reserve cases of appeal to the full bench, that would admit the necessity of a full exercise of the whole judicial power and that the only way to subtract from the appellate jurisdiction of the Supreme Court is to add to its original jurisdiction by making the Supreme Court exercise the powers of all the circuit and district courts and the State courts.1 Congress has not power to give original jurisdiction to the Supreme Court in cases other than those described in the Constitution." To prohibit the suspension of the commission's rate would be much more surprising than to prohibit the stay of the judgment or decision of the inferior court either by the court itself or by the Supreme Court on terms fixed by either court, and that would in itself be the acme of absurdity. It should not be forgotten that a court is not necessarily a judge alone,' and trial by jury is no more important than a trial in equity. Exception may only be made of political subjects within the summary power of the executive."

This is the real point of Sheldon v. Sill, 8 How. 449; Sewing Machine Cases, 18 Wall. 578; Fink v. O'Neill, 106 U. S. 272; Cary v. Curtis, 3 How. 244, 245; Holmes v. Goldsmith, 147 U. S. 157: Insurance Co. v. Dunn, 19 Wall. 214, 226; City of Lexington v. Butler, 14 Wall. 293; Turner v. Bank, 4 Dallas, 81; McIntire v. Wood, 7 Cranch, 505; cases quoted to show that Congress can pass laws which no courts may put into effect. If this is so, what is the purpose of a judiciary or the Constitution? The jurisdiction of the Supreme Court is not as broad as the Constitution but it is as broad as the legislation of Congress or the State legislatures under the Constitution; United States v. Coe, 155 U. S. 76.

2 Marbury v. Madison, 1 Cr. 137; see United States v. Coe, 155 U. S. 76, 85.

'Story, J., in United States v. Clarke, 1 Gall. 497, 499, and Chow Low v. United States, 112 Fed. 359.

Denn v. The Hoboken Land & Improvement Company, 18 How. 272.

The law of 1793 prohibiting the staying by United States courts of proceedings in any court of a State except where authorized by a bankruptcy law was such a limitation. But it yielded before the rule that the court had power to issue all writs necessary to their jurisdiction.1

§ 168. THE ISSUE OF INJUNCTIONS BY THE COURTS OF THE UNITED STATES RESTRAINING GOVERNMENT COMMISSIONS CANNOT BE PROHIBITED. - In order, therefore, for the Supreme Court to exercise its appellate jurisdiction, there must have been a decision by an inferior court. While it might be proper to provide for the certification of the case by the inferior court to the Supreme Court, it would be as unconstitutional to forbid the inferior court to enjoin final action upon the finding of the commission pending trial or certification by it and appeal to the Supreme Court of the United States as it would to forbid the Supreme Court to issue such process as would make its final judgment effective. If Congress provides that the rate made by the commission is the law of the land, and that the commission is the legislature, only if the rate is outside the constitutional prohibition, then and only then can Congress fix reasonable rates through a commission. In Smyth v. Ames, a suit to enjoin a commission, the court said:

"Another question of a preliminary character must be here noticed. The answer of the officers of the State in

1 Central Trust Co. v. Julian, 193 U. S., 94; French v. Hay, 22 Wall. 250; Dietzsch v. Huidekoper, 103 U. S. 494.

2169 U. S. 518. See also Pennoyer v. McConnaughy, 140 U. S. 1, 10; In re Tyler, 149 U. S. 164, 190; Scott v. Donald, 165 U. S. 58, 68; Tindal v. Wesley, 167 U. S. 204, 220; In re Ayers, 123 U. S. 443.

each case insists that the real party in interest is the State, and that these suits are, in effect, suits against the State, of which the circuit court of the United States cannot take jurisdiction consistently with the Eleventh Amendment of the Constitution of the United States. This point is, perhaps, covered by the general assignments of error, but it was not discussed at the bar by the representatives of the State board. It would therefore be sufficient to say that these are cases of which, so far as the plaintiffs are concerned, the circuit court has jurisdiction not only upon the ground of the diverse citizenship or alienage of the parties, but upon the further ground that as the statute of Nebraska, under which the State board of transportation proceeds, is assailed as being repugnant to rights secured to the plaintiffs by the Constitution of the United States, the cases may be regarded as arising under that instrument. 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 plaintiffs. It is the settled doctrine of this court that a suit against individuals for the purpose of preventing them as officers of a State from enforcing an unconstitutional enactment to the injury of the rights of the plaintiff is not a suit against the State within the meaning of the amendment."

The prohibition of restraint by mandamus or injunction is good only when another department of the government is acting clearly within its constitutional authority, and courts always refuse to suspend where the government acts by an agent the constitutionality of whose acts or authority is not doubtful.1 To save Farmers' Loan & Trust Co., 154 U. S. 388; Wall. 2, and cases above; United States v.

Reagan v. The Ex parte Milligan, 4

the very constitutionality of a law delegating the power to fix a rate, the constitutionality of the act of the commission must be considered doubtful until affirmed by the court. The prohibition to sue the United States except where Congress permits is a different question.

It follows from the foregoing that the courts have a certain jurisdiction under the Constitution and laws of the United States independently of the statutes and regulations of Congress. Law that depends upon courts for its enforcement cannot exist under

Lee, 106 U. S. 196, is authority for the application of this principle to the national as well as to the State government. Revised Statutes, section 3224, which relates to the collection of internalrevenue taxes, reads as follows: "No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." Now, there is a direct prohibition against a court intermeddling with the collection of taxes. Taxes are levied by Congressional action, by law, and the officers of the Government assess and collect them. Here is a direct prohibition that such officers shall not be intermeddled with by the courts either by a suit or by a restraining order. But this prohibition does not prevent a review or certiorari. Further, the act of fixing the tax is not legislative and does not require the exercise of discretion. The presumption is conclusive that a tax law is just; attack may be made on the law, but no reason exists for preserving the status quo but quite the contrary. Congress may suspend the writ of habeas corpus and prohibit the issuing of mandamus, the arm of the common law, or of injunction, the arm of equity. The question is whether Congress can take away private property without just compensation. The suspension of habeas corpus is a war measure, but even that holds the prisoner safe during the temporary delay of his trial; the prohibition of mandamus and injunction must be justified by the facts. Habeas corpus is a prerogative writ, injunction and mandamus are inherent in judicial power. We do not hang and then try a person charged with murder. The court, then, may impound, until the due process of law is completed, the subject-matter of the controversy, i.e. the actual cash above what is admitted to be a reasonable rate.

our Constitution without courts; the contention that Congress did not provide courts with jurisdiction over all subjects within the judicial power of the nation asserts merely that the Constitution was not in force. But the Constitution created Congress, not Congress the Constitution. The Constitution is a body of organic law. Under it the people elected electors to elect a President, and elected Representatives in Congress, and State legislators to elect Senators. The provision, by these two departments, for a judiciary was a preliminary to the putting in operation of the government. The destruction of the judiciary would be the destruction of the government, revolution. The judiciary can no more depend upon coördinate departments for the jurisdiction to preserve rights guarantied by the Constitution and to give effect to its provisions than it can for its existence. This is as true of the inferior courts as of the Supreme Court. The distribution of power among the courts is provided for in the Constitution, but the exercise is subject to constitutional construction by the Supreme Court of the United States. The Constitution vested in the judiciary judicial power in all cases in law and equity arising under the Constitution and laws of the United States. As soon as the government went into operation, that is, as soon as the courts were ordained and established, all that was necessary to the exercise of all the judicial power vested was not enactments of Congress but cases arising under the Constitution and the laws of the United States. To vest judicial power already vested by the Constitution would be a work of supererogation for Congress.

No public calling can be engaged in, no public