The Montgomery advertiser., 1907-08-04
\ DUPLICATE SITUATION AND {
 DECISION ON IT.


 the rate litigation here in Alabama. have been settled by the Supreme court | of the United States in Prout VI. Starr. 1ss U. 8. 5s7.
 The case is almost . duplicate of the i situation here. In that case a bill was filed to prevent the enforcement of the Nebraska maximum rate acts. It was alleged that the were confiscatory. and if the penalties for observance were enforced. the company would be entirely deprived of its property. The bill further prayed that the Board of Transportation of Nebraska, its agents. etc., who were charged with the execu- tion of the Nebraska law. be enjoined from doing anything to enforce the observance of the acts. and that the attorney general should be enjoined from bringing any proceeding by civil action or process or indictment on &C., count of non-observancs of the acts. The Circuit court issued . restraining order. There were some other cases of other railroads involving the same point. and the parties agreed that the judgment should go in the Front case as in the others. There were sev- eral changes in the office of attorney general during the progress of the suit. One of them overlooked the re- straining order. and filed a bill in the Supreme court of the State of Nebras- ka to recover penalties. When his at | tention was called to 1t. he promised to dismiss the suit before the expira- tion of his term of office. and relying upon that understanding. the railroad companies took no proceeding to en- force the injunction. Shortly after as attorney general. and he declined to dismiss the action. Then the rail road company filed it's answer alleging the existence of the decree in the cir cult court of the United States. and also filed a bill in the United States aourt setting up the facts, and praying that Prout be restrained from further prosecuting that action. Prout demur- red. and his demurrer was overruled, and the injunction made perpetual. Prout appealed. and contended that the suit was essentially one against the State of Nebraska. The Supreme court overruled the objection on the same grounds that 1t did a like con- tention In Smyth vs. Ames. and a num- hev of other cases cited in its opinion.
 Discussing the question. the court said:
 '"The constitution of the United States, with the several amendments thereof, must be regarded as one in strument. all of whose provisions are to be deemed of equal validity. It would indeed. be most unfortunate If the i'm munity of the individual States from suits by citizens of other States, pro-
 vided for in the Eleventh amendment were to be interpreted as nullifying those other provisions which confer | power on congress to regulate com merce among the several States. which forbid the States entering into any treaty, alliance or confederation, from | passing any bill of attainder, ex post facto law or law impairing the obli- gation of contracts. or without the consent of Congress. from laying any duty of tonnage. entering into any agreement or compact with other states. or from engaging in war. all | of which provisions existed before the | adoption of the Eleventh amendment. which still exist, and which would be nullified and made of no effect. if the | judicial power of the United States could not be invoked to protect citi zens affected by the passage of State laws disregarding these constitutional limitations. Much less can the Eleventh | amendment be successfully pleaded as an invincible barrier to judicial in l suiry whether the salutary provisions | of the Fourteenth amendment have | been disregarded by State enactments. | On the other hand, the judicial power l of the United States, has not infre- | Iuently been exercised in securing to 1 the several states. in proper cases. the | immunity intended by the Eleventh
 amendment. Hans vs. Louisiana, 134. | U. S. 110; North Carolina vs. Semple.
 134 U. S., 22; Harkrader vs. Wadley. 172
 U. s. 14S; Fitts vs. McGhee. 172 U. $. | 516"
 Tt Is one Of the important functions | of this court to so interpret the va
 -ious provisions. and limitations con- tained in the organic law of the Union | that each and all of them shall be re- ] spected and observed.
 l Tt Is further argued by the appel | lapt as one of the grounds of his de- | murrer, that he was complained against | In his official capacity as attorney general of the State of Nebraska. and
 not in his individual capacity as cit | izen thereof, and that the attorney | general of a State cannot be restrained | by an injunction of a United states court from enforcing the criminal laws l ot the State.
 This we think is only another phase | of the same question. It Is true that
 the defendant was included in the bill as the attorney general Of the state
 but that was because he was one Of the
 hoard of transportation, which was di-
 rected to enforce the provisions of the
 act. The bill did not seek to interfere
 with the acts of the attorney general l in prosecuting offenders against the valid criminal laws of the State, but
 its object was to prevent him from 1 collecting penalties that had accrued
 under the provisions of a statute ju- | dicially determined to be void. The in
 function must be so read and under | stood.
 Several changes of incumbents in the | office of attorney general took place
 that did not deprive the court Of Juris-
 hn