Page:Howell v. Miller.pdf/5

Rh bound; and further restraining the defendant Gardner from distributing or causing to be distributed, the whole or any part of said Compiled Laws, and the defendants Gardner, Steel, and French from fixing and determining a price per volume for the sale of said compilation, and from selling or offering for sale volume 1, volume 2, or the index prepared under the direction or supervision of Miller, and restraining the said defendants, jointly and individually, from distributing or causing to be distributed, from transferring or causing to be transferred, from selling or causing to be sold, or offering for sale the whole or any part of said “Compiled Laws Michigan, 1897,” prepared and compiled by Miller, or under his supervision, whether such compilation be designated by the name or title stated or by any other name or title. A restraining order was entered substantially in accordance with the prayer of the bill, to remain in full force and effect pending the determination of a motion for a preliminary injunction to be thereafter heard upon notice. Subsequently such a motion was heard, and an injunction was denied. The restraining order previously granted was, however, continued in force, but only for the purpose of preventing the distribution and transferring of Miller’s compilation pending the consideration and determination of this suit on the present appeal.

The principal contention of the defendants is that, as the granting of the relief asked will directly interfere with the performance of the duties imposed upon them severally by the state in connection with said compilation, the suit must be deemed to be, in legal effect, one against the state. It is said that the defendant Miller, having done his work as compiler under the direction of the state, the results of his labor belong absolutely to the state, and are in its possession; and that the other defendants, the official printer of the state, the state treasurer, the secretary of state, and the commissioner of the land office, have no interest in the subject-matter of the suit, except as public officers charged by statute with the performance of certain duties in connection with the compilation of the laws of the state. Upon these grounds it is contended that an injunction against the defendants would be, in a constitutional and legal sense, an injunction against the state, when the state, although an indispensable party, is not before the court, and cannot be compelled to submit to its jurisdiction. If these views be sound, it would be our duty to affirm the judgment, without considering the merits of the question of infringement. Indeed, as the jurisdiction of the circuit to proceed at all is denied by the defendants, it would be unseemly to discuss the merits of the case without first deciding whether the circuit court had jurisdiction to entertain the suit for any of the purposes of relief set forth in the bill.

The position of the defendants, namely, that the court cannot restrain them from doing what they have been commanded by the state to do, even if what they intend to do will be in violation of the plaintiff’s rights, is supposed to be justified by the decision of the supreme court of the United States in Belknap v. Schild, 161 U. S. 10, 25, 16 Sup. Ct. 443. The report of that case shows that the United States was in the possession of and using, at one of its navy yards, a caisson gate