sable party to a suit to enjoin an express company from refusing to carry liquor into the State where the defendant contends that the State statutes forbid such transportation.17 But a State is not an indispensable party to a suit against a private individual to cancel a contract between him and that State, by which the State acquired lands of the United States through mistake or fraud.18 It seems, that a State is not an indispensable party to a stockholder's suit, to enjoin a corporation from obeying an unconstitutional State law. 19

§ 105c. Injunctions against State officers. The jurisdiction of the Federal courts in suits against officers of States is in many respects similar to their jurisdiction in suits for injunctions against officers of the United States,1 and the decisions in the latter cases are of assistance in the former.2

A suit may be maintained to enjoin the State Attorney General, or any prosecuting officer, or other State officer, except possibly the State governor,5 or State judges, or to enjoin a

17 H. Clark & Sons v. Southern Express Co., 203 Fed. 580.

18 Williams v. U. S., 138 U. S. 514, 516, 34 L. ed. 1026, 1028.

19 Cotting v. Kansas City Stock Yards Co., 183 U. S. 79, 114, 46 L. ed. 92, 110; Poor v. Iowa Cent. Ry Co., 155 Fed. 226.

§ 105c. 1 Jacob Hoffman Brewing Co. v. McElligot, C. C. A., 259 Fed. 525, modifying 259 Fed. 321.

2 Supra, § 100.

3 Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819; Cotting v. Kansas City Stock Yards Co., 183 U. S. 79, 46 L. ed. 92; Prout v. Starr, 188 U. S. 537, 47 L. ed. 584; Ex parte Young, 209 U. S. 123, 159; 28 Sup. Ct. 441, 453, 14 Ann Cases, 764; 52 L. ed. 714, 13 L.R.A. (N.S.) 932; Hunter v. Wood, 209 U. S. 205, 52 L. ed. 747; Reagan v. Farmers' L. & T. Co., 154 U. S. 362, 38 L. ed. 1014; Rast v. Van Deman & Lewis, 240 U. S. 342, 355. St. Louis & S. F. R. Co. v. Hadley, 161 Fed. 419;

Western Union Tel. Co. v. Julian,' 169 Fed. 166. The late decisions have overruled a number of cases to the contrary. It was held in 1899: that such a suit could not be maintained in a case where the defendants were not specially charged with the excution of an unconstitutional statute, and were not, under the authority of the same, committing or about to commit some specific wrong or trespass, to the injury of the plaintiff's rights. Fitts v. MeGhee, 172 U. S. 516, 529, 43 L. ed. 535, 541; Ball v. Rutland R. Co., 93 Fed. 513; Little v. Tanner, 208 Fed. 805; Louisville & N. R. Co. v. Bosworth, 209 Fed. 380.

4 Herndon v. Chicago, Rock Is land & Pac. Ry. Co., 218 U. S. 135, 54 L. ed. 970; St. Louis & S. F. R. Co. v. Allen, 181 Fed. 710; Louisville & N. R. Co. v. Bosworth, 209 Fed. 380.

5 Such suits have been sustained in Davis v. Gray, 16 Wall. 203, 21 L. ed.

State board, from bringing suits, whether civil or criminal, in its courts, in pursuance of a State statute, which is unconstitutional; or from enforcing such a statute; 7 or from enforcing the order of a State board in pursuance of such a statute; or to enjoin a State railroad commission from suing to recover penalties for the violation of an order made by it, which was void as a regulation of interstate commerce.9 An injunction may be granted against a State officer,10 even, it seems, a State prosecuting officer, to prevent his invasion of the rights of the complainant to property, although he acts under color of the attempted administration of a constitutional statute. Where State officers, under a statute which

13

was constitutional, denied the complainant the equal protection of the laws by an arbitrary discrimination against it, on its application for a racing license the court held, that it had jurisdiction to grant an injunction.12 To prevent irreparable injury, an injunction may be granted against a State officer, to prevent him from making a trespass by seizure of personal property in obedience to an unconstitutional State statute; even when acting under the orders of the State court in a case of which the Federal court had prior jurisdiction; 14 from infringement of the copyright of an edition of the State statutes under express legislative authority; 15 from revoking a license to transact business in the State, which has been issued to a foreign corporation,16 or from annulling the franchise of a corporation, in pursuance of an unconstitutional State statute; but not, it has been held, from refusing to reissue an annual license to a foreign corporation, unless it complies with the terms of a statute which it claims is unconstitutional.18 It has been held, that the State governor and the commissioner of its land office may be enjoined from the sale and delivery of patents for land, which the State has previously granted to the complainant.19 A State board has been enjoined from exchanging new State bonds for a class of bonds previously issued, as to which the statute did not authorize such an exchange.20 An injunction was granted against a State treasurer

12 Douglas Park Jockey Club v. Grainger, 146 Fed. 414.

13 Scott v. Donald, 165 U. S. 107, 41 L. ed. 648.

14 In re Tyler, 149 U. S. 164, 37 L. ed. 689.

15 Howell v. Miller, C. C. A., 91 Fed. 129. But see supra, § 100.

16 Met. Life Ins. Co. v. McNall, 81 Fed. 888; Chicago, R. I. & P. Ry. Co. v. Ludwig, 156 Fed. 152; Chicago, R. I. & P. Ry. Co. v. Swanger, 157 Fed. 783; infra, § 17 Chicago, R. I. & P. Ry. Co. v. Ludwig, 156 Fed. 152.

-.

18 Manchester Fire Ins. Co. V. Herriott, 91 Fed. 711, 716.

19 Davis v. Gray, 16 Wall. 203,

17

21 L. 447. "It is clear that in en-
joining the governor of the State
in the performance of one of his
executive functions, the case goes
to the verge of sound doctrine, if
not beyond it, and that the principle
should be extended no further."
Miller, J., in Cunningham v. Macon
& Brunswick R. Co., 109 U. S. 446,
453, 27 L. ed. 992, 995. The orig
inal case was followed, however, in
Pennoyer v. McConnaughy, 140 U.
S. 1, 35 L. ed. 363; s. c., 43 Fed.
196, 339. But see New Mexico v.
Lane, 243 U. S. 52, supra, § 100.
20 Board of Liquidation v. Me-
Comb, 92 U. S. 531, 28 L. ed. 623.

forbidding him from paying, to anyone but the plaintiff the income of a fund, to which the plaintiff had a contractual right.21 In two State courts, it has been held: that a taxpayer's bill can be brought to prevent the payment of money from the State treasury, under an unconstitutional law.22 An injunction may be issued to restrain a State officer from levying an illegal tax; 23 or making an illegal assessment for taxation.24 The latest authorities are to the effect that when a State statute is constitutional, a State Attorney General or other public prosecutor can not be enjoined from acting under a mistaken construction thereof.25 It has been held: that no injunction can be issued against a State Attorney General to restrain him from enforcing an unconstitutional statute, which does not impose upon him a specific duty when he has not threatened to enforce it.26 It has been held: that a Federal court cannot enjoin either criminal or civil proceedings pending in the State court when the bill is filed.27 Nor the issue under a State statute by State officers of a certificate of nomination to a candidate for Representative in Congress. Nor to require a State officer to certify the nomination of a certain candidate for such office. 28

It seems that affirmative relief will not be granted to compel a State officer to perform an act forbidden by a State statute; even if such statute is unconstitutional.29

21 President, etc., of Yale College v. Sanger, 62 Fed. 177. See Chaffraix v. Board of Liquidation, 11 Fed. 638. The United States obtained an injunction against the use by a State Land Commission of the proceeds of public lands in violation of the terms of the gift. Ervin v. U. S. 251 U. S. 41.

22 Lynn v. Polk, 76 Tenn. 121, 123, 125; Butler v. Ellerbe, 44 s. c. 256, 276, 283.

23 Osborn v. Bank of U. S., 9 Wheat, 738, 6 L. ed. 204; infra, §§ 151g, 271b.

24 Union Pac. Ry. Co. v. Alexander, 113 Fed. 347; infra, §§ 151g, 271b.

25 Arbuckle v. Blackburn, C. C. A.,

113 Fed. 616, 65 L.R.A. 864; Cen

tral Consumers Co. v. Austin, 238 Fed. 616; Jacob Hoffman Brewing Co. v. McElligot, C. C. A., 259 Fed. 525, 529, 532, 542. See Harkrader v. Wadley, 172 U. S. 148, 169, 43 L. ed. 399.

26 Cavanaugh v. Looney, 248 U. S 453.

27 St. Louis & S. F. R. Co. v. Allen, 181 Fed. 710, citing U. S. R. S., $720, Comp. St. 1901, p. 581. See infra, §§ 270, 271. Scully v. Bird, 209 U. S. 481, 52 L. ed. 899. 28 Anthony v. Burrow, 129 Fed. 783.

29 Cunningham v. Macon & Brunswiek, R. Co., 109 U. S. 446, 453, 454, 27 L. ed. 992, 994, 995; Pennoyer v.

The existence of a remedy in the State courts does not deprive the injured party of his rights to relief in the Federal jurisdiction.30 When, however, the proceedings are administrative rather than judicial in their nature, the Federal courts will require him first to exhaust his remedies by appeal or otherwise in the State Tribunal.31

§ 105d. Practice upon applications for injunctions against State officers. The Judicial Code provides: "No interlocutory injunction suspending or restraining the enforcement, operation, or execution of any statute of a State by restraining the action of any officer of such State in the enforcement or execution of such statute or in the enforcement or execution of an order made by an administrative board or commission acting under and pursuant to the statutes of such State, shall be issued or granted by any justice of the Supreme Court, or by any District court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, upon the ground of the unconstitutionality of such statute, unless the application for the same shall be presented to a justice of the Supreme Court of the United States, or to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a justice of the Supreme Court, or a circuit judge, and the other two may be either circuit or district judges, and unless a majority of said three judges shall concur in granting such application. Whenever such application as aforesaid is presented to a justice of the Supreme Court, or to a judge, he shall immediately call to his assistance to hear and determine the application two other judges: Provided, however, That one of such three judges shall be a justice of the Supreme Court, or a circuit judge. Said application shall not be heard or determined before at least five days' notice of the hearing has been given to the governor and to the attorney general of the State, and to such other persons as may be defendants in the suit: Provided, That if of opinion that irreparable loss or

McConnaughy, 140 U. S. 1, 35 L. ed.

363.

30 Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819; Manufacturers' Light & Heat Co. v. Ott, C. C. A., 215 Fed. 940, 943.

31 Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 29 Sup. Ct. 67, 56 L. ed. 150; Kern Trading & Oil Co. v. Associated Pipe Line Co., 217 Fed. 273. See infra, § 105d.