on the showing of want of other adequate remedy, and the threat of irremediable injury, now they issue as a matter almost of course on a showing that the tax is unconstitutional: Fargo vs. Hart, 193 U. S., 490.

A preliminary injunction, issued ex parte, and without argument, is especially liable to abuse. But it may be necessary. It is the vise of the judicial workshop, to hold the subject matter in hand, still. It must sometimes be used, notwithstanding the liability to abuse. It should never issue, I think, where the complainant has sat still for days and weeks during which a full hearing might have been had, and has asked the aid of the court only at the last minute.

It is so much better ofttimes to prevent than to cure, easier to maintain a structure than to rebuild it, that the propriety of injunction as a remedy in a plain case cannot be questioned. The question plainly is only one of abuse. In a matter of such gravity as the arrest of a legislative act, involving the putting the judgment of the one judge against the combined judgment of the Legislature, peculiar hesitancy ought to be observed. The Court rules in the Young case: "No injunction ought to be awarded by a Federal Court against the enforcement of a State railroad rate law which is alleged to violate the Federal Constitution unless the case is reasonably free from doubt."

Here the law leaves the question to be solved in each instance by the sound discretion and judgment of the individual judge.

II.

As to the political question, many doubt the wisdom of leaving so grave an issue to an individual judge. Discussion of the several remedies that have been suggested may well be passed over in view of the legislation, apparently about to pass Congress, providing safeguards against the improvident grant both of preliminary and permanent injunctions in such cases. Of the power of Congress which conferred upon the Circuit Courts their jurisdiction to deprive them altogether of the right to enjoin the officers of a State in the execution of its laws there can be no doubt. The creator of the court may deprive

it of cognizance of any class of cases. Of the power to restrict and condition the use of a particularly harsh remedy there can be less doubt. It becomes a matter affecting the practice of the court; and in such matters no litigant has any inviolable constitutional right. It is the ultimate appeal to the Supreme Court alone that Congress may not abridge or abolish.

APPENDIX J.

THE USE OF INJUNCTIONS BY FEDERAL COURTS AS TO STATE LAWS.

PAPER BY

L. W. BRANCH

OF QUITMAN.

Mr. President and Gentlemen of the Georgia Bar Association: Judge Bleckley on one occasion said that "When we think at all, the subject of thought must be something or nothing." Inadequacy of expression as often comes from the vastness of thought to be compassed as from the absence of thought altogether. It is with no mock diffidence that I undertake to discuss a question which has occupied a large place in the minds of thoughtful men for the last two or three years; which has taxed the wisdom of the Supreme Court of the United States to settle and which the Senate of the United States has refused to regard as settled until it passes in review before that august body.

The peculiar interest which this subject has at this time grows largely from its connection with the wave of hostility to railroads which has swept over the country during Mr. Roosevelt's administration and which has occupied the thought of the public to the exclusion of almost every other public question. The use of injunctions by the Circuit Courts of the United States to restrain the operation of State laws has occurred many times in the past without special notice and without disturbing the equanimity of any very large number of the citizens of this country. As early as 1824, this right was asserted, except in those cases in which the State itself was a party to the record. Later on this doctrine was somewhat modi

fied by reaffirming the jurisdiction of the Circuit Courts of the United States to grant injunction against the operation of State laws, but confining the exercise of this right to cases in which the State itself is not a party to the record and is not also a party at interest. This principle has been reiterated many times by the Supreme Court of the United States so far as concerns the right to enjoin a State officer from executing a State law in conflict with the Constitution or statutes of the United States when such execution would violate the rights of the complainant in such a way as to justify the interposition of a court of equity. It would appear that there has been no serious objection raised to the assertion of this right until it had been sought to apply it to the protection of the rights guaranteed under the Fourteenth Amendment of the Constitution or so much thereof which prohibits any State to make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, or deprive any person of life, liberty or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. If the scope of this discussion were broad enough to raise the issue of the wisdom of this amendment or the validity of its adoption the conclusion reached by many of us might be different. As for myself I cannot in imagination see the horizon of the application of this amendment by construction to the internal affairs of the States which compose the Union. A liberal construction of the Fourteenth Amendment will result in constituting the Federal Courts censors morum of the whole republic. What may be considered the privileges or immunities of citizens, what may be a deprivation of life, liberty, or property without due process of law, or what may be a denial of an equal protection of the law can become purely a question of opinion. I cannot conceive of a broader power that could be vested in a court than is vested in the Federal Courts by the sweeping provisions of the Fourteenth Amendment. The sparing application of these powers justifies the confidence which the peole have heretofore had and which I trust will always have a right to feel for the most august judicial body in the world. The first very serious revolt

against the exercise by the Circuit Courts of the United States of their right to enjoin the operation of State laws has come when these courts have interposed by injunctions between the people and the corporations and in some States, notably in North Carolina, this revolt at one time assumed serious proportions and had it not been for the conservative course pursued by the railroads, who were the complainants in these actions, there would have been a serious conflict between the National and State Governments. The battle ground of this controversy is as to the interrelation of the Fourteenth Amendment, just referred to, and the Eleventh Amendment, which guarantees to the States immunity from litigation. On March 27 of this year in what is known as the Minnesota case, the Supreme Court of the United States very clearly and squarely met the issue and affirmed the right of the Circuit Courts to restrain the operation of State laws whenever the same were in violation of the rights guaranteed to the citizens of the United States by the provisions of the Fourteenth Amendment and laid down the general proposition that a suit to restrain an officer of a State charged with the execution of a State law which is unconstitutional is not even in effect a suit against a State, because the officers of the State cannot possibly represent the State in the enforcement of an unlawful act. I must confess that the reasoning of Justice Harlan in his dissenting opinion appeals to me much more forcibly than that of Justice Peckham, who voiced the opinion of the majority of the bench. In view of the fact that all corporate bodies, whether municipal, public or private, can act only through their officers and duly constituted agents, when the Attorney General of a sovereign State is proceeding to put into effect the will of the legislative body of the State as expressed in statutes, he is the alter ego of the State, and to institute a suit against him solely in his official capacity to restrain him from his official acts cannot by any specious reasoning be taken out of the inhibition of the Eleventh Amendment to the Constitution. This, however, has been done and in the doing of it the barriers which were erected around the States by the Eleventh Amendment to the Constitution has been