Page:United States Reports, Volume 209.djvu/199

 209 U. 8. H,az,, J., dssenung. providing as follows, to wit: 'The Executive Department shall �consist of a Governor, Lieutenant Governor, Secretary of State, Auditor, reasurer and Attemey General, who shall be chosen by the electon of the State.' That neither by statute nor otherwise is your petitioner charged with any special duty of a ministerial character in the doing or not doing of which said complainants in the said bill of complut or the said Northern Pacific Railway Company had any. legal fight, and that what- ever duties your petitioner had or has wifia respect to the several mattere complained of in the said bill of complaint, are of an executive and discretionary nature. That in no case could your petitioner, even though it was his intention so to do, which it was not, deprive the said complainants or the said Northern Pacific Railway Company, or either of them, of any property, nor could he trespass upon their rights in any par- ticuiar, and that all he could do as Attorn Genera/as afore- said and all .that it was his duty to do in that capacity, and all that he intended o do or would do, was to comraence udicial providings in t appropriate court o[ Minnesota against the said Northern Pacific Railway Company, its offveers, agents ad ernp/oys, to compel the said company, its agents and servants, to adopt and put in force the schedule of freight rates, tariffs and eharges prescribed by said ehapter 232, Laws 1907, of the State of Minnesota." He renewed the ob- jection that the suit instituted by Perkins and Shepard, in so far as the same is against him, was a suit against the State to prevent his commeneiug the prope-l action in the name af the State, and was in restraint of the State itself, "and that the said suit is one against the said State in violation of the Eleventh Amendment to the Constitution of the United States, and tt terefore the same is and was, so far as your peti- tioner is concerned, beyond the jurisdiction of the. said Circuit Court," ete. This statement will sufficiently indicate the nature of the question to be now examined upon its merits. Let it be observed that the suit instituted by Perkins and

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