why some other court, or indeed, the
district court OF Douglas county could not
in turn enjoin the plaintiffs from prosecute
ing this action, providing the jurisdiction
could be obtained over them. Conflicts OF
jurisdiction OF this character would neces-
sarily result in lessening the respect OF the
public for the courts, nor do former ad-
publications sanction such procedure. The
law as announced by the better considered
cases. gives to the court first acquiring
jurisdiction the power to proceed TO maj
determination, and injunctions are ordi-
narily granted onry to protect the jurisdic-
tion of the court which has secured such
priority. Our own supreme court has ac-
cepted this view. From the syllabus of the
case Of Prugh against the Portsmouth Saw
ings bank, As Neb, Ala are taken the fol-
lowing paragraphs:
Courts, Jurisdiction, 1njunction-After
federal court has acquired jurisdiction of
the parties and subject matter OF contro-
versy a state court may not by injunction
or otherwise interfere with the exercise OF
such Jurisdiction"
Accordingly, as a general rule, state
court will not enjoin parties to an action
already in progress in federal court from
further proceeding therein
THE exceptions to this rule are based
upon the doctrine that in courts OF concur
rent jurisdiction that which first has ob-
tanned Jurisdiction of the parties and sub
ject matter retains 1t for all purposes, and
by all necessary process WIFI protect itself
in the exercise of that jurisdiction.
II is true that in that case the dispute
over the jurisdiction arose between the
state and federal courts. While there is
sentiment that the state courts cannot in
terfere with matters pending in the federal
court, there are no reasons for the sent-
ment except such as apply with equal force
to conflicts between different state courts.
That was a case which appealed most
strongly to the equitable powers of the
court. 1t was sought to enjoin the United
States marshal from selling homestead
and the court comedies in the opinion that
| the sale should be restrained, were 1t not
| that the state courts could not interfere 1t
| is expressly said that the owner of the
| homestead must go to the federal court for
| his relief.
There are two chief reasons why form
| erly, it was necessary for courts of chancery
| to interfere by injunction with the litigants
| in common law courts, to-wit The latter
| had no equitable powers, nor were there
| PROVISIONS lot DTlHSluS III HeM pai'ieS
| which were frequently necessary in order
| to make a complete defense. These reasons,
| however, do not exist in this state. Under
| our code all distinction between actions at
| law and suits in equity are abolished. This
| permits not only ancillary proceedings be-
| fore the same court in order to OBTAIN
equitable relief, but also permits the setting
up of an equitable defense in that very suit
| There are also provisions for the bringing
in of additional parties where these are
| made necessary by the answer OF the DEFEND
| ant.
There is another reason, also jurisdic-
tional why this injunction should not be
granted The action runs nominally against
| the governor and attorney general lndlVld-
ually, but it is in reality against the state.
! The state being sovereign cannot be sued
except by legislative consent. The adju-
dicated cases do not clearly draw the line
of demarkation between what are suits
against public officers, individually, and what
are in reality suits against the state: Ihe
| attorney general has cited the case of Fits
| against McGhee, which was decided by the
| supreme court of the United States in Janu-
airy of the present year. That Is suit
| against the attorney general OF Alabama,
| and the court there held that:
| "a suit to restrain officers of state from
| taking any steps by means of judicial pro-
ceedings, in execution OF state statute,
| to which they do not hold any special re-
lation is really a suit against the state.
| conclusive of the one at bar, still 1t would
| seem to justify the attorney generals con-
| tention that the present suit is against tne
| state. In answer to this the plalntlns say
| that as the state has descended from the
| plane of its sovereignty by the institution
| Of a suit concerning this matter in the dis
| trict court of Douglas county, 1t cannot now
| urge its sovereignty to prevent jurisdiction
| but stands exactly as any individual would.
! That rule loses it's force when applied TO the
| present suit, as 1t Is an entirely lnoepeho-
| ent action. In order to get any beneht
therefrom the plaintiffs must make this pfea
as defense in suit already Instituted by
the state in Douglas county.
| In view of what has been said, the ap-
! plication for temporary injunction must be
denied and the restraining order heretofore
entered vacated
| Plans for Memorial Day.
Tomorrow the old and the new veterans
| will do honor to the soldier dead of the
| two wars. Instead OF the solemn Memorial
day parade being led to the cemetery by a
fife and drum corps, as has been the custom
for years past, the old soldiers will fall in
behind the veterans of the Spanish Ameri-
can war and will march to the buryine
grounds for the performance of an added
duty. The three regiments Of Nebraska in
fantry will be represented in the procession
| Upon arrival at the cemetery Company f oi
the Second regiment of the National guard
and the ex-soldiers of the Spanish Ameri-
lean war will form in two ranks facing each
other, the Grand Army men marching
through the lines and saluting, after which
squads will be detailed to decorate the
graves in districts assigned to them After
the reassembling OF those who have been or
detached service the next in order will be
a memorial service of the Grand Army OF
the Republic, during which the salute will
be fred by exNebraska soldiers of the
Spanish war. After the conclusion of the
Grand Army ceremonies the Womans Re-
lief corps will conduct its ritual service
in memory OF the unknown dead and two
mounds will be dedicated to the memory OF
those who fell in the last war. At the plat
form in the cemetery grounds the exercises
will open with bugle call, followed by
prayer by Rev. Byron Beall Lincolns Get
tysburg address will be delivered by Post
Commander II. w. Davis. Ten minute ad-
| will ha p,ade hy Colonal IOhn TT Nc