State v. Chicago, Rock Island & Pacific Railway Company

• Decision Date: 20 March 1901
• Docket Number: 11,270
• Citation: State v. Chicago, Rock Island & Pacific Railway Company, 85 N.W. 556, 61 Neb. 545 (Neb. 1901)
• Parties: STATE OF NEBRASKA v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
• Court: Nebraska Supreme Court

85 N.W. 556

61 Neb. 545

STATE OF NEBRASKA v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

No. 11,270

Supreme Court of Nebraska

March 20, 1901

ORIGINAL jurisdiction. Proceeding to recover penalties under section 9, article 12, chapter 72, Compiled Statutes, 1899. Motion for judgment on the pleadings. Motion denied.

MOTION DENIED.

Frank N. Prout, Attorney General, in reply to a request by the court for further argument upon the five points which are set out in his brief, said:

Upon the motion of the defendant the Chicago, Rock Island & Pacific Railway Company, for judgment on the pleadings, the court has expressed a desire to hear argument upon the following questions: 1. Does the injunction bind the attorney general in his official capacity, or only as a member of the board of transportation? 2. Does it bind his successor? 3. Does the injunction affect the state? 4. Can it affect the state? 5. Is an injunction against the attorney general in effect against the state?

1. In my judgment, the injunction of the federal court binds the attorney general, both in his primary official capacity and in his capacity ex officio, as member of the board of transportation. It is directed against George H. Hastings attorney general, and the other members of the board nominatim; and it was enjoined: "That the said attorney be in like manner enjoined from bringing, or aiding in burning or causing or advising to be brought, any proceedings by way of injunction, mandatory or other prosecution or civil action or indictment against said company for or on account of any act or omission, or on their part commanded or forbidden by House Roll 33."

2. In my judgment, it binds his successor. The incumbent of the office stands in the relation of privity with his predecessor. Holsworth v. O'Chander, 49 Neb. 42; New Orleans v. Citizens Bank, 167 U.S. 371.

3, 4. There can be no question that the judgment can and does affect the government of the state. Poindexter v Greenhow, 114 U.S. 270; Smyth v. Ames, 169 U.S. 466.

5. While I do not think an injunction against the attorney general is in effect an injunction against the state, still it has the effect of preventing that officer from attempting to enforce a law which the courts hold invalid.

It is with great diffidence that I present this brief to the court as I would very much rather have been able to say to the court that the motion of the defendants should be overruled and to present reasons and authorities therefor. But I do not conceive it to be the duty of the attorney general to argue or contend for propositions which he is convinced are untenable; but rather, as an officer of the court, he should assist the court, to the best of his ability, to reach a right conclusion.

M. A. Low, W. F. Evans and Woolworth & McHugh, contra.

OPINION

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 have given the question in controversy considerable attention, and we are all of opinion that the application for 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...