NOTES

ON THE

UNITED STATES REPORTS.

II DALLAS.

2 Dall. 401, 1 L. 433, WEST v. BARNES.

Appeal and error.- Writ of error to Supreme Court must issue from the clerk's office of that court, p. 401.

Distinguished in Mussina v. Cavazos, 6 Wall. 357, 18 L. 811; remarking that subsequent act of 1792 changed the rule and authorized its issuance by Circuit Court clerks.

2 Dall. 401, 1 L. 433, VANSTOPHORST v. MARYLAND. Commissions.- Motion for commission to examine witnesses in foreign country should name commissioners, p. 401.

Cited as instance of a case where State voluntarily appeared before Supreme Court, in Chisholm v. Georgia, 2 Dall. 429, 1 L. 445, discussing right to compel appearance.

2 Dall. 401, 1 L. 433, OSWALD v. STATE OF NEW YORK. Continued to February term, 1794, 2 Dall. 415, 1 L. 438. No citations.

2 Dall. 402, 1 L. 433, OSWALD v. STATE OF NEW YORK. No citations.

2 Dall. 402–409, 1 L. 433, GEORGIA v. BRAILSFORD.

Courts Practice.-A State by its governor, although not a party to an action in the lower court, may properly apply to Supreme Court for injunction against payment of execution moneys to claimant until its own claim thereto is adjudicated, pp. 405-409.

Cited as instance of the exercise of original jurisdiction by the Supreme Court where State a party, in New Jersey v. New York. 5 Pet. 288, 8 L. 128; Wisconsin v. Pelican Ins. Co., 127 U. S. 291, 295, 32 L. 244, 245, 8 S. Ct. 1376, 1377; California v. Southern Pacific Co., 157 U. S. 258 39 L. 694, 15 S. Ct. 603, deciding other questions as to such jurisdiction. Cited as instance of confiscation act in time of war, Thompson v. Carr, 5 N. H. 515.

Jurisdiction. Whenever State a party, Supreme Court has exclusive jurisdiction, per Iredell, J., 406. Contra, Wilson, J., 407.

Denied in Texas v. Lewis, 12 Fed. Rep. 3; S. C., 14 Fed. Rep. 66, holding alien defendant may remove suit by State to Federal court; in State ex rel. v. Doyle, 40 Wis. 200, holding inferior Federal court cannot oust jurisdiction of State court where State a party.

Injunction. To support preliminary injunction, the bill must show probable right, and probable danger that right would be dereated unless injunction granted, p. 405.

Cited and principle affirmed and applied in Southern Pac. Co. v. Earl, 82 Fed. Rep. 691, 48 U. S. App. 719, where injunction granted; in Branch Turnpike Co. v. Supervisors of Yuba Co., 13 Cal. 199, where denied; Blount v. Societe Anon., etc., 53 Fed. Rep. 101, 6 U. S. Ap. 335, where granted in a patent case; Overweight, etc., Co. v. Cahill, etc., Co., 86 Fed. Rep. 339, where denied; Read v. Dews, Charlt. (Ga.) 363, denying conditionally a motion to dissolve; Binney's case, 2 Bland Ch. 104, where injunction dissolved; Salmon v. Clagett, 3 Bland Ch. 162, where injunction continued; Newton v. Levis, 79 Fed. Rep. 718, 49 U. S. App. 271, amplifying the rule and affirming allowance of injunction by lower court; Allison v. Corson, 88 Fed. Rep. 584, collecting cases and allowing temporary injunction. Injunction.- Temporary injunction in equity may issue to restrain payment of money until rightful payee is determined at law, pp. 406-408.

Cited and principle applied in Irwin v. Dixion, 9 How. 29, 13 L. 34, where the legal question was as to public rights in alleged highway; in Western U. Tel. Co. v. Union, etc., Ry., 1 McCrary, 565; S. C., 3 Fed. Rep. 430, where question of validity of contract had to be determined before the propriety of granting perpetual injunction against its violation could be decided.

Distinguished in La Mothe v. Fink, 8 Biss. 497, F. C. 8032, where injunction was held improper because a remedy at law.

Practice. A State suing in the Supreme Court may properly do so by governor in behalf of State, p. 402.

Cited approvingly in Chisholm v. Georgia, 2 Dall. 452, 1 L. 454, holding that in suit against State process may properly be served upon governor and attorney-general; in Governor of Georgia v.

Madrazo, 1 Pet. 122, 7 L. 79; In re Ayers, 123 U. S. 488, 31 L. 224; Kentucky v. Dennison, 24 How. 96, 16 L. 725; and Western, etc., Co. v. Henderson, 68 Fed. Rep. 591, holding suit by or against governor virtute officii, in reality to be deemed suit by or against State itself; in dissenting opinion in McNutt v. Bland, 2 How. 27, 11 L. 166, arguing that suit there was by governor as private citizen; in dissenting opinion in Florida v. Georgia, 17 How. 500, 15 L. 197, arguing that appearance by United States attorney-general in suit between States made the United States a party; in State ex rel. v. Doyle, 40 Wis. 205, in quotation from Governor v. Madrazo, supra.

2 Dall. 409-414, 1 L. 436, HAYBURN'S CASE.

Mandamus.- Motion for mandamus to Circuit Court, district of Pennsylvania, to compel performance of duties in examining and determining pension claims, enjoined upon the Circuit Courts by act of March 23, 1792, which court had refused to carry out the act as invalid. Taken under advisement and act repealed before motion decided. The judges, with the exception of Johnson, J., while at circuit, held that the act was invalid because enjoining duties not in their nature judicial, and because the provision for appeal to the secretary of war from the decision of the judges would give the executive a revisory power over the judiciary.

The following citing cases approve the decision at circuit and apply the principle: United States v. Ferreira, 13 How. 49, 50, 14 L. 46, holding decision of a territorial judge directed by congress to perform similar duties, not judicial and, therefore, not appealable; in Gordon v. United States, as decided by Taney, C. J., 117 U. S. 703, holding act invalid allowing appeals to Supreme Court from Court of Claims; United States v. Waters, 133 U. S. 213, 33 L. 595, 10 S. Ct. 250, holding the allowance of counsel fees to district attorney by District Court a judicial act and not subject to reversal by the attorney-general; In re Pacific Ry. Comsn., 12 Sawy. 586; S. C., 32 Fed. Rep. 258, holding void provision of act creating Pacific railway commission, which authorized the courts to aid in its investigations; In re Interstate Commerce Comsn., 53 Fed. Rep. 479, holding invalid provision authorizing Circuit Courts to make orders enforcing subpoenas issued by interstate commerce commission; in Ex parte Riebeling, 70 Fed. Rep. 311, 314, 315, declaring invalid act requiring circuit judges to certify to the secretary of the treasury the value of services of an informer against smugglers; in Ex parte Griffiths, 118 Ind. 84, 10 Am. St. Rep. 108, 20 N. E. 513, annulling statute requiring judges to make syllabi of their decisions; in Auditor v. Atchison, etc., R. R., 6 Kan. 508, 7 Am. Rep. 579, annulling statute delegating duty of assessing property to Supreme Court; In re Senate, 10 Minn. 78, declaring void act requiring judges

to furnish opinions on constitutional questions to senate or house on demand; in Taylor v. Place, 4 R. I. 333, 334, 357, 358, holding legislative attempt to open a judgment and permit amendment of pleadings, a judicial act and void; in Bates v. Kimball, 2 D. Chip. 90, annulling legislative act allowing appeal in civil case after prescribed time; dissenting opinion Comrs. of Sinking Fund v. George, 47 S. W. 786, majority upholding statute authorizing legislature to appoint penitentiary commissioners.

Cited as instance where court refused to recognize validity of act of congress, in Emerick v. Harris, 1 Binn. 422, holding that courts may declare act invalid; and U. S. v. Williams, 28 Fed. Cas. 616, upholding embargo laws.

Distinguished in Interstate Com. Comsn. v. Brimson, 154 U. S. 481, 484, 38 L. 1058, 1060, 14 S. Ct. 1134, 1135, holding the act of congress authorizing the Circuit Courts to use their process in aid of inquiries before the interstate commerce commission valid, and not a delegation of nonjudicial functions to that court; in Kentucky, etc., Co. v. Louisville, etc., R. R., 37 Fed. Rep. 614, affirming validity of provision making findings of that commission prima facie evidence in rederal courts; in Striker v. Kelly, 7 Hill, 23, 27, affirming statute respecting New York streets authorizing the municipality to apply to Supreme Court for appointment of commissioners of estimate and assessment.

Miscellaneous.- Cited Valarino v. Thompson, 28 Fed. Cas. 8C6, in a reference to rule 7 of Supreme Court stated in 2 Dall. 413.

2 Dall. 415, 1 L. 438, OSWALD v. STATE OF NEW YORK. Practice. Order that defendant State appear in the above-entitled action by next term day on penalty of judgment by default.

Cited to the point that the reason a State cannot be sued is not because of nonliability, but the want of a tribunal competent to adjudge it, Coster v. Mayor, etc., 43 N. Y. 408. Cited as instance of suit against a State in New Jersey v. New York, 5 Pet. 288, 8 L. 129, reviewing authorities in such a suit.

2 Dall. 415-419, 1 L. 438, GEORGIA v. BRAILSFORD.

Injunction. In conformity with opinions expressed at preceding term (see S. C., 2 Dall. 402-409) injunction continued until next term, to be, then dissolved unless Georgia has begun her action at law for the money, pp. 418, 419.

Cited as instance of exercise of original jurisdiction of Supreme Court where State a party: Wisconsin v. Pelican Ins. Co., 127 U. S. 295, 32 L. 245, 8 S. Ct. 1376; California v. Southern Pacific Co., 157 U. S. 259, 39 L. 694, 15 S. Ct. 603, deciding other questions as to such jurisdiction. Cited as instance of confiscation act in time of

war, Thompson v. Carr, 5 N. H. 515; to the point that original jurisdiction of Supreme Court was deemed exclusive by early cases, in State ex rel. v. Doyle, 40 Wis. 200, denying right of inferior Federal court to oust State court of jurisdiction where State a party; and to point that injunction will issue only upon showing the probable right and probable injury in Read v. Dews, Charlt. 363, a point decided at earlier hearing (see 2 Dall. 402-409, 1 L. 433).

2 Dall. 419-480, 1 L. 440, CHISHOLM v. GEORGIA.

Courts. By the Constitution of the United States as originally adopted, a State was suable in the Supreme Court by an individual citizen of another State, pp. 450-480.

Cited in the following cases which state this ruling, with the remark that it led to the adoption of the eleventh amendment prohibiting suits in the Federal courts against a State by citizens of another State, or subjects or citizens of a foreign State: Governor v. Madrazo, 1 Pet. 122, 7 L. 79, holding Federal courts without jurisdiction under that amendment to try a libel for certain moneys and slaves in the possession of the State government of Georgia; New Jersey v. New York, 5 Pet. 289, 8 L. 129, affirming jurisdiction of suits between two States, and laying down various rules of practice governing such suits; Briscoe v. Bank, etc., of Kentucky, 11 Pet. 321, 9 L. 734, holding that bills of credit of defendant bank were not issued by State because bank could be sued and State could not; Florida v. Georgia, 17 How. 519, 524, 15 L. 193, 194, by Campbell, J., discussing the history of the case in dissenting from the holding that United States may intervene in boundary suit between two States upon allegation that Federal territory is involved; Kentucky v. Dennison, 24 How. 96, 16 L. 725, collecting authorities and holding Supreme Court has original jurisdiction of suits between States without any enabling act of congress; in United States v. Lee, 106 U. S. 207, 27 L. 177, 1 S. Ct. 249, affirming Lee v. Kaufman, 3 Hughes, 58, 95, 137, F. C. 8,191, upholding a suit against officers of Federal government, discussing reasons why sovereign State is not suable, and citing the principal case to show that the doctrine of nonsuability was not favorably received at that time; New Hampshire v. Lousiana, 108 U. S. 86, 91, 27 L. 660, 662, 2 S. Ct. 180, 184, reviewing history of eleventh amendment, and holding that one State might not sue another as assignee of debts due to certain of its citizens; Ames v. Kansas, 111 U. S. 466, 28 L. 489, 2 S. Ct. 445, arguing to the point that original jurisdiction of Supreme Court not an exclusive jurisdiction; Wisconsin v. Pelican Ins. Co., 127 U. S. 289, 298, 32 L. 243, 246, 8 S. Ct. 1374, 1378, holding that Supreme Court has no original jurisdiction of suit by State to recover penalty against a foreign corporation adjudged by its domestic courts; Buckner v. Street, 1 Dill. 259, F. C. 2098,