Page:United States Reports, Volume 209.djvu/194

 168 OCTOBER TERM, 1907. wr/m statute (�3, Rev. Stat.), in some of which cases per~ sons in ,the custody of state officers for alleged crimes against the State have been taken from that custody and discharged by a Federal court or judge, because the imprisonment was adjudged to be in violation of the Federal Constitution. The r/ght to so discharge has not been doubted by this court, and it has never been supposed there was any suit against the State by reason of serving the writ upon one of the officers of the State in whose custody the person was found. In some of /he cases the writ has been refnsed as matter of discretion, but in others it has been granted, while the power has been fully recognized in all. Ex parte Roall, 117 U.S. 241; In re Lon, U.S. 284; Ohio v. Thomas, 173 U.S. 276; Minnesota v. Brun- doe, 180 U.S. 499, 502; Re/v. JOSheS, 187 U.S. 153; UnWed States v. Lws, 200'U. S. 1; In re Lincoln, 202 U.S. 178; Urqu- hart v. Brown, 205 U.S. 179. It is somewhat difficult to appreciate the distinction which, whle admitting that the taking of such a person fro.m the custody of the State by virtue of service of the writ on the state officer in whose custody he is found, is not a suit against the State, and yet service of a writ on the Attorney General to prevent his enforcing an unconstitutional enactment of a state legislature is a suit against the State. There is nothing in the case before us that ought properly to breed hostility to the customary operation of Federal courts of justice in cases of this character. The rule to show cause is discharged and the petition for writs of  corpus and certiorari is dismissed. $o orded. MR. Jvsc HLN, dissenting. Although the history of this litigation is set forth in the opinion of the court, I deem it, appropriate to restate the principal facts of the case in direct connection 'ith my ex- amin.tiun of the qlestion upon which the decision urns.

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