restraint, not only of the actual collection of an unconstitutional tax, but also of the proceedings leading thereto. In Re Tyler,1 the court enjoined the levy for a tax alleged to have been over-assessed, as well as the collection thereof. In Fargo v. Hart, the auditor of Indiana was restrained from certifying to the auditors of the several counties an assessment on a railroad, which constituted an unconstitutional interference with interstate commerce. These acts, of course, were not possible to the defendants as private individuals, but only in their offiical capacity. They were, however, part of the proceedings in a threatened wrong, and as such enjoinable.

The great field for application of the principle has been in the matter of rate regulation by the States. To enforce upon a railroad rates that are unconstitutional is a wrong. And all manner of means of enforcing such rates have been enjoined the publication of the rates, the hearing of complaints for violation of them, the bringing of suits to enforce them.

It must not be supposed, however, that every act of an officer under color of an unconstitutional authority may be enjoined. The act must be such as to involve the separate liability of the officer. But the remedy for a breach of contract or violation of a trust is only against the party contractant or the trustee, not against the agent. So that, if the act is only a breach of a contract or trust of the state, there is no right of action against the officer. Thus, in Louisiana v. Jumel, the diversion of the moneys pledged for the coupons was a violation of a right of plaintiffs only so far as it was a breach of contract of the State. In Neganab v. Hitchcock, the acts sought to be restrained violated rights of plaintiffs only as breaches of the trust resting upon the United States. The fact that the act constitutes a breach of contract or of trust on the part of the state

1 149 U. S. 164.

2 193 U. S. 490.

This means-by suits-is reserved for special treatment in Chap. VI.

4 See Justice Matthews, in Ex parte Ayers, 123 U. S. 443. 20. S. 473.

does not, of course, exclude liability on the part of the officer. But there must be something more to involve such liability; there must be a violation of a jus in rem. The right of action against the officer is based upon this ground: an act that is a wrong in itself, unless made lawful. For instance, the enforcement of rates upon a railroad is an unlawful interference with the railroad, unless made lawful; and if the rates are confiscatory, they cannot be made lawful. That what prevents the act from being made lawful is the fact that it constitutes an unconstitutional breach of contract on the part of the State, does not affect the case. The collection of a tax, for instance, is an unlawful interference with property rights, unless the tax is lawful. It may be prevented from being lawful by reason of a contract exemption granted by the State.

The distinction is well illustrated in the case of Pitcock v. State.1 The superintendent and financial agent of the Arkansas State penitentiary, in the exercise of their powers, and with the approval of the board of commissioners, made a contract in the name of the State to supply a certain manufacturing company with convict labor. Suit was brought to restrain the withdrawal of the convicts in violation of the contract, and to compel the furnishing of more to make up the amount of labor under the contract. A restraining order was granted; and on violation thereof, judgment for contempt. The judgment was reversed by the court above on the ground that "a withdrawal of the convicts from the premises of plaintiffs was not a taking of or a trespass upon the latter's property. It was only a refusal to perform the alleged contract which plaintiffs seek to restrain." That is, the withdrawal was not a wrong in itself unless supported by lawful authority, but was only a breach of the contract of the State.

Board of Liquidation v. McComb has been classed with Davis v. Gray.2 And probably it may be based on the same

1 121 S. W. (Ark. 1909) 742.

And

By Justice Bradley, it seems, in Poindexter v. Greenhow. by Judge Billings in Chaffraix v. Bd., 11 Fed. 638. For the ground of the decision in the McComb case, see Chap. IV.

principle. For in the McComb case the plaintiffs were holders of consolidated bonds; and the action might be regarded as to restrain "the board from injuriously affecting their value, by issuing similar bonds to parties not entitled thereto." The threatened acts were not only breaches of contract, but violations of property rights. Similarly, where a State grants an exclusive franchise, the grantee acquires not merely a contract right, but a jus in rem, which he may protect against infringement by individuals or by public officers in the name of the State.

To conclude, then, the principle of Osborn v. Bank has been extended in Davis v. Gray and the subsequent cases. The broad principle is this: public officers may be restrained whenever, under color of unconstitutional authority, they are proceeding to violate rights in rem.1

'That the official position of the officers sued is taken into account appears strongly in the ruling that the successors in office of the officers enjoined are privies to the decree. Prout v. Starr, 188 U. S. 537; Gunter v. Atl. Coast Line R. R. Co., 200 U. S. 273. The successor in office may not be substituted, however, pending hearing on appeal or writ of error. Warner Valley Stock Co. v. Smith, 165 U. S. 28. See also Chandler v. Dix, 194 U. S. 590.

CHAPTER VI.

EX PARTE YOUNG.

One means of enforcing laws is by suits-criminal, or by way of mandamus or injunction. In Ex parte Young,1 the question was squarely presented whether the law officers of a State may be restrained from bringing suits in the name of the State for the enforcement of a statute fixing railroad rates, alleged to be confiscatory, and therefore unconstitutional.2

To clear the discussion, several points may be quickly disposed of. In the first place, no regard will be given to the suggestion that the scope of the eleventh amendment might be limited in relation to the later fourteenth amendment. It has not been used in any decision; and there seems not the slightest ground for it. Nor will the view of Justice Brewer be further noticed that the interest of the state in the enforcement of its laws is only a governmental interest, and that such an interest is not sufficient to constitute the state party to a suit. Moreover, the fallacy in the idea that the suit is not against the State because the officer is not acting for the State if the law is unconstitutional, has been exposed. As pointed out, the State has

1

209 U. S. 123.

Another ground of unconstitutionality was the fact that the penalties were so enormous as to show a design to scare the railroads from testing the constitutionality of the rates. This, of course, was only an additional ground of unconstitutionality, and would not make the suit against the officers any less a suit against the State.

By Justice Shiras, in Prout v. Starr, 188 U. S. 537.

Justice Peckham, in Ex parte Young, assumed that the eleventh amendment retained full effect; although he honored the contrary suggestion so far as to say of the fourteenth amendment: "but a decision of this case does not require an examination or decision of the question whether its adoption in any way altered or limited the effect of the earlier amendment."

"This view has been sufficiently disposed of in Part I, p. 42. Stated even by Justice Peckham in Ex parte Young.

an interest in whether the acts of its officers are lawful; and, anyhow, the question of constitutionality can be decided only in the exercise of jurisdiction, so that, if the law is found constitutional, the court will have exercised jurisdiction over a suit against the State. On the other hand, as has been several times stated, the fact that the state can act only through agents does not make a suit against the agents a suit against the state. Also, the fact that the officers have no personal interest in the controversy makes no difference.

The question whether, supposing the suit to be otherwise well brought, grounds for equitable relief exist, is incidental. It will be accepted here that the maxim that "equity has no jurisdiction to enjoin criminal proceedings " means only that in general no equitable grounds exist; but where there are special equitable grounds, the maxim does not apply. In such a matter as the fixing of rates, where penalties are provided for each violation, clearly there are equitable grounds. "The transactions of a single week would expose any company questioning the validity of the statute to a vast number of suits by shippers, to say nothing of the heavy penalties named in the statute. Only a court of equity is competent to meet such an emergency and determine, once for all, and without a multiplicity of suits, matters that affect not simply individuals, but the interests of the entire community, as involved in the use of a public highway and in the administration of the affairs of the quasi-public corporation by which such highway is maintained." On the other hand, where the enforcement is to be simply by application for mandamus or mandatory injunction to compel obedience, it would seem just as clear that the remedy by defense to such suit is adequate. If, however, criminal proceedings are enjoined, it may be proper to enjoin also any other action in which the same issues would be involved.2

1 Justice Harlan, in Smyth v. Ames, 169 U. S. 466, 518. Justice Peckham, in Ex parte Young, also stated strongly the equitable grounds.

2 In Ex parte Young, where the only suit that the attorney gen