a penalty for charging or demanding any sum in excess of the statutory rate. The receivers of this railroad brought a suit to enjoin the attorney general of the state and the solicitor of the Eleventh Judicial Circuit of the state from in any way enforcing this act, attacking its constitutionality.- Held, that this was a suit against a state within the prohibition of the U. S. Const., 11th Amendment, it appearing that neither of the officers sought to be enjoined were officers who held any special relation to the particular act sought to be adjudged unconstitutional and that they were not specially charged with the execution of the enactment.- Fitz v. McGhee, 172 U. S. 516, 19 Sup. Ct. R. (U. S.) 269.

A bill to restrain administrative officers from proceeding under a statute alleged to be unconstitutional, is not a suit against a state.Scott v. Donald, 165 U. S. 107, 17 Sup. Ct. R. (U. S.) 262.

Whether a state is a party defendant, within the meaning of the U. S. Const., Eleventh Amendment, must be determined by a consideration of the nature of the case as presented on the whole record, and it is not conclusive of the question that the state is not actually named as a party defendant. In re Ayres, 123 U. S. 443, 8 Sup. Ct. R. (U. S.) 164.

A state regulative act provided that proceedings to recover penalties for violations of the act or orders of the railroad commission should be brought in the name of the state by direction of the governor. Suit was brought to restrain the enforcement of an order of the commission and it was sought to make the governor of the state a party defendant. -Held, that he was not a proper party defendant, as in such a case the suit would become a suit against the state, the governor not being a mere ministerial officer as to the enforcement of this statute.— Central of Ga. R. Co. v. McLendon, 157 Fed. 961.

An action to restrain the railroad commission and attorney-general of a state from enforcing a state regulative act alleged to be unconstitutional is not a suit against a state within the meaning of the eleventh amendment to the Federal Constitution.- Louisville & N. R. Co. v. R. R. Commission, 157 Fed. 944.

A suit by a railroad corporation to restrain the attorney-general of a state and other state officers from enforcing a law fixing maximum rates to be charged, on the ground that the same will deprive the railroad corporation of property without due process of law, is not a suit against the state within the meaning of U. S. Const., 11th Amendment, forbidding suits against a state.- Perkins v. No. Pac. R. Co., 155 Fed. 445, see, also, Ex Parte Young, 209 U. S. 123, 28 Sup. Ct. R. (U. S.) 441.

A suit by a foreign telegraph company to restrain a prosecuting attorney from instituting proceedings against the said company to recover penalties for the failure of the company to comply with certain statutes providing the conditions upon which a foreign corporation might do

business within the state, is a suit against the state within the meaning of the U. S. Const., 11th Amendment.- Western Union Tel. Co. v. Andrews, 154 Fed. 95.

A suit in equity by a gas corporation to restrain the Massachusetts Gas Commission and the attorney general of the state from enforcing a rate fixed by said Commission is not a suit against a state, prohibited by the U. S. Const., 11th Amendment.- Haverhill Gaslight Co. v. Barker, 109 Fed. 694.

Because a state railroad commission has to go into court to enforce its orders, the proceedings before the commission preliminary to the making of such an order are not proceedings in a state court, so that they cannot be enjoined by a federal court. - Mississippi R. R. Commission v. Ill. Cent. R. Co., 203 U. S. 335, 27 Sup. Ct. R. (U. S.) 90. Federal courts may not restrain proceedings in state courts.- Oman v. Bedford-Bowling Green Stone Co., 134 Fed. 64, citing notes to Garner v. Second Nat. Bank, 16 C. C. A. (U. S.) 90; Central Trust Co. v. Grantham, 27 C. C. A. (U. S.) 575; Copeland v. Bruning, 63 C. C. A. (U. S.) 437.

A suit to restrain the enforcement by a state railroad commission, of an unreasonable schedule of rates, under an act prescribing heavy fines and alternative imprisonment for charges in excess of the rates fixed by such commission, is not a suit to restrain a criminal proceeding.- Southern Pac. Co. v. Board of R. R. Comrs., 78 Fed. 236.

A bill to enjoin enforcement of an order of a state railroad commission is not a suit to restrain cases already pending in a state court. -Texas & P. R. Co. v. Kuteman, 54 Fed. 547.

Proceedings before a state railroad commission may be enjoined by a federal court on grounds of diverse citizenship.- Mississippi R. R. Commission v. Ill. Cent. R. Co., 203 U. S. 335, 27 Sup. Ct. R. (U. S.) 90. Distinguishing, Field v. Barber Asphalt Co., 194 U. S. 618, 24 Sup. Ct. R. (U. S.) 784.

A citizen of another state who feels himself aggrieved and damaged by rates prescribed by a state railroad commission may ask the Circuit Court of the United States to restrain their enforcement. Such court may grant such an injunction, if it finds such rates are unreasonable or unjust, but it is not within its power to establish rates itself, or to restrain the commission from again establishing rates which it deems lawful.- Reagan v. Farmers' Loan & T. Co., 154 U. S. 362, 14 Sup. Ct. R. (U. S.) 1047.

In order to entitle a party to the review of a state judgment on the ground that a federal question was involved, such question must have been specifically raised and necessarily decided adversely, in the decision of the cause.- Louisville & N. R. Co. v. Smith, 204 U. S. 551, 27 Sup. Ct. R. (U. S.) 401.

Where the defendant, in the course of a proceeding in a state court, contended that the subject-matter was not within state jurisdiction, consistently with the Interstate Commerce Act, and such contention was essentially decided adversely to the defendant, a "federal question" exists, and the federal court may review the judgment on a writ of error.- Texas & P. R. Co., v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. R. (U. S.) 350, revg. s. c. 12 Tex. Ct. R. 498, 85 S. W. 1052.

In order to give a federal court jurisdiction to review a judgment of a state court, it must appear that a federal question was raised and adversely decided in the state tribunal-Murdock v. Memphis, 20 Wall. (U. S.) 590, affg. s. c. Cold. (Tenn.) 483.

[26] — Amount in controversy.

Amount in controversy in action to enforce penalty,- see post, § 59,

notes.

The "matter in controversy," under the statute as to the removal to a federal court of suits to restrain orders of a state commission, is not the rates or charges as to which the order was issued, but the amount of the penalties which might be imposed for non-compliance with the order. McNeill v. So. R. Co., 202 U. S. 543, 26 Sup. Ct. R. (U. S.) 722.

[27]

What the U. S. Supreme Court will review. See also, ante, note [2].

If a state court decided a case as to railroad rates on the hypothesis conceded by counsel for both sides that the rate was pursuant to a lawful schedule duly filed, published, etc., it is not open to either party to contend on a review of the case by a federal court that the rate was not so filed and published and so was not a legal rate.- Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. R. (U. S.) 350, revg. s. c. 12 Tex. Ct. R. 498, 85 S. W. 1052.

It will be presumed that a state railroad commission, in fixing a rate, acts with a full knowledge of the situation, and where the record does not disclose all the evidence, the Supreme Court of the United States will not hold confiscatory and unlawful a rate sustained by the

highest court of the state, where it appears by the report of the company that the rate exceeds the average rate received by the company during the previous year.- Seaboard Air L. R. Co. v. Florida, 203 U. S. 261, 27 Sup. Ct. R. (U. S.) 109, affg. s. c. 48 Fla. 129, 37 So. 314, 48 Fla. 150, 37 So. 658.

If the record does not disclose why an order of a state railroad commission was made applicable only to certain local and intrastate rates, but the state law provides that the rates so fixed are to be considered in all courts just and reasonable, and the effect of the order was to equalize rates, the Supreme Court of the United States will not hold the judgment of the highest court of the state sustaining the law erroneous.-Seaboard Air L. R. Co. v. Florida, 203 U. S. 261, 27 Sup. Ct. R. (U. S.) 109, affg. s. c. 48 Fla. 129, 37 So. 314, 48 Fla. 150, 37 So. 658.

[28]

When federal court may enforce order of state commission.

Where an express company began an action in a federal court to enjoin the enforcement of an order of a state railroad commission, and the state board thereupon filed a cross-bill praying the enforcement of such order, the federal court, on finding that the order was valid, might properly decree its enforcement, although the state law provided that if a carrier refused to comply with the lawful orders of the commission, the commissioners should apply to the state courts for the enforcement of such orders.-Platt v. Le Cocq, 150 Fed. 391.

ARTICLE II.

Provisions Relating to Railroads, Street Railroads and Common Carriers.

SECTION 25. Application of article.

26. Adequate service; just and reasonable charges.

27. Switch and side-track connections; powers of commissions.

28. Tariff schedules; publication.

29. Changes in schedule; notice required.

30. Concurrence in joint tariffs; contracts, agreements or arrangements between any carriers.

31. Unjust discrimination.

32. Unreasonable preference.

33. Transportation prohibited until publication of schedules; rates as fixed to be charged; passes prohibited.

34. False billing, etc., by carrier or shipper.

35. Discrimination prohibited; connecting lines.
36. Long and short haul.

37. Distribution of cars.

38. Liability for damage to property in transit.

39. Continuous carriage.

40. Liability for loss or damage by violation of this act.

§ 25. Application of article.- The provision of this article shall apply to the transportation of passengers, freight or property, from one point to another within the state of New York, and to any common carrier performing such service.

For application of provisions of Interstate Commerce Act,— see Interst. Com. Act, § 1, post, Appendix B.

Constitutional provisions as to railroads and street railroads,— see N. Y. Const., Art. III., § 18, as amd. in 1901.

Application of the provisions of Railroad Law relative to the former Board of Railroad Commissioners,- see N. Y. R. R. L., § 171. Territorial jurisdiction of each Commission within the state,- see ante, § 5.

Jurisdiction of each Commission as to gas and electrical corporations,- see post, § 65.

Nothing in this act is deemed to apply to or operate upon interstate or foreign commerce,- see post, § 86.

Headnote of section as enacted (post, § 40) has the word "caused " after the word damage."