The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1907-12-10

c2s3aH& frffW stale &N3
aEa rseae etf& tA~ htstsrs - #tF tn@
along tAese EucN ~ sssa
Ae ssuas adhere - aAr evan r44
t4Es aAhG nave become aFttsvE sf
aeuts up p uSs suttrct @ua shat
fne Tm4fc& state ttrtuN GsHTf NA1
no rg@~T - eabatu th~ pr 1t3sa
TIE defendant IN tEc Art hN4ae sNa
The o~rort~ttur~ ~ uAat eratt tnif
duCs8 su rx .Irute sh8 un 1trN
m6aa relies tam afford Is &
t-cxIuu aEalust tHr indictment SO
Neat a conviction t~he~e4Hasg
Considering Use question 4ufkas
Judse Walker %3e
y ~uig against tia Stat"
There s. perhaps : more on
elusive reason Hh3 We shaata H"s3
that the sult ia ~gsity pruai"s ID lEe
United state Circuit 172Tt 4Ha fhc
restraining process i~~urd fnvfetn ts
the csrcult judge cauUat RI { ab1
avail to tnis defendant ea S. t7 ~
vent 4 prosecution aEstuet e ~
state court tur Inc co+aNthseH 20 g
crime The tsrcuit court f ths
United state. had m Jurisdiction -
entertain i SUI, go en5atu "a state
arousht ~ 4 citizen ~ ans o;her state
or %oIntr5 even though q ma apr~Ar
that th, law. upon which ut EFasreu
ton IN the state court is t"un1ed
conflicts With the Constitution ~ tnv
United states ard Is Therefore. Nntt
This rule is evolved from the E!eNr.Jh
Amendment - tn" constitution. which
provides as follow TIA" judicial
uower OF the United Stat.s shall uo'
hc construed Il extend ~ auN salt ln
law or equity commenced ~ prose
tuted against one of the Emitted States
bv citizens " another State ur bN
citizens or subjects - any foreign
state 1t IS well known that thls
provision WAS Inserted iu the t"nhti-
tuition as a result ~ the decision in
- Err.a IT EgLfA.E 1H4-
decided in 1898. and IL WAS con-
strued in osborne Us bank q Wheat
73S. in which case the court eata
That in all cases Where . jurisdlc-
ton depends upon the party. it IN the
party named IN the record tenHe-
quently the Eleventh Amendment.
which restraints IT," jurisdiction grant
ed by the Constitution over suits
against the states. Is ~ necessity
limited To those suits III which 2 state
is a uarty ON the record Eut That
narrow Interpretation OF the Amend
ment has long since been rejected hE
the same court and by mnus success
sive decisions II has firmly established
the principle TO bc that. If the state Is
substantially or really "A party To- the
record against whom the suit Is III
rected she comes within the rrotsc-
ton OF the amendment
\ Self ENccUting Act.
After an exhaustive and convincing
study Of the decisions u the supreme
Court and other courts upholding this
view Justice Walker considers anoth
er phase Of the question presented
tho distinguishment II a "~Self-cHeci-
ting act where the state puts the law
into eflrct from one in which the
delegated to some ofhcer ,a~ ~ the
case of Reagan US. Iona and Trust
COMPANY In drawing this distInc-
ton. Justice Walker s&ys
There is nothing IN u act which
makes its operation dcroud at al upon
anything To be done by the corpora
3 ton commission or the attorney gen
eral or his assistant The said OIL
GERS last named a:c REQUIRED tn'pros@-
Cute in the name OF tn" stat" any
crime committed IN violation ~ the
act. but ex partc ayers IS direct au-
thoritv that the. cannot be reached
-, All ~injuuctiou while in the PERFORM
ancc Of this official duty Besides.
IAN It be said, with any show 81 rea-
SOP ~ even with the sanction "
plausible ARGUMENT. That q suit for an
intuncrior directed against the at
+nrnev neral in the prosecution
~. ~rimiIal eases. In which the State
under our Law. and the spyerelRu
under All Las. IS the plaintiff of record
and. too. the real plaintiff. is not ira
its very nature and IL its natural and
necessary effect a suit against III"
STATE Can II he said. in answer -
this suggestion. that The stat can pro-
coed aEatnst criminal, and vet At the
!. g1urtinsv that she can be d"rrirrI ~
all power - do so Ov hey duly Cpu@tl-
trted law officers. charged with the
duty # enforcing tho criminal law
FAC injunction had just as we'll be ~
sued against the grand jur'es or the
iudres WHO presiQe in her courts.
As to the act Of the Legislature uH-
The Road Exempted.
der WhiCh tho defendant VAS indicted,
Justice Walker says:
THE state contends that the first
section Of tho oct Of 1907 contains =
distinct Prohibition against cofufuo
carriers of passenger charging more
than tW, and one quarter cents per
mile and that while a penalty IS IN
posed for violation Of that section. y
is done b. = subsequent section 81 the
act and where this occurs. a~lthouAi
the offcrSc Wav be q uefs one. or o..
rot existing at the common law. To
Z State car proceed Ey Indictment 81
punish 2 violation ~ the first section.
: and the party specially aggrlcye1
/, thereby may also and at the same time
recover tEy penalty, II being conceded
as we understand, that II the penn
had been imposed ia the first sect'#u=
where til prohibition is found. iNl-
would not be SO. and an indictment
: would not lie. II there IS au& aspect.
+ able authority for SUCH a position
! and we 90 not think there IS. il Is not
, only inherently unspund but exceed
ingly refined and ~cnnica
It is "A distinction .ithout = diff"ren"s
: in las o" in fact The act prohibits z
charge above two and q quarter cral'
and then provides in a subsequent ser,
ton 90 that any railroad compauA
violating its provisions shall be liabl-
|, to q penalty of $500 for each violation
recoverable by q person aggr1evcd ~
a civil action, and any agent - thf
, mpa violating the act shall y
, guilty OF a misdeueanor- Ho" could
the Legislature more clearly or con
, vincinglv have expressed Its intention
!, 70 discriminate, as to the consequences
: between q violation nf the raIlr0a-
and q similar violation h5
+ its agent, and what practical differ
ence can II make whether the pena
) provision IS in the first or the fouTtf
section Of the act Does not the lat
! ter section distinctly refer - tn
!. former. TIE same as II IL had been IA
! corporated with it,"
, Judge Walker proceeds at length
quoting many authorities, to argue ina
: the mention Of a particular mode p
) proceeding excludes that by indict
! ment and that no other Uenaltv thar
7 the one denounced can be Inflicted