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Page:Harvard Law Review Volume 1.djvu/233

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“The cause came on to be heard upon these answers, and upon the decrees nisi against Osborn and Harper, and the Court pronounced a decree directing them to restore to the Bank the sum of $100,000, with interest on $19,830, the amount of specie in the hands of Sullivan. The cause was then brought by appeal to this Court.”

The truth is, as has been stated, that the Court below pronounced a decree which, in terms, after decreeing the return of the sum of $100,000, with interest upon a part thereof, decreed specifically a perpetual injunction against further proceedings under the Act of the Legislature of Ohio, which was drawn in question.

The result of the affirmance of the decree in Osborn v. Bank, by the Supreme Court of the United States, is, therefore,—

First: That an injunction will be granted to enjoin State officers from executing an unconstitutional State statute, where complainants show a proper interest therein; and,

Second: That when, in the course of the execution of such a statute by such State officers, specific funds have been seized by such State officers, and will be lost to the owner if transferred, an injunction will go to prevent such transfer.

That this was the scope and effect of Osborn v. Bank is clear beyond question, not only upon the record, but upon the opinion of Chief-Justice Marshall, wherein, under the fifth head, he discusses the question whether “the case made in the bill warrants the interference of a Court of Chancery,” and in which he states the question as follows (page 838):—

“The true inquiry is, whether an injunction can be issued to restrain a person who is a State officer from performing any official Act enjoined by statute; and whether a Court of equity can decree restitution if the Act be performed?” Both these questions were answered in Osborn v. Bank by Chief-Justice Marshall in the affirmative, but the answer to the first is the leading thought and conclusion of the case and the opinion.

It is to be hoped that, in some way, the report of this great case may be so amended or supplemented as to bring out clearly its full scope and most important feature.

D. H. Chamberlain.

New York.