equity commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state." 1 The words "commenced" and "prosecuted" are construed as not only preventing the institution of new suits, but also as superseding depending suits.2 The inhibition applies only to citizens or subjects, and does not extend to suits by a state, or by foreign states or powers.3 But one state cannot create a controversy with another state so as to bring the case within the jurisdiction of the United States courts by assuming the prosecution of debts owing by the other state to its citizens.4 The doctrine once held by the United States Supreme Court, that whether or not a suit is against the state must be determined by the fact whether or not the state is the nominal defendant of record, has been qualified in some of the later decisions of that court, and now it is settled that whether a suit is within the prohibition of the Eleventh Amendment is not always determined by reference to the nominal parties on the record, but by a consideration of the nature of the whole case. A suit against the 1. The decision in Chisholm v. Georgia, 2 Dall. (U. S.) 419, gave rise to the Eleventh Amendment. It is obvious. that the framers of the Constitution did not suppose that the grant of the judicial power of the United States to cases between a state and citizens of another state" gave the right to these parties to sue the state. Its object was to give to the state power and authority to sue these parties, and to the Federal courts jurisdiction over such causes. See 81st article of the Federalist (by Alexander Hamilton); and 3 Elliott's Debates (Va. Const. Convention), 2d ed. 533, containing the arguments of Madison and Marshall, the latter maintaining that it was irrational to put any other construction upon the grant than the above. But notwithstanding this, the United States Supreme Court, in the case just cited, did put this irrational construction upon it. and hence the necessity for this amendment to give to it the true construction, for it will be observed that the amendment declares that the judicial power, etc., shall not be construed to extend to such cases, thus showing that in the opinion of the people and of Congress an improper construction had been given it. 2. Hollingsworth v. Virginia, 3 Dall. (U.S.) 378. 3. 1 Kent's Com. (13th ed.), p. 297; Cherokee Nation v. Georgia, 5 Pet. (U. S.) 1; New Jersey v. New York, 5 Pet. (U. S.) 284. 4. New Hampshire v. Louisiana, 108 U. S. 76; New York v. Louisiana, 108 U. S. 76. 5. Osborn v. Bank of U. S., 9 Wheat. (U.S.) 738. The opinion in this case was delivered by Marshall, C. J., in the course of which he observed: "It may, we think, be laid down as a general 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 citizens of another state or by aliens." This is followed in Louisville, etc., R. Co. v. Letson, 2 How. (U. S.) 497. And in Davis v. Gray, 16 Wall. (U. S.) 203, following Osborn v. Bank of U. S., 9 Wheat. (U. S.) 738, it was held that in deciding who are the 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 its law may have prompted his action, and the state may stand behind him as the real party to the record. 6. Cunningham 7. Macon, etc., R. Co., 109 U. S. 446; Chicago, etc., R. officers of a state to compel them to do acts which constitute a performance by the state of its contract, is, in effect, a suit against the state itself; and the converse of this proposition must be equally true, viz., that it is a suit against the state to seek to Co. v. Dey, 35 Fed. Rep. 866; In re Ayers, 123 U. S. 443; Pennoyer v. McConnaughy, 140 U. S. 1. In New Hampshire v. Louisiana, 108 U. S. 76, there was upon the face of the record nominally a controversy between two states, which, according to the terms of the Constitution, was within the judicial power of the United States. So far as could be determined with reference to the parties named in the record, the suits were within the jurisdiction of the Supreme Court, but on examination of the cases as stated in the pleadings, it appeared that the state which was plaintiff was suing not for its own interest and use, but for the use and on behalf of certain individual citizens thereof, who had transferred their claims to the state for the purposes of suit. It was accordingly unanimously held by the court that it would look behind and through the nominal parties on the record to ascertain who were the real parties to the suit. In Poindexter v. Greenhow, 114 U. S. 270, the following were suggested as tests for determining when a suit would be considered as brought against the state. That would be a suit against the state: (1) Where the state is named as a party on the record. (2) Where the action is brought directly upon the state's contract. (3) Where the suit is brought to control the discretion of an executive officer of the state. (4) Where the suit is brought for the purpose of administering funds actually in the public treasury. (5) Where the suit is in effect an attempt to compel officers of the state to do acts which constitute a performance of its contract by the state. (6) Where the suit brought is such that the state is a necessary party in order that the defendant may be protected from liability to it. 1. Pennoyer v. McConnaughy, 140 U. S. 1; North Carolina v. Temple, 134 U. S. 22; Louisiana v. Steel, 134 U. S. 230; Louisiana v. Jumel, 107 U. S. 746. This was a case of mandamus and injunction against officers of the State of Louisiana, constituting the state board of liquidation, to compel them to carry out a contract with the state for the payment of coupons on its bonds repudiated by a subsequent constitutional amendment, and to apply funds in the treasury already collected, to the redemption of bonds contracted to be redeemed, and to execute generally the act embodying the contract. The court denied relief on the ground that it was an attempt to control the discretion of the state's executive officers and to compel them to do acts constituting a performance of the state's contract, and to administer funds actually in the public treasury. The principle of this case was applied in Hagood v. Southern, 117 Ù. S. 52. The object of the suit, which was against officers of the State of South Carolina, was to obtain on behalf of the complainants by judicial process, the redemption by the state of certain scrip of which they were holders, but the relief sought was denied, and the identification of officers of the state with the state itself is thus expressed: when a suit is brought in a court of the United States against officers of a state, to enforce performance of a contract made by the state and the controversy is as to the validity and obligation of the contract, and the only remedy sought is the performance of the contract by the state, and the nominal defendants have no personal interest in the subject-matter of the suit, but defend only as representing the state, the state is the real party against whom the relief is sought, and the suit is substantially within the inhibition of the Eleventh Amendment. An exhaustive treatment of the subject is to be found in In re Ayers, 123 U. S. 443, and Matthews, J., in delivering the opinion of the court, said: "The very object and purpose of the Eleventh Amendment were to prevent the indignity of subjecting the state to the coercive process of judicial tribunals at the instance of private parties. It was thought to be neither becoming nor convenient that the several states of the Union invested with that large residuum of sovereignty which had not been delegated to the restrain state officers by judicial process from doing acts required of them by state laws, which, when performed, would constitute a breach of the state's contract.1 There are certain cases, however, in which the state, though affected by the decision, is not a necessary party so as to defeat jurisdiction. Thus, the court will take jurisdiction against individuals sued in tort for acts injurious to the persons or property of others, although their defense is that they acted under the orders of government; 2 the court will enforce the performance United States, should be summoned as defendants to answer the complaint of private persons, whether citizens of other states or aliens, or that the course of their public policy and the administration of their public affairs should be subject to and controlled by the mandates of judicial tribunals without their consent and in favor of individual interests. To secure the manifest purposes of the constitutional exemption guaranteed by the Eleventh Amendment, requires that it should be interpreted not literally and too narrowly, but fairly and with such breadth and largeness as to effectually accomplish the substance of its purpose. In this spirit it must be held to cover not only suits brought against a state by name, but those also against its officers, agents and representatives where the state, though not named as such, is, nevertheless, the only real party against which alone in fact the relief is asked and against which the judgment or decree effectively oper ates. But this is not intended in any way to impinge upon the principle which justifies suits against individual defendants who, under color of the authority of unconstitutional legislation by the state, are guilty of personal trespasses and wrongs, nor to forbid suits against officers in their official capacity, either to arrest or direct their official action by injunction or mandamus, where such suits are authorized by law and the act to be done or omitted is purely ministerial in the performance or omission of which the plaintiff has a legal interest." 1. In re Ayers, 123 U. S. 443. This case came before the U. S. Supreme Court on habeas corpus, on the petition of the attorney-general of the state of Virginia, who was committed for contempt for disobedience of a restraining order of the circuit court of the United ginia. The order was made by way of final decree on a bill in equity filed by aliens against the attorney-general, auditor, and other officers of the state, to restrain them from instituting and prosecuting in the name and for the use of the state, as required by a statute of the state, suit against certain parties who, in payment of taxes, had tendered coupons of a class already adjudged by the supreme court to be receivable for taxes under a prior contract of the state. The petitioner was released on the ground that the suit in which the restraining order had issued was in effect against the state. 2. Osborn v. Bank of U. S., 9 Wheat. (U. S.) 738. was a suit in equity brought in the circuit court of the United States for the State of Ohio by the president, directors and company of the Bank of the United States to restrain Osborn, auditor of the State of Ohio, from executing a law of that state which was in violation of, and destructive to, the rights and privileges conferred upon the complainants by the bank's charter and by the Federal Constitution. One of the leading enquiries in the case was, whether an injunction could be issued to restrain a person who is a state officer from performing an official act enjoined by the statute of the state. The question presented by that enquiry was cussed on the assumption that the statute of the state was unconstitutional, and it was held that in such a case, grounds of equity interposition existing, injunction would lie. With regard to the objection that if any case was made by the bill for the interference of chancery, it was against the State of Ohio, and therefore was within the prohibition of the Eleventh Amendment, the court held that exemption of the state from suit could not be pleaded by its officers, when they were proceeded against for executing an dis States for the eastern district of Vir- unconstitutional law of the state. This question was discussed most thor oughly in the light of the other provisions of the Constitution relating to jurisdiction of the Federal courts, and the conclusion arrived at thus announced: "It was proper then to make a decree against the defendants in the circuit court, if the law of the State of Ohio be repugnant to the Constitution or to a law of the United States made in pursuance thereof, so as to furnish no authority to those who took or to those who received the money for which the suit was instituted." The statute of Ohio in which the defendant was acting was then examined and was found to be unconstitutional. The doctrine as thus declared has never been departed from, but on the contrary has been recognized and enforced in a number of cases. Thus in Pennoyer v. McConnaughy, 140 U. S. 1, it was held that a suit in equity against the board of land commissioners of the State of Oregon brought by a purchaser of swamp and overflowed lands, under the act of October 26, 1870, in order to restrain the defendants from doing acts which the bill alleges are violative of the plaintiff's contract with the state when he purchased the lands, and which are unconstitutional, destructive of the plaintiff's rights and privileges, and which it is alleged will work irreparable damage to his interest and property rights so acquired, is not a suit against the state within the meaning of the Eleventh Amendment to the Constitution of the United States. And Hancock v. Walsh, 3 Woods (U. S.) 351; Louisiana State Lottery Co. . Fitzpatrick, 3 Woods (U. S.) 223; Preston v. Wal-h, 10 Fed. Rep. 315; Pick v. Chicago & N. W. R. Co., 6 Biss. (U. S.) 177; Chicago, etc.. R. Co. v. Dey, 35 Fed. Rep. 866. are to the same effect. The most notable application of the principle is found in the Virginia coupon cases (so called), reported in 114 U. S. 270 et seq. The first and leading case is Poindexter v. Greenhow, 114 U. S. 270, which was an action in detinue against the treasurer of the city of Richmond, Virginia, for the recovery of an office desk which he had seized for delinquent taxes in payment for which the plaintiff had duly tendered coupons cut from bonds issued by the State of Virginia, under the funding act of March 30, 1871, and by that act made receivable for all state taxes. The defendant, under color of office as tax collector and acting in the enforcement of the statutes passed in 1882, which forbade the receipt of coupons for taxes, refused to receive such tender and made the seizure complained of. It was held that the act of the general assembly passed in 1882 was unconstitutional and void, because it was an impairment of the contract entered into between the state and its bondholders by the act of 1871; that being unconstitutional it afforded no protection to the defendant, that the action was properly maintainable against him as a wrongdoer, and that it was not an action against the state in the sense of the Eleventh Amendment. The whole question was discussed by Mr. Justice Matthews, both on principle and authority, and the following from the opinion of the court delivered by Mr. Justice Miller in Cunningham v. Macon, etc., R. Co., 109 U. S. 446, quoted with approval: "Another class of cases is where an individual is sued in tort for some act injurious to another in regard to persons or property, to which his defense is that he has acted under orders of the government. In these cases he is not sued as or because he is the officer of the government but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him." White v. Greenhow, 114 U. S. 307; Chaffin v. Taylor, 114 U. S. 309; Ållen v. Baltimore, etc., R. Co., 114 U. S. 311, were decided at the same time as the foregoing case and upon the authority thereof. and enjoin the violation of ministerial duties of such officers; 1 the court will determine the rights of the parties to suits as to quite different from bringing against the officer a bill for injunction to preserve, or detinue to restore, the status quo, or trespass for unwarranted interference with property under color of an unconstitutional law, which were allowed in Virginia Coupon cases. This distinction is expressed by Bradley, J., in delivering the opinion of the court in McGahey . Virginia, 135 U. S. 662, as follows: "No proceedings can be instituted by any holder of state bonds or coupons against the Commonwealth of Virginia, either directly by suit against the Commonwealth by name, or indirectly against her executive officers to control them in the exercise of their official functions as agents of the state. Any lawful holder of the tax receivable coupons of the state issued under the act of 1871, or the subsequent act of 1879, who tenders such coupons in payment of taxes, debts, dues, and demands due from him to the state, and continues to hold himself ready to tender the same in payment thereof, is entitled to be free from molestation in person or goods on account of such taxes, debts, dues, or demands, and may vindicate such right in all lawful modes of redress-by suit to recover his property, by suit against the officer to recover damages for taking it, by injunction to prevent such taking, where it would be attended with irremediable injury, or by a defense to a suit brought against him for his taxes or other claims standing against him." 1. But in all such cases, from the nature of the remedy by mandamus, the duty to be performed must be merely ministerial and must involve no element of discretion to be exercised by the officer. It has, however, been insisted that in this class of cases, where it shall be found necessary to enforce the rights of the individual, a court of chancery may, by a mandatory decree, or by an injunction, compel the performance of the appropriate duty, or enjoin the officer from doing that which is inconsistent with that duty and with the plaintiff's rights in the premises. Perhaps the strongest assertion of this doctrine is found in Davis v. Gray, 16 Wall. (U. S.) 203. In that case the State of Texas having made a grant of the al ternate sections of land, along which a railroad should thereafter be located, and the railroad company having surveyed the land at its own expense and located its road through it. the land commissioner and the governor of the state were, in violation of the rights of the company, selling and delivering patents for the sections to which the company had an undoubted vested right. The circuit court of the United States enjoined them from doing this by its decree, which was affirmed in the supreme court. Judge Hunt did not sit in the case and Justice Davis, and Chief Justice Chase dissented on the ground that it was a suit against the state. Referring to this case, Mr. Justice Miller, in the opinion of the court in Cunningham v. Macon, etc., R. Co., 109 U. S. 446, observes "that in enjoining 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." But at the same time, he points out that in the case no affirmative relief was granted, and that the governor and land commissioner were not compelled to perform any act towards perfecting the title of the company, and this may perhaps be regarded as the saving feature of the decision; for in McCauley . Kellogg, 2 Woods (U. S.) 13, it was held that a suit to compel state officers to do any affirmative official act, is in effect a suit against the state; and it is there said that a Federal court will not take upon itself to administer a state government. In Board of Liquidation v. McComb, 92 U. S. 531, the board was charged by a statute of Louisiana with certain duties in regard to issuing new bonds of the state in place of old ones which might be surrendered for exchange by the holders of the latter. The amount of new bonds to be issued was limited by a constitutional provision. McComb, the owner of some of the new bonds already issued, filed his bill to restrain the board from issuing that class of bonds in exchange for a class of indebtedness not included within the purview of the statute, on the ground that his own bonds would be rendered less valuable. The Supreme Court |