a state, to prevent them, under the sanction of an unconstitutional statute, from committing by some positive act a wrong or trespass, and a suit against officers of a state merely to test the constitutionality of a state statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the state. In the present case, as we have said, neither of the state officers named held any special relation to the particular statute alleged to be unconstitutional. They were not expressly directed to see to its enforcement. If, because they were law officers of the state, a case could be made for the purpose of testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of an act passed by the Legislature could be tested by a suit against the Governor and the Attorney General, based upon the theory that the former, as the executive of the state, was in a general sense charged with the execu tion of all its laws, and the latter, as Attorney General, might represent the state in litigation involving the enforcement of its statutes."

The result of that decision was that the injunction which had been granted against these officers by the Circuit Court was dissolved and the cause directed to be dismissed for want of jurisdiction.

This distinction is aptly stated in Missouri. etc., Řy. Co. v. Missouri R. R. Com., 183 U. S. 53, 60, 22 Sup. Ct. 18, 21, 46 L. Ed. 78, where the court said:

"It is true that the state has a governmental interest in the welfare of its citizens, in compelling obedience to the legal orders of all its officials, and in securing compliance with all its laws. But such general governmental interest is not that which makes the state, as an organized political community, a party in interest in the litigation; for, if that were so, the state would be a party in interest in all litigation, because the purpose of all litigation is to preserve and enforce rights and secure compliance with the law of the state, either statute or common."

In that case the state board had instituted suit for the purpose of enforcing certain orders regulating fares over a bridge. It was sought by the defendant to remove the cause to the United States court, and the court held that, a federal question being involved, it could be done. In the case at bar the payment of the franchise tax is solely for the benefit of the state, and the penalties are only intended to enforce compliance with the law. Payment into the state treasury of the fees prescribed prevents all actions for penalties.

In Cotting v. Kansas City Stockyards Co., 183 U. S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92, the Attorney General of the state of Kansas had been joined with the corporation in a suit which was instituted by a stockholder for the purpose of preventing him from instituting proceedings for penalties for failure on the part of the stockyards company to comply with the laws of the state of Kansas regulating charges. The defense that a suit against the Attorney General was in fact a suit against the state was not raised in the court below, but for the first time in the Supreme Court. The court disposed of the question, in view of the fact that the question had not been raised in the court below, as follows:

"Without expressing any opinion as to the jurisdiction of the court. if it had been properly and seasonably challenged, we think the true solution of this matter will be found in directing a dismissal of the suit as to the Attorney General, without prejudice to any other suit or action."

In Belknap v. Schild, 161 U. S. 10, 18, 24, 16 Sup. Ct. 443, 40 L. Ed. 599, a bill had been filed against Belknap, a commodore of the

United States navy, in charge of a navy yard of the United States, for an infringement of letters of patent granted by the United States to the plaintiff for an improvement in caisson gates, and also to enjoin him from using it in the navy yard. In holding that this was a suit against the United States, and for that reason could not be maintained, the court said:

"But the exemption of the United States from judicial process does not protect their officers and agents, civil or military, in time of peace, from being personally liable to an action of tort by a private person whose rights of property they have wrongfully invaded or injured, even by authority of the United States. Such officers or agents, although acting under order of the United States, are therefore personally liable to be sued for their own infringement of a patent. The extent to which officers or agents of the government may be restrained by injunction from doing unlawful acts to the prejudice of private rights is illustrated by the decisions of this court regarding injunctions from the courts of the United States to officers and agents of a state, which, by the Constitution of the United States, is as exempt as the United States are from private suits. In a suit to which the state is neither formlly nor really a party, its officers, although acting by its order and for its benefit, may be restrained by injunction, when the remedy at law is inadequate, from doing positive acts, for which they are personally and individually hable, taking or injuring the plaintiff's property, contrary to a plain official duty requiring no exercise of discretion, and in violation of the Constitution or laws of the United States. But no injunction can be issued against officers of a state. to restrain or control the use of property already in the possession of the state, or money in its treasury when the suit is commenced, or to compel the state to perform its obligations, or where the state has otherwise such an interest in the object of the suit as to be a necessary party."

After reviewing numerous authorities the court announced its conclusion in the following language:

"In the present case the caisson gate was a part of the dry dock in a navy rard of the United States, was constructed and put in place by the United States, and was the property of the United States, and held and used by the 'nited States for the public benefit. If the gate was made in infringement of the plaintiff's patent, that did not prevent the title in the gate from vestng in the United States. The United States, then, had both the title and Possession of the property. The United States could not hold or use it, expt through officers and agents. Although this suit was not brought against the United States by name, but against their officers and agents only, nevertheless, so far as the bill prayed for an injunction and for the destruction of the gate in question, the defendants had no individual interest in the controversy. The entire interest adverse to the plaintiff was the interest of the nited States in property of which the United States had both the title and Cue possession. ** And the suit, therefore, could not be maintained Without violating the principles affirmed in the long series of decisions of this court, above cited."

The same conclusion was reached in International Postal Supply Co. v. Bruce, 194 U. S. 601, 24 Sup. Ct. 820, 48 L. Ed. 1134.

In Minnesota v. Hitchcock, 185 U. S. 373, 386, 22 Sup. Ct. 650, 16 L. Ed. 954, the state of Minnesota sought to enjoin the Secretary of the Interior and the Commissioner of the General Land Office. from selling certain lands, claiming that they had been granted to that state by previous acts of Congress. One of the questions was whether his was not an action against the United States, and it was held that was, although not a party to the suit, which was brought against the Secretary of the Interior; the court holding:

"The legal title to these lands is in the United States. The officers named as defendants have no interest in the lands or the proceeds thereof. The United States is proposing to sell them. This suit seeks to restrain the United States from such sale to divest the Government of its title and vest it in the state. The United States is, therefore, the real party affected by the judgment and against which in fact it will operate, and the officers have no pecuniary interest in the matter. If whether a suit is one against a state is to be determined, not by the fact of the party named as defendant on the record, but by the result of the judgment or decree which may be entered. the same rule must apply to the United States. The question whether the United States is a party to a controversy is not determined by the merely nominal party on the record, but by the question of the effect of the judgment or decree which can be entered."

See, also, Oregon v. Hitchcock, 202 U. S. 60, 26 Sup. Ct. 568, 50 L. Ed. 935; Naganab v. Hitchcock, 202 U. S. 473, 26 Sup. Ct. 667, 50 L. Ed. 1113.

In Chandler v. Dix, 194 U. S. 599, 24 Sup. Ct. 766, 48 L. Ed. 1129, it was sought by an action against the Auditor General of the state of Michigan to cancel as a cloud on the title of real estate claimed by plaintiff certain sales of lands made to the state of Michigan for nonpayment of taxes under laws alleged to be unconstitutional and void. The statutes of Michigan provided that, in actions of that kind:

"The Auditor General shall be made a party defendant to all actions or proceedings instituted for the purpose of setting aside any sale or sales for delinquent taxes on lands held as state tax lands, or which have been sold as such, or which have been sold at annual tax sales, or for the purpose of setting aside any taxes returned to him and for which sale has not been made."

And it was held that the state of Michigan, in enacting this legislation, had in mind only proceedings of that nature in the courts of the state, and for this reason it was not a waiver of the immunity granted to the state from being sued in the national courts by the eleventh amendment to the Constitution.

A similar conclusion was reached by the court in Smith v. Reeves, 178 U. S. 436, 446, 20 Sup. Ct. 919, 44 L. Ed. 1140, arising under the statutes of the state of California.

In Arbuckle v. Blackburn, 113 Fed. 616, 51 C. C. A. 122, 65 L. R. A. 864, it was sought to enjoin the dairy and food commissioner of Ohio from prosecuting the vendors of a certain article of food, because of an alleged violation of the pure food laws of that state. The injunction was denied. Judge Day, now Mr. Justice Day of the Supreme Court, in delivering the opinion of the court, said after quoting from Harkrader v. Wadley, 172 U. S. 148, 19 Sup. Ct. 119, 43 L. Ed. 399:

"Upon the authority of this case and others decided in the Supreme Court, it seems clear that this action cannot be maintained consistently with the eleventh amendment to the Constitution, withholding the judicial power of the United States from suits in law or equity commenced or prosecuted against one of the United States by citizens of another state, or citizens or subjects of any foreign state. * * The injunction sought is against the Prosecution of suits in the Ohio courts which are about to be instituted by Blackburn, not in his individual capacity, but as an officer of the state. By the terms of the statute the dairy and food commissioner is an officer of the state expressly charged with the enforcement of all laws against frauds and adulterations or impurities in foods, drink, or drugs, and unlawful label

ing in the state of Ohio. It is made his duty by statute to prosecute, or cause to be prosecuted, any person or persons, firm or firms, corporation or corporations, engaged in the manufacture or sale of any adulterated article or articles of food or drink, or adulterated in violation of or contrary to any laws of the state of Ohio. What, then, is the object of the injunc

tion sought in this case? It is no more nor less than to restrain the officer of the state from bringing prosecutions for violations of an act which such officer is expressly charged to enforce in the only way he is authorized to proceed-by bringing criminal prosecutions in the name of the state. This

is virtually to enjoin the state from proceeding through its duly qualified and acting officers."

In Farmers' Nat. Bank v. Jones (C. C.) 105 Fed. 459, it was sought to compel the state debt board of Arkansas to issue funding bonds for other bonds. Judge Caldwell, who delivered the opinion of the court in refusing the injunction, said:

"The state debt board owes to the state the duty to do for and in the name of the state the things enjoined upon it by the act of the Legislature, and none other. The board as a board has no contract relations with the owners of lost or destroyed bonds, and stands in no relation to them which imposes on the board any duty towards them whatever; and if it be conceded that the state owes to the owners of lost or destroyed bonds, no matter by whose agency lost or destroyed, the duty of issuing new bonds in their stead, no federal court can coerce the state, or any of its officers or boards, by any form of suit or proceedings, to the performance of that duty."

See, also, Morenci Copper Co. v. Freer (C. C.) 127 Fed. 199; Union Trust Co. v. Stearns (C. C.) 119 Fed. 790.

Counsel for complainant laid great stress on what was decided in Western Union Tel. Co. v. Myatt (C. C.) 98 Fed. 335, and Haverill Gas Co. v. Barker (C. C.) 109 Fed. 694. In Western Union Telegraph Co. v. Myatt the facts were: The state of Kansas, by statute, had created a court called the "court of visitation," with powers and jurisdiction to try and determine all questions as to what were reasonable freight rates and other charges connected with the transportation of freight between points in the state, "the court" to possess full common-law and equity powers of the matters within its jurisdiction, and the pleadings to be styled "an information"; and it was made the duty of the state solicitor to file informations in the name of the state upon receiving sworn information of any violation of the act. If the state solicitor neglected his duties, that "court" was authorized to appoint a special solicitor. That "court" was authorized, after a hearing, to render a decree and specially find the facts it deemed most material, the value of the road and all property ased in connection therewith, the actual cost thereof, the amount of the capital stock, the bonded and other indebtedness, what part is fictitious and fraudulent, if any, and many other facts specified which are deemed necessary for the information of the appellate court, if the decree of the court is appealed from. The Supreme Court was given appellate jurisdiction from the orders and decrees of that "court of visitation." The decree is to embody a complete schedule of the charges adjudged to be reasonable and the classification of freight necessary for the expression thereof. Any officer, agent, or employé of the company, and the company itself, was to be subject to a fine of $1,000 for every day for failure to comply with the terms of

the decree of that "court," and the "court" was directed to appoint a receiver to sequester the property of the company if it failed to comply with its orders or decree for 30 days. It is made the duty of the state solicitor to prosecute such offenses criminally and to recover the penalties by civil action. It also provides for the recovery of damages by parties injured by disobedience to the decree of the "court." This jurisdiction and power is also extended over telegraph companies. The bill charged that the rates fixed by that "court" for telegraphic messages were materially less than the cost of performance, that over 600 suits had been instituted against it for its refusal to transmit messages at the rates fixed, and that one Maxwell had filed complaint with the state solicitor, the defendant Myatt, and the latter had filed an information against the complainant, the Western Union Telegraph Company, in the "court of visitation." The bill for injunction made the state solicitor, Myatt, the informant, Maxwell, and the members of the "court of visitation" defendants, and asked that the act be declared unconstitutional as to it because the enforcement of the rates fixed would tend to deprive the complainant of its property without due process of law, and in violation of the fourteenth amendment to the Constitution. It was conceded that the proof showed that the rates fixed were not only not compensatory, but materially less than the actual cost of the service. These allegations and proofs, Judge Hook held, brought the case strictly within the rules established in the actions against state railroad commissions and was not within the rules laid down in Fitts v. McGhee, for there was authority to sequester the property of the corporation, which, if the act is void, would constitute a trespass. The court also held that it was not a court, but only an administrative body. The opinion is very exhaustive and able, but a careful perusal thereof shows that it can have no application to the case at bar as shown by the allegations in the bill.

In Haverhill Gaslight Co. v. Barker the action was against the Massachusetts gas commission and the Attorney General of that State. The act creating the commission authorized it, under certain_circumstances, to fix the price of gas, and made it the duty of the Attorney General to enforce the orders made by the commission. It was alleged that the price fixed for the gas furnished by complainant was so low as not to cover the reasonable cost of manufacture, and for this reason the order was alleged to be in violation of the fourteenth amendment to the national Constitution. It was further charged that the commission and the Attorney General were about to enforce the orders fixing the price of gas at that confiscatory rate by instituting proceedings against complainant in the courts of the state, and such actions would prevent the company from collecting from its customers the amounts due it without litigation, and thus cause a multiplicity of suits. The court very properly held that this was not an action against the state, but a proceeding of the same nature as that against the state railroad commission for fixing transportation rates so low as to virtually amount to confiscation. The court in its opinion was governed by what was said by Justice Miller in Chicago, etc., Ry, Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 462, 33 L. Ed. 970, and