The Montgomery advertiser., 1907-08-29
case of Fitts vs. McGhee. uses this

language:
 " There Is a wide difference between 8 suit against individuals holding off cial position under a State, to prevent them, under the sanction of an uncon- stitutional statute by committing by some positive act a wrong or trespass, and a suit against officers of State merely to test the constitutionality of a State statute in the enforcement of which those officers will act only by formal Judicial proceedings in the courts of the State And again in the same opinion Justice Harlan says: In support of the contention that the present suit (Fitts vs. McGhee) is not one against the State. reference was made by counsel to several cases, among which were tamong othersl Smyth vs. Ames 169 U. s. 466. Upon examination it win be found that She defendants in each of those cases were officers of the State, especially charged with the execution of a State enact ment alleged to be unconstitutional, but under authority of which it was averrsd they were committing or were about to commit some specific wrong or tres pass to the injury of the plaintiffs rights
 Tn this case, the solicitor for Mont gomery county, who Is enjoined from
 indicting and prosecuting for a yio- lation of the criminal laws is not spe- cially charged with the enforcement nor does he bear any special relation
 to the statue alleged to be unconsti- tutional The solicitor In enforcing such criminal laws does not commit any trespass whatever upon anybodys property, nor does he commit any tres- pass or wrong upon the person of any body, but on the contrary he simply tt .Nf t1 nf Ial. affaa for the purpose of punishing the yio- lation of the criminal laws through proper judicial proceedings. And every such person so proceeded against has his rights protected if the statute is unconstitutional by way of defense which may finally be tested by the Su- preme Court of the United States. To allow the constitutionality of such criminal law to be tested by means of an injunction from court of eq-iity might be a speedy method of testing the constitutionality of every law to which there is added a criminal fea- ture, but such mode cannot be applied to the States of the union, consistently with the principle that they cannot, without their assent, be brought into any court at the suit of private per- sons If this injunction be sustained, then there is no reason why the for eign brewers should not obtain an in junction to prevent the prosecuting at- torneys of the State of Georgia from enforcing the provisions of the prohibi- ton law recently passed by that State, and so with reference to every other law where a nonresident citizen or corporation feels aggrieved by some unconstitutional enactment.
 There is 8 very able article upon the subject of suits against States in the Federal courts in the May-June num- Der of the American Law Review, by Professor Trickett, Dean of the Dick enson School of Law, at Carlisle, Penn sylvania. He reviews the cases and reaches the conclusion that there IS more or less inconsistency in the ap- plication of the principle by the Su- preme Court, and states that the court satisfied itself that the case of Smyth ys. Ames. and Prout ys. Starr were not suits against the State. But the court l in the case of Fitts vs. McGhee was not even able to satisfy itself that | sNit to enjoin the attorney general | of the state of Alabama, and one of it's solicitors from proceeding to pros | ecute under an alleged unconstitution- l al law was a suit Against the individ- | uals and not against the State.
 "Whatever may be the rule in other | cases, the doctrine announced in the | case of Fitts vs. McGhee, which is ex- actly on all-fours9with the case at bar, i is expressly recognized as the law of | the land in the case of Prout vs. Starr. | In the opinion of the latter case, MT. | Justice Shiras uses this language:
 "'On the other hand the judicial power of the United States has not | infrequently been exercised in securing | to the several States in proper cases | the immunity intended by the eleventh | amendment Citing among other cases | Fitts vs. McGhee, 172 U. s. 516-
 We do not understand how the | court can reach the conclusion that | Prout vs Starr was a departure from | Fitts vs. McGhee in view of the quo tations just above cited in the opin- ion of Justice Shiras There was no dissenting opinion in Prout vs. Starr