The Montgomery advertiser., 1907-08-29

 DENT FILES
 HIS BRIEF Argues Against Enlarged
 Injunction. NO LEGAL BASIS FOR ORDER Document Declares Its Effect Is
 Not Binding. snslsts Hnjunction Cannot Prevent Him Esem Enforcing the Criminal Provisions of The statutes
 in Question.
NO LEGAL BASIS FOR ORDER

All. Dent. Solicitor of Montgomery County, yesterday filed his brief in reply to the enlarged injunction secured by the Louisville and Nashville Rail- road. restraining all solicitors and shertffs from causing indictments or arrests of the road or it's officials for failing to comply with the suspended passenger and freight rate laws.
 The attorneys for Mir. Dent represent that under the law no injunction can Issue winch would prevent him from conducting his office in the manner he sees fit or which would legally restrain him from enforcing such criminal statute as that in question, and the fact that the Federal Court first secured jurisdiction of the rate cases did not presuppose any right to extend the in- junction to criminal proceedings It ls urged. furthermore. that the suit Is In reality an action against the State and is not authorized by the consti- tuition.
 The full text of the brief is as fol- lows;
 .sThere seems to be two lines of cases as to when a suit against a public off, cial Is in reality a suit against the State, and therefore forbidden by the Eleventh Amendment to the Federal Constitution. One line of cases an- nounces the broad proposition that
 
 ed with the execution of a state law, alleged to be unconstitutional. but un- der the authority of which such officer was committing. or Is about to commit some specific wrong or trespass to the injury of the plaintiffs right then this would not be suit against the State. The theory upon which this line of cases proceeds seems to be that the officer so specially charged must, in or der to make his action an official and not an individual act, show that the authority under which he proceeds is a valid and constitutional enactment. If the authority to which he points for his action is invalid. then he Is acting on his individual responsibility. and is subject to be restrained when trespas- sing upon anothers rights. Among the line of cases establishing this rule are: Prout V. Starr. 1SS U. S. 537: Smyth V. Ames. 169 U. S. 4S6.
 ''The other line of eases establish the rule that where State official is not specially charged with the execu- tion of a particular law. nor with the duty to see to it's enforcement, and pro- ceeds In the name of the State through judicial proceedings under the general duty and authority resting upon him as official. then, and in such event, a suit against him seeking to restrain the en- forcement of the law through such pro- ceedings in the name of the State is in reality a suit against the State. and prohibited by the Eleventh Amendment. This proposition is clearly decided in Fitts vs. McGhee. 172 U. s. 516. and sup ported by the cases therein cited. To restrain a prosecuting attorney from proceeding to enforce the criminal laws of the State which are enforced by him only .n judicial proceedings and In the name alone of the State, and with which he has no special or peculiar duty and no personal interest. is be- yond all question suit against the State. even though the statute proceed ed under, Is unconstitutional. Judge Harlan, in writing the opinion in the