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tion is effectually restricted by either der trust patents. Separately considmode, allotments under the first are ered, it hardly admits of any other view; commonly spoken of as trust allot- and yet other provisions in the same ments, and those under the second as section suggest that its words may not restricted allotments. As respects both have been happily chosen, and that it classes of allotments-one as much as may have been intended to be more comthe other—the United States possesses a prehensive. To illustrate, a closely folsupervisory control over the land, and lowing proviso declares: may take appropriate measures to make “That the Secretary of the Interior is sure that it inures to the sole use and hereby authorized in his discretion to benefit of the allottee and his heirs issue a certificate of competency, upon throughout the original or any extended application therefor, to any Indian, or period of restriction. As an incident to in case of his death, to his heirs, to this power Congress may authorize and whom a patent in fee containing restricrequire the Secretary of the Interior to tions on alienation has been or may determine the legal heirs of a deceased hereafter be issued, and such certificate allottee, and may make that determina- shall have the effect of removing the tion final and conclusive.2 It rests with restrictions on alienation contained in Congress to say which of the two modes such patent." shall be followed in respect of the lands But we need not dwell upon the inof a particular tribe, and this usually is ternal proof of what was intended, for, done in the act directing that the lands by a series of appropriation acts, beginbe allotted. The Act of 1889, under ning August 1, 1914, and extending to which the lands of the confederated the present time, Congress has treated tribes were allotted, required that the and construed the provision as including second mode be followed,—that of issu- both trust and restricted allotments.3 ing a patent in fee imposing a restric- Each of the appropriation acts contains tion upon alienation for a fixed period. a paragraph appropriating $100,000 to
By § 1 of the Act of June 25, 1910, meet the cost of "determining the heirs chap. 431, 36 Stat. at L. 855, Comp. Stat. of deceased Indian allottees having any § 4226, 3 Fed. Stat. Anno. 2d ed. p. 853, right, title, or interest, in any trust or Congress provided :
restricted allotment, under regulations "That when any Indian to whom an prescribed by the Secretary of the Inallotment of land has been made, or terior," and they show affirmatively that may hereafter be made, dies before the they refer to a determination under $ 1 expiration of the trust period and be- of the Act of 1910.  Not only so, fore the issuance of a fee-simple patent, but they all contain a proviso that "this without having (488] made a will dis- paragraph shall not apply to the Osage posing of said allotment as hereinafter Indians, nor to the Five Civilized provided, the Secretary of the Interior, Tribes," which would be a needless proupon notice and hearing, under such vision if Congress had not intended that rules as he may prescribe, shall ascer- the power to determine heirships should tain the legal heirs of such decedent, extend to restricted as well as trust aland his decision thereon shall be final lotments; for the allotments to the and conclusive."
Osages and to members of the Five Civi. The courts below concluded from the lized Tribes were not trust but restricted words of this provision that it was con- allotments. The annual reports of the fined to trust allotments—those held un-1 Indian Bureauo show that the officers
1 United States v. Rickert, 188 U, S. 432, \ at L. 582, 586, Comp. Stat. § 4205e, 3 47 L. ed. 532, 23 Sup. Ct. Rep. 479; Marchie Fed. Stat. Anno. 2d ed. p. 803; May 18, Tiger v. Western Invest. Co. 221 U. S. 286, 1916, chap. 125, 39 Stat. at L. 123, 127, 55 L. ed. 738, 31 Sup. Ct. Rep. 578; Heck-Comp. Stat. § 4227; March_2, 1917, chap. man v. United States, 224 Ü. S. 413, 56 146, 39 Stat. at L. 969, 972, Fed. Stat. Anno. L. ed. 820, 32 Sup. Ct. Rep. 424; Brader Supp. 1918, p. 260; May 25, 1918, chap. v. James, 246 U. S. 88, 62 L. ed. 591, 38 86, 40 Stat. at L. 561, 567, Comp. Stat. $ Sup. Ct. Rep. 285; Talley v. Burgess, 246 4025, Fed. Stat. Supp. 1918, p. 264; June U. S. 104, 62 L. ed. 600, 38 Sup. Ct. Rep. 30, 1919, chap. 4, 41 Stat. at L. 3, 8: 287; La Motte v. United States, 254 U. S. February 14, 1920, chap. 75, 41 Stat. at 570, ante, 410, 41 Sup. Ct. Rep. 204. L. 408, 413.
2 Hallowell v. Commons, 239 U. S. 506, 4 House Doc. No. 90, p. 38, 64th Cong. 60 L. ed. 409, 36 Sup. Ct. Rep. 202. And 1st Sess.; House Doc. No. 1899, p. 51, 64th see Lane v. United States, 241 U. S. 201, Cong. 2d Sess.; House Doc. No. 915, p. 53, 60 L. ed. 956, 36 Sup. Ct. Rep. 599; Egan 65th Cong. 2d Sess.; House Doc. No. 1455, v. McDonald, 246 U. S. 227, 62 L. ed. 680, p. 53, 65th Cong. 3d Sess.; House Doc. No. 38 Sup. Ct. Rep. 223.
409, p. 51, 66th Cong. 2d Sess.; House Doc. 3 Acts August 1, 1914, chap. 222, 38 Stat. I No. 849, p. 45, 66th Cong. 2d Sess.
of that bureau, including the Secretary, specifically conferred on the Federal Suof the Interior, have uniformly regarded preme Court. $ 1 of the Act of 1910, in connection [For other cases, see Prohibition, I. in Digest
Sup. Ct. 1908. ] with these appropriation acts, as en-Prohibition other remedy. abling them to determine the heirs of 2. The fact that the objection to the both classes of deceased allottees, and jurisdiction of the court below might be they further show that in each year raised by appeal from the final decree is since these appropriations began these not, in all cases, a valid objection to the officers have determined the heirs of issuance of a writ of prohibition by the hundreds of deceased allottees who held Federal Supreme Court at the outset, under restricted, as distinguished from cognizance of matters over which it has no
where a court of admiralty assumes to take trust, allotments. In one year alone the
lawful jurisdiction. number was 566, and of course the ag- (For other cases, see Prohibition, II. in Digest gregate of the values involved was great.
Sup. Ct. 1908.]
3. The entire judicial power granted Congress, and, with the knowledge thus obtained, it repeated the appropriation thority to entertain a suit brought by pri
by the Constitution does not embrace aueach year. Of course this can be ac
vate parties against a state, without concounted for only upon the theory that, sent given, nor one brought by citizens of in the opinion of Congress, the officers another state, or by citizens or subjects of were but exercising the power which it a foreign state, because of the 11th Amendintended they should have and exercise. ment; and not even one brought by its It was after the original provision had own citizens, because of the fundamental been so construed and supplemented
rule of which the Amendment is but an by the first of the appropriation acts [For other cases, see States, IX. b, 2, in Digest
exemplification. that Wea's heirs were determined by the Sup. Ct. 1908.) Secretary. Apparently the appropria- States immunity from suit admition acts and the reports of the Indian ralty suits. Bureau were not brought to the atten
4. The admiralty and maritime juris. tion of the courts below.
diction is not exempt from the operation We conclude that the District Court in personam without its consent by individ
of the rule that a state may not be sued erred in sustaining  the defend- uals, whether its own citizens or not. ants' objection to the introduction in [For other cases, see States, IX. b, 2, in Digest evidence of the Secretary's determina- Sup. Ct. 1908.] tion, and therefore that the judgment States immunity from suit admimust be reversed and the case remanded
ralty suit against officer. for a new trial.
5. The immunity of a state from suit
without its consent prevents a court of adJudgment reversed.
miralty, in which libels have been filed against certain tugs for damages received
by their tows upon the Erie canal, from EX PARTE: IN THE MATTER OF THE proceeding against the superintendent of
STATE OF NEW YORK, Edward S. public works of the state of New York, who Walsh, Superintendent, etc., et al., Peti- was operating the tugs when the disaster tioners.
occurred, under charter parties authorized
by the state laws, where, the charters hav(See S. C. Reporter's ed. 490-503.) ing since expired, at no time has any res Prohibition
belonging to the state or to such officer, or to district court. 1. Power to issue writs of prohibition tached or brought under the jurisdiction of
in which they claim any interest, been atto the district courts when proceeding as courts of admiralty and maritime juris. such officer individually, the proceedings
the court, nor is any relief asked against diction is, by the Judicial Code, $ 234, against him being strictly in his capacity Note.—On suits against state officers as a public officer.
[For other cases, see States, IX. c, 2, in as suits against a state-see notes to Digest Sup. Ct. 1908.) Sanders v. Saxton, 1 L.R.A.(N.S.) 727; Admiralty uniformity exemption Ex parte Young, 13 L.R.A.(N.S.) 932; of state from suit. Louisville & N. R. Co. v. Burr, 44 L.R.A. 6. The symmetry and uniformity char(N.S.) 189, and Beers v. Arkansas, 15 acteristic of the rules of maritime law are L. ed. U. S. 991.
not defeated by according to the several Generally, on suits against a state-states an exemption in the courts of mari. see notes to Murdock Parlor Grate Co. time and admiralty jurisdiction from litiv. Com. 8 L.R.A. 399; Carr v. State, ligation against them at the suit of individL.R.A. 370; Beers v. Arkansas, 15 L. (For other cases, see Admiralty, I. b. 2, in ed. U. S. 991, and Hans v. Louisiana,
Digest Sup. Ct. 1908. ] 33 L. ed. U. S. 842.
[No. 25, Original.]
Argued December 13 and 14, 1920. Decided The Queen City is exempt under rules June 1, 1921.
Moitez v. South Carolina, Bee, 422, ON N PETITION for a Writ of Prohibi- Fed. Cas. No. 9,697; L'Invincible, 1
tion and/or a Writ of Mandamus Wheat. 238, 4 L. ed. 80; The Exchange to prevent a court, of admiralty from as- V. M'Faddon, 7 Cranch, 116, 3 L. ed. suming jurisdiction over a state officer. 287; Lo The Tampico, 16 Fed. 491; Rule for Writ of Prohibition made ab- Tucker v. Alexandroff, 183 U. S. 424, solute.
46 L. ed. 264, 22 Sup. Ct. Rep. 195; The The facts are stated in the opinion. Parlement Belge, L. R. 5 Prob. Div. 197,
Mr. Edward G. Griffin argued the 42 L. T. N. S. 273, 28 Week. Rep. 642, cause, and, with Mr. Charles D. Newton, 4 Asp. Mar. L. Cas. 234; The Siren, 7 Attorney General of New York, filed a Wall. 152, 19 L. ed. 129; The Public brief for petitioners:
Bath No. 13, 61 Fed. 693; Workman v. The judicial power established by the New York City, 179 U. S. 552, 45 L. Constitution did not comprehend cases ed. 314, 21 Sup. Ct. Rep. 212; The John at that time unknown to the law or for- McCraken, 145 Fed. 705; The Protector, bidden by the law; consequently the 20 Fed. 207; The F. C. Latrobe, 28 Fed. right of a citizen to sue his own state 377; The Fidelity, 9 Ben. 333, 16 Blatchf. is not to be implied even under the very 569, Fed. Cas. Nos. 4,757, 4,758; The general terms conferring admiralty and Seneca, 8 Ben. 509, Fed. Cas. No. 12,668; maritime jurisdiction upon the Federal Rogers v. Rajendro Dutt, 13 Moore, P. courts.
C. C. 209, 15 Eng. Reprint, 78, 3 L. T. Gibbons v. Ogden, 9 Wheat. 1, 187, 6 N. S. 160, 9 Week. Rep. 149; The InL. ed. 23, 68; Foster, Const. 3' 41; 17 flexible, Swabey, Adm. 32; The Swallow, Fed. 188, note; Beers v. Arkansas, 20 Swabey, Adm. 30. How. 527, 15 L. ed. 991; United States v. Mr. Ellis H. Gidley argued the cause Lee, 106 U. S. 196, 27 L. ed. 171, 1 Sup. and filed a brief for respondent: Ct. Rep. 240; Hans v. Louisiana, 134 This court has not granted writs of U. S. 1, 33 L. ed. 842, 10 Sup. Ct. Rep. prohibition when petitioner possessed 504; Duhne v. New Jersey, 251 U. S. another remedy. 311, 64 L. ed. 280, 40 Sup. Ct. Rep. 154; Re Cooper, 143 U. S. 472, 36 L. ed. Illinois C. R. Co. v. Adams, 180 U. S. 232, 12 Sup. Ct. Rep. 453; Ex parte 28, 38, 45 L. ed. 410, 413, 21 Sup. Ct. Gordon, 104 U. S. 515, 26 L. ed. 814; Rep. 251; Bell v. Mississippi, 177 U. S. Re New York & P. R. S. S. Co. 155 U. 693, 44 L. ed: 945, 20 Sup. Ct. Rep. 1031; S. 523, 39 L. ed. 246, 15 Sup. Ct. Rep. Ex parte Madrazzo, 7 Pet. 627, 8 L. ed. 183; Morrison v. District Ct. 147 U. S. 808; Sundry African Slaves v. Madrazo, 14, 26, 37 L. ed. 60, 65, 13 Sup. Ct. 1 Pet. 110, 7 L. ed. 73; 3 Story, Const. Rep. 246; United States v. Jahn, 155 U. § 1683.
S. 109, 115, 39 L. ed. 87, 90, 15 Sup. Ct. The Koerber and Charlotte causes are Rep. 39; Re Fassett, 142 U. S. 479, 484, suits against the state of New York. 35 L. ed. 1086, 1088, 12 Sup. Ct. Rep.
Re Ayers, 123 U. S. 443, 31 L. ed. 216, 295; Moran v. Sturges, 154 U. S. 256, 8 Sup. Ct. Rep. 164; Walsh v. Preston, 286, 38 L. ed. 981, 991, 14 Sup. Ct. Rep. 109 Ū. S. 297, 27 L. ed. 940, 3 Sup. Ct. 1019; Ex parte Detroit River Ferry Co. Rep. 169, 245; Hagood v. Southern, 117 | 104 Ú. s. 519, 26 L. ed. 815; Ex parte U. S. 52, 29 L. ed. 805, 6 Sup. Ct. Rep. Hagar, 104 U. S. 520, 26 L. ed. 816; 608; Christian v. Atlantic & N. C. R. Re Rice, 155 U. S. 396, 39 L. ed. 198, 15 Co. 133 U. S. 233, 33 L. ed. 589, 10 Sup. Sup. Ct. Rep. 149; Re Huguley Mfg. Co. Ct. Rep. 260; North Carolina v. Temple, 184 U. S. 297, 46 L. ed. 549, 22 Sup. Ct. 134 U. S. 22, 33 L. ed. 849, 10 Sup. Rep. 455; Alexander v. Crollott, 199 U. Ct. Rep. 509; Pennoyer v. McConnaughy, s. 580, 50 L. ed. 317, 26 Sup. Ct. Rep. 140 U. S. 1, 35 L. ed. 363, 11 Sup. Ct. 161; Re Oklahoma, 220 U. S. 191, 208, Rep. 699; Reagan v. Farmers' Loan & 209, 55 L. ed. 431, 435, 31 Sup. Ct. Rep. T. Co. 154 U, S. 362, 38 L. ed. 1014, 4 | 426. Inters. Com. Rep. 560, 14 Sup. Ct. Rep. This court has not granted writs of 1047; Smith v. Reeves, 178 U. S. 436, 44 mandamus where petitioner had other L. ed. 1140, 20 Sup. Ct. Rep. 919; Mur- remedy. ray v. Wilson Distilling Co. 213 U. S. Re Oklahoma, 220 U. S. 191, 209, 55 151, 53 L. ed. 742, 29 Sup. Ct. Rep. 458; L. ed. 431, 435, 31 Sup. Ct. Rep. 426; Lankford v. Platte Iron Works Co. 235 Ex parte Harding, 219 U. S. 363, 369, 55 U. S. 461, 59 L. ed. 316, 35 Sup. Ct. Rep. L. ed. 252, 254, 37 L.R.A.(N.S.) 392, 31 173.
Sup. Ct. Rep. 324; Morrison v. District
Ct. 147 U. S. 14, 26, 37 L. ed. 60, 65, er a monition can be served upon the 13 Sup. Ct. Rep. 246; Ex parte Des libellee, or an attachment made of any Moines R. Co. 103 U. S. 794, 796, 26 personal property or credits of his. L. ed. 461, 462; Ex parte Baltimore & Re Louisville Underwriters, 134 U. S. 0. R. Co. 108 U. S. 566, 27 L. ed. 812, \ 488, 490, 33 L. ed. 991, 993, 10 Sup. Ct. 2 Sup. Ct. Rep. 876; Re Pennsylvania Rep. 587. Co. 137 U. S. 451, 453, 34 L. ed. 738, The assumption of the attorney gen740, 11 Sup. Ct. Rep. 141; Re Rice, 155 eral that these proceedings are suits U. S. 396, 403, 39 L. ed. 198, 201, 15 against the state of New York is a quesSup. Ct. Rep. 149; Ex parte Union S. tion which belongs to the merits rather B. Co. 178 U. S. 317, 319, 44 L. ed. 1084, than to the jurisdiction. 1085, 20 Sup. Ct. Rep. 944; Re Atlantic Scully v. Bird, 209 U. S. 481, 52 L. ed. City R. Co. 164 U, S. 633, 634, 41 L. ed. 899, 28 Sup. Ct. Rep. 597. 579, 580, 17 Sup. Ct. Rep. 208; Re Hugu- The
which have induced ley Mfg. Co. 184 U. S. 297, 301, 46 L. courts of admiralty to grant immunity ed. 549, 551, 22 Sup. Ct. Rep. 455; from process have no application here. American Constr. Co. v. Jacksonville, T. The Siren, 7 Wall. 153, 19 L. ed. 130; & K. W. R. Co. 148 U, S. 372, 379, 37 The Davis, 10 Wall. 15, 19 L. ed. 875; L. ed. 486, 489, 13 Sup. Ct. Rep. 758; Workman v. New York, 179 U. S. 552, Re Pollitz, 206 U. S. 323, 331, 51 L. ed. | 573, 45 L. ed. 314, 325, 21 Sup. Ct. Rep. 1081, 1083, 27 Sup. Ct. Rep. 729; United 212; The Exchange v. M'Faddon, 7 States v. Jahn, 155 U. S. 109, 115, 39 Cranch, 116, 3 L. ed. 287; The Maipo, L. ed. 87, 90, 15 Sup. Ct. Rep. 39; Ex 252 Fed. 627; The Roseric, 254 Fed. 154; parte Morgan, 114_U. S. 174, 29 L. ed. The Pampa, 245 Fed. 137. 135, 5 Sup. Ct. Rep. 825; Ex parte The state of New York may not imBrown, 116 U. S. 401, 29 L. ed. 676, 6 pose its local law upon the admiralty Sup. Ct. Rep. 587.
jurisdiction. Questions of jurisdiction here should Workman v. New York, 179 U. S. 552, not be raised by exceptions to the libel 557, 45 L. ed. 314, 319, 21 Sup. Ct. Rep. or plea on the merits.
212; Southern P. Co. v. Jensen, 244 U. Scully v. Bird, 209 U. S. 481, 52 L. S. 205, 215, 61 L. ed. 1086, 1098, L.R.A. ed. 899, 28 Sup. Ct. Rep. 597; Illinois 1918C, 451, 37 Sup. Ct. Rep. 524, Ann. C. R. Co. v. Adams, 180 V. S. 28, 45 Cas. 1917E, 900, 14 N. C. C. A. 596; L. ed. 410, 21 Sup. Ct. Rep. 251; Osborn The Lottawanna (Rodd v. Heartt) 21 v. Bank of United States, 9 Wheat. 738, Wall. 558, 22 L. ed. 654; Union Fish Co. 856, 6 L. ed. 204, 230.
v. Erickson, 248 U. S. 308, 63 L. ed. 261, The suggestions filed by the attorney 39 Sup. Ct. Rep. 112. general of New York are not competent evidence.
Mr. Justice Pitney delivered the opinLong v. The Tampico, 16 Fed. 491; lion of the court: Tucker v. Alexandroff, 183 U. S. 424, Three separate libels in rem were filed 441, 46 L. ed. 264, 271, 22 Sup. Ct. Rep in the United States district court for 195; Hall, International Law, 6th ed. the western district of New  p. 161; South Carolina v. Wesley, 155 York: two against the steam tug U. S. 542, 39 L. ed. 254, 15 Sup. Ct. Charlotte, her engines, boilers, maRep. 230.
chinery, etc., by one Dolloff and one These are not, under any considera- Wagner, respectively, both residents tion, actions at law or in equity falling and presumably citizens of the state within the purview of the language of of New York, to severally recover for the 11th Amendment.
damages alleged to have been caused 3 Story, Const. § 1683; United States to certain canal boats owned by them v. Bright, Brightly, N. P. 19, note, Fed. while navigated upon the Erie canal Cas. No. 14,647; Atkins v. Fiber Dis- in tow of the Charlotte; the other intergrating Co. 18 Wall. 272, 21 L. ed. against the steam tug Henry Koer841.
ber, Jr., her boilers, engines, tackle, The prerequisite in admiralty to the etc., by Murray Transportation Comright to resort to a libel in personam is pany, a corporation of the state of New the existence of a cause of action, mari- | York, bailee of a certain coal barge, to time in its nature.
recover damages alleged to have been Workman v. New York, 179 U. S. 552, received by the barge while navigated 45 L. ed. 314, 21 Sup. Ct. Rep. 212. upon the Erie canal in tow of the
A libel in personam may be main- Koerber. In each case the tug was. tained for any cause within the juris claimed by Frank F. Fix and Charles diction of an admiralty court, wherevFix, partners in business under the
name of Fix Brothers, of Buffalo, New the district court the matter has been York, and released from arrest on argued. the filing of satisfactory stipulations. The record shows that the charters Claimants filed answers to the several had expired according to their terms, libels, and at the same time filed peti- and the tugs were in possession of the tions under Admiralty Rule 59 (new claimants, neither the state nor Walsh Rule 56), setting up in each case that, having any claim upon or interest in at the time of the respective disasters them. At no time has any res belonging and damage complained of, the tugs to the state or to Walsh, or in which were under charter by claimants to Ed- they claim any interest, been attached ward S. Walsh, superintendent of pub- or brought under the jurisdiction of the lie works of the state of New York, who district court. Nor is any relief asked had entered into such charter parties against Mr. Walsh individually; the under authority reposed in him by an proceedings against him being strictly act of the legislature of the state of in his capacity as a public officer. New York, being chapter 264 of the The power to issue writs of prohibi. Laws of 1919, and had the tugs under tion to the district courts when proceed. his operation, control, and management; ing as courts of admiralty and maritime that if decrees should be ordered in the jurisdiction is specifically conferred uprespective causes against the tugs, the on this court by $ 234, Judicial Code claimants, because of their ownership (Act of March 3, 1911, chap. 231, 36 of the vessels, would be called upon for  Stat. at L. 1087, 1156, Comp. payment, and thus would be mulcted in Stat. SS 968, 1211, 4 Fed. Stat. Anno. 2d damages for the disasters, to which ed. p. 815, 5 Fed. Stat. Anno. 2d ed. p. they were total strangers; and that, by 717). And the fact that the objection reason of these facts, Edward S. Walsh, to the jurisdiction of the court below superintendent of public works of the might be raised by an appeal from the state of New York, ought to be proceed- final decree is not, in all cases, a valid ed against in the same suits for such objection to the issuance of a prohibition damages, in accordance with the rule. at the outset, where a court of admiralty The district court, pursuant to the pray- assumes to take cognizance of matters er of these petitions, caused monitions over which it has no lawful jurisdiction. to be issued in all (496] three cases Re Cooper, 143 U. S. 472, 495, 36 L. ed. against Edward S. Walsh, superintendent 232, 239, 12 Sup. Ct. Rep. 453. of public works, citing him to appear That a state may not be sued without and answer, and in case he could not be its consent is a fundamental rule of found, that "the goods and chattels of jurisprudence, having so important a the state of New York, used and con- bearing upon the construction of the trolled by him," should be attached. Constitution of the United States that The monitions were served upon Walsh it has become established by repeated within the jurisdiction of the court. decisions of this court that the entire
The attorney general of the state ap- judicial power granted by the Constitupeared in all three cases specially in be- tion does not embrace authority to enhalf of the state and the people there- tertain a suit brought by private parties of, and of Walsh, and filea a suggestion against a state, without consent given; that the court was without jurisdiction not one brought by citizens of another to proceed against Walsh as superin- state, or by citizens or subjects of a tendent of public works for the reason foreign state, because of the 11th that, as appeared upon the face of the Amendment; and not even one brought proceedings, they were suits against the by its own citizens, because of the state of New York in which the state fundamental rule of which the Amendhad not consented to be sued. The dis- ment is but an exemplification. Beers v. trict court denied motions to dismiss the Arkansas, 20 How. 527, 529, 15 L. ed. monitions (The Henry Koerber, Jr., 268 991, 992; Memphis & C. R. Co. v. TenFed. 561), whereupon the attorney gen- nessee, 101 U. S. 337, 339, 25 L. ed. 960, eral, on behalf of the state and the peo- 961; Hans v. Louisiana, 134 U. S. 1, 10ple thereof, and of Walsh, as superin-17, 33 L. ed. 842, 815-848, 10 Sup. Ct. tendent and individually, under leave Rep. 504; North Carolina v. Temple, 134 granted, filed in this court a petition for U. S. 22, 30, 33 L. ed. 849, 852, 10 Sup. writs of prohibition and mandamus. Ct. Rep. 509; Fitts v. McGhee, 172 U. An order to show cause was issued, to S. 516, 524, 43 L. ed. 535, 539, 19 Sup. which the district judge made a return, Ct. Rep. 269; Palmer v. Ohio, 248 U. S. and upon this and the proceedings in 32, 34, 63 L. ed. 108, 109, 39 Sup. Ct.