TuCHMAN ". WELCH,
YOUNT 'D. SAME.
(CircuU Court,D.Kamas. July16,1890.)
I. CoNS'l'I'1'U'rIO'!UL LA.w-8lJITS AG.UNS'!' A. STATE-IN1UNOTION. COlIlP. Laws Kan. 1885,' o. 85, I 18, provides that the county attorney of auy county In which a liquor nuisance .e:dsts may maintain an action in the name 01 the state to abate andpEl\,petually elljoin it, and tl:1at "any pel'llon Violating the terms of any injunction granted in lIuoh' prooeedings shall oe punished as for contempt... Held, that asutt to restrain the county attorney from instituting proceedings for contempt against. one whO has vj.olated such injunction, is not a suit against the state, within the meaning of CODSt. U. S. amend. 11, which in effect prohibits suits against a state, without its consent, in the United States circuit a.ourt.
L8AJrn-PBOOEEDINGS IN.STATB CouR'l'-CQNTEMPT.
Noris an the institution of such OC?ntempt proceedings an inJunotion against the proceedings of a state court, WhiCh, by Rev. St. U. S. S 720, the federal courts are forbidden to grant, except in oases of bankruptcy. L B4MB·-INTOUOATING LIQUORS-ORIGINAL P AOlUGIIS. Sinll6 a state. law prohibiting the sale of intoxicating' liquors by non-resident importers, in 'the same packages in whloh they were brought into the state, is void as being in contravention of the interstate oommerce clause of the federal constitution, where a state·court has enjoined such sales an injunction will lie from the federal oourts against'the institution of contempt proceedings by the county attorney for the violation of ,the state injunction under Compo Laws Kan. 1885, o. 35, S 18;' since Rev. St. U. S.S 19711, provides that any person who, under color of any state law or statute, subjects another to the deprivation of any rights, privileges, Or immunities secured by the constitution of the United States, shall be liable to the Injured person in anaotion at law or suit in equity, to be prosecuted in the fed eralcourts. ,'
InEquity. On bill for injunctjon. Thia litigation grows out of substantially the following state of facts: The i;upreme court of the United States having recently decided, under ,the ptbhibition law of the state of Iowa, that or vendors of liquors, wines, and beer had the right to import such 'articles of'cd.l11thodities into the state ofIowa(Leisy v. Hardin, 10 Sup. Ct. Rep. 681,rMd, as a consequence of the right of importation, the further tight'of maki'ilgsales 'of those commodities in the form of the original packllges'ifi whidh they were shipped, anything in the state law to the contrary notWithstanding,the Anheuser.Busch Brewing Association, a corporation of the state of Missouri; imported from its business house in the city of St.Louis. Mo., quantities of beer, consigned to the petitioner Bernard Tuchmnn, as its agent, at the city of Topeka, in the state of .Kansas; 'the: said Tuchman also being lI.<iitizeni of the state of Missouri. The Joseph Schlitz Brewing Company, a corporation Of the state ofWisoonsin, imported therefrom into the state of Kansas large quantities of beer, consigned to the petitioner Landis Yount, as its agent; the said Yount being also a citizen of the state of Wisconsin. And, as claimed by said petitioners, the said agents sold said beer in the state of Kansas In the original packages in which they were imported, and not wise. As these two cases involve substantially the same questions of law. the ClUle of Tuchman will here be considered. While complainant was thus
TUCHYAX t'. WEI.Cll.
engaged, on the 28th day of May, 1890, the respondent, Welch, acting as county attorney of Shawnee county, in which the petitioner was conducting such business, filed in the district court of said county an information charging the petitioner with selling intoxicating liqnors in violation of the prohibitory law of Kansas, and caused the arrest and confinement injail of the petitioner; from which arrest and imprisonment the petitioner was delivered on proceedings by a writ of habeas corplt8 sued out of the United States circuit court for the district of Kansas, (ante, 545,) presided over by the Honorable HENRY C. CALDWELL, circuit judge. Said discharge was made, after a full hearing of the facts, on the ground that the petitioner was pursuing a lawful business under the constitution ofthe United States,as declared by the recent decision ofthe supreme court of the United States in the said Iowa case; that the beer had been imported into Kansas from Missouri, and was being sold in the original packages, and not otherwise, by the petitioner, as agent of the said brewing company, and therefore his restraint under the warrant of arrest was in violation of his constitutional rights as a citizen of the United States. On the same day of his said arrest, the said Welch also commenced an action, authorized by the state statute of Kansas, against petitioner, in the district court aforesaid, to enjoin the petitioner from prosecuting and carrying on his said business as agent of said corporation. The bill of complaint herein charges that: "Said Welch then well knew, as he now knows, that the petitioner was so selling beer for said brewing company imported into the state in the original packages in which the same was imported, and not otherwise." That said Welch caused to be issued from said district court an order of injunction, without notice to petitioner, and without indemnifying bond, enjoining him from selling such beer, which injunction proceeding was predicated of the same facts as those upon which the arrest was made, and for which this court held he was not liable to prosecution in the habeas corpus proceeding. That, notwithstanding the petitioner's said discharge by this court, upon the resumption of his business, as he was thereby authorized to do, the said 'Welch, under color of the prohibitory law of the state of Kansas, which', as respects the said business of the petitioner, is in conflict with the constitntion of the United States, subjects the petitioner to the depriva:tion of his right to sell the said beer, as the agent of said foreign corporation, in the original packages, as aforesaid. That he has caused the said business of the complainant to be closed up and suspended for a long time, and that he designs and threatens to continue to deprive petitioner of his said rights by wrongfully and unlawfully contriving to worry and oppress said petitioner in his lawful business, and to that e.nd he threatens and is about to proceed to obtain from said district court procesS for contempt of said injunction order,and to have: thls petitioner arrested thereunder, confined, and imprisoned, thereby subJect him not only to the interruption imddestruction of his but also to grel,l.texpense and trouble in defending said pi'osecutions,and necessitating further writs of habeas carpus for his discharge, to his great
FEDERAL REPORTER ,
:and ,irreparable. iJ;xjury. '.. He therefore asks for a temporary restraining 'prder, !lnd for a,n injllnction, upon final hearing, restraining the respondeijt ,from the further annoyance, .harassment'arid prosecution of the petitioner for the same and like causes. 13efore FOSTER and PHILIPS, JJ. J}avid Overmyer, for complainants. L. B. Kellogg, Atty. Gen., and R. B. Welch, Co. Atty., for defendant.
J. By order of the circuit judge, I assisted the district jupge in the hearing, and submit the following views of the questions involved: 1. This application is met at the threshold with the objection that it contravenes the eleventh amendment of the federal constitution, which in effect denies the right of a citizen to sue one of the states without its consent. The law is now well settled that the state without its consent cannpt be sued in the circuit court of the United States by one of its own citizens, or a non-resident citizen, even upon the suggestion that the case is one arising under the constitution and laws of the United States. Hans v. Louisiana, 134 U. S. 1, 10 Sup.,Ct. Rep. 504. If, therefore, this action can be rightly considered as a suit in equity commenced or prosecuted against the state of Kansas, it must fail, and any f\lrtherdiscussion of the many que8tions raised in this controversy would .,be supererogatory. The question as to what in law fixes and determines .the fact as to when a suit is against a state has undergone rigid investigation by the federal courts. In the early rulings of the supreme court it w.as held that, where jurisdiction depends on the party, it is the party named in the record. Osborn v. Bank, 9 Wheat. 738-857. In Governor v. Madrazo, 1 Pet. 110, where the action was brought against the in behalf of the state, it was held that in legal effeot it was .'lgainst the state, beoause "the demand made upon him is not made personally, but officially. The decree is pronounced, not against the person, but the officer. * * * In such a case, where the chief magistrate of a state .is sued, not by his name, but by his style of office, and the claim made upon him is entirely in his official character, we think the state itself may be considered as a party on the record. If the state is not a party, there is no party against whom a decree can be made. No person in his natural capacity IS brought before the court as defendant." In Cun'ningham v. Railroad Co., 109 U.,S. 446, 3 Sup. Ct. Rep. 292, 609, it was held that, in those cases where it is manifest upon the record that the state is an indispensable party to enable the court to grant any relief, it would refuse jurisdiction. In other words, when it is olear that the party proceeded against has no individual interest in the controversy, and the state alone is to be affected by the judgmeQt, and the deoree would be inoperative, unless against the state, it may be deemed as a proceeding against the state. This questiotiunderwe.nt thorough discussion in Re Ayers, 123 lJ. S. 443, 8 Sup. Ct. Rep. 164, where it WaS .held that, although the matter out of which the arose was against Ayers as attorney general and other offi·
TUCHMAN fl. WELCH.
cers of the state in their official capacity, yet, as the real purpose was to enforce a right founded in contract to which the state was a party alone, and any judgment the court might render could be effectual only as against the state, the state was a necessary party, and in the case under review was constructively present by its officers. "In such a. case," says Mr. Justice MATTHEWS, "though the state be not nominally a party on the record, ifthe defendants are its officers and agents, through whom alone it can act in doing and refusing to do the things which constitute a breach of its contract, the suit is still in substance, though notin form, a suit against the state." The learned justice then confronts the very issue presented by the bill of complaint now under consideration. He says: "It may be asked', what is the true ground of distinction, so far as the protection of the constitution of the United States is invoked, between the contract rights of the complainant in such a suit. and other rights of person and of property? In these latter cases it is said that jurisdiction may be exercised against individual defendants, notwithstandingthe official character of their while in cases of the former description the jurisdiction is denied." He then proceeds to show that the acts alleged to be threatened by Ayers and others are in violation of the contract made by the state of Virginia, which it alone could perform, and the acts of defendants are but the acts of the state, and nothing done or said by them con:5tituted a breach of the contract, the breach of which constitutes the whole gravamen of the action; and as the judgment sought would bind the state, if effective, and not any individual act of the defendants, it should be deemed the act of the state. The opinion then very pertinently proceeds as follows: "But this is not intended in any way to impinge upon the principle which justifies suits against individual defendants who, under color of the authority of unconstitutional legislation by the state, are guilty of personal trespasses and wrongs, nor to forbid suits against officers in their official capacity, either to arrest or direct their official action by inj unction or mandamus, where' Buch suits are authorized by law, and the act to be done or omitted is purely ministerial, in the performance or omission of which the plaintiff has a legal interest. * * * Nor need it be apprehended that the construction of the 11th amendment, applied in this case, will in any wise embarrass or obstruct the execution of the laws of the United States in cases where officers of a state are guilty of acting in violation of them under color of its authority. The government of the United States, in the enforcement of its laws, deals with all persons within its territorial jurisdiction, as individuals owing obedience to its authority. The penalties of disobedience may be visited upon them, without regard to the character in which they assnme to act, or the nature of the exemption they may plead injustitication. Nothing can be interposed between the individual and the obligation he owes to the constitution and la'Ys of theUnited States which can shield or defend him from their just authority; and the extent and limits of that authority the government of the United States, by means of its judicial power, interprets and applies for itself. If, therefore, an individual acting under the assumed authority of a state,as one of its officers, and under color of its laws, comes into conflict with the superior authority of a valid law of the United States, he is stripped of his representative character, and subjected in his person to the conse-
qllences of his individual conduct. The stateJJas no power to imp:irt to him any immunity from responsibility to the authority of the United States." The separate opinion of Mr. Justice FIELD shows quite clearly the true line of demarkation: . ",There are many cases-indeed, they are of frequent occurrence-where officers of the state, acting under legislation in conflict with the constitution and )Il.ws of the United. States, may be restrained by the federal courts, as where those officers attempt, by virtue. ots.uch legislation, to take private property for public use without offering compensation, or in other ways to deprive one ofthe use and enjoyment of his property. I do not understand that the .opinion of the court is against this doctrine; but, on the contrary, that it is recognized and approved. There is a wide difference between reo straining olficers of the state from interfering in such cases with the property of the restraining them from prosecnting a suit in the name of the state, 'ih her own cour1:$, to collect an alleged claim." See, also, Hagood v. Southern, 117 U. S. 70, 6 Sup. Ct. Rep. 608. The court liPaintained that the ratio decidendi of the Ayers Case was consistent, when the facts of each are understood,with what was uttered in Da'vis v. Gray, 16 Wall. 203. "Making a. state officer 1\ party does not make the state a party, although her law may have prompted his action, and the state may sland behind as the real party in interest." The stateof KllDsas is not a party to this record, nor can the tion, if granted, affect or bind the state as such. The order of restraint would operate upon the respondent, Welch, in personam, to stay him from taking any further action looking to the employment of the inof the state to enforce against the complainant a dormant interlocutory decree of the state court, which he is not required to invoke, beCltllse its enforcement would be violative of the constitutional rights of the petitioner. No obligation in law or morals rests upon the respondent to do that which would be violative of the supreme law of the land; and no right or interest of the state can be invaded or impaired by restraining the respondent from an act which, if done, would at once be nullified by this court by discharging the prisoner from any arrest under the threatened proceeding. This court having already discharged the petitioner from the arrf'st under the criminal proceeding out of which the temporary injunction granted by the state grew,as an ancillary proceeding, on the same essential facts, a like discharge would inevitably follow under any proceeding for contempt. For any action taken by respondent after the adjudication in the habeas corpus case, looking to the further prosecution and punishment of the accused on the same character of facts, would be a trespass upon the petitioner's constitutional liberty, inviting an action for malicious prosecution. in which the respondent could take no shelterbehilld the state, and for which the state would in no wise be answerable: The section of the Kansas statute (section 13, c. 35, Compo Laws 1885) .under which the instituted the injunction proceeding simply provides that "the. attorneY gelleral,c.ounty attorney, or any citizen of the county'
TUCHlJAN V. WELCH.
where such nuisance exists, or is kept, or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin Hie same. The injunction shall be granted at the commencement of the action, and no bond shall be required. Any person violating the terms of any injunction granted in such proceedings shall be punished as for contempt by a fine of not less than one hundred nor more than five hundred dollars, or by imprisonment in the county jail not less than 30 days nor more than six months, or by both such fine and imprisonment, in the discretion of the court." This proceeding is not mandatoryon the county attorney. He mayor may not invoke it. Any citizen, as well as he, may put it in motion at his option. Being advised,as he is, by the decision of the supreme court of the United States in the Iowa case, as also by the decision of the United States circuit judge, that the proceeding against the petitioner is in the face of the supreme law of the land, he can be under no possible obligation of official duty or good citizenship to make further attempt to enforce the dornlant -order of injunction; and his threatened purpose to do sd, in this view-,is a seeming defiance of law, and a menace to the liberty of the petitioner, and of his right to pUrsue a lawful business. In such conjecture, it seems to me, it would be unjust to the state that it could be deemed a party to be restrained from such wanton and unauthorized prosecution. " 2. It is hext objected that this action is interdicted by section 720, Rev. St. U. S" which declares that the writ of injunction shall not be granted by any United States court to stay proceedings in any state court except where authorized in cases of bankruptcy. This statute is quite comprehensive. It extends to all proceedings first instituted in the state Courts, and protects both the court, as such, and the parties to the pending action in the state court. Peck v. Jenness, 7 How. 625; Haines v. Carpenter, 91 U. S. 254; Dial v. Reynolds, 96 U. S. 340; Wagnerv. Drake, 31 Fed. Rep. 849. It must be kept in mind, in this discussion, that neither the court nor the parties are here sought to be enjoined. It must also be kept in mind what the threatened acts are about to be committed by respondentwhich are sought to be restrained. The complaint is that while petitioner is in the peaceable pursuit of a commerce recognized by the constitution of the United States, recently affirmed by the highest tribunal of the nation, the respondent, under color of his office as county aUorney, in disregard of the said right of. the petitioner, and of the recent decision of this court through its circuit judge, (nnte, 545,) instigated by 8 purpose to harass the petitioner by repeated vexatious prosecutions, to the injury of his business and the interference with his personal liberty, threatens to proceed with and prosecnte further said injunction, thereby compelling himw incur expense and trouble fending the same. None of the imputed' acts threatened by respondent is he required by any valid law to do. As already stated, the statute under which he obtained the writ of injunction is but permissiv() whim. He is not required to appeal to it. No proceeding threatene(1 has been instituted. No proceeding of the court is asked to be restrahiedj
,only the unwarranted, voluntaryipernicious interferencfl oJ the respond,ent. The information lodged by him with the district oourt is in the ordinary form under, the state, law as against any retail liquor dealer violating the local prohibitory law of the state. The,re is nothing on the face of the information to advise the state court that the accused was act'ing as .the agent of a importer, or that the liquor was shipped by the .manufacturer from another state, and was being sold by the agent in the original package. On the. face of the therefore, the injunction order was properly issued by the state court, if the statute a)lthorizing it be in this particular constitutional. The whole wrong, done the petitioner was instigated and brought about by the respondent. And whij.e it is not to be imputed that the !;ltate court, after the/d,ischarge of the Petitioner by this court under the writ of habeas CQ7P'!l8» would proceed further in such injunction, if advised of the facts as .they appear on the face of the bill of complaint herein,yet the danger to whicb the petitioner is exposed is that, before any hearing can be acpordeQ.: him on the merits, the respondent threatens and may on the factsetated inhie saidinformatJ;on, and, the inj\lnQtionobttlined therein, cause, fine, and imprisonment, andinjuJ1Y of his property inthe court in the contep:1pt prppeeding, might only look to the-,Jac.t as to whether or not itf; order had been dis(}beyed without more. , butjUllt, in thisQQnnectioJl, to respondent, tostate that he pas, ,in addiijon to his demurrer to the bill, filed his affidavit in which he dililclaims any purposeto,oppress or injure the petitionf'lr, and protests that he is actuated solely by a. sense of official dt;lty,.andin no spirit ohebellion against the of the federal courts. ,]3ut it is difficult to read his affidavit as a whole,and observe its repeated asseverations that hepl'Pposes:to proceed, only according to law,withput receiving theimpression that his position is equivocal and disingenuous., He,does not state what law he proposes to pursue, whether the l;uv as construed.by ,the supreme court of the United Sttites and this court, through his Judge CALDWELL, or the law of the stlLte of Kansas, under which he b.oldlil his office, and acts; and the course of argumen,t pursued at hearing indicates that he does not yield a willing obedience to the 'hiw, in so far as it is in conflict with that under which he holds his office. Unquestionably, if he claims and can show that the petitioner is n9t the agent of a foreig,n importer, or is not seUing in .the original ,packages in which the beer was shipped, or that 4e is making his house .ofbuEliness a mere tippling concemior the rendezvous of disorderly peo· pIe. bringing it within· the police power of tile state to declare ita he hasa Pllrfect right to proceed in the state court, and this court sb.ould not, and would n,ot, interfere. But ,on this preliminary heariqg, accepting the demurrer as confessing the fa,cts alleged in the bill, we are confronted with this anomalous state ofaffairs: The supreme ,Court ofthe United;:;tates has decided that constitution of the United States the non,reeidentmIUluf3;cturer or merchant has a right to ,import beer and liquors into the state'of and, to !lell them as. thus
TUCHMAN V. WELCH.
paoked in said state, any law or regulation of the state to the contrary notwithstanding. This is no new doctrine to me. The supreme court of the state of Missouri, 32 years. ago, in State v. Shapleigh, 27 Mo. 344, and in State .v. Nqrth, Id. 464, applied this. doctrine in all its force to the case of the importation of boots and shoes from Boston to Missouri, which the state law, by unfriendly legislation, sought to exclude; and as shown in that opinion, as also by that of the supreme court of the United States, it has been the law oftbe land, as declared in Broum v. State;·12 Wheat. 419, for 60 years past. As applied to the constitutional aspect of the question, there caJl be no difference between shoes and beer. For thus exercising this constitutional right. the respondent caused petitioner's arrest under the conflicting state law of Kansas, and had him The prisoner appealed to this oourt for his discharge, by the writ of habeas corpus, and on a full, free hearing the oourt of competent jurisdiction discharged him, and he resumed business as theretofore. Ante. 545. Then, under the injunction granted cotemporaneously with the said warrant, and in aid of it, the respondent proposes to con-· tinue to pursue the accused as for a oontempt for doing that which the order of discharge, in its legal consequence, authorized him to do. Impotent indeed must be liJe government whose judicial branch is without the power to challenge such repetitious infractions of the citizen's personal liberty and constitutional right to pursue a lawful avooation. If arrested for Buch contempt, this court would in duty feel bound, to discharge him on habeas corpus proceeding on the admitted facts. But the respondent could again have him arrested under the same injunction as oftell as he might be so discharged, and resume the prosecution of his business. If a case could ever arise to caU into action the powers of a court of chancery to prevent the multiplicity of suits, and. the.harassmentand persecution of the citizen, this certainly presents the strongest appeal to such protective power. Under the lict of congress of 1867 authorizing the citizen, when restrained of his liberty contrary to the constitutiou, to appeal to this court for a writ of habea8C01"ptt8, the party so holding him is allowed three days in which to make his return. And, as experience shows, in aU the writs· of habea8 corpus which have recently be applied for in this court therepopdent has. claimed his three days in which to make return for the sheriff'; so tha.t the applicant, guilty or innocent, is kept in jail during this period before he can have a hearing aIld secure his liberty. So that, if he is to be remHted to that remedy which is the most expeditious known to the ll).w side of the court, it is most inadequate. The fourteenth amendment to the federal constitution recognizes the fact, and declares that all persolls bom or naturalized in the United States are citizens of the United States; all well as of the state wherein they reside.. Having thus proclaimed their the govermnent recognizes its obligation to extendJ?fotection where it expects allegiance. So the firsf section of the· amendment declares: . "No state shall make or enforce any law which shall abridge the or immunities of citizens of the United States; nor shall any state depriYe allY
FEDERAL REPORTER, vol. 42.
person 01 life, liberty, or property without due process of law. nor deny toany person within its jurisdiction the equal protection of the law." This is a direct restraint on the powers of the state, and, of consequence. on its officers and ministerial agents, through whom it might attempt any of the forbidden deprivations. In re Ah Lee, 5 Fed. Rep. 902, Mr. Justice FIEr,D, in the Railroad l'ax Gases, 13 Fed. Rep. 722, that, while the amendment in question had its origin in the purpose to secure to the newly-made citizens the full enjoyment of their freedom and rights, yet" the generality of the language used extends the protection of its provisions to persons of every race and condition against discriminating and hostile state action of any kind. Its effect in preserving free institutions, and preventing harsh and oppressive Jegislation, can hardly be overstated.· * * * Its authors, seeing; !howpossible it was for the state to oppress without relief from the placed in the constitution an interdict upon their makes lasting oppression of any kind by them under the form of law impossible." Then, discussing the causes which led up to the:enactment of the thirteenth, fourteenth, and fifteenth amendtilents, and the scope of their operation, he says: . f'Hadthe population of tbeUnited States continued as sparse as when the constitu.tion was formed, and the means of more rapid intercourse between not been invented, it is possible that further amendments ,""ou:ldnot,hlwe been But the immense development of the reSC;>I.lfceS.Qf t)le country,the great increase of population, the constant interc::04tSe'between the states by steam, railway, and telegraph. changed the b'usiness and commercial relations of the states to each other. and led the p'l'opla'of one section to seek a closer union, and to desire a greater authority to be exerCised by the central government. while the peculiar institutions of tpe othersectioll. and the different industries they developed. led its people to. desire to limit. rather strengthen. the central authority. Differences of opinion in matters of internal policy. and the estrangement engendered by controversies growing out of the existence of slavery ill some of the states, ultimately culminated in civil war. Men then saw that danger was to be apprehended 'in a direction opposite to that which led to the original amendments. Restraints upon the power and action of the states were therefore suggested j811d to impose them. and abolish slavery.-the great cause of the ci vii conflict.-the new amendments * * * were adopted."
In the case of etc., Y. Crescent Oity,etc., Co., tAbb. (U. S;) 388. Mr. Justice BRADLEY expressed the same view. He said: "It is possible that those who framed the article were not themselvesaware of the far-reaching character of its terms. They may have had in mind but one particular phase of socIal .and political wrong which they desired to redress. Yet. if the amendment as framed and expressed does in fact bear a broader meaning. and doea extend its protecting shield over those who were never tllol,lght of when it was conceived and: put in form. and does reach social evils whic'h were never before prohibited by constitutional enactment, it is to be presultlejl that the American people, in giving' it their imp1'imatur, understood' what they were doing. and meant to decl'ee what in fact has been decreed."
')'\ I,'.;. ·.
,j' . . . ;" .,
TUCHMAN tI. WELCH.
"The legislature has an undoubted right. to make all p.olice regulations which they may deem necessary (not inconsistent with constitutional restrictions) for the preservation of the public health, good order, morals, and in.telligence; but they cannot, lmder the pretense of a police regulation, interfere with the fundamental privileges and immunities of American citizens. The question has its limits in both directions; and whilst we are to be specially careful not to do anything that may trench upon the vast and almost limitless field of legislation, where the will of the people is supposed to be most freely and powerfully expressed, it is nevertheless onr duty, with a firm and unflinching hand, to prevent the invasion of any clear and undonbted individual rights of the citizen which are secured to him by the constitution."
It is true that in Slaughter-House Oases, 16 Wall. 36, by a divided court, it was held tbat the provisions of the fourteenth amendment did not apply to the facts of that case, on the ground that the privileges and immunities secured thereby pertained to such as were the peculiar, inherent rights'of citizens of the United States, as contradistinguished from those of the citizen of the state; and that, as the act of the state legisla-' ture came within the police power of the state, it was not in contravention .of the federal constitution. But the learned judge concedes (page 72 of tae. opinion) that, while the newly-enfranchised negroes were up· permost in the minds of congress in framing' theamenrlments, yet this language is so comprehensive as to extend its limitation to other rights, assailed by the states, though the party interested may not be of African descent. Mr. Justice SWAYNE, in his separate opinion, makes this pungent .indisputable declaration: "Life, liberty, and pr6pertvare forbidden to be taken "without due process of law,' and' equal protection of the laws' is guarantied to all. Llf6 is the gift of God, and the right to preserve it is the m,ost sacred of the rights of man. . Liberty is freedom from all restraint!lbut such as. are justly imposed by law. Beyond that line lies the domain and tyranny. Propertyis everything which has an exchangeable value, and the right of property incitides the power to dispose of it according to the will of the owner."
In the Live-Stock, etc., A88'n Case, supra, Mr. Justice BRADLEY had at first reached the conclusion that the civil rights bill as it then existed did not apply to the case in hand, and that, inasmuch as congress had not then legislated to carry into effect the provisions of the fourteenth amendment, he felt constrained to apply the provisions of said section 720, Rev. St., to the case, and refuse the injunction, in so far as it sought to restrain the state officers from proceeding in the case then pending in the state court. After a night's rest and deliberation, he delivered a supplemelltal opinion, in which he said: "While we still hold that the act is not intended to enlarge the privileges and immunities of white citizens, it must be construed as ditional guaranties and remediel;! to secure their enjoyment; and thisis.JiJroQ! ably the reason why congress has neglected to pass an additionalla;w:for ryingthe 14th amendment into effect, the civil rightli bill being as having already supplied the necessary provisions for that purpose. ", .. This opinion was. delivered at thl' April term, 1870,ofthe. distri.ct court.Anq this brings Uil to. a mostsigIlificllnt
'p'aflsed an act the amendment tp of United for other 17 St. U,. fL ", Tpl:lnrst of this act follovvs: .'. "That any pers,on who, under color or 'any law, stlitute,ordillance, regulation,cufltom;or usage of any state, shall'llubject, or cause to be sUbjected, any peraon:Withiil the jurisdiction of the United States to the deprivation of any dgllts,'privileges, orimmnnitiessecured by the constitution of the United States. shilll, any-such law. statute, ordinance. fpgulation. custom, or usage of the state to the contrary notwithstanding. be liable to the party injured in anyaction1:\t law, suit ineqUity, orother proper proceeding. for redress; such proceeding to be prosecuted in the several district or circuit courts of the with and subject to the'same rights of appeal. review upon erUnited ror, andothet remediesprevided in like caseS in 'sueh eQurts under the provisions: of the act Of the ninth of April. eighteen hundred and sixty-six. entitled 'An act to protect all persons in the Uuited States in their civil rights. the means of their vindication,' and other. remedial laws of the and to United Sttltes wllich are their nature applicallle in such cases;" This is as oomprehensive as it is e:Xplicit. It appliesW any person, no matter who, officer or layman, who" under color of any law, statute, any person etc., of'anystate, shall' subject, orcau8e to be within the whole jurisdiction of the federal 'government to the deprivation of any right, privilege,' or immunity secured by the constitution, and declares that he shall, notwithstanding any law, statute, regulation, etc., of the state, be liable to the party aggrieved in any action at law, suit in eq· uity, or suchprqper for redress. And it throws wide open the doors of the federal courtus.thealtar ofjustice for his refuge. This section is carried forward into the ·Revised Statutes by sectiOn 1979. Can it be doubted. that, if this statute had been before Mr. Justice BRADLEY in the Live.Stock, etc·· A8B'n Case, he would have hesitated to apply it, and grant the injuQctj,on?' ' It is t,rije, the act does not unconditionally repeal said s!:lction 720; but the seventh section declares "that nothing herein containedshallbe 'construedtb supersede or repeal any former act or law, except so far as the same may be repugnant thereto.'" So, while section 720 remains operative and applicable in' other matters and respects as neretofore,yet,if it be repugnant to l1ny 6f the provisions of the later act 20; 1871 ,so as to prevent the redress and the remedies designed by it to the party whose constitutional rights and privileges are obstructed by any adverse state action; it is in so far superseded and inapplicable. " ,,' . Suppose the state of Missouri should enact a law prohibiting any colored citizen fr()JIl exercising the right of sutl'rage,iand provide for his arrastand criminal prosecution for voting, with the auxiliary proceeding that the ptopercounty, attorney might also apply for an injunction,and perp'etilaHy'enjoin: l\im 'from, exercising his 'constitutional privilege; that, should threaten,td proceed againat him as fur· (jontempt, tinder such injUDctionjfor::renewingthe effort;· Wou,ld it be· questioned that the
TUCHMAN II. WELCH.
court a bill in equity under the act of 1871 to restrain such officer, especially so undei' circumstancesindicll.ting a on the, part of: BlJ9h officer to harass land oppr.ess the voter,and possibly to drive him: from the state? The constitution and the law recogriizes no:distinction as to color or equality 'of right.' The right to liberty and property ,the protection of the, laws in the pursuit of Ii lawful av<:>catio?, are alike sheltered under tlle .broad teqis of the constituti0ll"aildc9ngress has placed atthe command :of the 'citIzeli every weapouSn the whole armory of justice for the'protection of , sl],()h COllStitUtioual The equitable remedy of injunction for ,tbe "protection of rights and property, and the pl'evention,ibf wrongs, is'affirmative:, as well as negative: , Pomeroy, in his work on Jiiris' , ",1",,' ",WheJ:ever a right or is by the ownership' of
property, orotherwise, cognizable by law, a vIolation of that 'right will be pro. ,llibit.ed. ulJlless there are other considetations' t>fpolicy or expediency Which thfl resort to this prohibitive remedy., The restraining power of equity extends, therefore, through the whole range of rights and duties which are recognized by the and would bEl applied to case;of intended tion.were it not for eertailireasoDs of Elxpediency and policy which, cont,rol and limitits exercise,'" . ., . ,
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e9,1;llty.jUrisprudeI,Ice;toP,reve,n"tth,.e,cqmmis,sionOfwrong i,son,loY limIted to the instance where a tort may n9,t be.8;dequl1telyoompenSs.ted in damages. ,ItJstoo palpable to admit ofdebate,.as"already remediea,by law,anq. the usual,col:lfse thereung¢r, would afford no adequate protection in tbis case, assuming the biUto : b e t r u e . , ' the It is urged much, force by,the learned,couns¢l 'forpetitionel'tbl!-t so much of said sectiOn the Kansas statute whieh authoriws a temporary iI;l,junction to iBsue ;without bont;l, and without any notice to is not due process ofla.w.On,the the partysqught contrary, it is insisted by the attorney general that this objection is disposedofin the case of Mugler v. Kansas,123 U. S. 623, 8 Sup. Ct. 273. The conclusion apparent to my mind to be drawn: from what Mr. Justice HARLAN said respecting this. statute is that he assumed under such a proceeding notice would be.given, and afull heariilg, had in the matter of declaring such a nuisance. The statute itself,itistrue, does not provide for notice before, the temporary injunction is granted; but the court evidently assumed that in such a proceeding, before the property rights of the defendant shoUld be affected,notice would be given; whl'lreas the bill of complaint llere alleges that without any notice the court granted the preliminary tbe eflect of ,which would be to close up the defendant's place of .withoutbond.. <:>f, indemnity 1 ,until such time as a hearing might be had finally upon the tperitl\.,It is a principle of universal administration of that no ,step can be taken bya law, the life, liberty, or property.ofthe citizen without, first , thereof·. ",The lll,wloathes a without,a,hea.r',6
ing.", Smithv. Taylor, 11 Ga: 22. 'lor,et.c., 1 Strange, 557, said:
J., in Rex v. Chancel,.
of God and man both the party an opportunity to make his defense"U he has any. ... ... "'Even God himself did not pass sentence upon before he was caUedupon to make his defense." Mr. Justice FIELD, in the Railroad Tax Oases, 13 Fed. Rep. 751, says: i'ItcotJtlicts with the great principle wDich lies at the foundation of alljust government that no one shall be deprived of his life, his liberty. or his property withOut an opportunity of being heard against the proceeding. The principle iS8s old as Magna Charta,· and is embodied in all the state constitutions,and)n the fourteenth amendment of the federal constitution. The provision in ,this amendment is in the fj'lrm of· an interdict upon the states,e nor shaU:any state deprive any person of life, liberty, or property without dtJe process of law.' ... ... ... It must give to the'party to be affected an oppol1tlJnity of being heard.respecting the j u8tice of the judgmentsought. Without. these conditions entering into the proceeding, it would be anything but ,PrQCesB. If,it tOllohec,i Ufe or liberty, it would be wanton punishment, or"rather, wautoncruelty. If it touched property, it would be arbitrary ex., '. to it til p.o answer to the want' of notice in this case' thatim opportunity will be given the petitionElr at the final hearing be made perpetual; for in the prelimas to whether the injunction inary pro'Caeding,without 'n'dtictWand without an opportunity, by affidavitlor Qiherwise,toiflnter his protest, and to bring to the the'courttangible, palpable the opportunity to be heard by counlaid tiponthe party accuse4 of levying a nuisel, ·,Ii· Qrderof sance,and his place of busirl'es13 summarily closed and. his business for the. time. may be and 'seriously, if not irreparably, injuted,;: ,But I· will ndt press thismatterbeyond these s\lggestions. A most earnest appeal is made by respondent to this' court to leave 'unmolested· the officers bf the state in this controversy to proceed through thecustotnliry channels of theistate courts, leaving the petitioner his remedy, after final decision in the court of last resort in the state, of appealing to the United States supreme court. We sensibly recognize the importance of the rule of conUty illv()ked, as essential to .the preservation of the harmony and peaceful operation between the courts of the time of dispassiontwo' jutisdictions; but I feel sure that in the ate consideration and calmer reflection, when the feverish excitement of popularlocal senthnent shall gi\;e way to reason and a broader national spiri't,the intelligence and patriotism of counsel will pronounce judgment fot-hisconstituents acquitting the federal judiciary in this contro'Versy oftlia imputation of unduly interfering, when they are executing the high behests of the federal constitution. Is it not, rather, the raand his abett?rs who should. recognize this rUla of comity? The supreme'court ofthe UnitedStat.es bas declared So much of the law of Kansas 'as prohibit& the importation of liquors, etc., into the state, and th13irsale therein inthe original package, as unconstitutional. The United :States circuit judge, in obeqience to his oath of officEl,has reaffirmedanuapplied :that decision to these prosecutions. Until congress
M. BCHANI>LER BOTTLING CO. 11. WELCH.
shall interpose, and confer upon the state the right to regulate this matter, loyalty to the supreme law of the land, and the obligation of good citizenship, demand that the state and its ministerial officers should forbear to provoke the for the federal judiciary to assert their jurisdiction to see that the federal constitution is recognized and obeyed. The most august thing in government is law. and the higheet duty of citizenship is obedience to and respect for the law. My opinion is that sufficient appears to entitle the petitioner to the temporary writ of injunction.
J' t concurs.
(Oircuit 001£rt, D: Kansas. Jl11y 18, 1890.)
, IN'1'OXIOATING'LiQuORS-SALBS IN ORIGINAL PACXAGBS-CRnnNAL PROSEOUTION-INJUNC!I'lON,. ' ,
Though a court of equity has no jurisdiction to enjoin purely criminal proceedings, injunction will lie against proceedings by a prosecuting attorney to prevent a non-resident importer from llelling" intoxicating liquors in the inai packagell in which they Were imported, under a ,sta1;e law whicl1. ,in so far as It prohibits lluch sales, is in violation of the interstate commerce clause 'of the federal cOllstitution, since such proceedings are an interference with complainant's property rights \luder the constitution, tor Which, as provided by Rev. St. V. 5 1979, an action at law or suit in equity may be maintained.
In Equity. Bill for injunction. The complainant is u corporation of the state of Missouri. The respondents are residents of the state of Kansas. The respondent Welch is the acting county attorney of Shawnee county, in Kansas, and the respondent Wilkerson is the 'acting' sheriff of said county. The bill alleges that complainant is engaged in the business of a wholesale and reta.illiquor dealer at the City of Kansas, in Missouri; that it owns and has in possession a large amount of whiskies, wines, and beer, , and other articles of merchandise, in said last-named city, and sells the same to various customers in other states as merchantable commodities; that on or about the month of May, 1890, it established an agency at the city of Topeka, in Kansas, for the sale of such articles, and engaged and employed as agents, at said place, Carl Jockneck and J. R. Deisher, to receive and sell for it at said point such merchandise as it might ship to them for said purpose; that said agents were and are also citizens resident of the state of Missouri; that in establishing such agency the complainant invested a large sum of money at said city of Topeka, and shipped to said agents large quantities of such liquors, wines, beer, etc., amounting to several thousand dollars; that said articles were shipped by express'and otherwise, at great expense, securely packed and sealed, in packages consisting of several hundred in number, each of which packages was securely boxed up, sealed, and numbered, in distinct, separate v.42F.no.11-86