therefore to make it impossible under the principles of equity jurisdiction for the circuit courts to entertain the suit if the state is not made a party, and equally impossible, under the Eleventh Amendment, to entertain the suit if the state is made a party — has really nothing to do with the question now under consideration; for it seems to have been settled that the interest of the state in the enforcement of a schedule of rates imposed by its authority must be regarded as governmental and not as proprietary or corporate.

It is unnecessary to do more than to refer to the authorities in which this conflict, or apparent conflict, of judicial opinion, is presented. The cases may be classified as follows:

A. Cases involving a corporate or proprietary interest on the part of the state.

(a) The jurisdiction of the federal courts has been denied:

(1) Where the relief sought was some particular disposition of some acknowledged property of the state, as in Cunningham v. Macon, etc., R. R. Co.1 and Christian v. Atlantic, etc., R. R. Co.2

(2) Where the relief sought was the affirmative and specific performance of some contract of the state, as in Louisiana v. Jumel, Hapgood v. Southern, North Carolina v. Temple,5 and New York Guaranty Co. v. Steele."

(3) Where the relief sought was the enjoining of acts by individual officers of the state, which, if performed, would amount to a breach of some contract of the state, but would not otherwise constitute personal wrong-doing upon the part of the individual defendants, at least of such a kind as to give equity jurisdiction over such individual defendants alone, as in In re Ayres."

(b) The jurisdiction of the federal courts has been sustained: — (1) Where the complainant seeks to enjoin by bill in equity the violation, or to compel by mandamus the performance of a merely ministerial duty, as in Board of Liquidation v. McComb, Sands v. Edmunds, Rolston v. Missouri Fund Commissioners.10

(2) Where the acts threatened were not a violation of ministerial duties, but were injurious by way of placing a cloud on the title to land, as in Davis v. Gray, Pennoyer v. McConnaughy.12

It will be noted that in none of the foregoing cases where the jurisdiction has been sustained were the acts enjoined trespasses, torts, or other physical invasions of the complainant's property.

B. Cases involving no corporate or proprietary interest on the part of the state.

Suits in which the state has no proprietary interest, brought against state officers threatening to violate, under a state law or administrative order of which they were charged with the enforcement, rights secured to the complainant by the Constitution or laws of the United States, have never been held to be suits against the state within the meaning of the Eleventh Amend

ment.

The cases may be divided into two classes:

(a) Where the acts sought to be enjoined would, if performed, amount to physical invasions of the plaintiff's property; that is to say, to common law trespasses or other torts of such a character as to call on settled principles of equity jurisdiction for the interposition of a court of equity, as, for instance, to prevent irreparable damage,1 and the same principle applies in actions at law.2

Osborn v. Bank was a bill in equity against a state board, the state treasurer, and a tax collector to enjoin them from seizing in payment of taxes, in obedience to a mandatory statute of the state of Ohio, certain property of the complainant, and requiring them to restore to the complainant certain property already seized for the same purpose, but not yet turned over by them to the state. The equity of the bill was stated to be the danger of irreparable damage and the absence of any adequate remedy at law. A federal question was raised by the complainant's contention that the state statute in obedience to which the respondents were acting was in conflict with the federal statute incorporating the United States Bank, and with Art. I. sect. 8 of the Constitution of the United States, in pursuance of which said federal statute had been enacted. The respondents objected that the suit was against the state of Ohio within the meaning of the Eleventh Amendment. Marshall, C. J., speaking for the court and considering this contention of the respondents, said: 3

"It being admitted, then, that the agent is not protected by his connection with his principal, that he is responsible for his own act to the full extent of the injury, why should not the preventive power of the court

1 Osborn v. Bank of United States, 9 Wheat. 738; Tomlinson v. Branch, 15 Wall. 460; Allen v. Baltimore & Ohio R. R. Co., 114 U. S. 311; Shelton v. Platt, 139 U. S. 591; Stanley v. Schwalby, 147 U. S. 508; In re Tyler, 149 U. S. 164; Belknap v.

Schild, 161 U. S. 10.

2 United States v. Lee, 106 U. S. 196; Poindexter v. Greenhow, 114 U. S. 270; Scott v. Donald, 165 U. S. 58; Tindall v. Wesley, 167 U. S. 204.

8 At p. 842.

also be applied to him? Why may it not restrain him from the commission of a wrong which it would punish him for doing?"

In Allen v. Baltimore and Ohio R. R. Co., Mr. Justice Matthews, speaking for the court, said:1

"The circumstances of this case bring it, so far as that remedy is in question [by injunction], fully within the principle established by this court by the decision of Osborn v. U. S. Bank, 9 Wheat. 739, and within the terms of the rule as declared in Cummings v. National Bank, 101 U. S. 503."

In In re Ayers, Mr. Justice Matthews, speaking for the court, says: 2_

"In pursuance of the principles adjudged in the case of Osborn v. Bank, it has been repeatedly and uniformly held by this court that an injunction will lie to restrain the collection of taxes sought to be collected by seizures of property for taxes imposed in the name of the state, but contrary to the Constitution of the United States, the defendants being officers of the state threatening the distraint complained of. . . . The vital principle in all such cases is that the defendants, though professing to act as officers of the state, are threatening a violation of the personal or property rights of the complainant for which they are personally and individually liable."

(b) The second class of cases involving no proprietary interest on the part of the state in which the jurisdiction of the federal courts has been assumed or upheld, so far as the Eleventh Amendment goes, consists of cases, like those now under consideration, where the acts sought to be enjoined are simply the institution of litigation by state officers in the state courts.3

All of the cases referred to in the footnote were rate cases. All of them were bills in equity. In all of them the respondents were officers of states threatening to enforce solely by litigation in the state courts either state statutes or orders of state boards made

1 At p. 314.

2 123 U. S. 443, at p. 500.

Chicago, B. & Q. R. R. v. Iowa, 94 U. S. 155; Peik v. Chicago & N. W. R. R., 94 U. S. 164; Stone v. Farmers' Loan & Trust Co., 116 U. S. 307; Stone v. Illinois Central R. R. Co., 116 U. S. 347; Stone v. New Orleans, etc., R. R., 116 U. S. 352; Georgia R. R. & Banking Co. v. Smith, 128 U. S. 174; San Diego v. National City, 174 U. S. 739; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362; Reagan v. Mercantile Trust Co., 154 U. S. 413; Reagan v. Mercantile Trust Co., 154 U. S. 419; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 420; Smyth v. Ames, 169 U. S. 466, and 171 U. S. 361; Chicago, M. & St. P. R. R. v. Tomkins, 176 U. S. 167. See also Smith v. Reeves, 178 U. S. 436; 110 Fed. Rep. 3. Contra, State v. Chicago, R. I. & P. R. Co., 87 N. W. Rep. 188 [Sup. Ct. Neb.]; and s. c. 85 N. W. Rep. 556.

under legislative authority fixing maximum rates for the service of common carriers or other public service corporations. In some of them the federal question presented was twofold; namely, that the statutes or orders in question violated the contract clause of the United States Constitution in respect of the complainant's charter, and also violated the Fourteenth Amendment to the United States Constitution; but in all of them the principal ground of jurisdiction relied on by the complainant, and in most of them the sole ground, was that the statute or order invaded rights secured to him by that provision of the Fourteenth Amendment to the United States Constitution which forbids a state to deprive any person of property without due process of law or to deny to any person within its jurisdiction the equal protection of the laws. In these cases the equity of the bill is stated to be the prevention either of a multiplicity of actions or of other irreparable damage for which the law afforded no adequate remedy, or both.

In the first seven of these cases, while the relief sought was after elaborate consideration denied either upon the merits or for other reasons, the court appears to take for granted1 that they could not be disposed of as suits against the sovereign, which, as stated by Mr. Justice Miller in discussing the Eleventh Amendment, in United States v. Lee,2 is the ground on which the Supreme Court will of its own motion dismiss any case open to that objection.

The next five cases (Reagan v. Farmers' Loan and Trust Co. and Smyth v. Ames) contain an elaborate exposition of the reasons why such suits are not obnoxious to the provisions of the Eleventh Amendment, and the relief prayed for was granted in both cases.

In the last case (Chicago, M. & St. P. R. R. v. Tomkins) the relief prayed for in the bill was granted without discussion of this point. The silence of the court on the question of federal jurisdiction - always equivalent to an affirmation that such jurisdiction exists is of special significance in the Tomkins case, as

1 See the remarks of Mr. Justice Brewer on this point in Chicago & N. W. R. R. v. Dey, 35 Fed. Rep. 866, at 871, 872.

2 106 U. S. 196, 215, 216.

8 As indicated by the rule that the court must of its own motion dismiss a bill for lack of federal jurisdiction, even though the existence of such jurisdiction is assented to by both parties. See Metcalf v. Watertown, 128 U. S. 586, 587, where Harlan, J., says that "whether the court had or had not jurisdiction (by reason of a federal question) is a question which we must examine and determine, even if the parties forbear to make it or consent that the case be considered on its merits." See also Desty, Fed. Proc., sect. 84, 9th ed., p. 340, and cases cited.

that decision was subsequent to the discussion of the question in the Reagan and Nebraska cases and in Fitz v. McGhee, referred to below.

In Reagan v. Farmers' Loan and Trust Co., where the attorney-general and state railroad commissioners were enjoined from enforcing by litigation in the state courts a rate fixed by the commission, Mr. Justice Brewer, speaking for the court, and considering the objection that the suit was against the state of Texas, said: 1

"We are unable to yield our assent to this argument. So far from the state being the only real party in interest and upon whom alone the judgment effectively operates, it has in a pecuniary sense no interest at all. Going back of all matters of form, the only parties pecuniarily affected are the shippers and the carriers; and the only direct and pecuniary interest which the state can have arises when it abandons its governmental character, and as an individual employs the railroad company to carry its property. There is a sense, doubtless, in which it may be said that the state is interested in the question, but only in a governmental sense. It is interested in the well-being of its citizens, in the just and equal enforcement of its laws; but such governmental interest is not the pecuniary interest which causes it to bear the burden of an adverse judgment. Not a dollar will be taken from the treasury of the state, no pecuniary obligation of it will be enforced, none of its property affected by any decree which may be rendered. It is not nearly so much affected by the decree in this case as it would be by an injunction against officers staying the collection of taxes; and yet a frequent and unquestioned exercise of jurisdiction of courts, state and federal, is in restraining the collection of taxes illegal in whole or in part. Neither will the constitutionality of the statute, if that be conceded, avail to oust the federal court of jurisdiction. A valid law may be wrongfully administered by officers of the state, and so as to make its administration an illegal burden and exaction upon the individual."

In Smyth v. Ames the attorney-general and state commissioners were enjoined from bringing suits in the state courts to enforce a rate fixed by the legislature. Mr. Justice Harlan, speaking for the court, and considering the objection that the suit was against the state of Nebraska, said :2

"But, to prevent misapprehension, we add that within the meaning of the Eleventh Amendment of the Constitution the suits are not against the state, but against certain individuals charged with the administration of a state enactment which, it is alleged, cannot be enforced without violating the constitutional rights of the plaintiff. It is the settled 2 At p. 518.

1 At p. 390.