*185 individual is sued in tort for some act in-, munity from suits in Federal tribunals, it jurious to another in regard to person or is difficult to conceive the frame of one property, to which his defense is that he which would be. If the state is named as has acted under the orders of the govern- a defendant, it can only be reached either by ment;" in which last case, the court ob- mesne or final process through its officers served, the defendant "is not sued as, or be- and agents, and a judgment against it could cause he is, the officer of the government, neither be obtained nor enforced, except as but as an individual, and the court is not the public conduct and government of the ousted of jurisdiction because he asserts au- ideal political boay called a state could be thority as such officer." Let it not be for- reached and affected through its official repgotten that the defendant Young was sued, resentatives. A judgment against these latnot as an individual or because he had any ter, in their official and representative capersonal interest in these matters, but as, pacity, commanding them to perform official and solely because he is, an officer of the functions on behalf of the state according state, charged with the performance of cer- to the dictates and decrees of the court, is, tain public duties. if anything can be, a judicial proceeding against the state itself. If not, it may well be asked, what would constitute such a proceeding? In the present cases the decrees were not only against the defendants in their official capacity, but, that there might be no mistake as to the nature and extent of the duty to be performed, also against their successors in office." Is it to be said that an order requiring the attorney general of a state to perform certain official functions on behalf of the state is a suit against the state, while an order forbidding him, as attorney general, not to perform an official function on behalf of the state, is not a suit against the state? The leading case upon the general subject, and one very similar in many important particulars to the present one, is Re Ayers, 123 U. S. 443, 496, 497, 505, 31 L. ed. 216, 226, 227, 229, 8 Sup. Ct. Rep. 164, 178, 183. The facts in that case were briefly these: The legislature of Virginia, in 1887, passed an act which holders of sundry bonds and tax-receivable coupons of that commonwealth alleged to be in violation of their rights under the Constitution of the United States. They instituted a suit in equity in the circuit court of the United States against the attorney general and auditor of Virginia, and against the treasurers and commonwealth attorneys of counties, cities, and towns in Virginia, the relief asked be In Hagood v. Southern, 117 U. S. 52, 67, 68, 29 L. ed. 805, 810, 6 Sup. Ct. Rep. 608, 615, 616, which involved the validity of certain scrip alleged to have been issued by the state of South Carolina, it appeared that the state, having denied its obligation to pay, the plaintiff sought relief by simply suing certain state officers, as such, without making the state a formal party. The court said: "These suits are accurately described as bills for the specific performance of a contract between the complainants and the state of South Carolina, who are the only parties to it. But to these bills the state is not in name made a party defendant, though leave is given to it to become such, if it chooses; and, except with that consent, it could not be brought before the court and be made to appear and defend. And yet it is the actual party to the alleged contract the performance of which is decreed, the one required to perform the decree, and the only * party by whom it can be performed. Though not nominally a party to the record, it is the real and only party in interest, the nominal defendants being the officers and agents of the state, having no personal interest in the subject-matter of the suit, and defending only as representing the state. And the things required by the decrees to be done and performed by them are the very things which, when done and performed, constitute a performance of the alleged contracting a decree enjoining and restraining the by the state. The state is not only the real party to the controversy, but the real party against which relief is sought by the suit, and the suit is, therefore, substantially within the prohibition of the 11th Amendment to the Constitution of the United States, which declares that 'the judicial power 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.'" Again: "If this case is not within the class of those forbidden by the constitutional guaranty to the states of im said state officers, and each of them, from bringing or commencing any suit provided for by the above act of 1887, or from doing anything to put that act into operation. The circuit court entered an order, enjoining the attorney general of Virginia and each and all the state officers named "from bringing or commencing any suit against any person who has tendered the state of Virginia's tax-receivable coupons in payment of taxes due to said state, as provided for and directed by the act of the legislature of Virginia, approved May 12th, 1887." Subsequently the circuit court of the United States was informed that the at *186 * | For a cases. New Jersey v. New York, 5 Pet. 284, torney general of Virginia had disobeyed its, contains,-supposing that such a suit could; order of injunction. Thereupon that of be maintained,-it would have been subjectficer was ruled to show cause why he shoulded to the jurisdiction of the court by procnot be fined and imprisoned. He responded ess served upon its governor and attorney to the rule, admitting that after being general, according to the precedents in such served with the injunction he had instituted a suit, in the state circuit court, against the Baltimore & Ohio Railroad Company, to recover taxes due the state, and alleging "that he instituted the said suit because he was thereunto required by the act of the general assembly of Virginia, aforesaid, and because he believed this court had no jurisdiction whatever to award the injunction violated." He disclaimed any intention to treat the court with disrespect, and stated that he had been actuated alone by the desire to have the law properly administered. He was, nevertheless, ad- | judged guilty of contempt, was required forthwith to dismiss the suit he had brought, was fined $500 for contempt of court, and committed to the custody of the marshal until the fine was paid, and until he purged himself of his contempt by dismissing the suit in the state court. The attorney general then applied directly to this court for a writ of habeas corpus, which was granted, and upon hearing he was released by this court from custody. The order for his discharge recited that the suit in which the injunctions were granted was "in substance and in law a suit against the stately subjected to the process of the court, so of Virginia," and "within the prohibition of the 11th Amendment to the Constitution;" that it was one "to which the judicial power of the United States does not extend;" that the circuit court was without jurisdiction to entertain it; that all its proceedings in the exercise of jurisdiction were null and void; that it had no authority or power to adjudge the attorney general in contempt; and that his imprisonment was without authority of law. In the opinion in the Ayers Case the court said: "It follows, therefore, in the present case, that the personal act of the petitioners sought to be restrained by the order of the circuit court, reduced to the mere bringing of an action in the name of and for the state against taxpayers, who, although they may have tendered tax-receivable coupons, are charged as delinquents, cannot be alleged against them as an individual act in violation of any legal or contract rights of such taxpayers." Again: "The relief sought is against the defendants, not in their individual, but in their representative, capacity | as officers of the state of Virginia. The acts sought to be restrained are the bringing of suits by the state of Virginia in its own name and for its own use. If the state had been made a defendant to this bill by name, charged according to the allegations it now 28 S. C.-30. | as to forbid their acting in its behalf, how can it be said that the state itself is not subjected to the jurisdiction of the court as an actual and real defendant?" Further: "The very object and purpose of the 11th Amendment were to prevent the indignity of subjecting a 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 United States, should be summoned as defendants to answer the complaints 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 members of judicial tribunals without their consent, and in favor of individual interests. To secure the manifest purposes of the constitutional exemption* guaranteed* by the 11th Amendment requires that it should be interpreted, not literally and too narrowly, but fairly, and with such breadth and largeness as effectually to 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 repre 00 individual is sued in tort for some act in-,munity from suits in Federal tribunals, it jurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government;" in which last case, the court observed, the defendant "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." Let it not be forgotten that the defendant Young was sued, not as an individual or because he had any personal interest in these matters, but as, and solely because he is, an officer of the state, charged with the performance of certain public duties. is difficult to conceive the frame of one which would be. If the state is named as a defendant, it can only be reached either by mesne or final process through its officers and agents, and a judgment against it could neither be obtained nor enforced, except as the public conduct and government of the ideal political body called a state could be reached and affected through its official representatives. A judgment against these latter, in their official and representative capacity, commanding them to perform official functions on behalf of the state according to the dictates and decrees of the court, is, if anything can be, a judicial proceeding against the state itself. If not, it may well be asked, what would constitute such a proceeding? In the present cases the decrees were not only against the defendants in their official capacity, but, that there might be no mistake as to the nature and extent of the duty to be performed, also against their successors in office." Is it to be said that an order requiring the attorney general of a (state to perform certain official functions on behalf of the state is a suit against the state, while an order forbidding him, as attorney general, not to perform an official function on behalf of the state, is not a suit against the state? In Hagood v. Southern, 117 U. S. 52, 67, 68, 29 L. ed. 805, 810, 6 Sup. St. Rep. 608, 615, 616, which involved the validity of certain scrip alleged to have been issued by the state of South Carolina, it appeared that the state, having denied its obligation to pay, the plaintiff sought relief by simply suing certain state officers, as such, without making the state a formal party. The court said: "These suits are accurately described as bills for the specific performance of a contract between the complainants and the state of South Carolina, who are the only parties to it. But to these bills the state is not in name made a party defendant, though leave is given to it to become such, if it chooses; The leading case upon the general subject, and, except with that consent, it could not and one very similar in many important be brought before the court and be made to particulars to the present one, is Re Ayers, appear and defend. And yet it is the actual 123 U. S. 443, 496, 497, 505, 31 L. ed. 216, party to the alleged contract the perform- 226, 227, 229, 8 Sup. Ct. Rep. 164, 178, ance of which is decreed, the one required to 183. The facts in that case were briefly perform the decree, and the only party by these: The legislature of Virginia, in 1887, whom it can be performed. Though not passed an act which holders of sundry bonds nominally a party to the record, it is the and tax-receivable coupons of that commonreal and only party in interest, the nom- wealth alleged to be in violation of their inal defendants being the officers rights under the Constitution of the United agents of the state, having no personal in- States. They instituted a suit in equity in terest in the subject-matter of the suit, and the circuit court of the United States defending only as representing the state. against the attorney general and auditor of And the things required by the decrees to be Virginia, and against the treasurers and done and performed by them are the very commonwealth attorneys of counties, cities, things which, when done and performed, con- and towns in Virginia, the relief asked bestitute a performance of the alleged contracting a decree enjoining and restraining the by the state. The state is not only the real party to the controversy, but the real party against which relief is sought by the suit, and the suit is, therefore, substantially within the prohibition of the 11th Amendment to the Constitution of the United States, which declares that 'the judicial power 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.'" Again: "If this case is not within the class of those forbidden by the constitutional guaranty to the states of im and said state officers, and each of them, from bringing or commencing any suit provided for by the above act of 1887, or from doing anything to put that act into operation. The circuit court entered an order, enjoining the attorney general of Virginia and each and all the state officers named "from bringing or commencing any suit against any person who has tendered the state of Virginia's tax-receivable coupons in payment of taxes due to said state, as provided for and directed by the act of the legislature of Virginia, approved May 12th, 1887." Subsequently the circuit court of the United States was informed that the at 186 *188 torney general of Virginia had disobeyed its, contains,-supposing that such a suit could, order of injunction. Thereupon that of be maintained,—it would have been subjectficer was ruled to show cause why he should ed to the jurisdiction of the court by procnot be fined and imprisoned. He responded ess served upon its governor and attorney to the rule, admitting that after being general, according to the precedents in such served with the injunction he had insti- cases. New Jersey v. New York, 5 Pet. 284, tuted a suit, in the state circuit court, 288, 290, 8 L. ed. 127, 129; Kentucky v. against the Baltimore & Ohio Railroad Dennison, 24 How. 66, 96, 97, 16 L. ed. 717, Company, to recover taxes due the state, 725, 726; rule 5 of 1884, 108 U. S. 574, 20 and alleging "that he instituted the said L. ed. 901, 3 Sup. Ct. Rep. vii. If a decree suit because he was thereunto required by could have been rendered enjoining the the act of the general assembly of Virginia, state from bringing suits against its taxaforesaid, and because he believed this payers, it would have operated upon the court had no jurisdiction whatever to award state only through the officers who by law the injunction violated." He disclaimed were required to represent it in bringing any intention to treat the court with dis- such suits, viz., the present defendants, its respect, and stated that he had been actuat-attorney general, and the commonwealth's ed alone by the desire to have the law prop-attorneys for the several counties. For a erly administered. He was, nevertheless, ad- | breach of such an injunction, these officers judged guilty of contempt, was required would be amenable to the court as proceedforthwith to dismiss the suit he had ing in contempt of its authority, and would brought, was fined $500 for contempt of be liable to punishment therefor by attachcourt, and committed to the custody of the ment and imprisonment. The nature of the marshal until the fine was paid, and until case, as supposed, is identical with that of he purged himself of his contempt by dis- the case as actually presented in the bill, missing the suit in the state court. The at- with the single exception that the state is torney general then applied directly to this not named as a defendant. How else can court for a writ of habeas corpus, which was the state be forbidden by judicial process to granted, and upon hearing he was released | bring actions in its name, except by con by this court from custody. The order for straining the conduct of its officers, its athis discharge recited that the suit in which torneys, and its agents? And if all such the injunctions were granted was “in sub- officers, attorneys, and agents are personalstance and in law a suit against the state ly subjected to the process of the court, so of Virginia," and "within the prohibition as to forbid their acting in its behalf, how of the 11th Amendment to the Constitu- can it be said that the state itself is not tion;" that it was one "to which the judi- subjected to the jurisdiction of the court as cial power of the United States does not ex- an actual and real defendant?" Further: tend;" that the circuit court was without "The very object and purpose of the 11th jurisdiction to entertain it; that all its Amendment were to prevent the indignity of proceedings in the exercise of jurisdiction subjecting a state to the coercive process of were null and void; that it had no author- judicial tribunals at the instance of private ity or power to adjudge the attorney gen- parties. It was thought to be neither beeral in contempt; and that his imprisonment coming nor convenient that the several was without authority of law. In the opin- states of the Union, invested with that ion in the Ayers Case the court said: "It large residuum of sovereignty which had follows, therefore, in the present case, that not been delegated to the United States, the personal act of the petitioners sought should be summoned as defendants to anto be restrained by the order of the circuit swer the complaints of private persons, court, reduced to the mere bringing of an whether citizens of other states or aliens, action in the name of and for the state or that the course of their public policy against taxpayers, who, although they may and the administration of their public afhave tendered tax-receivable coupons, are fairs should be subject to and controlled by charged as delinquents, cannot be alleged the members of judicial tribunals without against them as an individual act in viola- their consent, and in favor of individual intion of any legal or contract rights of such terests. To secure the manifest purposes taxpayers." Again: "The relief sought is of the constitutional exemption guaranteed* against the defendants, not in their indi- by the 11th Amendment requires that it vidual, but in their representative, capacity should be interpreted, not literally and too as officers of the state of Virginia. The acts narrowly, but fairly, and with such breadth sought to be restrained are the bringing of and largeness as effectually to accomplish suits by the state of Virginia in its own the substance of its purpose. In this spirit name and for its own use. If the state had it must be held to cover, not only suits been made a defendant to this bill by name, brought against a state by name, but those charged according to the allegations it now also against its officers, agents, and repre28 S. C.-30. *190 sentatives where the state, though not named | suit was brought by the receivers of a railas such, is nevertheless the only real party road company against the governor and atagainst which alone in fact the relief is torney general of Alabama. Its object was asked, and against which the judgment or to prevent the enforcement of the providecree effectively operates. But this is not sions of an Alabama statute prescribing the intended in any way to impinge upon the maximum rates of toll to be charged on a principle which justifies suits against in- certain bridge across the Tennessee river. dividual defendants, who, under color of the The statute imposed a penalty for each time authority of unconstitutional legislation by that the owners, lessees, or operators of the the state, are guilty of personal trespasses bridge demanded or received any higher rate and wrongs, nor to forbid suits against of- of toll than was prescribed by it. The reficers in their official capacity either to arlief asked was an injunction prohibiting rest or direct their official action by injunc- the governor and attorney general of the tion or mandamus, where such suits are state and all other persons from instituting authorized by law, and the act to be done or any proceeding against the complainants, or omitted is purely ministerial, in the per- either of them, to enforce the statute. An formance or omission of which the plaintiff | injunction, as prayed for, was granted. In has a legal interest." the progress of the cause the solicitor of the district in which the case was pending was made a defendant and the injunction was extended to him. By amended pleadings it was made to appear that the tollgate keepers at the public crossing of the bridge were indicted for collecting tolls in violation of the statute. In the progress of the cause the plaintiffs dismissed the case as to the state, and the cause was discontinued as to the governor. But the case was heard upon the motion to dismiss the bill upon the ground that the suit was one against the state, in violation of the Constitution of the United States. Ayers Case and in other cases this court said: "If these principles be applied in the present case, there is no escape from the conclusion that, although the state of Alabama was dismissed as a party defendant, this suit against its officers is really one against the state. As a state can act only by its officers, an order restraining those officers from taking any steps, by means of judicial proceedings, in execution of the It is said that the Ayers Case is not applicable here, because the orders made by the Federal circuit court had for their object to compel Virginia to perform its contract with bondholders, which is not this case. But that difference between the Ayers Case and this case cannot affect the principle involved. The proceeding against the attorney general of Virginia had for its object to compel, by indirection, the performance of the contract which that commonwealth was alleged to have made with bondholders, such performance, on the part of the state, to be effected by means of orders in a Federal circuit court directly control-After stating the principles settled in the ling the official action of that officer. The proceeding in the Perkins-Shepard suit against the attorney general of Minnesota had for its object, by means of orders in a Federal circuit court, directed to that of ficer, to control the action of that state in reference to the enforcement of certain statutes by judicial proceedings commenced in its own courts. The relief sought in each case was to control the state by controlling the conduct of its law officer,"against | statute of February 9, 1895, is one which its will. I cannot conceive how the proceeding against the attorney general of Virginia could be deemed a suit against that state, and yet the proceeding against the attorney general of Minnesota is not to be deemed a suit against Minnesota, when the object and effect of the latter proceeding was, beyond all question, to shut that state entirely out of its own courts, and prevent it, through its law officer, from invoking their jurisdiction in a special matter of public concern, involving official duty, about which the state desired to know the views of its own judiciary. In my opinion the decision in the Ayres Case determines this case for the petitioner. More directly in point, perhaps, for the petitioner Young, is the case of Fitts v. McGhee, 172 U. S. 516, 528-530, 43 L. ed. 535, 541, 542, 19 Sup. Ct. Rep. 269, 274, 275. That restrains the state itself, and the suit is consequently as much against the state as if the state were named as a party defendant on the record. If the individual defendants held possession or were about to take possession of, or to commit any trespass upon, any property belonging to or under the control of the plaintiffs, in violation of the latter's constitutional rights, they could not resist the judicial determination, in a suit against them, of the question of the right to such possession by simply asserting that they held or were entitled to hold the property in their capacity as officers of the state. In the case supposed, they would be compelled to make good the state's claim to the property, and could not shield themselves against suit because of their official characTindal v. Wesley, 167 U. S. 204, 222, 42 L. ed. 137, 143, 17 Sup. Ct. Rep. 770 ter. |