broken down; henceforth whenever an Attorney General or any other official of any State of the Union seeks to enforce a statute of his State he must do so at the risk of being enjoined by the Circuit Courts of the United States until it has been definitely decided by the highest court of the land that the statute under which he is acting is not in violation of the Constitution of the United States.

Outside of the fact that the Minnesota case is the last and completest expression of the Supreme Court as to the scope of the Fourteenth Amendment and as to the limitations of the Eleventh Amendment it is worthy of consideration, because of the fact that the Minnesota statutes which were enjoined furnished, in radical and barbarous provisions, the best excuse for the exercise of the power of the Circuit Courts of the United States to enjoin the operation of State laws. The history of the case is in brief as follows: The Legislature of Minnesota enacted several statutes the effect of which was to reduce both the passenger and freight tariffs of the railroads of Minnesota approximately 33 1-3 per cent; among the penalties for the violation of these statutes for each and every offense was a fine of not less than $2,500.00 and not more than $5,000.00 for the first offense, and not less than $5,000.00 and not more than $10,000.00 for each subsequent offense. This was the penalty for the violation of the freight tariff. The penalty for violation of the passenger tariff was a fine not exceeding $5,000.00, or imprisonment in the State prison for a period not exceeding five years or both such fine and imprisonment. It was also provided that any officer, director, agent or employe who counsels, advises or assists in the violation of any of the provisions of this act shall be guilty of a misdemeanor and be prosecuted therefor, and upon conviction be punished by imprisonment in the county jail for a period not exceeding ninety days. Certain stockholders of the Northern Pacific Railway Company filed their petition in one of the Circuit Courts of Minnesota against the Railway Company, asking that it be enjoined from putting into operation the tariff fixed by these statutes and against the Attorney General of Minnesota, asking that he be enjoined from insti

tuting any proceedings in the State courts to enforce the same. It was alleged in in the petition that the statutes were in violation of the Fourteenth Amendment of the Constitution of the United States in that they deprived the petitioners of their property without due process of law and denied them equal protection of the laws. The Attorney General appeared, but only to insist that the Circuit Court had no jurisdiction of him, because as Attorney General he was the alter ego of the State, and the State could not be made a party defendant because of the inhibition of the Eleventh Amendment. The Court assumed the jurisdiction as prayed; whereupon the Attorney General promptly instituted mandamus proceedings in the State Courts to enforce the provision of the statutes of Minnesota. Upon the hearing of the rule nisi to show cause why he should not be attached for contempt for disobedience to the mandates of the Circuit Court he disclaimed any intentional disrespect for the Court, but insisted upon his immunity from suit as an officer of the State. directly representing the State in the mandamus proceedings, whereupon the Court fined him $100.00 and remanded him to the custody of the United States Marshal, to be held until he should dismiss the mandamus proceedings in the State Court. The Attorney General immediately applied to the Supreme Court of the United States for leave to file a petition for writ of habeas corpus and certiorari, which was granted, and a rule was entered directing the United States Marshal for the Third District of Minnesota, who held the Attorney-General in his custody, to show cause why such petition should not be granted. It was contended by the petitioner in the habeas corpus proceedings that he was being held in custody unlawfully because in the first place the original petition filed against him upon which injunction was granted was in effect a suit against the State of Minnesota, and in the second place, because the petitioners in the original petition had an adequate and complete remedy at law by the orderly process of appeals through the highest Court of Appeals of the State of Minnesota, thence to the Supreme Court of the United States, and that until there had been a final judgment declaring the statutes unconstitu

tional they were to be presumed as constitutional and the State of Minnesota should not be denied access to its own courts for the enforcement of its laws enacted by its law making body. Justice Peckham in delivering the opinion of the Court asserted in no equivocable terms, first, the jurisdiction of the Circuit Court of the United States to issue the restraining order; second, the invalidity of the acts of the Minnesota Legislature, because in effect they were confiscatory and deprived the Southern Pacific Railway Company of its property without due process of law and denied to the Southern Pacific Railway Company the equal protection of the law; third, the right of the Circuit Court of the United States to enjoin the Attorney General of the State from enforcing said statutes because they were unconstitutional and because in attempting to enforce unconstitutional statutes the Attorney General was no longer acting in the capacity of the representative of the State, but was in effect a trespasser, and fourth, the inadequacy of the remedies at law because of the harsh penalties for their violation, and because while the constitutionality of the acts were being tested by the usual course of appeals the loss to the railroad company would be irreparable.

While as above stated, if the question were an open one, I might find it impossible to concur in the wisdom of the adoption of the Fourteenth Amendment and in the legality of its adoption and while I am not satisfied with the soundness of the reasoning of the majority of the Court as to the separation of the Attorney General in the execution of his official duties in the enforcement of the State laws from the State itself, I cannot resist the reason and the virtue of the decision as a whole. The hostility which finds such ready expression from a large class of Southerners to the use of Federal injunctions to stay State laws is not directed so much at the injunction features of the proceeding as at the supervisory power over the State laws vested in the Federal Courts by the Fourteenth Amendment. If the assault upon the dignity of statehood is made by the Fourteenth Amendment it ought not to matter and does not matter by what instrument that assault is made, whether by injunction suspending the operation of the law for good

equitable reasons or by appeals invalidating the law after it has been in operation long enough to work irreparable damage to a certain class of citizens who cannot be restored to the statu quo which existed prior to the enactment of the unconstitutional provision. There is a widespread demand for quick action in the operation of our legal remedies. With this demand I am heartily in sympathy and I can see no reason against and many for the suspension of a statute which threatens property rights until its constitutionality can be finally adjudicated. There is nothing quite so sensitive to the evil effects of uncertainty as capital. In this period of stupendous commercial activity and enterprise, when business interests of untold value to the public are created and grow to inconceivable proportions or shrink into insignificancy in a short period of time and when fortunes are made and unmade in a day there is every reason that the laws under which these business enterprises blossom into the richest fruitage should be certain and stable. One of the beauties of our jurisprudence which have called for the encomiums of jurists and scholars has been its flexibility and readiness to accommodate itself to the kaleidoscopic changes in commercial and economic conditions. Such I esteem the extension of the application of the Fourteenth Amendment to cases of the Minnesota class and so long as the power thus vested in the Circuit Court of the United States is exercised judiciously there can be no question as to the beneficent results thereby obtained. Very recently the Senate of the United States has, without any serious opposition, passed a bill which will assure that Federal injunctions will not issue to restrain State laws except upon a full hearing by three judges after due notice to the State official or other person to be affected thereby. This check upon the grant of injunctions in this class of cases provides against the probability of this power being abused. Like the Methodist brother who stated that he firmly believed in the doctrine of falling from grace, but did not advocate indulgence in it, let us hope, while acquiescing in the existence of the power of Circuit Courts of the United States to enjoin the operation of State laws, that the power will not be frequently and liberally exercised.

APPENDIX K.

LABOR UNIONS AND KINDRED ORGANIZATIONS

FROM THE LAWYER'S STANDPOINT.

PAPER BY

WRIGHT WILLINGHAM

OF ROME.

Mr. President and Gentlemen of the Georgia Bar Association: It may be as well to consider this question in the light of a great economical issue as from the standpoint of the law, as undeniably, the broad scope to which it has attained does demand and will continue to demand the patriotic concern of the country at large. While we are interested in the rulings of the courts, this interest is emphasized on account of our desire to become acquainted with the growth and aggressions of labor organizations.

The announcement by the United States Supreme Court of rulings in the two recent leading cases, to-wit, the Lowe vs. Hatters' Union case and the case of Adair, were followed by pronouncements from the heads of labor union departments, to the effect that from this day, henceforth, all office seekers shall reckon with organized labor. This is interesting. Heretofore the labor organizations have largely veiled their political requirements, and endeavored to make the impression that unions were in no sense political.

It seems the irony of fate that the courts should have construed the Sherman Anti-Trust Law as applying to labor unions. Probably nothing was further from the minds of the authors of the bill presenting it to Congress, or in the mind of Congress in passing the bill twenty-one years ago, than that