state officers against the company. The remaining three cases1 were bills in equity by the company or the holders of its securities against the state officers charged with the making or enforcement of the act.

In the case in Chicago, M. & St. P. R. R. v. Minnesota,2 Mr. Justice Miller says that, until the judiciary has been asked to declare the regulations void, the tariff so fixed is the law, and must be submitted to both by the carrier and the party with whom he deals, and adds:

"The proper and only mode of relief is by a bill in chancery asserting its unreasonable character and its conflict with the Constitution of the United States.

"Until this is done, it is not competent for each individual having dealings with the company, or the company itself, to raise a contest in the courts over the questions which ought to be settled in this general and conclusive method."

He says that a petition for a writ of mandamus against the company is an equally appropriate mode of trial; but this remedy can of course only be sought by the state.

So in St. Louis & S. F. R. R. v. Gill, Mr. Justice Shiras, speaking for the court, inclines to the view that the justice of a state rate, made by commissioners, can be inquired into only in cases in which the state is represented by the commissioners or the attorney-general, and not in collateral proceedings.

"In such cases the course recommended by Mr. Justice Miller may well be followed that the remedy for a tariff alleged to be unreasonable should be sought in a bill in equity or some equivalent proceeding, wherein the rights of the public as well as those of the company complaining can be protected."

In Smyth v. Ames, Mr. Justice Harlan, speaking for the court, says:

"The transactions along the line of any one of these railroads, out of which causes of action might arise under the statute, are so numerous and varied that the interference of equity could well be justified upon the ground that a general decree, according to the prayer of the bills, would avoid a multiplicity of suits, and give a remedy more certain and efficacious than could be given in any proceeding instituted against the company in a court of law; for a court of law could only deal with each separate transaction involving the rates to be charged for transporta

1 Reagan v. Farmers' L. & T. Co., 154 U. S. 362; Smyth v. Ames, 169 U. S. 466; Chicago, M. & St. P. R. R. v. Tomkins, 167 U. S. 176. 2 134 U. S. 418, 460. 8 156 U. S. 649, 666.

+169 U. S. 466, at pp. 517, 518.

tion. The transactions of a single week would expose any company questioning the validity of the statute to a vast number of suits by shippers, to say nothing of the heavy penalties named in the statute. Only a court of equity is competent to meet such an emergency and determine, once for all, and without a multiplicity of suits, matters that affect not simply individuals, but the interests of the entire community as involved in the use of a public highway and in the administration of the affairs of the quasi-public corporation by which such highway is maintained."

In every case in which a state rate has been declared void, the state has been represented either as itself petitioner, or, where the proceedings have been brought in behalf of the company, through the joinder as parties respondent of the commissioners, attorneygeneral, or other state officers specially charged with the making or enforcement of the rate.

2. CASES IN THE LOWER FEDERAL COURTS.

The decisions of the lower federal courts are to the same effect.

Chicago & N. W. R. R. v. Dey1 was a bill in equity brought by a railroad company against state railroad commissioners to restrain them from enforcing, by suits for penalties or otherwise, their schedule of maximum freight rates. In granting the motion for a temporary injunction, Brewer, J., said:

"Equity interferes to prevent a multiplicity of suits; and, where one act may be the foundation of many suits, the courts have a right, and it is their duty in the first instance, to stay that act as unlawful."

In Interstate Com. Com. v. Cincin., etc., R. R.,2 which was a bill by the commission to enforce their order, Sage, J., in denying a motion for a preliminary restraining order against the company, says:

"If the defendants are restrained from charging or collecting freight in excess of the rates fixed by the commission, they will be practically without remedy if at last the order of the commission should be held to be unlawful."

1 35 Fed. Rep. 866, 882. This case, decided in 1888, was, as already noted, the first in which a federal court set aside a state rate as unreasonably low; but the same principle of equity jurisdiction had been previously applied to a state rate passed in violation of the interstate commerce clause in Louisville & N. R. R. v. Com'rs, 19 Fed. Rep. 679.

2 64 Fed. Rep. 981.

See also Shinkle v. R. R., 62 Fed. Rep. 690, an Interstate Commerce Commission case to the same effect.

Cleveland G. L. & Coke Co. v. Cleveland1 was a bill in equity to enjoin the enforcement of an ordinance fixing the price of gas in violation of the Fourteenth Amendment. A demurrer on the ground, inter alia, of lack of jurisdiction in equity, was overruled, Jackson, J., saying that the court "entertains no doubt about its jurisdiction to award the relief asked."

Capital City Gas Light Co. v. Des Moines 2 was a bill to have declared void a city ordinance fixing the price of gas, and to enjoin the enforcement thereof. A demurrer on the ground, inter alia, of lack of jurisdiction in equity was overruled, Woolson, J., treating the question of jurisdiction in equity as no longer open, and quoting the remarks of Miller, J., in the Minnesota case cited supra.

New Memphis Gas, etc., Co. v. Memphis3 was a bill to enjoin the enforcement of an ordinance fixing the price of gas. A motion for a restraining order was granted, Clark, J., saying that the public could be protected by a bond against the event that the bill should finally be dismissed,

"while to refuse the injunction would possibly result in a destruction of the plaintiff's business and property before this litigation can be terminated."

In this connection it may be said that the suggestion which has been made of incorporating in the rate statute a provision that the schedule established should be kept in force until the termination of any litigation brought to test its constitutionality is unsound. The public can hardly be compelled to give security, and without security the company would suffer irreparable damage and practically be deprived of its property without due process of law if the schedule should turn out to be in violation of the Fourteenth Amendment.

In Southern Pacific R. R. v. Com., Judge McKenna continued a temporary restraining order pending the final decision of the court on a bill to enjoin the enforcement of a state freight rate.

Indianapolis Gas Co. v. Indianapolis was a bill to enjoin the enforcement of a city ordinance fixing the price of gas. A motion for a restraining order was allowed, Baker, J., saying:

"It is evident if the restraining order is refused and the ordinance should eventually be held invalid, the injury resulting to the complainant would be practically irremediable because of the number of its patrons and the small amount to be received from each. On the other hand,

1 71 Fed. Rep. 610, 615. 478 Fed. Rep. 236.

2 72 Fed. Rep. 818; s. c., Ib. 829.
5 82 Fed. Rep. 245, 246.

872 Fed. Rep. 952.

the rights of the city can be fully protected by requiring the complainant to give a bond."

Cotting v. Kansas City Stock Yards Co.1 was a bill to enjoin the enforcement of a statute of Kansas fixing charges for the various services of stock yards. At the final hearing on the merits before Thayer, Circuit Judge, and Foster, District Judge, the jurisdiction in equity was sustained, but the bill was dismissed on its merits, the injunction, however, to continue ten days, and thereafter if an appeal should be taken.

San Diego Land, etc., Co. v. Jasper 2 was a bill to enjoin the enforcement of water rates fixed by a board of county supervisors. A demurrer on the ground, inter alia, of lack of jurisdiction was overruled. Ross, J., referring to the allegations of the bill, which set out the danger of irreparable damage and a multiplicity of suits, and the lack of any adequate remedy at law, says:

"These averments are admitted by the demurrer. They may not be true in fact, but for present purposes are to be accepted as true. So taking them, it cannot be doubted, I think, that the bill makes a good

3. CASES IN THE STATE COURTS.

As practically all litigation of this character is now carried on in the United States courts, there are few decisions of the state courts upon the question here under discussion. Wherever the question has been raised, however, it has been settled in the state,

1 82 Fed. Rep. 850.

2 89 Fed. Rep. 274, 281.

3 See also to the same effect: Wilmington & W. R. Co. v. Com., 90 Fed. Rep. 33; San Joaquin Irr. Co. v. Stanislaus County, 90 Fed. Rep. 516; Northern Pacific R. R. v. Keyes, 91 Fed. Rep. 47; Cleveland City Ry. Co. v. Cleveland, 94 Fed. Rep. 385; Western Union Telegraph Co. v. Myatt, 98 Fed. Rep. 335; Los Angelos Water Co. v. Los Angelos, 103 Fed. Rep. 711, 739.

...

It is, of course, perfectly clear that the circuit courts of the United States, as federal courts, under the act of Congress of March 3, 1875, as amended by the act of March 3, 1887, and of Aug. 13, 1888, have original jurisdiction of suits in equity of this nature, concurrent with the state courts, "where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2000," because these are strictly "suits... arising under the Constitution . . . of the United States." Diversity of citizenship is not necessary to give jurisdiction to the circuit court in such cases. In the language of Mr. Chief Justice Waite, in 96 U. S. 199, 203, the controversy is one as to the operation and effect of the Constitution upon the facts involved." See also 169 U. S. 466, 516; 134 U. S. 418, 459; 156 U. S. 649, 657; 172 U. S. 1; 104 Fed. Rep. 258; 103 Fed. Rep. 23, 216. And the test of the existence of the jurisdictional amount is in such cases the value of the right to be protected and the pecuniary amount of the injury to be prevented. 165 U. S. 107, 114, 115; 82 Fed. Rep. 65; $4 Fed. Rep. 547; 56 Fed. Rep. 352.

...

as well as in the federal courts, that the proper if not the only remedy for a corporation, claiming to be deprived of its property without due process of law through the operation of a state rate, is a bill in equity or some equivalent process praying for an injunction against the enforcement of the rate.1

There is, we believe, no judicial dissent from this proposition.

IV.

Under what circumstances must a suit in equity of the kind under consideration, in a circuit court of the United States, be deemed a suit against the state under authority of which the rates objected to were imposed, within the meaning of the Eleventh Amendment to the United States Constitution, which declares that "the judicial powers 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."

It is, of course, true that, in determining the question whether a suit is against a state within the meaning of this Amendment, reliance can no longer be placed upon the simple test laid down in Osborn v. Bank2 and Davis v. Gray, namely, whether the state is by name or appropriate designation made a party defendant on the face of the record. It is likewise true that no reliance can be placed upon the point that the Eleventh Amendment does not in terms forbid suits against a state by citizens of the same state, but only suits by citizens of other states.5

It is, however, important to emphasize the point that the conflict of authority upon the question to what extent the state must have a proprietary or corporate (as distinguished from a purely governmental) interest in the suit in order to render the state a necessary party according to the principles of equity jurisdiction - and

1 Spring Valley W. W. v. San Francisco, 82 Cal. 286; San Diego Water Co. v. San Diego, 118 Cal. 556.

29 Wheat. 738.

8 16 Wall. 203.

But, as stated by Lamar, J., speaking for the Court in Pennoyer v. McConnaughy, 140 U. S. 1, 12, the general doctrine laid down in the two cases of Osborn v. Bank and Davis v. Gray, affirming the jurisdiction of the circuit courts of the United States to restrain state officers from executing unconstitutional statutes of the state in a case falling within some recognized head of equity jurisdiction, has never been departed from, and is still fully recognized by the Supreme Court.

Hans v. Louisiana, 134 U. S. 1.