Tuchman v. Welch

• Decision Date: 16 July 1890
• Citation: 42 F. 548
• Parties: TUCHMAN v. WELCH, COUNTY ATTORNEY. YOUNT v. SAME.
• Court: U.S. District Court — District of Kansas

42 F. 548

TUCHMAN v. WELCH, COUNTY ATTORNEY.

YOUNT v. SAME.

United States Circuit Court, D. Kansas.

July 16, 1890

This litigation grows out of substantially the following state of facts: The supreme court of the United States having recently decided, under the prohibition law of the state of Iowa, that non-resident manufacturers or vendors of liquors, wines, and beer had the right to import such articles or commodities into the state of Iowa (Leisy v. Hardin, 10 S.Ct 681,) and, as a consequence of the right of importation, the further right of making sales of those commodities in the form of the original packages in which 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 Tuchman, as its agent, at the city of Topeka, in the state of Kansas; the said Tuchman also being a citizen of the state of Missouri. The Joseph Schlitz Brewing Company, a corporation of the state of Wisconsin, 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 otherwise.

As these two cases involve substantially the same questions of law, the case of Tuchman will here be considered. While complainant was thus 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 liquors in violation of the prohibitory law of Kansas, and caused the arrest and confinement in jail of the petitioner; from which arrest and imprisonment the petitioner was delivered on proceedings by a writ of habeas corpus 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 of the United States, as declared by the recent decision of the 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 constitution of the United States, subjects the petitioner to the deprivation 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 end he threatens and is about to proceed to obtain from said district court process for contempt of said injunction order, and to have this petitioner arrested thereunder, confined, and imprisoned, and thereby subject him not only to the interruption and destruction of his business, but also to great expense and trouble in defending said prosecutions, and necessitating further writs of habeas corpus for his discharge, to his great and irreparable injury. He therefore asks for a temporary restraining order, and for an injunction, upon final hearing, restraining the respondent from the further annoyance, harassment and prosecution of the petitioner for the same and like causes.

David Overmyer, for complainants.

L. B. Kellogg, Atty. Gen., and R. B. Welch, Co. Atty., for defendant.

Before Foster and Philips, JJ.

Philips J. By order of the circuit judge, I assisted the district judge 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 cannot 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 S.Ct. 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 further discussion of the many questions 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 was 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 governor in behalf of the state, it was held that in legal effect it was against the state, because '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 Cunningham v. Railroad Co., 109 U.S. 446, 3 S.Ct. 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 clear that the party proceeded against has no individual interest in the controversy, and the state alone is to be affected by the judgment, and the decree would be inoperative unless against the state, it may be deemed as a proceeding against the state. This question underwent thorough discussion in Re Ayers, 123 U.S. 443, 8 S.Ct. 164, where it was held that, although the matter out of which the controversy arose was against Ayers as attorney general and other officers 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, if the 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 not in 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, notwithstanding the official character of their acts, 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 constituted a breach of the contract, the breach of which constitutes the whole gravamen of the action and as the judgment sought would bind ...