The Montgomery advertiser., 1907-08-29

MT. Justice Harlan concurred in the
 conclusion. though not in all the req
 soning of the opinion. As long as Fitts
 vs. McGhee stands thus expressly re-
 cognized in the latter case, and until
 the Supreme Court of the United States
 overturns the principles of law there
 In enunciated, we feel that all nisi
 prius judges are bound by it as the
 law of the land, and all public officials
 whose duties are similar to those of
 the defendants in Fitts vs. McGhee are
 likewise bound to accept the princi-
 ples of that case as the law of this
 land. As has been declared by the
 judge of this court in this very case:
 The Judgment of the court, so long
 as 1t is unreversed. Is the law of the
 land and must be respected" (Pamph- let opinion Judge Jones in this cause D.
 9. Again the court in substance says,
 all courts and officers in this land must
 bow to the decisions of the Supreme
 Court of the United States. Pamphlet
 opinion Jones Up. 8.
 But it is argued that because of a bill heretofore filed in this court against the railroad commission of Ala
 bama, the court acquired jurisdiction of the entire subject matter, and there fore. has exclusive right to dispose of all questions that may be involved in such litigation. This gives the court no right to allow the amendment mak- ing solicitors parties defendant to the suit and restraining them from the prosecution of their official duties. Ger tainly it will not be contended that an act,which.expressly prohibited by direct means can be accomplished by indirec- tion. Had the solicitors been made parties originally. they certainly would have then had the right to have ap- peared and resisted on the ground that the suit against them was. in effect, a suit against the state. And there can certainly be no difference between case in which said solicitors were made parties defendant originally and one where they are subsequently, brought in by amendment. The principle upon which objection Is made to the juris- diction of this court over the solicit ors of the state by enjoining them from the enforcement of the criminal laws of the state. is that the suit is really against the state of Ala bama; and while every court, and particularly a court of equity, when 1t is given Jurisdiction of a subject matter. has the right to dispose of all questions arising out of such subject matter. 1t certainly can not enter a decree that would be bind ing upon the state of Alabama, since the constitution prohibits the court from entertaining any such jurisdic- ton. The suit, as originally filed, was against certain individuals to prevent a trespass upon property, and now it is sought to be amended in such a way as in effect. at least, to prohibit the State of Alabama from pursuing, through it's duly constituted authort- ties, the enforcement of the criminal laws of the state.
 'In conclusion, we beg to state that no act of trespass or wrong is charged against this respondent, nor does the bill allege that this respondent is about to commit any act sought to be enjoined. The most that the bill al- 1eges is that the governor will in struct solicitors, and solicitors will. l under such instructions, proceed to in- | dict for the violation of the law claim | ed to be unconstitutional. This Is not | an allegation that any act has been | or is about to be committed; The gov | ernor of this state, as a matter at l law, has no authority to bind the so- | licitors by any instructions. The du- l ties of solicitors or option of the chief | executive. If the acts are unconstitu- | tional, 1t certainly ought to be pre- sumed that the solicitors will do their | duty and not endeavor to enforce an statute. At any rate, | a court of equity has no authority to | bring man into court as defendant. | and thereby subject him to costs and expenses unless he has either done | or is threatening to do in violation of the property | rights of the complainant