The Montgomery advertiser., 1908-03-30

izen cannot maintain, there is an end of real constitutional government and liberty, and the enthronement In Efsir stead of official absolutfsm. N stance. not with shadows. It's inhib- ition was levied at things. not the name. If the inhibition can be invad- ed by the form of the enactment. It's insertion in the fundamental law was vain and futile proceedings" { Wall z57. 325; scrutinize. as we may. the argument in support of it inevft- ably leads. In its final completion. to the fatal admission that somewhere shelter can be found for legislative evasion of It's most sacred commands. Stripped of sophistry. the naked pro-
 so hss protees .ss oa he eRt must surrender to the deftness and cunning of the draughtsman, In ad- jSsting the relations of the officer to statute. that the phrase maker, not the fundamental law. determines whether constitutional right may be
 Mir. Justice Lamar. is a very elabov- ate review of the decisions on this subject. in Penncyer vs. McConnaugh- eral doctrine of Osborne V. The Bank of the United States. that the circuit courts of the United States will res % an unconstitntionsi % s statute t exgsu'th of ths State. when to execute 1t would vio- late rights and privileges of the com plainant which have been guaranteca by the Constitution and would work tr- reparable damage and injury to him. has never been departed from" In Erout V Starr, 1ss U. s. 537. he-court | declared, Tt Is the settled doctrine of this court that suit against the i'm dfvfduals for the purpose of prevent ing them, as officers of the State from
 at n.orclns x th rhts sas, os she | plafntin is not a suit against the State within the meaning of that, tthe Elsyenth) Amendmsnt;; 1,l In .,si this , res. judgment of Chief Justice Marshall in Osborne V. The Bank. decided years be- fore the adoption of the XIV Amend effect of the Fourteenth Amendment upon the scope of the Eleventh Amend ment was not directly passed upon by In some cases until the case of Prout v. Starr. supra, where 1t is said. Tt I would be most unfortunate if the fnn- munfty of the individual State against suits by citizens of other States: pro- yided for in the Eleventh Amendment. wore to be interpreted as nullifying congrsa wcs ot e0bfs5 %Rs5 Peog sicns existed before the adoption of the Eleventh Amendment. which still exists. and which would be nullIfed power of the United States could not be invoked to protect citizens affected by the passage of State laws disre- garding those constitutional limita. lions. Much less. can the Eleventh Amendment be successfully pleaded as an invincible barrier to judicial in of the Fourteenth Amendment have l been disregarded by State enactment." | The Supreme Court in numerous dects :i,aas ::io9as has settled; beyond the pale of State is not an actual party to the re- cord, and the judgment in the suit cannot take the States property or position of funds in its treasury. or
 cRs rosr stats ossrs indreesly ta ssyfoF 5y | govern the exercises of any discre- ton vested in the official in the exe- cution of valid statutes. the State is Succeeding e1, cannot ofr be ahe held '9o to be suit against the State. The State is not party here. No judgment wade its rights in any of the particu- lars named. The supplemental bills are ~~t therefore. .n any sense suits how. IA b. s. 2s4: Pennoyer V. Mo- i9s U E isl; ii Tinda ' '. wesley, m isz U, Prout Ss V PssiT stxrr Ii iss Gray IT $ S ss7 Wal sOs Whether or not official is especially
 charged" to execute the statute,
 can have no influence fin deaermln-
 ing nature and extent of remedy.
 If we give any force whatever to the purpose which called forth the Elev- enth Amendment, it destroys all foun- dation for respondents argument, aptiy describes as an assertion, If fyou make it anybody's business -O en- force the legislation, a suit to pre- you make RSt it @ nobodgs ns5 Special @ basi ness. and anybody can enforce the law, then suit to stop him IS suit against the State" Certainly if as the courts sion of the sovereign's prerogative to thwart his wishes. by preventing his mand he Is specially charged to ex- ecute. no system of logic can warrant us in declaring that this same sover- eign can be affronted or have any just cause of complaint. when restra ming hands are laid upon another official to stop him from doing the. same act, when the sovereign has laid no special commands upon him to act
 1 It Is undeniable here, if complain ants prove their bill. and for the pur- poses of this hearing it must be esN | sumed they may do so, that they will suffer illegal and irreparable wrong, unless they can immediately arrest the action. both of the citizen and of the | Whether the officer be specially charged with the duty, or whether 1t be left to his discretion, to enforce the uncon-
 
 ever upon the validity of the statute or the nature of the case or of the wrong suffered. and cannot alter in the slightest degree the legal or practical l scope of the suit, or the judgment which may be rendered as to the exc cution of the statute The injury and the wrong are the same in both caseS | The character of the duty and the va lidity of the statute which exacts 1t are not changed by the fact that it Is i'm posed by a special statute instead of being fixed by the general law. The duty is the same in each case. When | the contingency arises which calls for the performance of the duty under the genera law. the officer is as perempto- | rily charged to execute 1t as If the duty arose under a special statute. and 1 when he acts, the consequences are the same, whether he acts under the ply volunteers to put the laws in mo- tion to that end. The officers rea- tions to the execution of the statute are material only in determining, in | the particular case. whether he IS proper or necessary defendant to the suit to arrest the operation of the statute. The presumption. from the special charging of the duty Is that the officer will perform 1t, and is. tion that he will attempt to execute the statutA He stands. as regards the threatened property right in the same | attitude as the officer who, though not | specially charged, nevertheless threat ems to enforce the statute. If the cir l cumstances of the case. and the na- ture of the right about to be invaded are such that the acts of the officer | will result in irreparable and illegal