State action, so that the fourteenth amendment did not apply.

The opinion of the court, by Chief Justice Fuller, is far from convincing. The case mainly relied upon is Virginia v. Rives,1 in which was denied the right to remove a criminal action to the federal court, under a statute providing for such removal in case of "denial or inability to enforce in the judicial tribunals of a State, rights secured to a defendant by any law providing for the equal civil rights of all persons citizens of the United States," upon the allegation that the officer charged with the selection of jurors would discriminate against negroes in the selection. Now, the officer had no authority under the State law to make such a discrimination; and the supreme court simply held that, under these circumstances, there was not sufficient ground to presume that the petitioner could not enforce his rights in the judicial tribunals of the State-that to raise such a presumption, there must be a State statute, which, if enforced, would violate such rights. The court expressly said that the act of congress was not as broad as the fourteenth amendment. A like discrimination, under the same State law, was held, in Ex parte Virginia,2 to be sufficiently State action to be punishable under the power to enforce the fourteenth amendment. Justice Strong said: "Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State."3

The other cases cited by Chief Justice Fuller for the

1 100 U. S. 313.

2 100 U. S. 339.

Chief Justice Fuller's explanation of Ex parte Virginia as "a case in which what was regarded as the final judgment of a State court was under consideration," is most astonishing; for it was expressly held in that case that it was not an attempt to punish State judicial action.

"principle that it is for the State courts to remedy acts of State officers done without the authority of or contrary to State law-" Missouri v. Dockery1 and the Civil Rights Cases-2 furnish no better support. The Civil Rights cases are not in point at all, no action of State officers being involved. And Missouri v. Dockery was decided expressly on the ground that the acts in question were within State competence without violation of any federal limitation; so that whether they were authorized by State law or not raised no federal question.3

The decision in Barney v. New York may be sustained only upon the view that, where a higher State authority prohibits, no State authority exists to be tested under the fourteenth amendment. But this is certainly contrary to the practice of testing a State statute under the fourteenth amendment, although the statute is also in violation of the State constitution. And it seems more reasonable to hold that, whenever action is taken "by virtue of public position under a State government," it is sufficient to raise the question whether such action is prohibited by the fourteenth amendment, although it may also be contrary to State law.

The case of General Oil Company v. Crain1 may best be considered here. A bill was brought in a Tennessee court to enjoin the State oil inspector from collecting inspection fees on oil brought to Memphis from Ohio, already sold for shipment into other States, but car-loads put into tanks in Memphis for subdivision for distribution; it being alleged that the oil was exempt from State control as interstate

1191 U. S. 165.

2109 U. S. 3.

The act of an officer in the exercise of his authority under a statute is, of course, just as much the act of the State as if specifically directed_by_statute; for instance, the fixing of rates by a commission, as in Reagen v. Farmers L. & T. Co. See also Fargo v. Hart, 193 U. S. 490; Gen. Oil Co. v. Crain, 209 U. S. 211. The opinion in La. v. Texas, 176 U. S. I, seems contrary. In Arbuckle v. Blackburn, 191 U. S. 405, no federal question was involved, because the act of the officer was simply a finding of fact under a State law admitted to be valid.

4 209 U. S. 211.

commerce. The State court dismissed the bill for lack of jurisdiction, upon a construction of a State law of 1873, prohibiting suits against the State "or any officer acting by the authority of the State, with a view to reach the State, its treasury, funds, or property." In a previous case, the State court of Tennessee had sustained a suit against officers of the State acting under a statute alleged to be unconstitutional, on the ground that, when acting under an unconstitutional statute, officers are not acting for the State. In the present case, however, the inspection law was not alleged to be void on its face, but only on the ground that the oil upon which defendant was about to impose inspection fees was in law affected with interstate commerce. To enter into the inquiry involved in this contention, the court said, it would be necessary first to determine whether the oil in the tanks was in fact and in law a part of interstate commerce; and this the court had no jurisdiction to do, because of the law of 1873.

Now, the State court was clearly wrong; for there was nothing more to prevent an inquiry whether the commerce clause applied to the oil in question upon action of a State officer under a State statute, than upon a statute itself. But the question was, upon writ of error to the supreme court, whether any federal question was involved, the ruling of the State court having been entirely upon the ground of lack of jurisdiction under the State law. The court held there was, because the State court had "refused to consider that which might bring the oil under the protection of the constitution of the United States." "It being, then, the right of a party to be protected against a law which violates a constitutional right, whether by its terms or the manner of its enforcement, it is manifest that a decision which denies such protection gives effect to the law, and the decision is reviewable by this court. R. R. Co. v. Alsbrook."1

This is no argument at all, for, manifestly, any dismissal for lack of jurisdiction of a suit for violation of a con1146 U. S. 279.

stitutional right by a State statute, even if the suit were directly against the State, would give effect to the statute. Railroad Company v. Alsbrook is not in point. In that case the State court ruled upon the federal question. Justice McKenna reviewed the cases in which it had been held that a decision by the State court upon its own jurisdiction is final, and then dismissed them with the remark that "in none of these cases was the same question presented as here," without any real attempt to distinguish them. The only proper ground for the decision would seem to be that a remedy of right existed against the officer for violation of a constitutional right, and that a State statute or decision denying this remedy, even upon the ground of lack of jurisdiction, was itself unconstitutional.1

The ruling of the State court was affirmed on the ground that the inspection tax in question was not unconstitutional. Justice Harlan concurred in the judgment on the ground that the decision of the State court as to its own jurisdiction was final. Justice Holmes concurred specially.

CHAPTER VIII.

THE RELATION OF THE STATE TO SUITS AGAINST ITS

OFFICERS.

In suits against public officers directly affecting the state— for instance, where the defense in an action of ejectment against officers depends upon title of the state, the state may, without becoming a party, by formal suggestion by its law officer, bring its rights before the court.1 This special privilege extends even to participation in argument." Whether, in such a case, in which the state has not submitted itself to the jurisdiction of the court, it may prosecute in its own name a writ of error from a ruling, has not been squarely decided by the supreme court; although the opinion in South Carolina v. Wesley inclines strongly against the right.

The basic problem remains to be considered: is a suit against public officers ever a suit against the state?1

In Osborn v. Bank, Chief Justice Marshall said: "It may, we think, be laid down as a rule which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently, the eleventh amendment, which restrains the jurisdiction granted by the constitution over suits against States, is, of necessity, limited to those suits in which a State is a party on the record. . . . The State not being a party on the record, and the court having jurisdiction over

1U. S. v. Lee, 106 U. S. 196; Stanley v. Schwalby, 162 U. S. 255; Belknap v. Schild, 161 U. S. 10.

2 Fla. v. Ga., 17 How. 478.

It was not necessary to decide the point in U. S. v. Lee, because the same questions were raised in the bill of exceptions of the individual defendants. And in S. C. v. Wesley, 155 U. S. 542, the exceptions below had not been properly taken nor brought up.

Apart, of course, from where the state has provided therefor as a form of action against itself. See Part I, p. 40.