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JUDGE PRITGHARD CRITICISES LYON APPEAL TO STATE SUPREME COURT WAS UNNECESSARY. The Complete Text of Federal Judge's Opinion on Dispensary Matter. .fudge I'ritchaid lias completed liis opinion i;i Iho ease of Kloischmann attains) Ihe winding-up commission of the Sou 1 li Carolina Slate dispensary, and in it Ins sets fourth his lvasons for assuming jurisdiction, as lie announced ho would do. Porhatps the most interestiujr feature of the opinion is I lie last paragraph, in which Judge I ViI chard declares I ho action of Attorney (loneral Lyon ir. appealing to tho supreme court of South Carolina for a mandamus (o conipcl tlvo winding-up commission lo pay over to him :flf>,0() which (lie South Carolina general assembly appropriated to |)(> used I>\" him as a proseculion fund, lo he, apparently, "an unwarranted at tempi to provoke a conflict of jurisdict ion between lliis court and tlic Stale courts of South Carolina." "This action on llio part; of llio Alorjioy (lenoral," says .Indue Priichard, "is in the nature of a. surprise. and was entirely unnecessary, inasmuch as this courl, if proper application had been made hy the defendants or I lie attorney general, would have gladly authorized I lie us:1 of 111r- same for such purpose." Judge I'ritchard 'os opinion follows : In th" Circuit Court of (lie United Stales for llio District of South Carolina.?-The I'Meischutaiin Company, Complainant, versus \V. .1. Murray, vl al. Defendants. This is a suit in equity brought. hy the complainant to have the delV.wlauts deidarcd Irusteos as to a cerlaiu fund in tlii'ir hands, lo determine th.' aniounl due lo iho eoniplainant payable out ol i11< said fund, and lo coinpel the pa v men I n|" 111. > aniouui so j'oilild In iir due. 'I'lie ici-i.i .1 -iii.u . thai i.i istrj ih > general assem hly of llio Slate of South Carolina passed an Acl reuulaliu-r the purchase, sale and distribution o|' iulo\'n-ai i;io- liijitors within said SI.i|e a.ol providing" lor a hoard consisting of members. lo he known as the I?a rd iii I I'lei-I III--; '!' the St:il.. di --a ry. 'I'lie ,-aid Ad also provided tur ,i i: >p.Misa rv commissioiier in he cl.'i i.'il hv (lie v< ::era! assen,!dy. ami mad" ii the dnlv of ihe hoard iif director-. of the Slate dispensary iii puiviin-e al ali'nlio!ic li quors for lawful use within the Slate, and lo sell I he same In ihe various county dispensaries, a^ provided in said Act. The law furl her provided that all money arising from the sal.1 of liquors hy the hoard of directors of the Slate ilispcn >atv should he deposit eil with Ihe St;i|c | reasurer, to he held hy him as a separate and dislincl fund, and kepi lo ihe credil of said hoard o|' directors of the Stale dispensary. Thai Ihe liquors purchased hy Ihe said hoard of director.} of Iho Stale dispensary should ho paid for oul of this fund upon a warrant lo he issued hy Ihe said dispensary commissioner, such warrant lo he issued hy Ihe dispensary coimnisio'ior al the direction of the said hoard of directors of the State dispensary. and iii> pari of this fund eon Id he lawfully paid oul hy Ihe Stole treasurer, except upon warrants So issued. Thai while said law was siill in force ill - complainants sold to the hoard of directors of ihe Stale dispensary. al prices mutually satisfactory and agreed upon, a larue quantity ol whiskey and other spirituous liquors, all of which whiskey and spirituous liquor, except a small portion of which was aIIcowards returned hy the defendants, won* duly accepted and sold hy Ihe said directors of Iho Stale dispensary at a substantial profit, in accordance with the dispensary law, and Ihe proceeds of such sales were, in due course of administ ration, deposited in and became a pari Ol the tuml hereinbefore referred lo. I hat I lie general assembly of the State of South Carolina, at iis sessions held in 1 DO/, passed an Ad providing for the abolition of Ihe Stale dispensary, which Acl was dnlv approved on the Kith day of l-Y.bniary, 1!)07, an 1 Section 17 of which is as follows: "Section *(7. The Slate dispensary is hereby abolished, and all Acts and parts of Acts ioonsislonl with this Act. are hereby repealed: Provided, that this Act shall no! have Ihe effect of preventing any violation of the present, criminal law rotating lo tlr? dispensary being pu nisi rod, as nowprovided hy law for offences heretofore commit tee." That at loo same, sotiro said general usscml )y or u ? State of Son 1 h Carolina passed anoliier Act, ? 0111i11c*vi "An \ct to provide for the I dispos'iion i t all prop-::/ c nnieet- | od wit It !lio State dispetwiry and lo ( wind u;> it- ; 'Vstirs?'' wiihdi said Act .* is in wor?Js and figures as follows: c "Session Laws, S. 0., 1907?No. *102. | "An Act to provide for the disposi- ;; tion of all property connected with s the State dispensary, and to win.l up its affairs. i "Section I. Ho it enacted hy the ? general assembly of the State of ,, Soul 11 Carolina. That immediately upon tlii* approval of this Act the ., governor shall appoint a commission v of well known business me:i, consistinn of five members, none of wiiom |, shall be members of tIn? general (| assembly, to be known as the State v dispensary commission, who shall f each give bond for the faithful per- | formnnce of the duties re<piiivd in the ,| sum of $10,(100. s "Section 'J. Said commission shall p immediately organize bv the election 1< of ;i "liairman and a secretary from s; lheir number. i? "Section !!. Il shall be the duty of ' said ?r111ni<-i???i lo close ?nii llie en- '* lire business of tlie Stale dispensary. '' except real estate, including" stock in the several county dispensaries, by disposing of al! goods and property P connected therewith, by collecting all s< debts due and paying1 from the pro- >'? cecils thereof all .just liabilities al 1111 f earliest dale practicable. Said com- ' mission ~-li;i 11 be al liberty to make d such disposition upon such term-, d times and conditions as their jn l*_r- " nvenI may dictate: Provided, that no " \ iji<olho|ic liquors or beers shall bo d disposed of within the Stale, except n< lo county dispensary boards, and all u liquors illegally bought by the pros- o cut management. may be returned to li the persons, firms or corporations from whom purchased, and f"r dc- tl termining the legality of sail pur- it chases they are hereby authorized a and directed I" investigate fully the_ a circumstances su,rrounding' all con- i h tracts for liquors, and to employ such a assistant counsel as may '>, approve.I jn by the attorney general. and such c\-; i i a (-coir, i i a li t -. :is s|e :o_>rapner.-. '> ^ cid a y ether person or v-r^on; thejf I commission may deem ueee-sary lor j the ascertainment of any lact or t a facts connected wilh said State di>-;s; pen ar\ a.id i!% in in.T.:einei>t. or eon- in |tro|. at any :in'.-' in the past. an 1 lo .1 | take testimony, either within or with- ji | out liit* State: Providi'd. further. that ' i :tl! >:!> men1- d.all be made in gold , I a' I -i\-f v C'i'.:i ii:e 1'uited Stale . in 1 ui:..l Siat.-s currency or in ;ia-jv i I ioii.d '?ank nol es. : t j " Section I. flic compel) .alien of t i each member of -aid commission siiali js , t:,? S.~> per day lor each day actually i ! etui>loved about ihe husiiie-- and ac- t ; Ina! expenses lor tile tune engaged, j provided, that tlie,\ siiali receive ao : compensation tor service rendered oil 1 i this commission alter .1 miliary 1. i I "^t i'iioii I li%? >:\w\ roinuu j shall pa\ to the Stale treasurer, af-p iter deducting their compensation and jt other expenses alhvwed by this Aet,.i all surplus funds on hand, alter pay- m ing all liabilities. i "Section (i. The said commission is i hereby authorized to employ such i bookkeepers, accountants, clerks, as- I i sistanls and employees as they may | '.deem necessary, and to contract with i |th iu al tiie time of employment for \ their compensation. 11 Section 7. The said commission j, 1 sha'.l submit lo the government 111" j i j earliest day practicable a complete u jinventoix of all property received by , i them, with a statement ol I he liabiii- 'i tie- of the Stale dispensary, and. as j | ' soon a- the affairs are liquidated, a ( report in full ol their nctings an.l doings. I i "Section S. That said commission ] j shall have full power and authority , 1 to investigate the past conduct and i t affairs ol the .< [ < nu,i Jl*' | j power and authority con I erred upon | the committee, appointed to investi- . [gate r?i f: i'; f lb dispe i.-ar\ j ! a- prescribed by ; i Vet to pr..nle !' r the inv.'''.** 'd. th.1 di > > ? arv. v- < ?';e::? ? > "J-dli. I). j HKIh, he, ami hereby i-. conferred up- y Ion the commission provided tor un- j I tier this Act: Pros ide.l, that lor the , purpose ol the in vest ig.it ion ol t h * , affairs <?f the dispensary as herein ; provided, each and every member ol t said commission be. and hereby is. an- ; lliorized and envpi?wered. separately j and individually, or collectively, to j exercise the power and authority livnv- ( in conferred upon the whole commit- , tee. I "Approved the 10th day of Fob- . ruary. A. 1). 1007." ; This Act was approved on the sanve | day as the Act abolishing the State dispensary, to wit: the Itith day of ; I'Vbruary. 1007. and within a short ] time theivafler the commission pro- | vided for was created by lire appoint- j ment of the defendants, AV. ,7. Mnr- j ray. John MeSween, P?. I'\ Arthur, ('. K. Henderson and Avery Patton, as'j 'oinmissionors, and said defendants, | iavin?r duly qualified and organized ! mi >uan( to (11?? said Ad, became an 1 ! Id now constitute the Slate dispbn- i ary commission, and as such arc j liaised with lite execulion of all the | lowers conferred and Hie performin*'^ of all Hit' dnlies imposed upo'i nil) commission by Iho said Act. That immediately upon their quallieation as commissioners, and organization -as (no Stale dispensary ommission. the defendants entered ipoii tli.1 discharge of their duties, nd, in accordance with the Act proidintr for their appointment, took possession and control of the entire usiivess and property of the State ispensary, including the money hicli was at that time deposited with lie State treasurer to the credit of lie hoard of directors of the Slate ispensary, and said defendants have old the properly of said State disensary. except real estate, and colvted many of the debts due to the ''id Stale dispensary. and now have i their han.N the }?roceeds arising'! com said sales and collections, which, i '- 'Iher with tlif sum received from i<- State treasurer, amount to ahoui ^00.000. I'liiil all of the money received rom the sale of the properly of the lid State dispensary and the col- ^ 'cjion (d debts due to it has been r<nn lime !< time, as received bv the etVndanfs constituting the Slat.?] ispensary conimissioii. and now is, cposiled to the credit of said com-I lissiou in certain banks in (he Stale I f South Carolina, subject, to with- J rawal only by said commission, and ' m ii part of said money is in the t re as- | k ry ut the State of South Carolina, I ])t, r has ever been minified with any h iinds beloniiimT to said Stale. j , That the complainant furnished lo j ~ lie defendants, at their request, an i emized statement of its account f gainst the State dispensary, which i t count had be.-n compared with ihoju, ooks kept bv the State dispensary I . . . 1 j to ii' I I mi nd to he in substantial amve- j lent wit ii ;sai w books. That complain- [ mi :> account has also been audited > t!i'' cmnpa i.v employed by the de- in udauts for tll.l! pll!'po<e. and the ' omplaiuani insists that, in accordnee with >aid audit and the books 01',"' I ' I iid State dispensary, its account is I , nrr.'ct. and that there is now .justly ? 1 :;s. 1 ouiie.v !'? it, out of the fund-; ' .' i '.lie hands of the defendants, di' '! 'i lo be applied ( > thv payment ill - .ins; !ia!ii!iiie- < f t!,. ^i.ate ' " ii'-ii-ary. a balance of :Vi; " ?:. ] P. ' * 1 1? : 1 ha'ii:c" is a .i:i-1 !ia>i!itv !' !. .-aid .'Mate di -pensary: a"..I a!- j Iioul:!i coniplai;;ani has detnanded 1,1 iid amount, the defendants have re-i"' u-"d lo pay the Millie or any part hereof. " 1' inplaiiiants therefore a>k that a| eceiver be appointed lo take char.:e " > ' and ad mini t1:* all the moneys now n lhe bauds of the defendants. aris-:.!'1 : 1 - " <! of 1 j. sa!, rtv belo tin State d i - >.'ie-:irv of j s'oii'.h Carolina. or from 1 he colhvion "f debts due lo it. or direct end I ai lecr.'e !?a: ihe amount due !o coin-j tl dainant lie immediately paid to it j n ipon the execution of a irod and suf-jol icieiit bond cun.li I ioned to pay to il lefemlants such sum or sums as may j " >e leutid to he due then bv c en- i '! daieai.t and a l.jud\red to l>e j>ai(! by j 1> t: that this i urt appoint a mas!er p1 villi a view of having its claim pr.s--- ! h; d upon and deleriui::ed. and also | p.iests l isi- court to urant a wit ?I j njunetion restraining the defendant . t! com paying out or divposiutr of any t! >f the moneys now in their hands u 1- ; I' il there can tic an adjudication of j is h" matters in colli cover-, y between ; .11 '(unpl.iinaut and (h'l'eudar.ts. j ji It is contended by counsel for <U- li 'eddants. tirst, that the funds in th.di: lands of the State dispensary com- u: nission, created by the Act of I'Vb- c? nary 11 >. 1 !I0?, belong to and are the ci ropersy of the State, which has the t: isi'lit to control the same, and which, ci hrouirh the said commission as its it iirent, is in possession thereof. d Second, that the i,1 State dispensary commission is the m ire ntrenl or d 11stcnire'iitalily of the Stale vested ? .villi the minislei ial function of wind-i S nir up the State dispensary's bnsi- I ii less. sellin.iT the troods and property J a >n baud, collecliu.tr the debts due the e; >laio in connection with said hud- c! less and holdiuiT the proceeds for the lb state and subject to its ntrht of dis- j d >osil i(?n I hereof, and also with the p judicial function of investiyaIint>" all dainis in connection with said bnsi- tl less and d'(t^riujiii*n.!r the validity ll hereof, and that this commission i-s S i court within the meanintr of Section a 1'JO, of the Kevised Statutes of the p ['nit'ed States. n And also vested with the minister- si 11 function of payinir from the funds si icld by them for the State such of p he said claims as they may upon said nvivstRation find and decide to be o iu?t liabilities of tire Stale. 11 fhird, that the pending action is Tl 11 cft'cct an action against, tlio State, p TRADE M ij REG I STEi *wei W/ the stan j old ~? ? ?a?a? ? i ? bp??? wihi^ cause i( seeks lo lay hold of funds fornii loiiyiiiji' 11? Ilie Slate and in the of \V nds of Hie said commission, as its I{t*j>.. vnIs. and throuirh llio said com- of Hi, ission in tin? possession of tiie of vi; ale, and lurlher seeks to have such the p nds applied to the payment of al- lo tel red liabilities of the Slate, so thai i oilici-a e Stale is an indispensable party (suit I t!ie action. iii'-V a Pourt h, that 11u* State cannot he | "iTice.id lo have waived its constitutional i,"|'P" Iliiiliiily I'l'iiiu suit by the s:iid Act ' n I i U'..- ill" *" S t :i! f > d is| >. 'iisa ry colli- whose i-?ion. ' except l-i ibi' extent of ;he ment medics therein provided for ami al- .??:11 wed to claimants for the collection '!1 'h such debts as may be due them hyjSuit, ' Stat"- i:i coiui"ction with iis said Stale I:'i!e dispensary business. and. iwiihii ere fore, such claimants a:0 limited aimm the remedies therein provided for ' nil. id allowed. 1 !;v I' "- *! - I ha! till- said A < ! crea i i >i ; ! State di-ipensary <? minis.;ion li.?\ - ?1 *'< . ' i:r been pa.-scd and the remedies j'P1, ^ ieiv.in provided for liavim-' been ai- ! n ?I l< wed. as a purely voluntary ma'ter ; i"-' > i I lie part of the legislature of t he j I'" fbii late, the said Act is subject to be ! them pealed and lire allowance of the re- ' :pi.ireit'dics therein provided for is sub-' At* ct to be recalled al any lime at thcj.-aiv Icasure o*f th? legislature and in its j i"nn 1 i>< ret;io!i. odd u Counsel representing the defend- ; ury. j i!s do i)"f auree as to the contention ('d wi nit this commission is a court with-ihirue i the meaninu of Section 7;2l)?on which I' I he distinguished counsel hcuiiir of dispel ie opinion that liiis commission is the | ot. a court within the meaning of numb lat section. The court has careful- arisin considered the arguments on this lions 'lit. and. alter much investigation, wbic.'i is reached the conclusion that Ihcjceivci intention of tin* defendants in this | nmk"? sped is unl enable. It is admit ted j anion: :ai lire commission does not have I ury b ie power to enter final judgment or as w, > issue ail execution, and. while it Iitc'ii invested with certain powers, they I" I hi uol to any appreciable extent ed n idici;d in their character. The an- bankloriiv conferred upon them to make placci npiiry is only for their own infor-llie pi iatie.il and nn'idance. and does not J vision infer upon them the power to judi- numl ally determine the matters submit- comp] d to them, and this beinjj so. the ilarlv uirt is forced to the conclusion liiar i hi is not a court according to the well jno- n et!ii)."l nicanimr of the term. lure 'file next question is as to whether he h lis is a suit auaiusf tlie State or | arisiu helher il is a suit lo which the j Simile late is an indii-ipensable party, and J il.v f< ) order to reacli a correct delermin- ,jnst I lion ol liiis question. il becomes nee- dispel <sai'y to int|uire as to the nature and durin haraeter of the duties required to souji'h e performed by tiie defendants un- leyisl er the Aid aulhoni/,inn' their ap- ontslf ointment. diispoi The defeiulants are charged with its j>i ie duty of settling and adjusting fairs lie unsettled claims ajyainst the Tin late dispensary at the time it was lized bolished, and are required by the ed. fi rovitfions of the Act hereinbeiPorc dispe: lonlioned |o ascertain and pny such not-lit uns as may be found to bo due the lesjisli in-oral creditors of Hie Stale dis- in 111 ensary. lire .. These defendants are not officers menli f the Stale within the moanintr of trust, ie ordinary acceptation of the term, fentfyi P officers al all, they are officers ap- ed wi ointcd solely for the pifrposc of per- purpo ARK to RED . mmwmmmrnmJi jjjojnaacKtSStofcr.vdii5?a-^K7?VA, ?*.., I.",'* For ^ lty-three year dard of the S | ,W, fi??Kx?e?Ni^jaiaa^w^7;^iiKsana^5ss^aM time fish guz Sa Royster 5uano Co. NorfoSk, BgaaMganiiHnw,nai MWWBBBBBaHB 'ffffiirro ng spoedljc duties. In the ease I'. Tel. Co vs. My nit, OS Feb. d .'W">. the court says: "Tiro Act t l' legislature creating the court i: Station ;iiicl the Act extending a owors and .jurisdiction thereof |i eirraph companies cast upon tho ( Is who are defendants in this ii he special duty id' administer- I nil onloreing saiil laws. Their I t were created solely for such j ii >es. and such defendant's arc | . eiii i al officers of the S'tate, L du!\ ii i - to see |u i!|(. enforce- 1 \ oi laws gcneia!ly, and who ad , hy formal judicial proceedings j u e coin!s of (ho State. This 1 | therefore, i- no! against the J ' I Kansas, and hence is not , i t>i:' pronihit ion ol the eleventh !( 11tieut to tnr constitution of the I 1 Stales." ' v Imi- -nil i; i> .M.ti zh; to enforce [ i 111' * eouiplainant in accord- ! i iviiu she provisions of iln* Act in ' : a. The object of this suit is j . i coerce th,. defendants into - ; net Iiinu* which (he Stat.1 |wv- | . 1 " I'Hill doi 1??11 to compel | to do wnat the State statute re- j n sliall ht> done. j j "he time that the State dispell- i I was abolished State diispensarv i ! lo 111" amount of ahonl .f lot).- ! <i '' 1 deposit in the Stale t reas- j v i id lliere was property eonnootilh the Stale dispensary and a j v :i in? hi ii I due to it for goods I f. 1 had been sold to (|k? count v |j users. The defendants have sold c >roperiv and collected a large L ei of (lie debts, tin1 proceeds | f U" lrom such sales and collce- j j aiti?>iiiitiin?f to about . fGoO.OOO. f . Ioyether with th,. .fl.->().()()() re- s I from the State treasurer. < :i total of about $SOO,OOt). The :i! of money in I lie State I reaselonvsiiiy to th,. dispensary fund. . (i dl as t lie amount realized as ibeloiv staled, was turned over 1 ditiemlanls and by them plae- e i their credit in a number ol' ' sl :it e. I .lis sum was I in their hands for the speci- i irpose of carryiny out the prois of the Act. to wit : the adjust- '' and setilemon ( of the claim of ! iainant and those who were simsit unt ed. s obvious, from a careful read- (> I the statute, that the lonisla- .) intended that this fund should ]j onled as a special trust fund | g out ol the opera I ion of the p dispensary, to lie used primar- f or I lie purpose of settling all ? liabilities incurred by the Slate p usury in the purchase of goo.ls ' i its existence, 1*11j' purpose s I to he accomplished by the ature was tin1 payment of the Hiding indebtedness of the Stale ,i nsary, as well as I ho disposal of f I'operty and to wind up its af- a as a business concern. j, lad that this monev was roal-roni the sale of goods purchas- o om the creditors of ||1C State nsary, when considered in con- 0 >? with the action of the State j| dure in placing the entire funds v e hands of die! defendants for n xpress purpose horoinbofore T onod, Clearly constitutes this n n Hind in I lie hands of (he de- p uts. as trustees, who are char?'- Jf (h the duly of carrying out the tl ?se of the Act. L 4 w MADE I WITH ? I BSDav^^w.T^TO^SssjjJsaayaTansaTaswBC^^ffi? i?minff?rw??i.?u??.^^fi^tJwirejjBmrfi??WM> I | While it is estimated- that the Stato -^J liispensary \s indebtedness amounted 0 only about $0(10,000, yet the legdature provided that all the funds, mounting to $S00,(K^0, should ho hired under the dominion and eon- ' rol of the defendants, thus clearly mlicaiing that it was lite intent of J he legislature that, every dollar oC lie funds realized from the State li<peiisary was Id he treated as a 1 u-m fuiid. li.sl. for i lie purpose of I eltlinu- ihe>?> claims, and then pro- 1 idinu- lh;ii any surplus remaining 11? :?Id 1>?> paid intu the Slate treasry as funds properly belonging to Ire Stale. This aeiioii on the part of the lei?slat ure is si^niliea.il, and clearly i:ilicates that rhe chief oiiject in aploiniim? the coiMini<sioii was { > pro- . i.le 1'or the payment < !' Maims sim- J !.(! ; < iiiai < !' H11 >!; I in; n'. Vie leu-- 1 .uiv h.t .'iuv authorized lhes?? *!? - ,fl : i;?::ts iu withdraw t !u> funds in* t lie '>:unls of the State treasurer, hereby Mir:viuleriiiu: the Spate's | iM--,'.-si' 1:1 ? !' I he same, for the pur- I os.? hereinbefore mentioned; shows J 11osI conclusively that this fund was nlended to be treated as a trust ^ mill an 1 was to he used by the deenilaut< for lb'.' purpose, of carrying etl tiie [ : ovi>io;is of 111 Act under > ihieh they were appointed. 1 li cannot he reasonably insisted, in iew of these circumstanees, that tho ^ ^ ?laie is an indispensable parly to his suit, inasmuch as it is not nee- ^ ssarv that the State should he a arty in order that there may be a ^ i n a I determination of the matters nvolved in this controversy. Thereore litis is not a suit against the date within the meaning of the elevnth amendment. ? The principal <|uestion involved in \ his controversy is as to whether the laini of complainant is a just liabilly against the Slale dispensary. If i should be determined to be a just?, lability the statute in question makes I I he duly of the defendants to pay I. and. under these circumstances, lie <|iicstiou soui>lit to be litigated is lie in which the St a t?' is not intersted in th" sense contemplated by * he eleventh amendment. In the case of Louisiana vs. J win el, ml other like cases, if was sought to ompel I he Slale otlicers to perform duty either not directed to be done y I lie statute, or prohibited by it, or ? J o enforce payment mil of general unds, or where there was no special ?j nnd which the Slate itself had appropriated to and charged with its aymenfe. ' j I.n the ease of Rolston vs. "Mis- ..J onri. 120 lT. S., the court said: ji "There (in live June I case) the | fl'orl was |o compel a Stale officer to J 0 what the statute prohibited him rom doing. Here (he suit is to get St'ale officer to do what (lie statute equires of him." ! The court, in a further discussion f this subject, said: "Tt. is next contended that this suit annof he maintained because it is in fi Is effect a suit, against tho State, I ,'hiich is prohibited by the eleventh Ifj mendnrenf of the constitution --of tho Fnited Stales, and Louisiana, vs ,Tu- H vol, 107 TT. S., 711, is cited in suporl of this position. But this ease 1 entirely different from tliat. There lie effort was to co.mpel a State of- ' cer to do what a statute requires \ i , J