time felt any serious doubt of its jurisdiction, it has felt constrained to yield to the request of the attorney general, and examine the cases decided by the supreme court touching the jurisdiction of the circuit courts of the United States where suits are brought against officers of the state to restrain them from doing an alleged tortious or unlawful act under the pretended authority of an unconstitutional statute, or a statute which is claimed to be unconstitutional. The question lying at the threshold of every case in the courts of the United States is whether, on the face of the bill, assuming its allegations to be true, the court has jurisdiction. The cases decided by the supreme court are too numerous to justify a review of all of them, and I shall content myself with an examination of those in which the question of jurisdiction has been most directly and exhaustively considered.

Under the constitution, as it was originally adopted, it was held that a citizen of one state might sue any state other than that of his residence in the courts of the United States. Chisholm v. Georgia, 2 Dall. 419. The result of this decision led to a speedy adoption of the eleventh amendment to the constitution of the United States, which declares that "the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." The meaning of this amendment was first drawn in question in the case of Osborn v. Bank, 9 Wheat. 738, 846, which was a suit in equity brought in a court of the United States by the bank against the auditor and treasurer of the state of Ohio to restrain them from seizing the money of the bank and applying the same to the payment of taxes and penalties claimed to be due to the state.. The state also asserted title to the money so taken by the defendants as its officers and agents. The question of jurisdiction was argued with conspicuous zeal and ability, and was decided on great deliberation, the court affirming the jurisdiction of the courts of the United States in one of the most masterly opinions ever delivered by that great expounder of the constitution, Chief Justice Marshall. He declared that:

"It may, we think, be laid down as a rule, which admits of no exception, that, in all cases where the jurisdiction depends on the party, it is the party named on the record."

The court added:

"The state not being a party on the record, and the court having jurisdiction over those 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 defendants; whether they are to be considered as having a real interest or as being only nominal parties."

Governor of Georgia v. Madrazo, 1 Pet. 110, was a suit to recover a sum of money, arising from the sale of certain slaves, which had been covered into the treasury of the state, and also to recover the possession of certain other slaves who had been illegally imported into the state, and who were in possession of the governor, pursuant to an act of congress, and also pursuant to an act of the general as

!

sembly of the state. It was held that the claim was, in effect, one against the state, and, therefore, that the circuit court of the United States was without jurisdiction. The governor appeared in the case, and filed a claim on behalf of the state to the slaves remaining unsold and to the proceeds of those who were sold. The court, by Mr. Chief Justice Marshall, say:

"The information of the governor of Georgia professes to be filed on behalf of the state, and is in the language of the bill filed by the governor of Georgia in behalf of the State against Brailsford, 2 Dall. 402. If, therefore, the state was properly considered as a party in that case, it may be considered as a party in this."

The chief justice further said:

"In U. S. v. Peters, 3 Dall. 121, the court laid down the principle that, although the claims of the state may be ultimately affected by the decision of a cause, yet, if the state be not necessarily a defendant, the courts of the United States are bound to exercise jurisdiction. In the case of Osborn v. Bank of U. S., 9 Wheat. 738, this question, was brought more directly before the court. It was argued with equal zeal and talent, and was decided on great deliberation. In that case the auditor and treasurer of the state were defendants, and the title of the state itself to the subject in contest was asserted. In that case the court said: 'It may, we think, be laid down as a rule, which admits of no exception, that, in all cases where the jurisdiction depends on the party, it is the party named on the record.' The court added: The state not being a party on the record, and the court having jurisdiction over those 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 defendants; whether they are to be considered as having a real interest or as being only nominal parties.""

In the case of Bank v. Wister, 2 Pet. 319, the jurisdiction of the court was questioned on the ground that the state of Kentucky was the sole proprietor of the stock of the bank, for which reason it was insisted that the suit was virtually against the state. This contention was denied, the court saying that the question was no longer an open one; that the case of U. S. Bank v. Planter's Bank of Georgia, 9 Wheat. 904, was a much stronger one for the defendant than the present case, for there the state of Georgia was not only a proprietor, but a corporator.

In the case of Charles River Bridge v. Warren Bridge, 11 Pet. 419, 571, 585, which was a suit by the former to enjoin the latter from erecting a bridge across Charles river, the jurisdiction of the court was challenged on the ground that the suit was brought to invalidate a charter granted by the state of Massachusetts, and it was insisted that the state was the substantial party, though not named on the record, and that the defendants who were named on the record were the agents of the state, and acting under its authority. It was urged that, if jurisdiction was asserted by the court, they would do indirectly what the constitution prohibited them from doing directly. The court (Mr. Justice McLean delivering the opinion) overruled this claim, and asserted the jurisdiction of the court. Mr. Justice Story, with whom Mr. Justice Thompson concurred, while dissenting upon other questions, agreed with the court in asserting its jurisdiction. He declared that "it is no objection to the jurisdiction of the circuit courts of the United States that the defendant is a servant or agent of the state, and the act complained of done under its authority, if it be tortious and unconstitutional."

In the case of Railroad Co. v. Letson, 2 How. 497, 551, which was an action of covenant by the latter against the former, the jurisdiction of the court was questioned on the ground that the state of South Carolina was a member of the corporation, and that the action directly and necessarily affected the interests of a sovereign state. The jurisdiction was asserted, the court saying the true principle is that the jurisdiction of the circuit courts of the United States cannot be denied or taken away on account of a state having an interest in a suit, unless the state is a party on the record. It was added:

"This must be the rule under our system, whether the jurisdiction of the court is denied on account of any interest which a state may have in the subject-matter of the suit, or when it is alleged that jurisdiction does not exist on account of the character of the parties."

The case of Davis v. Gray, 16 Wall. 203, 220, was a suit by the receiver of an insolvent railroad company to which a large grant of land had been made by the state of Texas, seeking to enjoin the of ficers of the state, who had declared the lands forfeited, from granting them to other persons. The jurisdiction of the court was assailed on the ground that the land in question had been forfeited to the state, and that the officers who were named on the record as defendants represented the state, and had no personal interest in the subject-matter, in which the state alone was concerned. The court, reviewing many earlier cases, asserted its jurisdiction, and declared that three things, among others, were settled in the case of Osborn v. Bank, 9 Wheat. 738:

"(1) A circuit court of the United States in a proper case in equity may enjoin a state officer from executing a state law in conflict with the constitution or a statute of the United States when such execution will violate the rights of the complainant. (2) Where the state is concerned, the state should be made a party, if it can be done. That it cannot be done is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the state in all respects as if the state were a party to the record (3) In deciding who are parties to the suit, the court will not look beyond the record. Making a state officer a party does not make the state a party, although her law may have prompted his action, and the state may stand behind aim as the real party in interest."

The case of Board v. McComb, 92 U. S. 531, 541, was a suit for a perpetual injunction to restrain the board of liquidation of the state of Louisiana from using the bonds, known as the "consolidated bonds" of the state, for the liquidation of a certain debt claimed to be due from the state to the Louisiana Levee Company, and from using any other state bonds in payment of the pretended debt. The jurisdiction of the court was questioned on the ground that the suit against the officers of the state was one in effect against the state, which alone was interested in the subject-matter. The unanimous opinion of the court was delivered by Mr. Justice Bradley, who observed that on this branch of the subject numerous and well-considered cases decided by the court left little to be said. He observed that the objections to proceeding against state officers by mandamus or injunction were: First, that it was in effect proceeding against the state itself; and secondly, that it interfered with the official discretion vested in the officers. He said it was conceded that neither of these things could be done. He further added:

"A state, without its consent, cannot be sued by an individual, and a court cannot substitute its own discretion for that of the executive officers in matters belonging to the proper jurisdiction of the latter. But it has been well settled that when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance; and, when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby for which adequate compensation cannot be had at law may have an injunction to prevent it. In such cases the writs of mandamus and injunction are somewhat correlative to each other. In either case, if the officer plead the authority of an unconstitutional law for the nonperformance or violation of his duty, it will not prevent the issuing of the writ. An unconstitutional law will be treated by the courts as null and void."

The case of U. S. v. Lee, 1 Sup. Ct. 240,1 was an action involving the title to Arlington Heights, where a national cemetery is located, in which were buried the bodies of many deceased Union soldiers. The action was brought against Kaufman and Strong, who, as agents of the United States, were in possession of the premises. The great question for decision was whether an action for the recovery of land claimed to belong to the United States could be maintained against the agents of the United States who were in possession of it under their authority. Few cases have ever more deeply touched the public feelings. It was argued with zeal and ability, and was decided on great deliberation. The opinion of the court was delivered by Mr. Justice Miller, whose judgments on questions of constitutional law are scarcely inferior in clearness of statement and power of argument to the luminous judgments of Chief Justice Marshall. The court held that the courts of the United States had jurisdiction in such cases, although the United States was the only party interested in the subject-matter.

The case of Louisiana v. Jumel, 107 U. S. 711, 2 Sup. Ct. 128, was a suit in equity by certain owners of a portion of the consolidated bonds of the state of Louisiana for a mandatory injunction to compel the state board of liquidation of the state, consisting of the governor, the lieutenant governor, the auditor, the treasurer, the secretary of state, the speaker of the house of representatives, and the State National Bank of Louisiana, as fiscal agent of the state, to apply any and all moneys and proceeds of taxes in their hands or subject to their control to the payment and retirement of their bonds, as provided for in a certain act of the legislature. A majority of the court (Mr. Chief Justice Waite pronouncing the opinion) held that the circuit court of the United States was without jurisdiction. The judgment was placed upon the ground that the courts of the United States could not compel these officers to withdraw or divert funds from the state treasury, and apply them to the payment of the bonds. The court asserted that there was a distinction between such a case as the one then before it and those cases where the jurisdiction of the courts of the United States had been upheld to prevent an officer of the state from doing a tortious or wrongful act to the injury of an individual, where such tortious or wrongful act was done or threatened under

1 106 U. S. 196.

v.68f.no.6-38

the pretended authority of an unconstitutional act of the state legislature. The dissenting judges were of the opinion that the case fell within the principles adjudged in former decisions of the court. What was sought in this case was to procure a decree negatively to restrain the members of the state board of liquidation from acting pursuant to an unconstitutional law, and affirmatively to compel them to apply the funds of the state to the payment of the bonds in pursuance of a constitutional enactment. It was said by the court that there was nothing in any of the cases formerly decided by it which authorized any such relief as was there asked. The case of Cunningham v. Railroad Co., 109 U. S. 446, 3 Sup. Ct. 292, 609, was one in which it was held that the relief sought was affirmative in character, and, if granted, the decree would operate directly upon the property rights of the state. The jurisdiction of the court was therefore denied. The court, however, cited and expressly approved the rule announced by Mr. Justice Bradley in the case of Board v. McComb, supra.

The case of Poindexter v. Greenhow (one of the Virginia Coupon Cases) 114 U. S. 270, 5 Sup. Ct. 903, 962, was an action of detinue for the recovery of personal property distrained by the defendant as tax collector of the city of Richmond, Va., for delinquent taxes, in payment of which the plaintiff had duly tendered coupons cut. from bonds issued by the state under the funding act of March 30, 1871, by which such coupons were made receivable in payment of taxes. A later statute required all taxes to be paid in lawful money, and, in obedience to it, the collector refused to receive the coupons. The court held that the plaintiff had paid the taxes demanded of him by a lawful tender, and that the defendant had no authority of law thereafter to attempt to enforce other payment by seizing his property. It was objected, however, that the suit of the plaintiff could not be maintained, because it was substantially an action against the state of Virginia to which it had not assented. It was said that the tax collector, who was sued, was an officer and agent of the state, engaged in collecting its revenue, under a valid law, and that the tax he sought to collect from the plaintiff was lawfully due; that consequently, he was guilty of no personal wrong, but acted only in an official capacity, representing the state, and, in refusing to receive the coupons tendered, simply obeyed the commands of his principal, whom he was lawfully bound to obey; and that, if any wrong had been done, it was done by the state in refusing to perform its contract, and for that wrong the state alone was liable, but was exempted from suit by the eleventh amendment to the constitution of the United States, which declares that "the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." The court, however, overruled these objections, and maintained the jurisdiction of the court in an exhaustive opinion. The opinion was placed upon the ground that the suit was not in substance or effect a suit against the state.