State v. Chicago, Rock Island & Pacific Railway Co.

87 N.W. 188, 62 Neb. 123, 1901 Neb. LEXIS 223

Opinion

Per Curiam.

The attorney general has presented a motion to dismiss this cause, for the reason that he has been enjoined by the circuit court of the United States for the district of Nebraska from the prosecution thereof. During the present term, in this very same case, we held that the federal court was without power or jurisdiction to enjoin the state, and that the attempted restraint of the attorney general by such court was an attempt to restrain the state itself. 61 Nebr., 545. What the circuit court can not do directly it may not do indirectly. This is clear. Attached to the motion is a copy of the recent opinion delivered by Sanborn, circuit judge, in Starr v. Chicago, R. I. & P. R. Co.,

* holding that the federal court had jurisdiction to enjoin the attorney general. The argument of the learned jurist is not convincing as to the soundness of his conclusion upon this subject. With our former opinion we are entirely satisfied, and until the supreme court of the United States has spoken upon the subject, it will be adhered to.

Note. — U. S. Constitution, art. 3, sec. 3, and Eleventh. Amendment; Bryce, American Commonwealth, Vol. I., p. 331; Federalist, LXXXI; Scott, Repudiation of State Debts, p. 10; Ghislom v. Georgia, 2 Dallas [U. S.], 419; Florida v. Georgia, 17 Howard [U. S.], 520; Chamberlain, Constitutionality of Repudiation, North American Review, Vol. 138, 1884. State and State Officer. — The word “state” (commonwealth) signifies any of the officers or agents by whom the powers of the commonwealth are exerted. Political Science and Constitutional Law, Burgess, Vol. I., p. 210. Wherever one, by virtue of his public position under a state government, acts in the name and for the state, and is clothed with her power, his act is her act. JEx parte Virginia, 100 U. S., 339; Garter v. Texas, 177 U. S., 442. But see Arrow-smith v. Harmoning, 118 U. S., 194. — Reporter.

Motion denied.

The title of the ease is James C. Starr and Samuel Allerton v. The Chicago, Rock Island & Pacific Railway Company, Frank N. Prout et al. —110 Fed. Rep. 3.