The Montgomery advertiser., 1907-08-25

4 f :. is.s | enjoin criminal prosecutions, In re, Sawyer. 124 U. S.. where the whole history of equitable Jurisdiction is dis ! cussed and 1t is shown it has not juris- | dtction over criminal matters except as
 ancilli-ry to an equitable Jurisdiction
 which it has, all of them laying down | the same exceptions that have been
 universally recognized and enforced in
 the Supreme Court of the United States,
 and the Supreme Courts of many of the | States, including Alabama, while the 1 general principles laid down in Fitts V. sMcGhee are thoroughly well established | that particular case seems to have ta-
 ken possession of the judicial mind l without reference to the distinction
 drawn in it, and 1t seems to have cast
 abroad that there is no way of enjoin- ! ing a criminal prosecution in spite Of | the fact that the other rule Is as well 1 settled, or better settled, settled in the very case itself. settled in the decisions l of the Supreme Court of Alabama, and of the Supreme Court of the United | States, settled by all the Federal courts. It seems. in some way this l principle has escaped the judicial mind and made no impression on it. | Now there is also a case of Hntchin- son V. Beckman, 11S Fed. 401, holding
 the same proposition.
 | Now, as I understand it, we fall with | Tn the OtLST. exception tWHeT0 IT IS d | criminal prosecution by a party to the
 suit mean the State of Alabama is S l party to this suit. It seems to me that 1 the case of Gunter V. Atlantic Coast l Line, is directly in point on that sub- ject and shows that the State of Ala | bama is a party to this suit and that this prosecution is, therefore, a pros- I ecution in regard to a subject-matter l over which the court has Jurisdiction. l in case in which the State of Alabama
 has submitted itself to the Jurisdiction l and has become party to the suit. and
 that the State of Alabama is subject to
 an injunction restraining 1t from that l prosecution.
 Now, in the case of Gunter V Atlan-
 tic Coast Line, my recollection is this. l A railroad company, with an Indian
 name that can't recall just now. had l charter exempting it from taxation, | and the treasurer of the county threat
 yened to bringg suit against that rail- 1 road company for the purpose of en- 1 forcing some taxation. An act was I passed authorizing the collection of a I tax, and the treasurer was threaten | ing to institute proceedings for the l purpose of doing it.. The railroad com | pany filed it's bill on the equity side | of the Federal Court for the purpose | of charging that this law was uncon- stitutional because 1t was vfolative of | the obligations of a contract, and, | therefore, in conflict with the Con- stitution of the United States, just as we have alleged in this case. The | question was litigated, and the Fed 1 eral Court rendered a decision holding I that the law was in violation of con- tract, and was, therefore, null and void. Twenty-Five years thereafter. another statute was adopted, and in
 the meantime by transmission of title l this nFnnprtV had Unffpn inn The At-
 lantic Coast Line, and the Attorney 1 General of South Carolina undertook 1 to institute. a proceeding for the pur- pose of collecting this back tax that | the Federal Court had adjudicated was I unconstitutional and void, and bill | of revivor- was filed in the cause which 1 had been adjudicated in the Federal | Court. making the prosecuting parties, | parties to the suit, and enjoining them l from proceeding to collect this tax, and I the proposition was set up that that | was a suit in which the State was a party, and, therefore, 1t was the bring | Ing of a suit against the State, and 1 that they were protected by Section | 720 and the eleventh amendment.
 Now, the Supreme Court of the 1 United States goes on to show that by | the act under which these proceedings
 were had the treasurer and some other 1 parties were charged with the duty of 1 collecting this tax. that the Attorney
 General and other officers to be em- l ployed by the Government were | charged with the duty of defending | these suits for the tax collected, and, | therefore, charged with the duty of | representing the State of South Caro- | lima in matters arising over that tax l law; that in the early case which had
 been adjudicated twenty-five years be- | fore the county treasurer appeared l and defended the suit, and that the At 1 torney-General and counsel specially
 employed by the Governor of the State | to represent the treasurer had ap- | peared in that case. and the Supreme l Court holds that having appeared in | the case, and defended the suit, the State of South Carolina had consented | to being sued and submitted itself to | the jurisdiction of that court, and this 1 being an ancillary proceeding for the | protection and enforcement of the 1 Judgment of the Federal Court, and the
 subsequent proceeding being a pro- | ceeding by the State, a party to that | litigation by its own consent, the State | was not protected either by Section | 720 or by the eleventh amendment to | the Constitution, and that though 1t be | a suit against the State, the State
 could be properly enjoined from the | enforcement of these rates.
 Conclusion of Argument.
 l What is the dimerence between that case and this In that cases there were | officers who were specially charged l with that duty, and, therefore, became
 the representatives of the State in the l litigation over that matter Tn this
 case it is expressly provided that there | shall be a contest over the question of l the validity of these laws, one in which | there is no individual so interested as
 State in it's governmental capacity Is | alone directly interested, and for that
 reason they have constituted a body
 the Railroad Commission of Alabama
 and authorized a suit against the Rail-
 road Commission for the purpose of
 testing the validity of this law of Ala
 bama. They have charged them with 1 the duty of appearing for the State | of Alabama, and contesting with the
 complainant the validity of this law. | They have provided by their law that
 the Attorney General as the represen-
 tative of the State of Alabama shall | appear for the Railroad Commission
 of Alabama and defend the case. They | have provided further by their law
 that the Governor shall appoint such
 special counsel for the State of Ala l bama. as he sees fit to aid the Attor-
 ney- General in appearing in that liti-
 gation. and defending the interests ot
 the State. The suit in compliance
 with that statute. has been brought
 against the Railroad Commission. Tho
 Railroad Commission. under its dele
 gated authority from the State of Ala
 bama. has appeared in its interest
 The Attorney General, under the au
 thority conferred by the statute. hal