The commoner. (Lincoln, Neb.) 1901-1923, September 15, 1911, Page 4, Image 4

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The Commoner.
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The Commoner.
Entered at tho Postofllco
second-class matter.
at Lincoln, Nebraska,
Wijxiam J. Utitam
Kdltor nml Proprietor
Hjchajid I..
A worJnto Editor
Cjiaiimcs W. 13nvAH
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Federal Court and Railroad Managers
Address all communications to
THE COMMONER, Lincoln, Nob,
t :
Amid all the present day tumult a Commoner
reader sends a copy of Rudyard Kipling's poem
entitled "If" with the notation, "To W. J. Bryan,
with compliments of B. A. Plummer." The
poem follows:
If you can keep your head when all about you
Are losing theirs, and blaming it on you;
If you can trust yourself when all men doubt
But make allowance for their doubting, too;
If you can wait and not be tired by waiting,
Nor being led about give way to lies
Or, being hated, don't givo way to hating,
And yet don't look too good, nor talk too wise;
If you can dream, and not make dreams your
If you can think, and not make thoughts your
If you can meet with triumph and disaster,
And treat those two impostors just the same;
If you can bear to hear the truth you've
Twisted by knaves to make a trap for fools,
Or watch the things you gave your life to,
And stoop and build 'em up with worn-out
If you can make one heap of all your winnings,
And risk it on ono turn of pitch-and-toss,
And loso, and start again at your beginning,
And never breathe a word about your loss;
If you can force your heart and nerve and sinew
To servo your turn long after they have gone,
And so hold on when thero is nothing in you,
. .Except tho Will which says to them "Hold on."
If you can talk with crowds and koop your
Or walk with kings, nor loso tho common
If neither foes nor loving friends can hurt you,
' If all men count with you, but none too much;
If you can fill tho unforgiving minuto
With sixty seconds' worth of distance run,
Yours is tho Earth and everything that's in it,
And which is more you'll be a Man, my
Rudyard Kipling.
Grant G. Martin, attorney-general for Ne
braska, speaking before tho Lincoln Commercial
club, delivered an exceptionally Interesting ad
dress relating to federal courts and railroad
management. For the reason that the address
relates to a recent federal court decision of
general concern it will bo interesting to Com
moner readers everywhere.
Mr. Martin's address was as follows:
Tho trend of railroad management is to get
a-way from state regulations. The federal courts
are inclined in that direction. The effect of their
late decisions is to bestow upon the general
government exclusive jurisdiction over all
matters, affecting the means, instruments, faci
lities and rates of transportation companies con
ducting a business in more than one state. This
system would enable the general government to
usurp control over local traffic and rob tho stato
of its inherent power to control and regulate its
internal commerce and tho means and instru
ments which conduce to the same. So far as
transportation companies operating in two or
more states are concerned, they necessarily act
In a dual capacity and render a dual public ser
vice. They perform a service originating and
terminating within the state and also a service
of an interstate character.
Now the dual character of this public service
requires a dual system of regulation, the one
subject to tho state and the other subject to the
nation. While the general government is per
mitted to reach within the limits of all the
states and exercise regulating powers to promote
and protect commerce among tho states, nu
merous decisions have committed the supreme
court of the United States to the proposition
that each state has the inherent power to regu
late all commerce within its limits of purely
an internal character. The state has no right
to invade the domain of tho federal government,
neither haB the latter any right to invade tho
domain of the state.
In this connection I shall refer to some pro
visions of the federal constitution and the early
decisions of the supreme court of the United
States in relation thereto. I do this for the
reason that inferior 'federal court decisions are
tending to federal regulation rather than stato
control of public carriers. Sec. 8 of Art. 1 of
the constitution provides that congress shall
have power to regulate commerce with foreign
nations, and among the several states and with
the Indian tribes.
It does not say that congress shall have power
to regulate commerce in the several states, but
among the several states. In discussing the
phrase "among the several states," Chief Justice
Marshall said: "The completely Internal com
merce of a state, then, may be considered as
reserved for the state itself." "The internal com
merce of a state, that is, the commerce which
is wholly confined within its limits, is as much
under its control as foreign or interstate com
merce is under the control of the general
Article 9 of amendments to constitution pro
vides that the enumeration, in tho constitution,
of certain rights shall not be construed to deny
or disparage others retained by the people.
Article 10 of amendments to the constitution
provides the powers not delegated to the United
States by the constitution, nor prohibited by it
to the states, are reserved to the states re
spectively, or to the people.
Article 11 of amendments to the constitution
prqvides: The judicial power of the United
States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted
against ono of the United States by citizens of
another state, or by citizens or subjects of any
foreign state. The meaning of this amendment
is plain. The stato of Georgia had been sued in
the supreme court of the United States by a
citizen of another state. The court entertained
the action. This decision led to the adoption
of the Eleventh amendment and its purpose was
to prevent the states from being sued by citizens
of another state. The Eleventh amendment is no
new thing, it was adopted in 1798.
Our own court has held (opinion by Judge
Sullivan) that "tho judicial power of tho United
States does not extend to actions brought by
individuals or corporations against a state. Tho
Eleventh amendment to tho federal constitution
would be effectually emasculated if it wore per
missions to enjoin or coerce ine agents through
which a state performs its corporate functions "
(State vs. C. R. I. & P. R. R. Co. 61 Neb. 545)
Again, our court held that "the circuit court
of the United States is without jurisdiction to
enjoin a stato from the enforcement of its own
laws; that which the federal court is without
power to do directly it can not accomplish in
directly." (State vs. C. R. I. & P. R. r Co
62 Neb. 123.)
"Wherever one, by virtue of his public posi
tion under the state government, acts in tho
name and for tho state, and is clothed with her
power, his act is her act." Ex parte Virginia
100 U. S. 339; Carter vs. Texas U. S. 442. But
see 118 U. S. 194.
Seventy years ago the supreme court of tho
United States held that the powers reserved to
the several states extend to all the objects which,
in the ordinary course of affairs, concerned'
property and the rights of property of in
dividuals, as well as to tho internal order,
improvement and prosperity of the state.
King vs. American Transportation company 1
Flipp (U. S.) 1, 14 Fed. Cas. No. 7. 787. As
late aB the 123 U. S. reports the supreme court
of the United States said: "The very object
and- purpose of the Eleventh amendment was to
prevent tho indignity of subjecting a state to
the coercive process of judicial tribunals at tho
instance of private parties. It was thought to bo
neither becoming nor convenient that the several
states of the union, invested with that largo resi
duum of sovereignty which had not been dele
gated to the United States, should be summoned
as defendants to answer the complaints of
private persons, whether citizens or aliens, or
that the course of their public policy and tho
administration of their public affairs should be
subject to and controlled by the mandates of
judicial tribunals without their consent, and
in favor of individual interests." In re Ayers,
123 U. S. 504, date, 1887.
In order to circumvent the purposes of this
Eleventh amendment public carriers have de
vised the scheme of having their stockholders
begin suit in the federal courts against the
companies themselves and, the attorney general
of the state to enjoin the enforcement of stato
regulations. This in spirit is an action against
the state because the attorney general acts only
in behalf of the state. Under the state con
stitution and the laws of the state he is the law
officer of the state. To prevent him from enforc
ing the laws of the state affecting public carriers
is to stop all machinery of the state government
in relation thereto.
In recent years the federal courts have gradu
ally broken away from their original holdings
referred to and are now committed to the propo
sition that a suit against the law officers of tho
state who are trying to enforce the laws of tho
state, is not a suit against the state. These
latter decisions in effect abrogate the Eleventh
amendment to the constitution.
Under these constructions the Eleventh
amendment serves no useful purpose. The
original theory of the federal constitution waB
that state courts construe state laws in the first
instance with the right to review in the supremo
court of the United States. Under present hold
ings many state enactments are enjoined by
federal courts before they are considered by
state courts. Thus the federal courts have be
come places of refuge for every man or interest
who sees fit to assail state enactments. It js
true that the federal courts hold that suits
against state officers aro not suits against tho
state when such officers are seeking to enforce
unconstitutional laws, but this is answered by
saying that a federal court ought to have juris
diction of the subject matter of the suit at tho
time the suit is commenced and ought not to
entertain a suit upon the assumption that state
officers are seeking to enforce unconstitutional
The decision in tho Minnesota rat case is
revolutionary in the extreme. People who
comprehend its far-reaching effect upon the
rights of the state are astounded. -If congress
had brought forth a measure which struck down
the right of the states to regulate their internal
commerce, every state In tho union would havo
been aroused. ,
This decision is revolutionary because it holds
that tho Minnesota rato reductions, thougu
applying only to commerce within tho state,
ihterfero with Interstate commerce, and, henco
violate the federal constitution. For over ono
hundred years, the supreme court of tho unitea
States has held that tho states had c1"8,1
control over their Internal commerce. Du"J;
all that time, practically all railroad regulation
K ,