"(14) If any officer fail to perform any duty required of him by this act he shall be fined not less than one hundred dollars, nor more than five hundred dollars.

"(15) This act shall be in force from its passage."

On this bill the following order was made:

"CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA.

"James P. Cooper, H. R. Beeton, F. J. Burt, N. J. Chinnery, W. M. Chinnery, F. P. Leon, and W. G. Woolston, against Morton Marye, Auditor, R. A. Ayers, Attorney General, the Treasurers of Counties, Cities, and Towns in Virginia, and the Commonwealth Attorneys of Counties, Cities, and Towns in said State, whose names complainants have leave to insert as they may be discovered.

"Upon reading the bill of the complainants, it is ordered that Morton Marye, auditor, R. A. Ayers, attorney general, each and every treasurer of a county, city, or town in the state of Virginia, and each and every commonwealth attorney for a county, city, or town in said state, be restrained from bringing or commencing any suit against any person who has tendered the state of Virginia's tax-receivable coupons in payment of taxes due to said state, as provided for and directed by the act of the legislature of Virginia approved May 12, 1887, described in the bill, and of which a copy is attached thereto, and that each and all of said parties, their agents and attorneys, be restrained from doing any act to put said statute into force and effect until the further order of the court.

"And it is ordered that the motion for an injunction in this case be set down for hearing at the circuit court of the United States at Richmond, Virginia, on the first Monday in October next: provided, that the attorney general of the state of Virginia, or either of the defendants, may move the court for an earlier hearing thereof after ten days' written notice to the solicitor of the complainants: and provided, further, that a copy of this bill and of this order be served on the attorney general of the state of Virginia within ten days after the filing thereof.

"June 6, 1887."

A copy of this order, together with a copy of the bill, was served on the petitioner Ayers, the attorney general of Virginia, on June 7, 1887.

On October 8, 1887, the following proceedings took place, viz.:

"And now, at this day, to-wit, at a circuit court of the United States for the Eastern district of Virginia, held at Richmond, in said district, this eighth day of October, A. D. 1887:

"J. P. Cooper and others against Morton Marye, Auditor, etc., and others. (In Equity.)

"This cause came on this day to be heard upon the motion of the complainants for a preliminary injunction, and was argued by counsel; upon consideration whereof it is adjudged, ordered, and decreed, for reasons stated in writing and made part of the record, that the injunction be issued as prayed in the bill, and remain in force until the further order of the court.

"HUGH L. BOND, Circuit Judge.

"Thereupon the complainants, by counsel, called the attention of the court to the fact that the defendant R. A. Ayers, attorney general of the state of Virginia, was guilty of contempt by his disobedience of the restraining order issued in this cause on sixth day of June, 1887; and the said R. A. Ayers, being called upon to answer in this behalf, filed in open court his answer in writing, which answer is in the words following to-wit:

'ANSWER OF DEFENDANT R. A. AYERS.

"The answer of R. A. Ayers, Attorney General of the State of Virginia, to a rule awarded against him by this Honorable Court.

"To the Honorable Judge of the Circuit Court of the United States for the Eastern District of Virginia: By an order entered in the chancery cause of James P. Cooper et als. against Morton Marye and others, summoning him to show cause why he should not be fined and imprisoned for disobeying the injunction heretofore awarded in said suit, restraining him and others from instituting the suits required by an act of the general assembly of Virginia entitled "An act to provide for the recovery by motion of taxes and certain debts due the commonwealth, for the payment of which papers purporting to be genuine coupons of the commonwealth have been tendered," approved May 12, 1887, by instituting a suit against the Baltimore and Ohio Railroad Co., respondent, answering, says that he admits that he instituted the suit against the Baltimore and Ohio Railroad Company to recover taxes due by it to the state of Virginia after he had been served with the injunction order in this case; that he instituted the said suit because he was thereunto required by the act of the general assembly of Virginia aforesaid, and because he believed this court had no jurisdiction whatever to award the injunction violated. Respondent disclaims any intention to treat the court with disrespect, and states that he has been actuated alone with the desire to have the law properly administered. R. A. AYERS, Atty. Gen. of Virginia.

"Subscribed and sworn to before me this eighth day of October, 1887. "M. F. PLEASANTS, Clerk.'"

And thereupon the order was made adjudging the petitioner guilty of contempt by his disobedience of said order, and requiring him forthwith to dismiss the suit of The Commonwealth v. The Baltimore and Ohio Railroad Campany, instituted by him in the circuit court of the city of Richmond, fining him $500 for his contempt, and directing that he stand committed in the custody of the marshal of the court until the same be paid, and he purge himself of his contempt by dismissing said suit last mentioned.

In the same case the proceedings resulting in the commitment and imprisonment of the petitioner John Scott are as follows:

On August 23, 1887, on affidavit showing that John Scott, attorney for the commonwealth for Fauquier county, Virginia, had been served with a copy of the restraining order of June 6, 1887, and that in violation thereof he had brought certain suits against parties in said county, for the recovery of taxes alleged to be due by them to the state of Virginia for the year 1886, for which they had previously tendered tax-receivable coupons, said actions being brought under the act of the general assembly of May 12, 1887, a rule was entered upon the said Scott to show cause, on September 22, 1887, why he should not be attached for contempt. On that day the said Scott answered the rule, justifying his action on the ground that the order which he had disobeyed was void for want of jurisdiction in the circuit court to make it. On September 24, 1887, in pursuance of leave given, the complainants filed an amendment to their bill, making Scott, as attorney for the commonwealth for said county of Fauquier, a formal party defendant, and alleging that a judgment had been rendered against the defendant in each of the suits brought by the said Scott under the said act, a list of which, with the amounts of the several judgments, was set out. Thereupon, on October 8, 1887, the following order was made: "The court, therefore, doth adjudge, order, and decree that, for his contempt of this court, said John Scott do pay a fine of $10, and dismiss the cases which he has brought in the circuit court of Fauquier county, Virginia, in violation of the restraining order heretofore made in the cause of Cooper and others v. Marye and others, on the 6th day of June,

1887; and, further, that he enter satisfaction of the judgments heretofore obtained by him against the defendants in said causes, and that he stand committed to the custody of the marshal of this court until this order is obeyed, and the fine hereby imposed upon him is paid. And it is further ordered that the said John Scott do pay the costs of these proceedings."

Similar proceedings were had in respect to J. B. McCabe, the commonwealth's attorney for Loudoun county, Virginia, the other petitioner. On July 11, 1887, an order was entered granting a rule against him to show cause why he should not be attached for an alleged contempt of the court in disobeying the restraining order made in the cause on June 6, 1887. Upon proof by affidavit that the said McCabe, as such attorney, had commenced proceedings under the act of May 12, 1887, to recover taxes alleged to be due to the state of Virginia from certain parties therein named, who had previously tendered tax-receivable coupons in payment thereof, he answered the rule, denying the validity of the order which he had violated; and thereupon, on October 8, 1887, the matter coming on to be heard, it was ordered and adjudged by the court "that the said J. B. McCabe is guilty of contempt in his disobedience of said order, and that he do forthwith dismiss all suits under the act of May 12, 1887, now pending in the circuit court of Loudoun county. And the court doth further order and adjudge that the said J. B. McCabe, for his said contempt, be fined $100; that he be taken into the custody of the marshal of this court, and by him held until the said fine be paid, and he purge himself of the said contempt by dismissing the suits brought or prosecuted in violation of the restraining order of this court; and that he pay the costs of these proceedings."

C. V. Meredith, W. W. Gordon, J. Randolph Tucker, and Roscoe Conkling, for petitioners. Sol. Gen. Jenks, W. L. Royall, and D. H. Chamberlain, in opposition.

MATTHEWS, J. It is established by the decisions of this court that while "the exercise of the power of punishment for contempt of their orders, by courts of general jurisdiction, is not subject to review by writ of error or appeal to this court," yet when "a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make, the order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void;" and that, "when the proceeding for contempt in such a case results in imprisonment, this court will, by its writ of habeas corpus, discharge the prisoner." Ex parte Fisk, 113 U. S. 713, 718, 5 Sup. Ct. Rep. 724.

In Ex parte Rowland, 104 U. S. 604, the commissioners of a county in Alabama were, on a writ of habeas corpus, discharged by this court from imprisonment to which they had been adjudged in consequence of an alleged contempt of the circuit court of the United States for the Middle district of Alabama, in refusing to obey the command of a peremptory writ of mandamus issued by that court requiring them to levy certain taxes. This court said, (page 612:) "If the command of the peremptory writ of mandamus was in all respects such as the circuit court had jurisdiction to make, the proceedings for the contempt are not reviewable here. But if the command was, in whole or in part, beyond the power of the court, the writ, or so much as was in excess of jurisdiction, was void, and the court had no right in law to punish for any contempt of its unauthorized requirements. Such is the settled rule of decision in this court. Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U. S. 18; Ex parte Siebold, 100 U. S. 371; Ex parte Virginia, 100 U. S. 339."

In Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. Rep. 781, it was held that a prisoner who had been tried, convicted, and sentenced to imprisonment by a circuit court of the United States, the indictment having been amended by the

district attorney, by leave of the court, after it had been returned by the grand jury, was entitled to his discharge under a writ of habeas corpus issued by this court, on the ground that the proceeding was void. The court said, (page 13:) "It is of no avail, under such circumstances, to say that the court still has jurisdiction of the person and of the crime; for though it has possession of the person, and would have jurisdiction of the crime, if it were properly presented by indictment, the jurisdiction of the offense is gone, and the court has no right to proceed any further in the progress of the case, for want of an indictment."

The question in the present case, therefore, is whether the order of the circuit court of June 6, 1887, forbidding the petitioners from bringing suits under the act of May 12, 1887, in the name and on behalf of the state of Virginia, as its attorneys, for the recovery of taxes, in payment of which the tax-payers had previously tendered tax-receivable coupons, is an order which that court had power by law to make. The question really is whether the circuit court had jurisdiction to entertain the suit in which that order was made, because the sole purpose and prayer of the bill are by a final decree perpetually to enjoin the defendants from taking any steps in execution of the act of May 12, 1887. If the court had power, upon the case made in the record, to entertain the suit for that purpose, it had equal power, as a provisional remedy, to grant the restraining order, the violation of which constitutes the contempt adjudged against the petitioners.

The principal contention on the part of the petitioners is that the suit, nominally against them, is, in fact and in law, a suit against the state of Virginia whose officers they are, jurisdiction to entertain which is denied by the eleventh amendment to the constitution, which declares that "the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." On the other hand, it is contended by counsel for the complainants in that cause, who have argued against the discharge of the petitioners, that the suit is not within that prohibition.

It must be regarded as the settled doctrine of this court, established by its recent decisions, "that the question whether a suit is within the prohibition of the eleventh amendment is not always determined by reference to the nominal parties on the record." Poindexter v. Greenhow, 114 U. S. 270, 287, 5 Sup. Ct. Rep. 903. This, it is true, is not in harmony with what was said by Chief Justice MARSHALL in Osborn v. Bank, 9 Wheat. 738, 857. In his opinion in that case he 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 amendment has its full effect if the constitution be construed as it would have been construed had the jurisdiction of the court never been extended to suits brought against a state by the citizens of another state or by aliens." And the point, as involved in that case, was stated by Mr. Justice SWAYNE, delivering the opinion of the court in Davis v. Gray, 16 Wall. 203, 220, as follows: "In deciding who are parties to the suit, the court will not look beyond the record. Making a state officer a party does not make the state a party, although her law may have prompted his action, and the state may stand behind him as the real party in interest. A state can be made a party only by shaping the bill expressly with that view, as where individuals or corporations are intended to be put in that relation to But what was said by Chief Justice MARSHALL in Osborn v. Bank, supra, must be taken in connection with its immediate context, wherein he adds, (page 858:) "The state not being a party on the record, and the court

having jurisdiction over those who are parties on the record, the true question is not one of jurisdiction, but whether, in the exercise of its jurisdiction, the court ought to make a decree against the defendants,-whether they are to be considered as having a real interest, or as being only nominal parties." This conveys the intimation that where the defendants, who are sued as officers of the state, have not a real, but merely a nominal, interest in the controversy, the state appearing to be the real defendant, and therefore an indispensable party, if the jurisdiction does not fail for want of power over the parties, it does fail, as to the nominal defendants, for want of a suitable subject-matter. This, indeed, seems to be the interpretation put upon this language by Chief Justice MARSHALL himself in the opinion of the court delivered by him in the case of Governor of Georgia v. Madrazo, 1 Pet. 110, 123, 124. After quoting the paragraphs from the opinion in the case of Osborn v. Bank, above extracted, the chief justice mentioned the case of Georgia v. Brailsford, 2 Dall. 402, where the action was not in the name of the state, but was brought by the governor in its behalf, and added: "If, therefore, the state was properly considered as a party in that case, it may be considered as a party in this." He further said: "The claim upon the governor is as a governor. He is sued, not by his name, but by his title. The demand made upon him is not made personally, but officially. The decree is pronounced, not against the person, but the officer, and appeared to have been pronounced against the successor of the original defendant, as the appeal-bond was executed by a different governor from him who filed the information. In such a case, where the chief magistrate of a state is sued, not by his name, but by his style of office, and the claim made upon him is entirely in his official character, we think the state itself may be considered as a party on the record. If the state is not a party, there is no party against whom a decree can be made. No person in his natural capacity is brought before the court as defendant." It was therefore held, in that case, that the state was in fact, though not in form, a party defendant to the suit, and that, consequently, the circuit court had no jurisdiction to pronounce the decree appealed from. See, also, Ex parte Madrazzo, 7 Pet. 627. This view was reiterated by this court in Kentucky v. Dennison, 24 How. 66, 98, where it was said to be settled "that where the state is a party, plaintiff or defendant, the governor represents the state, and the suit may be, in form, a suit by him as governor in behalf of the state, where the state is plaintiff, and he must be summoned or notified as the officer representing the state, where the state is defendant." Accordingly, in Cunningham v. Railroad Co., 109 U. S. 446, 3 Sup. Ct. Rep. 292, 609, it was decided that in those cases where it is clearly seen upon the record that a state is an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction. The inference is that where it is manifest, upon the face of the record, that the defendants have no individual interest in the controversy, and that the relief sought against them is only in their official capacity as representatives of the state, which alone is to be affected by the judgment or decree, the question then arising, whether the suit is not substantially a suit against the state, is one of jurisdiction.

The very question was presented in the cases of New Hampshire v. Louisiana, and New York v. Louisiana, 108 U. S. 76, 2 Sup. Ct. Rep. 176. In each of those cases there was, upon the face of the record, nominally a controversy between two states, which, according to the terms of the constitution, was subject to the judicial power of the United States. So far as could be determined by reference to the parties named in the record, the suits were within the jurisdiction of this court; but, on an examination of the cases as stated in the pleadings, it appeared that the state, which was plaintiff, was suing, not for its own use and interest, but for the use and on behalf of certain individual citizens thereof who had transferred their claims to the state