in which a certain tax was held unconstitutional, it was held that section 720 did not bar an ancillary suit to enjoin the agents of the State from suing in the name of the State for the same taxes.

In Ex parte Young, Justice Peckham said: "The question that arises is whether there is a remedy that the parties interested may resort to, by going into a federal court of equity, in a case involving a violation of the federal constitution, and obtaining a judicial investigation of the problem, and, pending its solution, obtain freedom from suits, civil or criminal, by a temporary injunction, and, if the question be finally decided favorably to the contention of the company, a permanent injunction restraining all such actions or proceedings." Now, if enjoining the suits in such a case could be thus regarded as incidental to the action against the officers, there would, of course, as in the Gunter case, be no need of holding such suits to be equivalent to a trespass. But it is utterly improper to regard them so in a case like Ex parte Young, where the only relation of the officers to the statute was, as law officers of the State, to bring formal suits in the name of the State. There was no right of action against the officers to test the constitutionality of the statute, as incidental to which suits by the officers with the same object might be enjoined. The only right of action against the officers was to restrain the suits as equivalent to a trespass; and the only bearing of the question of constitutionality of the statute was with respect to whether the officers had lawful authority for their otherwise wrongful acts. The prohibition in section 720 is, of course, purely statutory; and whether it properly applied or not does not affect the main principle of the case.

Another ground of objection, strongly urged by Justice Harlan, is that to shut out a State from appearing in its own courts, by enjoining all its officers, is contrary to our federal form of government. Justice Peckham admitted: "It is proper to add that the right to enjoin an individual, even though a State official, from commencing suits under

circumstances already stated, does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature, nor does it include power to prevent any investigation or action by a grand jury. The latter body is part of the machinery of a criminal court, and an injunction against a State court would be a violation of the whole scheme of our government. If an injunction against an individual is disobeyed, and he commences proceedings before a grand jury or in a court, such disobedience is personal only, and the court or jury can proceed without incurring any penalty on that account." Justice Harlan answered: "If an order of the federal court forbidding a State court or its grand jury from attempting to enforce a State enactment would be a violation of the whole scheme of our government, it is difficult to see why an order of that court, forbidding the chief law officer and all the district attorneys of a State to represent it in the courts, in a particular case, and, practically, in that way closing the doors of the State courts against the State, would not also be inconsistent with the whole scheme of our government, and, therefore, beyond the power of the court to make." It may be said, however, that, even if Justice Harlan's argument be fully accepted, limitations growing out of our federal form of government seem to yield before exigencies sufficiently strong.1

From the foregoing exposition, it is plain that Ex parte Young was a very difficult case. The court succeeded in agreeing, however, with only one dissent: and the decision, made upon the fullest consideration, may doubtless be accepted as final. Its immediate effect upon rate regulation will probably be good; it will check the tendency back to the unsatisfactory method of regulation directly by the legislature, in order to avoid, under the principle of Fitts v. McGhee, the control of the federal courts.2 In its full

1 For example, S. C. v. U. S., 199 U. S. 437.

Another State plan of confining the determination of the legality of rates, in the first instance, to the State courts, by making the fixing of the rates a judicial act, was frustrated in Prentis v. Atl. C. L. R. R. Co., 211 U. S. 210.

scope, the decision is startling. Whether a new departure in principle or not, the case certainly marks a radical expansion in the practical control of the federal courts over State activities. It enables a federal court to enjoin criminal prosecutions under any State law alleged to be unconstitutional, provided only equitable grounds exist. It has already led to a strong movement to regulate strictly the exercise of this power by the federal courts.1

Presi

1 Congressional Record, 60th Congress, 1st session, p. 133. dent's message, December 3, 1907. Meeting of attorneys-general of States, September and October, 1907.

CHAPTER VII.

FEDERAL QUESTION-WHEN INVOLVED IN SUITS AGAINST STATE OFFICERS.

A right of action against public officers exists, as appears from the foregoing chapters, whenever they threaten acts that violate rights in rem. These acts, otherwise unlawful, are lawful if done under valid authority of the State. Whenever the validity of the authority set up depends upon the constitution of the United States, a federal question is involved.

In Ex parte Young, Attorney General, now Governor, Hadley of Missouri, of counsel for petitioner, stated the following dilemma: "If the act sought to be enjoined is not the State's act, the fourteenth amendment is not involved. If the act sought to be enjoined is the State's act, then the eleventh amendment interposes to deny jurisdiction."1 Now, in the first place, it is not necessary, to avoid conflict with the eleventh amendment, to regard the act of the officer as not the act of the State. If the act is wrongful, an action lies against the officer, whether his act is the act of the State or not. Moreover, it is not necessary, to involve the fourteenth amendment, that the act of the officer under an unconstitutional statute be regarded as the act of the State. It is true the prohibitions of the fourteenth amendment apply only to State action. But, whether the acts of the officer be regarded as the acts of the State or not, the fourteenth amendment is involved whenever the State authority set up is alleged to be in violation of the amendment. If the act be regarded as not the act of the State if unconstitutional, then the question is whether it is prevented from being the act of the State by the fourteenth amendment.

1Quoted from an article by Hadley: The Eleventh Amendment": 66 Cent. Law Jour., 71, 75.

To involve a question under the fourteenth amendment, then, there must be a State authority set up, alleged to be in violation of the amendment. What constitutes a State authority in this sense? One view might be that State authority is involved whenever action is taken by virtue of official position under the State. On the other hand, it might be held that State authority is in question only when the action has valid authorization so far as State law is concerned. The latter view is not followed throughout, at any rate. For action of officers under a State statute will always be tested under the fourteenth amendment, even if the statute is alleged to violate also the State constitution. In other words, although prohibited by higher State authority, the statute is sufficiently State authority to invoke the test of the fourteenth amendment.

This leads to a consideration of Barney v. City of New York.1 In that case, there was no diverse citizenship, so that jurisdiction depended entirely upon the existence of a federal question. A bill was brought in the United States circuit court to enjoin the city of New York, the board of rapid transit commissioners, and certain contractors from proceeding with the construction of a tunnel under Park Avenue, adjacent to the premises of plaintiff, "until the easements appurtenant thereto shall have been acquired according to law and due compensation made therefor"; it being alleged that the tunnel was being constructed nearer his premises than provided in the plan adopted in compliance with the requirements of the State law in case of such a construction. That is, the threatened act was alleged to be illegal under the State law, and at the same time to "deprive of property without due process of law," by taking easements without compensation. The court upon its own motion dismissed the bill for want of jurisdiction. The supreme court affirmed the decision, on the ground that the act, being illegal under State law, was not

1 193 U. S. 430.

2The fourteenth amendment applies, of course, to the action of local governments, as well as of other State agencies.