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THE GREEN BAG

there is in some states, similar to the Legiti macy Declaration Act in England, by which when anyone's marriage or divorce is ques tioned, he or she can petition the Court to have a decision at once as to the validity or non-validity of the marriage or the divorce. . . . The attorney-general should be cited to prevent fraud as in England." CONSTITUTIONAL LAW (see Marriage). CONSTITUTIONAL LAW. " Is the Fede ral Constitution Adapted to Present Necessi ties, or Must the American People Have a New One?" by Ralph W. Breckenridge. Yale Law Journal (V. xvii, p. 347). Taking the ground that the Constitution gives ample power for the needed control of commerce by the central government, notwithstanding "a resurrected claim of the rights of the states." CONSTITUTIONAL LAW (Injunction by Federal Court Against Enforcement of State Statute). " The Eleventh Article of Amendment to theConstitution of the United States," by William D. Guthrie. Columbia Law Reinciv (V. viii, p. 183). This address delivered before the New York State Bar Association, January 25, discusses the timely question whether the framers of the Eleventh Amendment intended, in prohibiting suits by an individual against a state, likewise to deny to the courts of the United States the power to enjoin a state officer from enforcing a state statute in conflict with the national Constitution. "In the light of the long-settled and wellknown rules of the common law, establishing the distinction between suits against the king under the petition of right and suits against officers of the crown for violating the legal rights of individuals, it is most significant and persuasive, if not convincing, that the franuers of the Eleventh Amendment confined its language to suits directly against a State, and did not attempt to prohibit suits against officers of a State when acting as its repre sentatives. . . . They clearly contemplated that state statutes might be passed in conflict with the Constitution of the United States and that these statutes would necessarily have to be enforced or attempted to be enforced by state officers. They must have appreciated that if state officers, as agents of their respective States, were granted immunity from suit in a court of the United States because they were acting for and on behalf of their States, the Constitution could

in many respects be rendered ineffective and nugatory. The failure to prohibit suits against officers of a State must, therefore, have been intentional. It is highly improb able that any one at the time conceived that the language adopted was broad enough to prohibit suits against officers of a state. On the contrary, it is proper to assume that the framers of the Eleventh Amendment did not intend to permit an officer of a state, while acting xmder the color or excuse of an uncon stitutional state statute, to invade or deny any right guaranteed by the Constitution of the United States and be immune from suit in a court of the United States merely because he was acting in a representative capacity as an agent of the state. The courts of the United States were specially charged with the preservation of the Constitution, so far, indeed, as it can be preserved by judicial authority. The Federalist shows how clearly it was contemplated that the federal courts were to have power to overrule state statutes in manifest contravention of the Constitution. . . . There is no longer any question but that the Eleventh Amendment does not shield state officers from suits at law in a court of the United States to recover damages for any invasion of private rights under the color of an unconstitutional statute, or to recover possession of real property in the custody of such officers. The rule is axio matic that no officer in this country is so high that he is above the constitution of the United States, and that no officer of the law, state or national, may violate it under the color or excuse of a statute, national or state, in conflict with its provisions." This reasoning leads to the conclusion that injunctions should be to restrain state officers from enforcing state statutes alleged to be unconstitutional in order to avoid irreparable injury. This makes the Con stitution an effective shield against confiscatory, oppressive and tyrannical legislation. Injunctions should be granted in proper cashes if the relief or remedy sought can be granted in the absence of the state as a party defendant. While severely condemning recent attempts of legislatures to coerce corporations into abandoning their constitutional right to appeal to the courts by imposing enormous and unreasonable fines or threatening them with forfeiture of the protection of the govern ment, Mr. Guthrie freely admits that reform is necessary so that the exasperating delays in determining the constitutionality of stat utes regulating corporations may be done away with.