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209 U. S.

Argument for Petitioner.

This court in this proceeding will determine the jurisdiction of the Circuit Court in the suit in which the order punishing for contempt was made, and if it is found that the Circuit Court had no jurisdiction in the suit, or was without power or authority to make the order enjoining the petitioner, will direct his discharge from custody.

This application does not fall within those decisions where this court has held that the case was not a proper one to be considered in proceedings under the writ of habeas corpus or those holding that this court may exercise its discretion in granting or withholding the writ. It is in accordance with the decision rendered in Ex parte Yarbrough, 110 U. S. 651. See also Ex parte Fisk, 113 U. S. 713; Ex parte Wells, 18 How. 307; Ex parte Lange, 18 Wall. 163; Ex parte Rowland, 104 U. S. 604; Ex parte Parks, 93 U. S. 18; Ex parte Ayers, 123 U. S. 443; Ex parte Siebold, 100 U. S. 371; Ex parte Kearney, 7 Wheat. 38; Ex parte Royall, 117 U. S. 241; Ex parte Mayfield, 141 U. S. 107; Ex parte McKenzie, 180 U. S. 536; Delgado v. Chaves, 140 U. S. 586; Ex parte Watkins, 3 Peters, 193.

The Circuit Court did not have jurisdiction because of diverse citizenship, and no Federal question was presented by the bill of complaint which justified the Circuit Court in assuming jurisdiction.

The sufficiency of the intrastate rates prescribed by chapter 232, did not present a question involving the construction of the Constitution of the United States. The adequacy or inadequacy of a prescribed rate is a question of fact only. Illinois C. R. Co. v. Interstate Commerce Com., 206 U. S. 441.

Where the true meaning and construction of a constitutional provision has been settled by decisions of this court, the jurisdiction of the Circuit Court will be determined, upon a consideration of the bill of complainant, in the same manner as it would be if it appeared from all the pleadings in the case that there was no controversy as to the meaning or construction of the Constitution or law under which it is claimed the controversy arises. Western Union Tel. Co. v. Ann Arbor R. Co.,

Argument for Petitioner.

209 U. S.

178 U. S. 239; Equitable Life Assurance Co. v. Brown, 187 U. S. 308; New Orleans Water Works Co. v. Louisiana, 185 U. S. 336.

The construction and effect of the provisions of the Constitution of the United States relied upon in the suit in the Circuit Court are settled beyond controversy by the following as well as many other decisions: Munn v. Illinois, 94 U. S. 113; C. M. & St. P. R. R. v. Minnesota, 134 U. S. 418; Wisconsin &c. R. R. v. Jacobson, 179 U. S. 287; Covington v. Bridge Co., 154 U. S. 204; Houston Central Ry. Co. v. Mayes, 201 U. S. 321; Railroad Commission Cases, 116 U. S. 307; Dow v. Beidleman, 125 U. S. 680; Carson v. Durham, 121 U. S. 421; Tennessee v. Davis, 100 U. S. 257; New Orleans v. Benjamin, 153 U. S. 411; McCain v. Des Moines, 174 U. S. 168; Defiance Water Co. v. City of Defiance, 191 U. S. 184; Hooker v. Los Angeles, 188 U. S. 314; Shoshone Min. Co. v. Rutter, 177 U. S. 505; Blackburn v. Gold Min. Co., 175 U. S. 571; Carson v. Durham, 121 U. S. 421; Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 185 U. S. 282; Minnesota v. Northern Securities Co., 194 U. S. 48; Western Union Tel. Co. v. Ann Arbor R. Co., 178 U. S. 239; Equitable Life Assurance Co. v. Brown, 187 U. S. 308; New Orleans Water Works Co. v. Louisiana, 185 U. S. 336; New Orleans v. Water Works Co., 142 U. S. 79; Hamblin v. Western Land Co., 147 U. S. 531; St. Joseph &c. Co. v. Steele, 167 U. S. 659; Wilson v. North Carolina, 169 U. S. 586.

The Circuit Court exceeded its power and authority in making its order.that the petitioner be enjoined as Attorney General from taking appropriate legal proceedings to compel the railway companies to comply with the act of April 18, 1907.

Had the Eleventh Amendment never been adopted, this suit against the Attorney General could not be maintained, and had he in the first instance fully submitted himself to the jurisdiction of the Circuit Court, any order attempting to control the exercise of the executive discretion vested in him, would be beyond the power and authority of the court.

It should not be assumed under the authority of Chisholm v. Georgia, that in the absence of the Eleventh Amendment,

209 U. S.

Argument for Petitioner.

a State would be subject to all suits. In that case, it was claimed that the State was indebted to the complainant upon a money demand. The political or governmental powers of the State were in no way involved.

However, be this as it may, the decision in the Chisholm case was based upon the positive language of the Constitution. The Eleventh Amendment restored not only immunity of the States from suit, but secured the same immunity to each department of a State which under the Constitution thereof was made independent of the judicial power.

The authority of the Attorney General to prosecute or defend a suit in which the State is concerned is necessarily implied from the nature of his office and he may bring an action where the wrong or injury complained of affects the public. 4 Cyc. 1028-1031; Hunt v. Ry. Co., 121 Illinois, 638; Orton v. State, 12 Wisconsin, 567; Atty. Genl. v. Williams, 174 Massachusetts, 476; People v. Oakland, 118 California, 234; Atty. Genl. v. Detroit, 26 Michigan, 262.

The Attorney General of Minnesota is, therefore, an executive officer of the State second to none in the character and importance of his duties. The name and power of the State, so far as their use in litigation is concerned, are confined to his discretion, subject to control by no other officer, except in certain cases not material here. State v. Tracy, 48 Minnesota, 497.

Under the statutes of Minnesota, the Attorney General is not required to institute criminal proceedings, except on the request of the Governor. Criminal proceedings are in the first instance instituted by the attorneys for the various counties, who have the right, however, to call on the Attorney General for assistance. But when any criminal case reaches the Supreme Court of the State, it comes into the exclusive charge of the Attorney General. Therefore the injunction issued in the Circuit Court interferes with the administration of the criminal laws of the State. Such interference is beyond the power of a court of equity, except where the criminal case is

Argument for Petitioner.

209 U.S.

instituted by a party to a suit already pending before it of which it has jurisdiction to try the same question therein involved. In re Sawyer, 124 U. S. 200.

The suit in the Circuit Court against the Attorney General was in effect a suit against the State of Minnesota.

The immunity of a State from suit, as provided by the Eleventh Amendment, is not dependent upon any pecuniary interest, as contended by respondents.

Where the decree of the court can operate only upon the State and only to restrain the action of the State, the suit, no matter against whom it is brought, is in effect one against the State and in such case the pecuniary interest the State may or may not have in the result of the litigation is immaterial. Governor of Georgia v. Madrazo, 1 Pet. 110; United States v. Beebe, 127 U. S. 338; Savings Bank v. United States, 19 Wall. 227; United States v. American Bell Telephone Co., 128 U. S. 315; United States v. American Bell Telephone Co., 159 U. S. 548; United States v. Telephone Co., 167 U. S. 224; Hans v. Louisiana, 134 U. S. 19. Reagan Case, 154 U. S. 362 and M., K. & T. Ry. Co. v. Hickman, 183 U. S. 53, discussed and distinguished.

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The Circuit Court was without jurisdiction under Fitts v. McGhee, 172 U. S. 516, which cannot be distinguished, and to sustain the suit in Minnesota, it must be shown that Fitts v. McGhee has been or should be overruled.

The doctrine of that case, however, was in accordance with the previous decisions of this court. Governor of Georgia v. Madrazo, 1 Pet. 110; Board of Liquidation v. McComb, 92 U. S. 531; Pennoyer v. McConnaughy, 140 U. S. 1; In re Ayers, 123 U. S. 443.

The doctrine established by these cases has become the settled rule of decision. And see Cotting v. Godard, 183 U. S. 79: Davis & Farnum Mfg. Co. v. Los Angeles, 189 U. S. 207; Barney v. State of New York, 193 U. S. 430; Gunter v. Atlantic Coast Line R. R. Co., 200 U. S. 273; Farmers' Nat. Bank v. Jones, 105 Fed. Rep. 459; Haverhill Gas Light Co. v. Parker,

209 U.S.

Argument for Respondent.

109 Fed. Rep. 694; Copper Co. v. Freer, Attorney General, 127 Fed. Rep. 199; Coneter v. Weir, 127 Fed. Rep. 897; Coulter v. Fargo, 127 Fed. Rep. 912; Hitchesen v. Smith, 140 Fed. Rep. 983; Smith v. Alexander, 146 Fed. Rep. 106; Telegraph Co. v. Anderson, 154 Fed. Rep. 95.

By leave of court, Mr. Edward B. Whitney filed a brief herein as amicus curia, in support of petitioner's contentions as to the Eleventh Amendment. With him on this brief was Mr. Abel E. Blackmar.

Mr. Charles W. Bunn, Mr. Jared How and Mr. J. F. McGee, with whom Mr. Frank B. Kellogg, Mr. Cordenio A. Severance, Mr. Robert E. Olds, Mr. Stiles W. Burr, Mr. Pierce Butler, Mr. William D. Mitchell and Mr. William A. Lancaster were on the briefs, for respondent:

The objections which petitioner makes against the validity of the injunctional order are matters which cannot be inquired into on writ of habeas corpus.

Where the contempt, the punishment for which is under review in a habeas corpus proceeding, consists of the violation of an order or decree of a court, the commitment will be sustained unless it is found that the order or decree disobeyed was absolutely void because the court was wholly without jurisdiction or power to make it. The proceeding being in the nature of a collateral attack upon the order or judgment which has been disobeyed, the inquiry is limited to the question of jurisdiction. Ex parte Watkins, 3 Pet. 193; In re Coy, 127 U. S. 731, 757; In re Wilson, 140 U. S. 575, 583.

Among the very numerous cases which deal with this question the following are most nearly in point: Ex parte Watkins, 3 Pet. 193; Ex parte Yarbrough, 110 U. S. 651; In re Coy, 127 U. S. 731, 756; In re Wilson, 140 U. S. 575, 582; In re Delgado, 140 U. S. 586; In re Schneider, 148 U. S. 162; In re Frederich, 149 U. S. 70, 76; In re Tyler, 149 U. S. 164, 180; In re Swan, 150 U. S. 637, 648; In re Chapman, 156 U. S. 211; In re Lennon,166 U. S. 548: In re McKenzie, 180 U. S. 536.

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