Page:United States Reports, Volume 209.djvu/512

 486 OC1X)BER TERM, 1907. Opinion o the Co't. 9U.& tice Brown, that such a question is "one which we think be- longs to the merits rather than to the jurisdiotion.'" And further: "If it were a suit directly against the State by it would be .so palpably in violation of that Amendment that the court would probably be justified in disrniaing it upon motion; but the suit is not against the State, but s6ainst Acl,r individually, and if the requisite diversity of citizenmh{p exist, or if the case arise under the Constitution or laws of the United States, the question whether he is so identified with the State that he is exempt from prosecution, on account of the matters set up in the particular bill, are more properly the subject of demurmr or plea than of motio to dismiss. This seems to have been the opinion of Chief Justice Marshall in Osborn v. Ban/ o! th U,itd 8tat, 9 Wheat. 738, 858, wherein he mskce the following observation: 'The State not being a party on the record, and the ourt having jurisdiction over thoe who are parties on the record, the true question is not one of jurisdiction, but whether, in the exercise of its jurisdiction, the court ought to make a decree against the defendant; whether they are to be considered as having a real interest, or as being only nom{nl parties.'" Again, 180 U.S. 38: "But where the uit is an individual by name, and he desires to plead an exemption by �reason of his representative character, he does not raise a ques- tion of iurisdiction in its proper sense .... But whether this is a question of jurisdiction or not, we think it should be raised either by demurrer to the bill or by other pleadings.in the regular progress of the cause.. Motions are generally. appropriate only in the absence of remedies by regular pleadings and cannot be made available to settle important questions of law." Cases were cited, and it was further observed that in F/t v. 172 U.S. 516, the question whether the ofilcers proceeded against "were representatives of the State ws dispoeed of upon answers filed." The suit at bar has not the "palpable" evidence of being a suit against the State by being against the State by rme. Do the allegations of the bill make it such?

�