State to restrain or control the use of property already in the possession of the State when the suit is commenced; or to compel the State to perform its obligation; or where the State has otherwise such an interest as to be a necessary party." "We think the foregoing cases mark, with reasonable precision, the limit of the power of the courts in cases affecting the rights of the State or Federal governments in suits to which they are not voluntary parties. In actions at law, of which mandamus is one, where an individual is sued, as for injuries to persons or property, real or personal, or in regard to a duty which he is personally bound to perform, the government does not stand behind him to defend him. If he has the authority of law to sustain him in what he has done, like any other defendant he must show it to the court and abide the result. In either case the State is not bound by the judgment of the court, and generally its rights remain unaffected. It is no answer for the defendant to say, I am an officer of the government and acted under its authority, unless he shows the sufficiency of that authority. Courts of equity proceed upon different principles in regard to parties." 25"Two classes of cases have appeared in the decisions of this court, and it is in determining to which class a particular case belongs that differing views have been presented. The first class is where the suit is brought against the officers of the State, as representing the State's action and liability, thus making it, though not a party to the record, the real party against which the judgment will so operate as to compel it to specifically perform its contracts. The other class is where a suit is brought against defendants who, claiming to act as officers of the State, and under the color of an unconstitutional statute, commit acts of wrong and injury to the rights and property of the plaintiff acquired under a contract with the State. Such suit, whether brought to recover money or property in the hands of such defendants, unlawfully taken by them in behalf of the State, or for compensation in damages, Governor of Georgia v. Madrazo, 1 24 Gray, J., in Belknap v. Schild, 161 U. S. 10, 18. 25 Cunningham v. Macon & B. R. Co., 109 U. S. 446, 456. See Virginia Coupɔn Cases, 114 U. S. 269. 26 Pennoyer v. McConnaughy, 140 U. S. 1, 9, 10, per Lamar, J. or, in a proper case where the remedy at law is inadequate, for an injunction to prevent such wrong and injury, or for a mandamus, in a like case, to enforce upon the defendant the performance of a plain, legal duty, purely ministerial, not, within the meaning of the Eleventh Amendment, an action against the State." 27 is In accordance with these views, it was held that a suit in equity by a bondholder against the officers of a State and a railroad company whose bonds he held, to have a sale of mortgaged property to the Governor of Georgia, claiming to act in his official capacity, declared void upon the ground "that the governor was not authorized to bid in said property for the State, and the State had no constitutional power to make the purchase," could not be maintained; 28 that the Federal courts have no jurisdiction of a suit in equity against a railroad company and its officers to compel the payment to the complainant of the dividends declared upon shares of its stock standing in the name of a State and pledged by State officers to secure the payment of part of a State debt, nor for a receiver of such stock, nor for its sale; 29 nor a suit in equity against State officers praying that they be directed to redeem certain certificates of State indebtedness and accept the same in payment for taxes; 30 nor of a suit in equity to enforce against a State officer the execution of a trust vested by statute in the State or in such officer, designated by his official title." A bill, the object of which is by injunction, indirectly, to compel the $27 Pennoyer v. McConnaughy, 140 performance of a contract by it, and U. S. 1, 10. 28 Cunningham v. Macon & B. R. Co., 109 U. S. 446. See, however, the dissenting opinion of Field and Harlan, JJ. But an action against a State treasurer to recover taxes illegally exacted is a suit against the State and cannot be maintained. Smith v. Reeves, 178 U. S. 436. 29 Christian v. Atlantic & N. C. R. Co., 133 U. S. 233. But see Swasey v. N. C. R. Co., 1 Hughes, 17. It was held that the fact that a State owned all the stock of a railroad company did not prevent a suit against the corporation for specific for an injunction against the governor and State attorney-general from aiding in such violation. Judge Simonton said: "When the State entered into this enterprise with private persons, she did not carry into it her functions of sovereignty, but stripped herself of them." Southern Ry. Co. v. North Carolina R. Co., 81 Fed. R. 595, 599, 600. 30 Hagood v. Southern, 117 U. S. 52. But see Rolston v. Chittenden, 120 U. S. 390. 31 Brown University v. Rhode Island College, 56 Fed. R. 55. specific performance of a contract by a State by forbidding all those acts and doings which constitute breaches of the contract, is a suit against the State. Such is a suit to enjoin the State, governor, attorney-general, auditor, commonwealth attorneys, State and county prosecuting officers from bringing suits in the name of that State and in its courts to enforce a State statute," and a suit to enjoin criminal proceedings in a State court; " at least where the State officers are acting under a statute the validity of which was admitted, and were not threatening to institute litigation in pursuance of the express direction of an unconstitutional act of the legislature." A State cannot, without its consent, be sued by one of its own citizens, even on a cause of action arising under the Constitution and laws of the United States.36 It has been held that a State is not a necessary party to a suit by the United States to cancel a contract between it and a private individual for the sale of lands, obtained by the State from the plaintiff by mistake or fraud.37 A county is subject to suit in a court of the United States; and a State law cannot divest a Federal court of jurisdiction over such a suit. But where a State statute authorized suits against the State only in a State court, it was held that the Federal courts had no jurisdiction. It has been held at Circuit that a cross-bill may be filed against a State which has brought an original bill; and that, after a removal of a suit brought by a State, an injunction may be granted to stay further proceedings in the State court therein."1 38 § 38. Liability of a State to a suit by another State.The Constitution provides that "the judicial power shall extend . . . to controversies between two or more States; and between a State, or the citizens thereof, and foreign States, 32 In re Ayers, 123 U. S. 443, 502, 154 U. S. 362; W. U. Tel. Co. v. Wyatt, per Matthews, J. 98 Fed. R. 335. 33 In re Ayers, 123 U. S. 443; Fitts v. McGhee, 172 U. S. 516; Harkrader v. Wadley, 172 U. S. 148; Ball v. Rutland R. Co., 93 Fed. R. 513. But see Smyth v. Ames, 169 U. S. 466; Reagan v. Farmers' L. & T. Co., 154 U. S. 362. 34 Fitts v. McGhee, 172 U. S. 516; Harkrader v. Wadley, 172 U. S. 148. 35 See Smyth v. Ames, 169 U. S. 466; Reagan v. Farmers' L. & T. Co., 36 Hans v. Louisiana, 134 U. S. 1; North Carolina v. Temple, 134 U. S. 22. 37 Williams v. U. S., 138 U.S. 514, 516. 38 Lincoln County v. Luning, 133 U. S. 529. 39 Smith v. Reeves, 178 U. S. 436. 40 Port Royal & A. Ry. Co. v. South Carolina, 60 Fed. R. 552. 41 Abeel v. Culberson, 55 Fed. R. 329. See infra, §§ 211, 223, 391. citizens or subjects." The Eleventh Amendment has not taken away the liability of one of the United States to a suit by another such State or a foreign State. Such jurisdiction, however, is confined to controversies concerning rights affecting property; not to those merely affecting political rights. It includes controversies concerning boundaries between different States, even though the complainant claim no title other than that of sovereignty and jurisdiction over the lands in question. For, "in this country, where feudal tenures are abolished, in cases of escheat the State takes the place of the feudal lord, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdiction." If, however, in a bill which prays relief against a threatened invasion of rights purely political in their nature, a threatened injury to property be stated "only by way of showing one of the grievances resulting from the threatened destruction of the State, and in aggravation of it, not as a specific ground of relief;" and "this matter of property is neither stated as an independent ground, nor is it noticed at all in the prayers for relief," the bill will be dismissed. A suit cannot be maintained when brought by one State against another to enforce the payment by the latter of its bonds originally held by citi zens of the former State, and assigned by them to it solely for the purpose of collection, nor to prevent the enforcement of quarantine regulations which impose unreasonable restraint upon the commerce between parts of the two States. A tribe of Indians domiciled within the borders of the United States does not constitute a foreign State within the meaning of the Constitution.R $39. Suits against infants. An infant when sued should be provided by the court with a guardian ad litem. For an § 38. 1 Art. III, § 2. 2 Cherokee Nation v. Georgia, 5 Pet. 1; Georgia v. Stanton, 6 Wall. 50; Georgia v. Grant, 6 Wall. 241. 3 Rhode Island v. Massachusetts, 12 Pet. 657; Missouri v. Iowa, 7 How. 660; Florida v. Georgia, 17 How. 478; Alabama v. Georgia, 23 How. 505; Virginia v. West Virginia, 11 Wall. 39. 4 Georgia v. Stanton, 6 Wall. 50, 73. 5 Georgia v. Stanton, 6 Wall. 50, 77. 6 New Hampshire v. Louisiana, 108 U. S. 76. 7 Louisiana v. Texas, 176 U. S. 1. But see Missouri v. Illinois, 180 U. S., supra, § 14. 8 Cherokee Nation v. Georgia, 5 Pet. 1. $39. 1 Rule 87; Bank of U. S. v. Ritchie, 8 Pet. 128, 144. See Woolridge v. McKenna, 8 Fed. R. 650, 670. 2 omission to appoint a guardian ad litem, a decree against an infant will be reversed upon appeal. An application for the appointment of a guardian ad litem for an infant should be made by petition, which, if the appointment of a particular person is desired, should state his name and his consent to act as such. The court will usually appoint the infant's general guardian or "the nearest relative not concerned, in point of interest, in the matter in question; " but the choice of the guardian rests in the sound discretion of the court, and only in an extraordinary case would a decree be reversed for an error in this respect. The interests of an infant are guarded jealously by the court, which will not hold him bound by any admission made by him or in his behalf, whether in the pleadings or otherwise; but a decree by consent as the result of a compromise approved by the court may be made without a reference to a master, although the safer practice is to have it referred. The guardian ad litem is responsible for the propriety of the defense. He must pay costs for scandal; 10 and he may be removed by the court at any time." This may be done if he is unable or unwilling to pay the expenses of the defense.12 If no person of substance is willing to serve for the infants, the court "might suspend further proceedings until it could send a next friend or guardian ad litem to the State courts having jurisdiction of their person and property, to secure such guardianship as would protect them." 13 Infants may defend in forma pauperis; but, except in very extraordinary circumstances, their expenses will not be advanced out of a fund in 2 O'Hara v. MacConnell, 93 U. S. 150. 3 Rhinelander v. Sanford, 3 Day (U. S. C. C. D. Conn.), 279. 4 Bank of U. S. v. Ritchie, 8 Pet. 128, 144; Story's Eq. Pl., § 70; Calvert on Parties, Book III, ch. xxxi. 'Bank of U. S. v. Ritchie, 8 Pet. 128, 144. See Kingsbury v. Buckner, 134 U. S. 650. 6 Bank of U. S. v. Ritchie, 8 Pet. 128, 144, 145; Walton v. Coulson, 1 McLean, 125; s. c., Coulson v. Walton, 9 Pet. 62, 84; Hawkins v. Luscombe, 2 Swanst. 375, 390; Savage v. Carroll, 1 Ball & B. 553. "Legard v. Sheffield, 2 Atk. 377; White v. Miller, 158 U. S. 128. See also Kingsbury v. Buckner, 134 U. S. 650: Clarke v. Clarke, 178 U. S. 186. 8 Thompson v. Maxwell L. G. & Ry. Co., 168 U. S. 451. 9 Knickerbacker v. De Freest, 2 Paige (N. Y.), 304. 10 Daniell's Ch. Pr. (2d Am. ed.) 204. 11 Russell v. Sharpe, 1 Jac. & W. 482. 12 Ferguson v. Dent, 15 Fed. R. 771, 772. 13 Ferguson v. Dent, 15 Fed. R. 771, 772. |