State v. Chicago, Rock Island & Pacific Railway Co., 61 Neb. 545

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

61 Neb. 545 | Neb. | 1901

Sullivan, J.

This is an action instituted in this court by the state to recover of the defendant company certain penalties claimed to be due under the act of 1893, known as the Maximum Freight Law. The defendant answered, alleging that the attorney general had been enjoined by the circuit court of the United States for the district of Nebraska, from commencing or prosecuting any action under the provisions of said law. This allegation was constructively admitted, and thereupon the defendant moved for judgment on the pleadings. The motion was submitted on the 5th instant and taken under advisement. We haAre given the question in controversy considerable attention,- and we are all of opinion that the application *548for judgment should be denied. The preliminary order of the federal court is binding only on the parties to the action in which it was issued. To the extent that it assumes to forbid the institution and prosecution of actions like the present one, it is utterly and absolutely null. The judicial power of the United States does not extend to any suit in law or equity brought either by a natural person or a corporation against a state. The circuit court was, therefore, without power or authority to enjoin the state, either directly or indirectly, from suing in its corporate capacity to recover a sum of money claimed to be due it as penalties under the Maximum Freight Law. It is not only an unquestioned rule of the common law, but a maxim of general jurisprudence, that no one is concluded by a judgment or decree rendered in a case to which he was' not a party. The state in its corporate character had no interest whatever in the suit in the federal court, and consequently the provisional injunction was ineffectual as to it, and equally ineffectual as to the attorney general and other officers or agents through which it must necessarily act in asserting its rights in courts of justice. The attorney general was not enjoined on the theory that he was acting as the agent of the state, but on the theory that he was acting without lawful authority from any source—that in attempting to enforce for the benefit of the general public the schedule of charges prescribed by the act of 1893 he was proceeding-under color of an unconstitutional law, and was, therefore, individually liable as a wrong-doer. The writ operated upon him personally and not upon him as an organ of the state. The eleventh amendment to the federal constitution would be effectually emasculated if it were permissible to enjoin or coerce the agents through which a state performs its corporate functions. Restraint or coercion of the agent would be, in everything but form, restraint or coercion of the principal. That the state is entitled to prosecute this action to judgment is a proposition abundantly supported by decisions of the supreme *549court of the United States; and it is almost needless to add that the right to sue includes the right to act through the attorney general. Louisiana v. Jumel, 107 U. S., 711; Cunningham v. Macon & B. R. Co., 109 U. S., 446; Hagood v. Southern, 117 U. S., 52; In re Ayers, 123 U. S., 445; Reagan v. Farmers Loan & Trust Co., 154 U. S., 362; Scott v. Donald, 165 U. S., 58; Harkrader v. Wadley, 172 U. S., 148; Fitts v. McGhee, 172 U. S., 516. See, also, M’Whorter v. Pensacola & A. R. Co., 5 So. Rep. [Fla.], 129, and Marshall v. Clark, 22 Tex., 23.

Note.—A state can not be sued by a private plaintiff. Florida v. Georgia, 17 How. [U. S.], 520. A state can not act as a collecting agent for its own citizens, and thus aid them to do indirectly what they can not do directly. New Hampshire v. Louisiana, New York v. Louisiana, 108 U. S., 76.—Reporter.

The fact that the defendant has submitted to the injunction issued against it is, of course, no defense. If it has been rightfully enjoined, then the state can not succeed in this action, and no harm will be done; but if the injunction was wrongfully issued, the company must pay the penalties that have accrued to the state and look to the injunction bond for indemnity. A party is not released from his obligation to A because B has, by injunction or otherwise, prevented him from performing that obligation.

There may be another reason why the injunction against the attorney general is not valid. It was issued by the United States district judge in 1893, and it does not appear that it has been continued in force by the circuit court. It is our understanding that an order of this kind does not possess such extraordinary vitality; but as the point Avas not at all discussed by counsel at the bar or in the briefs, we do not make it to any extent the basis of our decision.

The motion for judgment is denied.

Motion denied.