U.S. Supreme Court Ex Parte Young, 209
U.S. 123 (1908) Ex Parte Young No. 10, Original Argued December 2, 3,
1907 Decided March 23,
1908 209
U.S. 123 PETITION FOR WRITS OF HABEAS CORUS
AND CERTIORARI Syllabus While this court will not take jurisdiction if it should not, it
must take jurisdiction if it should. It cannot, as the legislature
may, avoid meeting a measure because it desires so to do.

															In this case, a suit by a stockholder against a corporation to
enjoin the directors and officers from complying with the
provisions of a State statute, alleged to be unconstitutional, was
properly brought within Equity Rule 94 of this court.

															An order of the Circuit Court committing one for contempt for
violation of a decree entered in a suit of which it did not have
jurisdiction is unlawful, and, in such case, upon proper
application, this court will discharge the person so held. Page 209 U. S. 124 Although the determination of whether a railway rate prescribed
by a state statute is so low as to be confiscatory involves a
question of fact, its solution raises a Federal question, and the
sufficiency of rates is a judicial question over which the proper
Circuit Court has jurisdiction, as one arising under the
Constitution of the United States.

															Whether a state statute is unconstitutional because the
penalties for its violation are so enormous that persons affected
thereby are prevented from resorting to the courts for the purpose
of determining the validity of the statute, and are thereby denied
the equal protection of the law, and their property rendered liable
to be taken without due process of law, is a Federal question and
gives the Circuit Court jurisdiction.

															Whether the state railroad rate statute involved in this case,
although on its face relating only to intrastate rates, was an
interference with interstate commerce held to raise a
Federal question which could not be considered frivolous.

															A state railroad rate statute which imposes such excessive
penalties that parties affected are deterred from testing its
validity in the courts denies the carrier the equal protection of
the law without regard to the question of insufficiency of the
rates prescribed; it is within the jurisdiction, and is the duty,
of the Circuit Court to inquire whether such rates are so low as to
be confiscatory, and, if so, to permanently enjoin the railroad
company, at the suit of one of its stockholders, from putting them
in force, and it has power pending such inquiry to grant a
temporary injunction to the same effect.

															While there is no rule permitting a person to disobey a statute
with impunity at least once for the purpose of testing its
validity, where such validity can only be determined by judicial
investigation and construction, a provision in the statute which
imposes such severe penalties for disobedience of its provisions as
to intimidate the parties affected thereby from resorting to the
courts to test its validity practically prohibits those parties
from seeking such judicial construction, and denies them the equal
protection of the law.

															The attempt of a State officer to enforce an unconstitutional
statute is a proceeding without authority of, and does not affect,
the State in its sovereign or governmental capacity, and is an
illegal act, and the officer is stripped of his official character
and is subjected in his person to the consequences of his
individual conduct. The State has no power to impart to its officer
immunity from responsibility to the supreme authority of the United
States.

															When the question of the validity of a State statute with
reference to the Federal Constitution has been first raised in a
Federal court, that court has the right to decide it to the
exclusion of all other courts.

															It is not necessary that the duty of a State officer to enforce
a statute be declared in that statute itself in order to permit his
being joined as a party defendant from enforcing it; if, by virtue
of his office, he has some connection with the enforcement of the
act, it is immaterial whether it arises by common general law or by
statute. Page 209 U. S. 125 While the courts cannot control the exercise of the discretion
of an executive officer, an injunction preventing such officer from
enforcing an unconstitutional statute is not an interference with
his discretion.

															The Attorney General of the State of Minnesota, under his common
law power and the state statutes, has the general authority imposed
upon him of enforcing constitutional statutes of the State, and is
a proper party defendant to a suit brought to prevent the
enforcement of a State statute on the ground of its
unconstitutionality.

															While a Federal court cannot interfere in a criminal case
already pending in a state court, and while, as a general rule, a
court of equity cannot enjoin criminal proceedings, those rules do
not apply when such proceedings are brought to enforce an alleged
unconstitutional state statute, after the unconstitutionality
thereof has become the subject of inquiry in a suit pending in a
Federal court which has first obtained jurisdiction thereover; and,
under such circumstances, the Federal court has the right in both
civil and criminal cases to hold and maintain such jurisdiction to
the exclusion of all other courts.

															While making a state officer who has no connection with the
enforcement of an act alleged to be unconstitutional a party
defendant is merely making him a party as a representative of the
State, and thereby amounts to making the State a party within the
prohibition of the Eleventh Amendment, individuals, who, as
officers of the State, are clothed with some duty in regard to the
enforcement of the laws of the State, and who threaten and are
about to commence an action, either civil or criminal, to enforce
an unconstitutional state statute, may be enjoined from so doing by
a Federal court.

															Under such conditions as are involved in this case, the Federal
court may enjoin an individual or a state officer from enforcing a
state statute on account of its unconstitutionality, but it may not
restrain the state court from acting in any case brought before it
either of a civil or criminal nature, or prevent any investigation
or action by a grand jury.

															An injunction by a Federal court against a State court would
violate the whole scheme of this Government, and it does not follow
that, because an individual may be enjoined from doing certain
things, a court may be similarly enjoined.

															No adequate remedy at law, sufficient to prevent a court of
equity from acting, exists in a case where the enforcement of an
unconstitutional state rate statute would require the complainant
to carry merchandise at confiscatory rates if it complied with the
statute, and subject it to excessive penalties in case it did not
comply therewith, and its validity was finally sustained.

															While a common carrier sued at common law for penalties under,
or on indictment for violation of, a state rate statute might
interpose as a defense the unconstitutionality of the statute on
account of the confiscatory character of the rates prescribed, a
jury cannot intelligently pass upon such a matter; the proper
method is to determine the constitutionality of the statute in a
court of equity in which the opinions of experts may be Page 209 U. S. 126 taken and the matter referred to a master to make the needed
computations and to find the necessary facts on which the court may
act.

															A state rate statute is to be regarded as prima facie valid, and the onus rests on the carrier to prove the contrary.

															The railroad interests of this country are of great magnitude,
and the thousands of persons interested therein are entitled to
protection from the laws and from the courts equally with the
owners of all other kinds of property, and the courts having
jurisdiction, whether Federal or State, should at all times be open
to them, and, where there is no adequate remedy at law, the proper
course to protect their rights is by suit in equity in which all
interested parties are made defendants.

															While injunctions against the enforcement of a State rate
statute should not be granted by a Federal court except in a case
reasonably free from doubt, the equity jurisdiction of the Federal
court has been constantly exercised for such purpose.

															The Circuit Court of the United States having, in an action
brought by a stockholder of the Northern Pacific Railway Company
against the officers of the road, certain shippers, and the
Attorney General and certain other officials of the State of
Minnesota, held that a railroad rate statute of Minnesota was
unconstitutional, and enjoined all the defendants from enforcing
such statute, and, the Attorney General having refused to comply
with such order, the Circuit Court fined and committed him for
contempt, and this court refused to discharge him on habeas
corpus.

															An original application was made to this court for leave to file
a petition for writs of habeas corpus and certiorari in behalf of
Edward T. Young, petitioner, as Attorney General of the State of
Minnesota.

															Leave was granted and a rule entered directing the United States
marshal for the district of Minnesota, third division, who held the
petitioner in his custody, to show cause why such petition should
not be granted.

															The marshal, upon the return of the order to show cause,
justified his detention on the petitioner by virtue of an order of
the Circuit Court of the United States for the District of
Minnesota, which adjudged the petitioner guilty of contempt of that
court, and directed that he be fined the sum of $100, and that he
should dismiss the mandamus proceedings brought by him in the name
and in behalf of the State, in the Circuit Court of the State, and
that he should stand committed to the custody of the marshal until
that order was obeyed. The case Page 209 U. S. 127 involves the validity of the order of the Circuit Court
committing him for contempt.

															The facts are these: the legislature of the State of Minnesota
duly created a railroad and warehouse commission, and that
commission, on the 6th of September, 1906, made an order fixing the
rates for the various railroad companies for the carriage of
merchandise between stations in that State of the kind and classes
specified in what is known as the "Western Classification." These
rates materially reduced those then existing, and were, by the
order, to take effect November 15, 1906. In obedience to the order,
the railroads filed and published the schedules of rates, which
have, ever since that time, been carried out by the companies.

															At the time of the making of the above order, it was provided by
the Revised Laws of Minnesota, 1905 (§ 1987), that any common
carrier who violated the provisions of that section or willfully
suffered any such unlawful act or omission, when no specific
penalty is imposed therefor,

															"if a natural person, shall be guilty of a gross misdemeanor,
and shall be punished by a fine of not less than $2,500, nor more
than $5,000 for the first offense, and not less than $5,000 nor
more than $10,000 for each subsequent offense; and, if such carrier
or warehouseman be a corporation, it shall forfeit to the State for
the first offense not less than $2,500 nor more than $5,000, and
for each subsequent offense not less than $5,000 nor more than
$10,000, to be recovered in a civil action."

															This provision covered disobedience to the orders of the
commission.

															On the 4th of April, 1907, the legislature of the State of
Minnesota passed an act fixing 2 cents a mile as the maximum
passenger rate to be charged by railroads in Minnesota. (The rate
had been theretofore 3 cents per mile.) The act was to take effect
on the 1st of May, 1907, and was put into effect on that day by the
railroad companies, and the same Page 209 U. S. 128 has been observed by them up to the present time. It was
provided in the act that

															"any railroad company, or any officer, agent, or representative
thereof, who shall violate any provision of this act, shall be
guilty of a felony, and, upon conviction thereof, shall be punished
by a fine not exceeding five thousand ($5,000) dollars, or by
imprisonment in the state prison for a period not exceeding five
(5) years, or both such fine and imprisonment."

															On the 18th of April, 1907, the legislature passed an act
(chapter 232 of the laws of that year), which established rates for
the transportation of certain commodities (not included in the
Western Classification) between stations in that State. The act
divided the commodities to which it referred into seven classes,
and set forth a schedule of maximum rates for each class when
transported in carload lots, and established the minimum weight
which constituted a carload of each class.

															Section 5 provided that it should not affect the power or
authority of the railroad and warehouse commission, except that no
duty should rest upon that commission to enforce any rates
specifically fixed by the act or any other statute of the State.
The section further provided generally that the orders made by the
railroad and warehouse commission prescribing rates should be the
exclusive legal maximum rates for the transportation of the
commodities enumerated in the act between points within that
State.

															Section 6 directed that every railroad company in the State
should adopt and publish and put into effect the rates specified in
the statute, and that every officer, director, traffic manager, or
agent, or employee of such railroad company should cause the
adoption, publication, and use by such railroad company of rates
not exceeding those specified in the act,

															"and any officer, director, or such agent or employee of any
such railroad company who violates any of the provisions of this
section, or who causes or counsels, advises or assists, any such
railroad company to violate any of the provisions of this section,
shall be guilty of a misdemeanor, and may be prosecuted
therefor Page 209 U. S. 129 in any county into which its railroad extends, and in which it
has a station, and upon a conviction thereof be punished by
imprisonment in the county jail for a period not exceeding ninety
days."

															The act was to take effect June 1, 1907.

															The railroad companies did not obey the provisions of this act
so far as concerned the adoption and publication of rates as
specified therein.

															On the 31st of May, 1907, the day before the act was to take
effect, nine suits in equity were commenced in the Circuit Court of
the United States for the district of Minnesota, third division,
each suit being brought by stockholders of the particular railroad
mentioned in the bill, and in each case the defendants named were
the railroad company of which the complainants were, respectively,
stockholders, and the members of the railroad and warehouse
commission, and the Attorney General of the State, Edward T. Young,
and individual defendants, representing the shippers of freight
upon the railroad.

															The order punishing Mr. Young for contempt was made in the suit
in which Charles E. Perkins, a citizen of the State of Iowa, and
David C. Shepare, a citizen of the State of Minnesota, were
complainants, and the Northern Pacific Railway Company, a
corporation organized under the laws of the State of Wisconsin,
Edward T. Young, petitioner herein, and others, were parties
defendant. All of the defendants, except the railway company, are
citizens and residents of the State of Minnesota.

															It was averred in the bill that the suit was not a collusive one
to confer on the court jurisdiction of a case of which it could not
otherwise have cognizance, but that the objects and purposes of the
suit were to enjoin the railway company from publishing or adopting
(or continuing to observe, if already adopted) the rates and
tariffs prescribed and set forth in the two acts of the legislature
above mentioned and in the orders of the railroad and warehouse
commission, and also to enjoin the other defendants from attempting
to enforce such provisions, or from instituting any action or
proceeding against Page 209 U. S. 130 the defendant railway company, its officers, etc., on account of
any violation thereof, for the reason that the said acts and orders
were and each of them was violative of the Constitution of the
United States.

															The bill also alleged that the orders of the railroad commission
of September 6, 1906, May 3, 1907, the passenger rate act of April
4, 1907, and the act of April 18, 1907, reducing the tariffs and
charges which the railway company had theretofore been permitted to
make, were each and all of them unjust, unreasonable, and
confiscatory, in that they each of them would, and will if
enforced, deprive complainants and the railway company of their
property without due process of law, and deprive them and it of the
equal protection of the laws, contrary to and in violation of the
Constitution of the United States and the amendments thereof. It
was also averred that the complainants had demanded of the
president and managing directors of the railway company that they
should cease obedience to the orders of the commission dated
September 6, 1906, and May 3, 1907, and to the acts already
mentioned, and that the rates prescribed in such orders and acts
should not be put into effect, and that the said corporation, its
officers and directors, should institute proper suit or suits to
prevent said rates (named in the orders and in the acts of the
legislature) from continuing or becoming effective, as the case
might be, and to have the same declared illegal; but the said
corporation, its president and directors, had positively declined
and refused to do so, not because they considered the rates a fair
and just return upon the capital invested, or that they would not
be confiscatory, but because of the severity of the penalties
provided for the violation of such acts and orders, and therefore
they could not subject themselves to the ruinous consequences which
would inevitably result from failure on their part to obey the said
laws and orders -- a result which no action by themselves, their
stockholders or directors, could possibly prevent.

															The bill further alleged that the orders of the commission Page 209 U. S. 131 of September, 1906, and May, 1907, and the acts of April 4,
1907, and April 18, 1907, were, in the penalties prescribed for
their violation, so drastic that no owner or operator of a railway
property could invoke the jurisdiction of any court to test the
validity thereof except at the risk of confiscation of its property
and the imprisonment for long terms in jails and penitentiaries of
its officers, agents, and employees. For this reason, the
complainants alleged that the above-mentioned orders and acts, and
each of them, denied to the defendant railway company and its
stockholders, including the complainants, the equal protection of
the laws, and deprived it and them of their property without due
process of law, and that each of them was, for that reason,
unconstitutional and void.

															The bill also contained an averment that, if the railway company
should fail to continue to observe and keep in force, or to observe
and put in force, the orders of the commission and the acts of
April 4, 1907, and April 18, 1907, such failure might result in an
action against the company or criminal proceedings against its
officers, directors, agents, or employees, subjecting the company
and such officers to an endless number of actions at law and
criminal proceedings; that, if the company should fail to obey the
order of the commission or the acts of April 4, 1907, and April 18,
1907, the said Edward T. Young, as Attorney General of the State of
Minnesota, would, as complainants were advised and believed,
institute proceedings by mandamus or otherwise against the railway
company, its officers, directors, agents, or employees, to enforce
said orders and all the provisions thereof, and that he threatened
and would take other proceedings against the company, its officers,
etc., to the same end and for the same purpose, and that he would,
on such failure, institute mandamus or other proceedings for the
purpose of enforcing said acts and each thereof, and the provisions
and penalties thereof. Appropriate relief by injunction against the
action of the defendant Young and the railroad commission was asked
for. Page 209 U. S. 132 A temporary restraining order was made by the Circuit Court,
which only restrained the railway company from publishing the rates
as provided for in the act of April 18, 1907, and from reducing its
tariffs to the figures set forth in that act, the court refusing
for the present to interfere by injunction with regard to the
orders of the commission and the act of April 4, 1907, as the
railroads had already put them in operation; but it restrained
Edward T. Young, Attorney General, from taking any steps against
the railroads to enforce the remedies or penalties specified in the
act of April 18, 1907.

															Copies of the bill and the restraining order were served, among
others, upon the defendant Mr. Edward T. Young, Attorney General,
who appeared specially and only for the purpose of moving to
dismiss the bill as to him, on the ground that the court had no
jurisdiction over him as Attorney General; and he averred that the
State of Minnesota had not consented, and did not consent, to the
commencement of this suit against him as Attorney General of the
State, which suit was, in truth and effect, a suit against the said
State of Minnesota contrary to the Eleventh Amendment of the
Constitution of the United States.

															The Attorney General also filed a demurrer to the bill on the
same ground stated in the motion to dismiss. The motion was denied
and the demurrer overruled.

															Thereupon, on the 23d of September, 1907, the court, after a
hearing of all parties and taking proofs in regard to the issues
involved, ordered a temporary injunction to issue against the
railway company restraining it, pending the final hearing of the
cause, from putting into effect the tariffs, rates, or charges set
forth in the act approved April 18, 1907. The court also enjoined
the defendant Young, as Attorney General of the State of Minnesota,
pending the final hearing of the cause, from taking or instituting
any action or proceeding to enforce the penalties and remedies
specified in the act above mentioned, or to compel obedience to
that act, or compliance therewith, or any part thereof. Page 209 U. S. 133 As the court refused to grant any preliminary injunction
restraining the enforcement of the rates fixed by the railroad and
warehouse commission, or the passenger rates under the act of April
4, 1907, because the same had been accepted by the railroads and
were in operation, the court stated that, in omitting the granting
of such preliminary injunction, the necessity was obviated upon
that hearing of determining whether the rates fixed by the
commission, or the passenger rates, together or singly, were
confiscatory and did not afford reasonable compensation for the
service rendered and a proper allowance for the property employed,
and, for those reasons, that question had not been considered; but
inasmuch as the rates fixed by the act of April 18, 1907, had not
gone into force, the court observed:

															"It seems to me, upon this evidence of the conditions before
either of those new rates were put into effect (that is, the order
of the commission of September, 1906, or the act of April 4, 1907)
and the reductions made by those rates, that, if there is added the
reduction which is attempted to be made by the commodity act (April
18, 1907), it will reduce the compensation received by the
companies below what would be a fair compensation for the services
performed, including an adequate return upon the property invested.
And I think, on the whole, that a preliminary injunction should
issue in respect to the rates fixed by chapter 232 (act of April
18), talked of as the commodity rates, and that there should be no
preliminary injunction as to the other rates, although the
matter as to whether they are compensatory or not is a matter which
may be determined in the final determination of the
action. "

															The day after the granting of this preliminary injunction, the
Attorney General, in violation of such injunction, filed a petition
for an alternative writ of mandamus in one of the courts of the
State, and obtained an order from that court September 24, 1907,
directing the alternative writ to issue as prayed for in the
petition. The writ was thereafter issued and served upon the
Northern Pacific Railway Company, Page 209 U. S. 134 commanding the company, immediately after its receipt,

															"to adopt and publish and keep for public inspection, as
provided by law, as the rates and charges to be made, demanded, and
maintained by you for the transportation of freight between
stations in the State of Minnesota of the kind, character, and
class named and specified in chapter 232 of the Session Laws of the
State of Minnesota for the year 1907, rates and charges which do
not exceed those declared to be just and reasonable in and by the
terms and provisions of said chapter 232. . . ."

															Upon an affidavit showing these facts, the United States Circuit
Court ordered Mr. Young to show cause why he should not be punished
as for a contempt for his misconduct in violating the temporary
injunction issued by that court in the case therein pending.

															Upon the return of this order, the Attorney General filed his
answer, in which he set up the same objections which he had made to
the jurisdiction of the court in his motion to dismiss the bill,
and in his demurrer; he disclaimed any intention to treat the court
with disrespect in the commencement of the proceedings referred to,
but, believing that the decision of the court in the action,
holding that it had jurisdiction to enjoin him, as Attorney
General, from performing his discretionary official duties, was in
conflict with the Eleventh Amendment of the Constitution of the
United States, as the same has been interpreted and applied by the
United States Supreme Court, he believed it to be his duty, as such
Attorney General, to commence the mandamus proceedings for and in
behalf of the State, and it was in this belief that the proceedings
were commenced solely for the purpose of enforcing the law of the
State of Minnesota. The order adjudging him in contempt was then
made. Page 209 U. S. 142 MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the court.

															We recognize and appreciate to the fullest extent the very great
importance of this case not only to the parties now before the
court, but also to the great mass of the citizens of this country,
all of whom are interested in the practical working of the courts
of justice throughout the land, both Federal and State, and in the
proper exercise of the jurisdiction of the Federal courts, as
limited and controlled by the Federal Constitution and the laws of
Congress.

															That there has been room for difference of opinion with regard
to such limitations the reported cases in this court bear
conclusive testimony. It cannot be stated that the case before us
is entirely free from any possible doubt, nor that intelligent men
may not differ as to the correct answer to the question we are
called upon to decide.

															The question of jurisdiction, whether of the Circuit Court or of
this court, is frequently a delicate matter to deal with, and it is
especially so in this case, where the material and most important
objection to the jurisdiction of the Circuit Court is the assertion
that the suit is, in effect, against one of the States of the
Union. It is a question, however, which we are called upon, and
which it is our duty, to decide. Under these circumstances, the
language of Chief Justice Marshall in Cohen v.
Virginia , 6 Wheat. 264-404, is most apposite. In
that case, he said: Page 209 U. S. 143 "It is most true that this court will not take jurisdiction if
it should not; but it is equally true that it must take
jurisdiction if it should. The judiciary cannot, as the legislature
may, avoid a measure because it approaches the confines of the
Constitution. We cannot pass it by because it is doubtful. With
whatever doubts, with whatever difficulties, a case may be
attended, we must decide it if it be brought before us. We have no
more right to decline the exercise of jurisdiction which is given
than to usurp that which is not given. The one or the other would
be treason to the Constitution. Questions may occur which we would
gladly avoid, but we cannot avoid them. All we can do is to
exercise our best judgment, and conscientiously to perform our
duty."

															Coming to a consideration of the case, we find that the
complainants in the suit commenced in the Circuit Court were
stockholders in the Northern Pacific Railway Company, and the
reason for commencing it and making the railroad company one of the
parties defendant is sufficiently set forth in the bill. Davis
&c Co. v. Los Angeles, 189 U. S. 207 , 189 U. S. 220 ;
equity rule 94, Supreme Court.

															It is primarily asserted on the part of the petitioner that
jurisdiction did not exist in the Circuit Court because there was
not the requisite diversity of citizenship, and there was no
question arising under the Constitution or laws of the United
States to otherwise give jurisdiction to that court. There is no
claim made here of jurisdiction on the ground of diversity of
citizenship, and the claim, if made, would be unfounded in fact. If
no other ground exists, then the order of the Circuit Court
assuming to punish petitioner for contempt was an unlawful order
made by a court without jurisdiction. In such case, this court,
upon proper application, will discharge the person from
imprisonment. Ex parte Yarbrough, 110 U.
S. 651 ; Ex parte Fisk, 113 U.
S. 713 ; In re Ayers, 123 U.
S. 443 , 123 U. S. 485 .
But an examination of the record before us shows that there are
Federal questions in this case.

															It is insisted by the petitioner that there is no Federal
question Page 209 U. S. 144 presented under the Fourteenth Amendment, because there is no
dispute as to the meaning of the Constitution, where it provides
that no State shall deprive any person of life, liberty, or
property without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws; and whatever
dispute there may be in this case is one of fact simply, whether
the freight or passenger rates, as fixed by the legislature or by
the railroad commission, are so low as to be confiscatory; and that
is not a Federal question.

															Jurisdiction is given to the Circuit Court in suits involving
the requisite amount, arising under the Constitution or laws of the
United States (1 U.S.Comp.Stat. p. 508), and the question really to
be determined under this objection is whether the acts of the
legislature and the orders of the railroad commission, if enforced,
would take property without due process of law, and, although that
question might incidentally involve a question of fact, its
solution, nevertheless, is one which raises a Federal question. See Hastings v. Ames (C.C.A. 8th Circuit), 68 Fed.Rep.
726. The sufficiency of rates with reference to the Federal
Constitution is a judicial question, and one over which Federal
courts have jurisdiction by reason of its Federal nature. Chicago &c. R.R. Co. v. Minnesota, 134 U.
S. 418 ; Reagan v. Farmers' &c. Co. 154 U.S. 154 U. S.
369 -399; St. Louis &c. Co. v. Gill, 156 U. S. 649 ; Covington &c. Co. v. Sandford, 164 U.
S. 578 ; Smyth v. Ames, 169 U.
S. 466 , 169 U. S. 522 ; Chicago, &c. Railway Co. v. Tompkins, 170
U. S. 167 , 170 U. S.
172 .

															Another Federal question is the alleged unconstitutionality of
these acts because of the enormous penalties denounced for their
violation, which prevent the railway company, as alleged, or any of
its servants or employees, from resorting to the courts for the
purpose of determining the validity of such acts. The contention is
urged by the complainants in the suit that the company is denied
the equal protection of the laws. and its property is liable to be
taken without due process of law, because it is only allowed a
hearing upon the claim of of Page 209 U. S. 145 the unconstitutionality of the acts and orders in question, at
the risk, if mistaken, of being subjected to such enormous
penalties, resulting in the possible confiscation of its whole
property, that, rather than take such risks, the company would obey
the laws although such obedience might also result in the end
(though by a slower process) in such confiscation.

															Still another Federal question is urged growing out of the
assertion that the laws are, by their necessary effect, an
interference with and a regulation of interstate commerce, the
grounds for which assertion it is not now necessary to enlarge
upon. The question is not, at any rate, frivolous.

															We conclude that the Circuit Court had jurisdiction in the case
before it, because it involved the decision of Federal questions
arising under the Constitution of the United States.

															Coming to the inquiry regarding the alleged invalidity of these
acts, we take up the contention that they are invalid on their face
on account of the penalties. For disobedience to the freight act,
the officers, directors, agents, and employees of the company are
made guilty of a misdemeanor, and, upon conviction, each may be
punished by imprisonment in the county jail for a period not
exceeding ninety days. Each violation would be a separate offense,
and, therefore, might result in imprisonment of the various agents
of the company who would dare disobey for a term of ninety days
each for each offense. Disobedience to the passenger rate act
renders the party guilty of a felony and subject to a fine not
exceeding $5,000 or imprisonment in the state prison for a period
not exceeding five years, or both fine and imprisonment. The sale
of each ticket above the price permitted by the act would be a
violation thereof. It would be difficult, if not impossible, for
the company to obtain officers, agents, or employees willing to
carry on its affairs except in obedience to the act and orders in
question. The company itself would also, in case of disobedience,
be liable to the immense fines provided for in violating orders of
the commission. The company, in order to test the validity of the
acts, must find some Page 209 U. S. 146 agent or employee to disobey them at the risk stated. The
necessary effect and result of such legislation must be to preclude
a resort to the courts (either State or Federal) for the purpose of
testing its validity. The officers and employees could not be
expected to disobey any of the provisions of the acts or orders at
the risk of such fines and penalties being imposed upon them in
case the court should decide that the law was valid. The result
would be a denial of any hearing to the company. The observations
upon a similar question, made by Mr. Justice Brewer in Cotting
v. Kansas City Stock Yards Company, 183 U. S.
79 , 183 U. S. 99 , 183 U. S. 100 , 183 U. S. 102 ,
are very apt. At page 183 U. S. 100 ,
he stated:

															"Do the laws secure to an individual an equal protection when he
is allowed to come into court and make his claim or defense subject
to the condition that, upon a failure to make good that claim or
defense, the penalty for such failure either appropriates all his
property or subjects him to extravagant and unreasonable loss?"

															Again, at page 183 U. S. 102 ,
he says:

															"It is doubtless true that the State may impose penalties such
as will tend to compel obedience to its mandates by all,
individuals or corporations, and, if extreme and cumulative
penalties are imposed only after there has been a final
determination of the validity of the statute, the question would be
very different from that here presented. But when the legislature,
in an effort to prevent any inquiry of the validity of a particular
statute, so burdens any challenge thereof in the courts that the
party affected is necessarily constrained to submit, rather than
take the chances of the penalties imposed, then it becomes a
serious question whether the party is not deprived of the equal
protection of the laws."

															The question was not decided in that case, as it went off on
another ground. We have the same question now before us, only the
penalties are more severe in the way of fines, to which is added,
in the case of officers, agents, or employees of the company, the
risk of imprisonment for years as a common felon. See also
Mercantile Trust Co. v. Texas &c. Ry. Co., 51 Fed.Rep.
529-543; Louisville &c. Ry. Co. v. McChord, 103 Page 209 U. S. 147 Fed.Rep. 216-223; Consolidated Gas Co. v. Mayer, 146
Fed.Rep. 150-153. In McGahey v. Virginia, 135 U.
S. 662 , 135 U. S. 694 ,
it was held that, to provide a different remedy to enforce a
contract which is unreasonable and which imposes conditions not
existing when the contract was made was to offer no remedy, and
when the remedy is so onerous and impracticable as to substantially
give none at all, the law is invalid, although what is termed a
remedy is in fact given. See also Bronson v.
Kinzie , 1 How. 311, 42 U. S. 317 ; Seibert v. Lewis, 122 U. S. 284 . If
the law be such as to make the decision of the legislature or of a
commission conclusive as to the sufficiency of the rates, this
court has held such a law to be unconstitutional. Chicago,
&c. Railway Co. v. Minnesota, supra. A law which
indirectly accomplishes a like result by imposing such conditions
upon the right to appeal for judicial relief as work an abandonment
of the right, rather than face the conditions upon which it is
offered or may be obtained, is also unconstitutional. It may
therefore be said that, when the penalties for disobedience are by
fines so enormous and imprisonment so severe as to intimidate the
company and its officers from resorting to the courts to test the
validity of the legislation, the result is the same as if the law,
in terms, prohibited the company from seeking judicial construction
of laws which deeply affect its rights.

															It is urged that there is no principle upon which to base the
claim that a person is which to base the claim that a person is
entitled to disobey a statute at least once, for the purpose of
testing its validity, without subjecting himself to the penalties
for disobedience provided by the statute in case it is valid. This
is not an accurate statement of the case. Ordinarily, a law
creating offenses in the nature of misdemeanors or felonies relates
to a subject over which the jurisdiction of the legislature is
complete in any event. In the case, however, of the establishment
of certain rates without any hearing, the validity of such rates
necessarily depends upon whether they are high enough to permit at
least some return upon the investment (how much it is not now Page 209 U. S. 148 necessary to state), and an inquiry as to that fact is a proper
subject of judicial investigation. If it turns out that the rates
are too low for that purpose, then they are illegal. Now to impose
upon a party interested the burden of obtaining a judicial decision
of such a question (no prior hearing having ever been given) only
upon the condition that, if unsuccessful, he must suffer
imprisonment and pay fines, as provided in these acts, is, in
effect, to close up all approaches to the courts, and thus prevent
any hearing upon the question whether the rates as provided by the
acts are not too low, and therefore invalid. The distinction is
obvious between a case where the validity of the act depends upon
the existence of a fact which can be determined only after
investigation of a very complicated and technical character, and
the ordinary case of a statute upon a subject requiring no such
investigation, and over which the jurisdiction of the legislature
is complete in any event.

															We hold, therefore, that the provisions of the acts relating to
the enforcement of the rates, either for freight or passengers, by
imposing such enormous fines and possible imprisonment as a result
of an unsuccessful effort to test the validity of the laws
themselves, are unconstitutional on their face, without regard to
the question of the insufficiency of those rates. We also hold that
the Circuit Court had jurisdiction under the cases already cited
(and it was therefore its duty) to inquire whether the rates
permitted by these acts or orders were too low, and therefore
confiscatory, and, if so held, that the court then had jurisdiction
to permanently enjoin the railroad company from putting them in
force, and that it also had power, while the inquiry was pending,
to grant a temporary injunction to the same effect.

															Various affidavits were received upon the hearing before the
court prior to the granting of the temporary injunction, and the
hearing itself was, as appears from the opinion, full and
deliberate, and the fact was found that the rates fixed by the
commodity act, under the circumstances existing with Page 209 U. S. 149 reference to the passenger rate act and the orders of the
commission, were not sufficient to be compensatory, and were, in
fact, confiscatory, and the act was therefore unconstitutional. The
injunction was thereupon granted with reference to the enforcement
of the commodity act.

															We have, therefore, upon this record, the case of an
unconstitutional act of the state legislature and an intention by
the Attorney General of the State to endeavor to enforce its
provisions, to the injury of the company, in compelling it, at
great expense, to defend legal proceedings of a complicated and
unusual character, and involving questions of vast importance to
all employees and officers of the company, as well as to the
company itself. The question that arises is whether there is a
remedy that the parties interested may resort to, by going into a
Federal court of equity, in a case involving a violation of the
Federal Constitution, and obtaining a judicial investigation of the
problem, and, pending its solution, obtain freedom from suits,
civil or criminal, by a temporary injunction, and, if the question
be finally decided favorably to the contention of the company, a
permanent injunction restraining all such actions or
proceedings.

															This inquiry necessitates an examination of the most material
and important objection made to the jurisdiction of the Circuit
Court -- the objection being that the suit is, in effect, one
against the State of Minnesota, and that the injunction issued
against the Attorney General illegally prohibits state action,
either criminal or civil, to enforce obedience to the statutes of
the State. This objection is to be considered with reference to the
11th and Fourteenth Amendments to the Federal Constitution. The
Eleventh Amendment prohibits the commencement or prosecution of any
suit against one of the United States by citizens of another State
or citizens or subjects of any foreign state. The Fourteenth
Amendment provides that no State shall deprive any person of life,
liberty, or property without due process of law, nor shall it deny
to any person within its jurisdiction the equal protection of the
laws. Page 209 U. S. 150 The case before the Circuit Court proceeded upon the theory that
the orders and acts heretofore mentioned would, if enforced,
violate rights of the complainants protected by the latter
amendment. We think that, whatever the rights of complainants may
be, they are largely founded upon that Amendment, but a decision of
this case does not require an examination or decision of the
question whether its adoption in any way altered or limited the
effect of the earlier Amendment. We may assume that each exists in
full force, and that we must give to the Eleventh Amendment all the
effect it naturally would have, without cutting it down or
rendering its meaning any more narrow than the language, fairly
interpreted, would warrant. It applies to a suit brought against a
State by one of its own citizens, as well as to a suit brought by a
citizen of another State. Hans v. Louisiana, 134 U. S.
1 . It was adopted after the decision of this court in Chisholm v.
Georgia , (1792) 2 Dall. 419, where it was held that
a State might be sued by a citizen of another State. Since that
time, there have been many cases decided in this court involving
the Eleventh Amendment, among them being Osborn v.
United States Bank , (1824) 9 Wheat. 738, 22 U. S. 846 , 22 U. S. 857 ,
which held that the Amendment applied only to those suits in which
the State was a party on the record. In the subsequent case of Governor of Georgia v.
Madrazo , (1828) 1 Pet. 110, 26 U. S. 122 , 26 U. S. 123 ,
that holding was somewhat enlarged, and Chief Justice Marshall,
delivering the opinion of the court, while citing Osborn v.
United States Bank, supra, said that, where the claim was
made, as in the case then before the court, against the Governor of
Georgia as Governor, and the demand was made upon him not
personally, but officially (for moneys in the treasury of the State
and for slaves in possession of the State government), the State
might be considered as the party on the record (page 26 U. S. 123 ),
and therefore the suit could not be maintained. Davis v. Gray , 16 Wall. 203, 83 U. S. 220 ,
reiterates the rule of Osborn v. United States Bank so far
as concerns the right to enjoin a state officer from executing a
state law in conflict with Page 209 U. S. 151 the Constitution or a statute of the United States when such
execution will violate the rights of the complainant.

															In Poindexter v. Greenhow, 114 U.
S. 270 , 114 U. S. 296 ,
it was adjudged that a suit against a tax collector who had refused
coupons in payment of taxes, and, under color of a void law, was
about to seize and sell the property of a taxpayer for nonpayment
of his taxes was a suit against him personally, as a wrongdoer, and
not against the State. Hagood v. Southern, 117 U. S. 52 , 117 U. S. 67 ,
decided that the bill was, in substance, a bill for the specific
performance of a contract between the complainants and the State of
South Carolina, and, although the State was not, in name, made a
party defendant, yet, being the actual party to the alleged
contract the performance of which was sought, and the only party by
whom it could be performed, the State was, in effect, a party to
the suit, and it could not be maintained for that reason. The
things required to be done by the actual defendants were the very
things which, when done, would constitute a performance of the
alleged contract by the State.

															The cases upon the subject were reviewed, and it was held, In re Ayers, 123 U. S. 443 ,
that a bill in equity brought against officers of a State who, as
individuals, have no personal interest in the subject matter of the
suit, and defend only as representing the State, where the relief
prayed for, if done, would constitute a performance by the State of
the alleged contract of the State, was a suit against the State
(page 123 U. S.
504 ), following in this respect Hagood v. Southern,
supra. A suit of such a nature was simply an attempt to make the State
itself, through its officers, perform its alleged contract by
directing those officers to do acts which constituted such
performance. The State alone had any interest in the question, and
a decree in favor of plaintiff would affect the treasury of the
State.

															On the other hand, United States v. Lee, 106 U.
S. 196 , determined that an individual in possession of
real estate under the government of the United States, which
claimed to be Page 209 U. S. 152 its owner, was, nevertheless, properly sued by the plaintiff, as
owner, to recover possession, and such suit was not one against the
United States, although the individual in possession justified such
possession under its authority. See also Tindal v. Wesley, 167 U. S. 204 , to
the same effect.

															In Pennoyer v. McConnaughy, 140 U. S.
1 , 140 U. S. 9 , a
suit against land commissioners of the State was said not to be
against the State, although the complainants sought to restrain the
defendants, officials of the State, from violating, under an
unconstitutional act, the complainants' contract with the State,
and thereby working irreparable damage to the property rights of
the complainants. Osborn v. United States Bank, supra, was
cited, and it was stated:

															"But the general doctrine of Osborn v. United States
Bank, that the Circuit Courts of the United States will
restrain a state officer from executing an unconstitutional statute
of the State when to execute it would violate rights and privileges
of the complainant which had been guaranteed by the Constitution
and would work irreparable damage and injury to him, has never been
departed from."

															The same principle is decided in Scott v. Donald, 165 U. S. 58 , 165 U. S. 67 . And see Missouri &c. v. Missouri Railroad
Commissioners, 183 U. S. 53 .

															The cases above cited do not include one exactly like this under
discussion. They serve to illustrate the principles upon which many
cases have been decided. We have not cited all the cases, as we
have not thought it necessary. But the injunction asked for in the Ayers Case, 123 U.S. ( supra ), was to restrain the
state officers from commencing suits under the act of May 12, 1887
(alleged to be unconstitutional), in the name of the State and
brought to recover taxes for its use, on the ground that,
if such suits were commenced, they would be a breach of a contract
with the State. The injunction was declared illegal because the
suit itself could not be entertained, as it was one against the
State, to enforce its alleged contract. It was said, however, that,
if the court had power to entertain such a suit, it would have
power to grant the restraining order Page 209 U. S. 153 preventing the commencement of suits. (Page 123 U. S.
487 .) It was not stated that the suit or the injunction
was necessarily confined to a case of a threatened direct trespass
upon or injury to property.

															Whether the commencement of a suit could ever be regarded as an
actionable injury to another, equivalent, in some cases, to a
trespass such as is set forth in some of the foregoing cases, has
received attention of the rate cases, so-called. Reagan v.
Farmers' & Trust Co., 154 U. S. 362 (a
rate case), was a suit against the members of a railroad commission
(created under an act of the State of Texas) and the Attorney
General, all of whom were held suable, and that such suit was not
one against the State. The commission was enjoined from enforcing
the rates it had established under the act, and the Attorney
General was enjoined from instituting suits to recover penalties
for failing to conform to the rates fixed by the commission under
such act. It is true the statute in that case creating the board
provided that suit might be maintained by any dissatisfied railroad
company, or other party in interest, in a court of competent
jurisdiction in Travis county, Texas, against the commission as
defendant. This court held that such language permitted a suit in
the United States Circuit Court for the western district of Texas,
which embraced Travis county, but it also held that, irrespective
of that consent, the suit was not, in effect, a suit against the
State (although the Attorney General was enjoined), and therefore
not prohibited under the Amendment. It was said in the opinion,
which was delivered by Mr. Justice Brewer, that the suit could not,
in any fair sense, be considered a suit against the State (page 154 U. S.
392 ), and the conclusion of the court was that the
objection to the jurisdiction of the Circuit Court was not tenable,
whether that jurisdiction was rested (page 154 U. S.
393 )

															"upon the provisions of the statute, or upon the general
jurisdiction of the court, existing by virtue of the statutes of
Congress, under the sanction of the Constitution of the United
States."

															Each of these grounds is effective and both are of equal
force. Page 209 U. S. 154 Union Pacific &c. v. Mason City Company, 199 U. S. 160 , 199 U. S.
166 .

															In Smyth v. Ames, 169 U. S. 466 (another rate case), it was again held that a suit against
individuals for the purpose of preventing them, as officers of the
State, from enforcing, by the commencement of suits or by
indictment, an unconstitutional enactment, to the injury of the
rights of the plaintiff was not a suit against a State within the
meaning of the Amendment. At page 169 U. S. 518 ,
in answer to the objection that the suit was really against the
State, it was said:

															"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 that Amendment."

															The suit was to enjoin the enforcement of a statute of Nebraska
because it was alleged to be unconstitutional on account of the
rates being too low to afford some compensation to the company, and
contrary, therefore, to the Fourteenth Amendment.

															There was no special provision in the statute as to rates,
making it the duty of the Attorney General to enforce it, but,
under his general powers, he had authority to ask for a mandamus to
enforce such or any other law. State of Nebraska ex rel.
&c. v. The Fremont &c. Railroad Co., 22 Neb. 313.

															The final decree enjoined the Attorney General from bringing any
suit (page 169 U. S. 477 )
by way of injunction, mandamus, civil action, or indictment, for
the purpose of enforcing the provisions of the act. The 5th section
of the act provided that an action might be brought by a railroad
company in the supreme court of the State of Nebraska; but this
court did not base its decision on that section when it held that a
suit of the nature of that before it was not a suit against a
State, although brought against individual state officers, for the
purpose of enjoining them from enforcing, either by civil
proceeding or indictment, an unconstitutional enactment to the
injury of the plaintiff's right. Page 169 U. S.
518 . Page 209 U. S. 155 This decision was reaffirmed in Prout v. Starr, 188 U. S. 537 , 188 U. S.
542 .

															Attention is also directed to the case of Missouri &c.
Rwy. Co. v. Missouri R.R. &c. Commissioners, 183 U. S.
53 . That was a suit brought in a state court of Missouri
by the railroad commissioners of the State, who had the powers
granted them by the statutes set forth in the report. Their suit
was against the railway company, to compel it to discontinue
certain charges it was making for crossing the Boonville bridge
over the Missouri river. The defendant sought to remove the case to
the Federal court, which the plaintiffs resisted, and the state
court refused to remove, on the ground that the real plaintiff was
the State of Missouri, and it was proper to go behind the face of
the record to determine that fact. In regular manner, the case came
here, and this court held that the State was not the real party
plaintiff, and the case had therefore been properly removed from
the state court, whose judgment was thereupon reversed.

															Applying the same principles of construction to the removal act
which had been applied to the Eleventh Amendment, it was said by
this court that the State might be the real party plaintiff when
the relief sought inures to it alone, and in whose favor the
judgment or decree, if for the plaintiff, will effectively
operate.

															Although the case is one arising under the removal act, and does
not involve the Eleventh Amendment, it nevertheless illustrates the
question now before us, and reiterates the doctrine that the State
is not a party to a suit simply because the state railroad
commission is such party.

															The doctrine of Smyth v. Ames is also referred to and
reiterated in Gunter, Attorney General v. Atlantic &c.
Railroad Co., 200 U. S. 273 , 200 U. S. 283 . See also McNeill v. Southern Railway, 202 U.
S. 543 , 202 U. S. 559 ; Mississippi Railroad Commission v. Illinois &c. Railroad
Co., 203 U. S. 335 , 203 U. S.
340 .

															The various authorities we have referred to furnish ample
justification for the assertion that individuals who, as
officers Page 209 U. S. 156 of the State, are clothed with some duty in regard to the
enforcement of the laws of the State, and who threaten and are
about to commence proceedings, either of a civil or criminal
nature, to enforce against parties affected an unconstitutional
act, violating the Federal Constitution, may be enjoined by a
Federal court of equity from such action.

															It is objected, however, that Fitts v. McGhee, 172 U. S. 516 , has
somewhat limited this principle, and that, upon the authority of
that case, it must be held that the State was a party to the suit
in the United States Circuit Court, and the bill should have been
dismissed as to the Attorney General on that ground.

															We do not think such contention is well founded. The doctrine of Smyth v. Ames was neither overruled nor doubted in the Fitts case. In that case, the Alabama legislature, by the
act of 1895, fixed the tolls to be charged for crossing the bridge.
The penalties for disobeying that act by demanding and receiving
higher tolls were to be collected by the persons paying them. No
officer of the State had any official connection with the recovery
of such penalties. The indictments mentioned were found under
another State statute, set forth at page 172 U. S. 520 of the report of the case, which provided a fine against an officer
of a company for taking any greater rate of toll than was
authorized by its charter, or, if the charter did not specify the
amount, then the fine was imposed for charging any unreasonable
toll, to be determined by a jury. This act was not claimed to be
unconstitutional, and the indictments found under it were not
necessarily connected with the alleged unconstitutional act fixing
the tolls. As no state officer who was made a party bore any close
official connection with the act fixing the tolls, the making of
such officer a party defendant was a simple effort to test the
constitutionality of such act in that way, and there is no
principle upon which it could be done. A state superintendent of
schools might as well have been made a party. In the light of this
fact it was said in the opinion (page 172 U. S.
530 ): Page 209 U. S. 157 "In the present case, as we have said, neither of the state
officers named held any special relation to the particular statute
alleged to be unconstitutional. They were not expressly directed to
see to its enforcement. If, because they were law officers of the
State, a case could be made for the purpose of testing the
constitutionality of the statute by an injunction suit brought
against them, then the constitutionality of every act passed by the
legislature could be tested by a suit against the Governor and the
Attorney General, based upon the theory that the former, as the
executive of the State, was, in a general sense, charged with the
execution of all its laws, and the latter, as Attorney General,
might represent the State in litigation involving the enforcement
of its statutes. That would be a very convenient way for obtaining
a speedy judicial determination of questions of constitutional law
which may be raised by individuals, but it is a mode which cannot
be applied to the States of the Union consistently with the
fundamental principle that they cannot, without their assent, be
brought into any court at the suit of private persons."

															In making an officer of the State a party defendant in a suit to
enjoin the enforcement of an act alleged to be unconstitutional, it
is plain that such officer must have some connection with the
enforcement of the act, or else it is merely making him a party as
a representative of the State, and thereby attempting to make the
State a party.

															It has not, however, been held that it was necessary that such
duty should be declared in the same act which is to be enforced. In
some cases, it is true, the duty of enforcement has been so imposed
( 154 U. S. 154 U.S.
362, 154 U. S. 366 ,
§ 19 of the act), but that may possibly make the duty more clear;
if it otherwise exist, it is equally efficacious. The fact that the
state officer, by virtue of his office, has some connection with
the enforcement of the act, is the important and material fact, and
whether it arises out of the general law or is specially created by
the act itself is not material, so long as it exists.

															In the course of the opinion in the Fitts case, the Reagan and Page 209 U. S. 158 Smyth cases were referred to (with others) as instances
of state officers specially charged with the execution of a State
enactment alleged to be unconstitutional, and who commit, under its
authority, some specific wrong or trespass to the injury of
plaintiff's rights. In those cases, the only wrong or injury or
trespass involved was the threatened commencement of suits to
enforce the statute as to rates, and the threat of such
commencement was, in each case, regarded as sufficient to authorize
the issuing of an injunction to prevent the same. The threat to
commence those suits under such circumstances was therefore
necessarily held to be equivalent to any other threatened wrong or
injury to the property of a plaintiff which had theretofore been
held sufficient to authorize the suit against the officer. The
being specially charged with the duty to enforce the statute is
sufficiently apparent when such duty exists under the general
authority of some law, even though such authority is not to be
found in the particular act. It might exist by reason of the
general duties of the officer to enforce it as a law of the
State.

															The officers in the Fitts case occupied the position of
having no duty at all with regard to the act, and could not be
properly made parties to the suit for the reason stated.

															It is also objected that, as the statute does not specifically
make it the duty of the Attorney General (assuming he has that
general right) to enforce it, he has, under such circumstances, a
full general discretion whether to attempt its enforcement or not,
and the court cannot interfere to control him as Attorney General
in the exercise of his discretion.

															In our view, there is no interference with his discretion under
the facts herein. There is no doubt that the court cannot control
the exercise of the discretion of an officer. It can only direct
affirmative action where the officer having some duty to perform
not involving discretion, but merely ministerial in its nature,
refuses or neglects to take such action. In that case, the court
can direct the defendant to perform this merely ministerial duty. Board of Liquidation v. McComb, 92 U. S.
531 , 92 U. S.
541 . Page 209 U. S. 159 The general discretion regarding the enforcement of the laws
when and as he deems appropriate is not interfered with by an
injunction which restrains the state officer from taking any steps
towards the enforcement of an unconstitutional enactment, to the
injury of complainant. In such case, no affirmative action of any
nature is directed, and the officer is simply prohibited from doing
an act which he had no legal right to do. An injunction to prevent
him from doing that which he has no legal right to do is not an
interference with the discretion of an officer.

															It is also argued that the only proceeding which the Attorney
General could take to enforce the statute, so far as his office is
concerned, was one by mandamus, which would be commenced by the
State, in its sovereign and governmental character, and that the
right to bring such action is a necessary attribute of a sovereign
government. It is contended that the complainants do not complain
and they care nothing about any action which Mr. Young might take
or bring as an ordinary individual, but that he was complained of
as an officer, to whose discretion is confided the use of the name
of the State of Minnesota so far as litigation is concerned, and
that when or how he shall use it is a matter resting in his
discretion, and cannot be controlled by any court.

															The answer to all this is the same as made in every case where
an official claims to be acting under the authority of the State.
The act to be enforced is alleged to be unconstitutional, and, if
it be so, the use of the name of the State to enforce an
unconstitutional act to the injury of complainants is a proceeding
without the authority of, and one which does not affect, the State
in its sovereign or governmental capacity. It is simply an illegal
act upon the part of a State official in attempting, by the use of
the name of the State, to enforce a legislative enactment which is
void because unconstitutional. If the act which the state Attorney
General seeks to enforce be a violation of the Federal
Constitution, the officer, in proceeding under such enactment,
comes into conflict with the Page 209 U. S. 160 superior authority of that Constitution, and he is, in that
case, stripped of his official or representative character, and is
subjected in his person to the consequences of his individual
conduct. The State has no power to impart to him any immunity from
responsibility to the supreme authority of the United States. See In re Ayers, supra, p. 123 U. S. 507 .
It would be an injury to complainant to harass it with a
multiplicity of suits or litigation generally in an endeavor to
enforce penalties under an unconstitutional enactment, and to
prevent it ought to be within the jurisdiction of a court of
equity. If the question of unconstitutionality, with reference, at
least, to the Federal Constitution, be first raised in a Federal
court, that court, as we think is shown by the authorities cited
hereafter, has the right to decide it, to the exclusion of all
other courts.

															The question remains whether the Attorney General had, by the
law of the State, so far as concerns these rate acts, any duty with
regard to the enforcement of the same. By his official conduct, it
seems that he regarded it as a duty connected with his office to
compel the company to obey the commodity act, for he commenced
proceedings to enforce such obedience immediately after the
injunction issued, at the risk of being found guilty of contempt by
so doing.

															The duties of the Attorney General, as decided by the supreme
court of the State of Minnesota, are created partly by statute and
exist partly as at common law. State ex rel. Young, Attorney
General v. Robinson (decided June 7, 1907),112 N.W.Rep. 269.
In the above-cited case, it was held that the Attorney General
might institute, conduct, and maintain all suits and proceedings he
might deem necessary for the enforcement of the laws of the State,
the preservation of order, and the protection of public rights, and
that there were no statutory restrictions in that State limiting
the duties of the Attorney General in such case.

															Section 3 of chapter 227 of the General Laws of Minnesota, 1905
(same law, § 58, Revised Laws of Minnesota, 1905), Page 209 U. S. 161 imposes the duty upon the Attorney General to cause proceedings
to be instituted against any corporation whenever it shall have
offended against the laws of the State. By § 1960 of the Revised
Laws of 1905, it is also provided that the Attorney General shall
be ex officio attorney for the railroad commission, and it
is made his duty to institute and prosecute all actions which the
commission shall order brought, and shall render the commissioners
all counsel and advice necessary for the proper performance of
their duties.

															It is said that the Attorney General is only bound to act when
the commission orders action to be brought, and that § 5 of the
commodity act (April 18, 1907) expressly provides that no duty
shall rest upon the commission to enforce the act, and hence no
duty other than that which is discretionary rests upon the Attorney
General in that matter. The provision is somewhat unusual, but the
reasons for its insertion in that act are not material, and neither
require nor justify comment by this court.

															It would seem to be clear that the Attorney General, under his
power existing at common law, and by virtue of these various
statutes, had a general duty imposed upon him which includes the
right and the power to enforce the statutes of the State,
including, of course, the act in question, if it were
constitutional. His power, by virtue of his office, sufficiently
connected him with the duty of enforcement to make him a proper
party to a suit of the nature of the one now before the United
States Circuit Court.

															It is further objected (and the objection really forms part of
the contention that the State cannot be sued) that a court of
equity has no jurisdiction to enjoin criminal proceedings, by
indictment or otherwise, under the state law. This, as a general
rule, is true. But there are exceptions. When such indictment or
proceeding is brought to enforce an alleged unconstitutional
statute which is the subject matter of inquiry in a suit already
pending in a Federal court, the latter court, having first obtained
jurisdiction over the subject matter, has Page 209 U. S. 162 the right, in both civil and criminal cases, to hold and
maintain such jurisdiction, to the exclusion of all other courts,
until its duty is fully performed. Prout v. Starr, 188 U. S. 537 , 188 U. S. 544 .
But the Federal court cannot, of course, interfere in a case where
the proceedings were already pending in a state court. Taylor v.
Taintor , 16 Wall. 366, 83 U. S. 370 ; Harkrader v. Wadley, 172 U. S. 148 .

															Where one commences a criminal proceeding who is already party
to a suit then pending in a court of equity, if the criminal
proceedings are brought to enforce the same right that is in issue
before that court, the latter may enjoin such criminal proceedings. Davis &c. Co. v. Los Angeles, 189 U.
S. 207 . In Dobbins v. Los Angeles, 195 U.
S. 223 , 195 U. S. 241 ,
it is remarked by Mr. Justice Day, in delivering the opinion of the
court, that

															"it is well settled that, where property rights will be
destroyed, unlawful interference by criminal proceedings under a
void law or ordinance may be reached and controlled by a decree of
a court of equity." Smyth v. Ames, supra, distinctly enjoined the
proceedings by indictment to compel obedience to the rate act.

															These cases show that a court of equity is not always precluded
from granting an injunction to stay proceedings in criminal cases,
and we have no doubt the principle applies in a case such as the
present. In re Sawyer, 124 U. S. 200 , 124 U. S. 211 ,
is not to the contrary. That case holds that, in general, a court
of equity has no jurisdiction of a bill to stay criminal
proceedings, but it expressly states an exception, "unless they are
instituted by a party to the suit already pending before it, and to
try the same right that is in issue there." Various authorities are
cited to sustain the exception. The criminal proceedings here that
could be commenced by the state authorities would be under the
statutes relating to passenger or freight rates, and their validity
is the very question involved in the suit in the United States
Circuit Court. The right to restrain proceedings by mandamus is
based upon the same foundation, and governed by the same
principles. Page 209 U. S. 163 It is proper to add that the right to enjoin an individual, even
though a state official, from commencing suits under circumstances
already stated does not include the power to restrain a court from
acting in any case brought before it, either of a civil or criminal
nature, nor does it include power to prevent any investigation or
action by a grand jury. The latter body is part of the machinery of
a criminal court, and an injunction against a State court would be
a violation of the whole scheme of our government. If an injunction
against an individual is disobeyed, and he commences proceedings
before a grand jury or in a court, such disobedience is personal
only, and the court or jury can proceed without incurring any
penalty on that account.

															The difference between the power to enjoin an individual from
doing certain things and the power to enjoin courts from proceeding
in their own way to exercise jurisdiction is plain, and no power to
do the latter exists because of a power to do the former.

															It is further objected that there is a plain and adequate remedy
at law open to the complainants, and that a court of equity,
therefore, has no jurisdiction in such case. It has been suggested
that the proper way to test the constitutionality of the act is to
disobey it at least once, after which the company might obey the
act pending subsequent proceedings to test its validity. But, in
the event of a single violation, the prosecutor might not avail
himself of the opportunity to make the test, as obedience to the
law was thereafter continued, and he might think it unnecessary to
start an inquiry. If, however, he should do so while the company
was thereafter obeying the law, several years might elapse before
there was a final determination of the question, and, if it should
be determined that the law was invalid, the property of the company
would have been taken during that time without due process of law,
and there would be no possibility of its recovery.

															Another obstacle to making the test on the part of the company
might be to find an agent or employee who would disobey Page 209 U. S. 164 the law, with a possible fine and imprisonment staring him in
the face if the act should be held valid. Take the passenger rate
act, for instance: a sale of a single ticket above the price
mentioned in that act might subject the ticket agent to a charge of
felony, and, upon conviction, to a fine of $5,000 and imprisonment
for five years. It is true the company might pay the fine, but the
imprisonment the agent would have to suffer personally. It would
not be wonderful if, under such circumstances, there would not be a
crowd of agents offering to disobey the law. The wonder would be
that a single agent should be found ready to take the risk.

															If, however, one should be found, and the prosecutor should
elect to proceed against him, the defense that the act was invalid,
because the rates established by it were too low, would require a
long and difficult examination of quite complicated facts upon
which the validity of the act depended. Such investigation it would
be almost impossible to make before a jury, as such body could not
intelligently pass upon the matter. Questions of the cost of
transportation of passengers and freight, the net earnings of the
road, the separation of the cost and earnings within the State from
those arising beyond its boundaries, all depending upon the
testimony of experts and the examination of figures relating to
these subjects, as well, possibly, as the expenses attending the
building and proper cost of the road, would necessarily form the
chief matter of inquiry, and intelligent answers could only be
given after a careful and prolonged examination of the whole
evidence, and the making of calculations based thereon. All
material evidence having been taken upon these issues, it has been
held that it ought to be referred to the most competent and
reliable master to make all needed computations, and to find
therefrom the necessary facts upon which a judgment might be
rendered that might be reviewed by this court. Chicago, &c.
Railway Co. v. Tompkins, 176 U. S. 167 .
From all these considerations, it is plain that this is not a
proper suit for investigation by a jury. Suits for penalties, or
indictment Page 209 U. S. 165 or other criminal proceedings for a violation of the act, would
therefore furnish no reasonable or adequate opportunity for the
presentation of a defense founded upon the assertion that the rates
were too low, and therefore the act invalid.

															We do not say the company could not interpose this defense in an
action to recover penalties or upon the trial of an indictment
( St. Louis &c. Ry. Co. v. Gill, 156 U.
S. 649 ), but the facility of proving it, in either case,
falls so far below that which would obtain in a court of equity
that comparison is scarcely possible.

															To await proceedings against the company in a state court,
grounded upon a disobedience of the act, and then, if necessary,
obtain a review in this court by writ of error to the highest state
court, would place the company in peril of large loss, and its
agents in great risk of fines and imprisonment if it should be
finally determined that the act was valid. This risk the company
ought not to be required to take. Over eleven thousand millions of
dollars, it is estimated, are invested in railroad property, owned
by many thousands of people who are scattered over the whole
country, from ocean to ocean, and they are entitled to equal
protection from the laws and from the courts with the owners of all
other kinds of property -- no more, no less. The courts having
jurisdiction, Federal or State, should at all times be opened to
them, as well as to others, for the purpose of protecting their
property and their legal rights.

															All the objections to a remedy at law as being plainly
inadequate are obviated by a suit in equity, making all who are
directly interested parties to the suit and enjoining the
enforcement of the act until the decision of the court upon the
legal question.

															An act of the legislature fixing rates, either for passengers or
freight, is to be regarded as prima facie valid, and the
onus rests upon the company to prove its assertion to the contrary.
Under such circumstances, it was stated by Mr. Justice Miller, Page 209 U. S. 166 in his concurring opinion in Chicago, &c. Co. v.
Minnesota, 134 U. S. 418 , 134 U. S. 460 ,
that the proper, if not the only, mode of judicial relief against
the tariff of rates established by the legislature or by its
commission is by a bill in chancery asserting its unreasonable
character, and that, until the decree of the court in such equity
suit was obtained, it was not competent for each individual having
dealings with a carrier, or for the carrier in regard to each
individual who demands its services, to raise a contest in the
courts over the questions which ought to be settled in this general
and conclusive manner. This remedy by bill in equity is referred to
and approved by Mr. Justice Shiras in delivering the opinion of the
court in St. Louis &c. Co. v. Gill, 156 U.
S. 649 , 156 U. S. 659 , 166 U. S.
666 ,, although that question was not then directly
before the court. Such remedy is undoubtedly the most convenient,
the most comprehensive, and the most orderly way in which the
rights of all parties can be properly, fairly, and adequately
passed upon. It cannot be to the real interest of anyone to injure
or cripple the resources of the railroad companies of the country,
because the prosperity of both the railroads and the country is
most intimately connected. The question of sufficiency of rates is
important and controlling, and, being of a judicial nature, it
ought to be settled at the earliest moment by some court, and, when
a Federal court first obtains jurisdiction, it ought, on general
principles of jurisprudence, to be permitted to finish the inquiry
and make a conclusive judgment, to the exclusion of all other
courts. This is all that is claimed, and this, we think, must be
admitted.

															Finally, it is objected that the necessary result of upholding
this suit in the Circuit Court will be to draw to the lower Federal
courts a great flood of litigation of this character, where one
Federal judge would have it in his power to enjoin proceedings by
state officials to enforce the legislative acts of the State,
either by criminal or civil actions. To this it may be answered, in
the first place, that no injunction ought to be granted unless in a
case reasonably free from doubt. We Page 209 U. S. 167 think such rule is, and will be, followed by all the judges of
the Federal courts.

															And, again, it must be remembered that jurisdiction of this
general character has, in fact, been exercised by Federal courts
from the time of Osborn v. United States Bank up to the
present, the only difference in regard to the case of Osborn and
the case in hand being that, in this case, the injury complained of
is the threatened commencement of suits, civil or criminal, to
enforce the act, instead of, as in the Osborn case, an
actual and direct trespass upon or interference with tangible
property. A bill filed to prevent the commencement of suits to
enforce an unconstitutional act, under the circumstances already
mentioned is no new invention, as we have already seen. The
difference between an actual and direct interference with tangible
property and the enjoining of state officers from enforcing an
unconstitutional act is not of a radical nature, and does not
extend, in truth, the jurisdiction of the courts over the subject
matter. In the case of the interference with property, the person
enjoined is assuming to act in his capacity as an official of the
State, and justification for his interference is claimed by reason
of his position as a state official. Such official cannot so
justify when acting under an unconstitutional enactment of the
legislature. So, where the state official, instead of directly
interfering with tangible property, is about to commence suits
which have for their object the enforcement of an act which
violates the Federal Constitution, to the great and irreparable
injury of the complainants, he is seeking the same justification
from the authority of the State as in other cases. The sovereignty
of the State is, in reality, no more involved in one case than in
the other. The State cannot, in either case, impart to the official
immunity from responsibility to the supreme authority of the United
States. See In re Ayers, 123 U. S.
507 .

															This supreme authority, which arises from the specific
provisions of the Constitution itself, is nowhere more fully
illustrated than in the series of decisions under the Federal
habeas Page 209 U. S. 168 corpus statute (§ 753, Rev.Stat.), in some of which cases
persons in the custody of state officers for alleged crimes against
the State have been taken from that custody and discharged by a
Federal court or judge because the imprisonment was adjudged to be
in violation of the Federal Constitution. The right to so discharge
has not been doubted by this court, and it has never been supposed
there was any suit against the State by reason of serving the writ
upon one of the officers of the State in whose custody the person
was found. In some of the cases, the writ has been refused as
matter of discretion, but, in others, it has been granted, while
the power has been fully recognized in all. Ex parte
Royall, 117 U. S. 241 ; In re Loney, 134 U. S. 372 ; In re Neagle, 135 U. S. 1 ; Baker v. Grice, 169 U. S. 284 ; Ohio v. Thomas, 173 U. S. 276 ; Minnesota v. Brundage, 180 U. S. 499 , 180 U. S. 502 ; Reid v. Jones, 187 U. S. 153 ; United States v. Lewis, 200 U. S. 1 ; In
re Lincoln, 202 U. S. 178 .

															It is somewhat difficult to appreciate the distinction which,
while admitting that the taking of such a person from the custody
of the State by virtue of service of the writ on the state officer
in whose custody he is found is not a suit against the State, and
yet service of a writ on the Attorney General, to prevent his
enforcing an unconstitutional enactment of a State legislature, is
a suit against the State.

															There is nothing in the case before us that ought properly to
breed hostility to the customary operation of Federal courts of
justice in cases of this character.

															The rule to show cause is discharged and the petition for writs
of habeas corpus and certiorari is dismissed. So ordered. MR. JUSTICE HARLAN, dissenting:

															Although the history of this litigation is set forth in the
opinion of the court, I deem it appropriate to restate the
principal facts of the case in direct connection with my
examination of the question upon which the decision turns. Page 209 U. S. 169 That question is whether the suit in the Circuit Court of the
United States was, as to the relief sought against the Attorney
General of Minnesota, forbidden by the Eleventh Amendment of the
Constitution of the United States, declaring 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."

															That examination, I may say at the outset, is entered upon with
no little embarrassment, in view of the fact that the views
expressed by me are not shared by my brethren. I may also frankly
admit embarrassment arising from certain views stated in dissenting
opinions heretofore delivered by me which did not, at the time,
meet the approval of my brethren, and which I do not now myself
entertain. What I shall say in this opinion will be in substantial
accord with what the court has heretofore decided, while the
opinion of the court departs, as I think, from principles
previously announced by it upon full consideration. I propose to
adhere to former decisions of the court whatever may have been once
my opinion as to certain aspects of this general question.

															The plaintiffs in the suit referred to, Perkins and Shepard,
were shareholders of the Northern Pacific Railway Company, and
citizens, respectively, of Iowa and Minnesota. The defendants were
the railway company, Edward T. Young, Attorney General of
Minnesota, the several members of the state railroad and warehouse
commission, and certain persons who were shippers of freight over
the lines of that railway.

															The general object of the suit was to prevent compliance with
the provisions of certain acts of the Minnesota legislature and
certain orders of the state railroad and warehouse commission
indicating the rates which the State permits to be charged for the
transportation of passengers and commodities upon railroads within
its limits; also, to prevent shippers from bringing actions against
the railway company to enforce those acts and orders. Page 209 U. S. 170 The bill, among other things, prayed that Edward T. Young, "as
Attorney General of the State of Minnesota," and the members of the
State Railroad and Warehouse Commission (naming them) be enjoined
from all attempts to compel the railway company to put in force the
rates or any of them prescribed by said orders, and

															"from taking any action, step, or proceeding against said
Railway Company, or any of its officers, directors, agents, or
employees, to enforce any penalties or remedies for the violation
by said Railway Company of said orders or either of them,"

															and that said Young, "as Attorney General," be enjoined from
taking any action, step, or proceeding against the railway company,
its officers, agents, or employees, to enforce the penalties and
remedies specified in those acts.

															The court gave a temporary injunction as prayed for. The
Attorney General of Minnesota appeared specially, and, without
submitting to or acknowledging the jurisdiction of the court, moved
to dismiss the suit as to him upon the ground that the State had
not consented to be sued, and also because the bill was exhibited
against him "as, and only as, the Attorney General of the State of
Minnesota," to restrain him, by injunction, from exercising the
discretion vested in him to commence appropriate actions, on behalf
of the State, to enforce or to test the validity of its laws. He
directly raised the question that the suit as to him, in his
official capacity, was one against the State, in violation of the
Eleventh Amendment.

															In response to an order to show cause why the injunction asked
for should not be granted, the Attorney General also appeared
specially, and urged like objections to the suit against him in the
Circuit Court.

															After hearing the parties, the court made an order, September
23d, 1907, whereby the railway company, its officers, directors,
agents, servants, and employees, were enjoined until the further
order of the court from publishing, adopting, or putting into
effect the tariffs, rates, or charges specified in the Page 209 U. S. 171 act of April 18th, 1907. The court likewise enjoined the
defendant Young, "as Attorney General of the State of Minnesota,"
from

															"taking or instituting any action, suit, step, or proceeding to
enforce the penalties and remedies specified in said act or either
thereof, or to compel obedience to said act or compliance therewith
or any part thereof."

															A like injunction was granted against the defendant
shippers.

															On the next day, September 24th, 1907, the State of Minnesota,
"on the relation of Edward T. Young, Attorney General," commenced
an action in one of its own courts against the Northern Pacific
Railway Company, the only relief sought being a mandamus ordering
the company to adopt, publish, keep for public inspection, and put
into effect, as the rates and charges to be maintained for the
transportation of freight between stations in Minnesota, those
named and specified in what is known as chapter 232 of the Session
Laws of Minnesota for 1907. That was the act which it was the
object of the Perkins-Shepard suit in the Federal court to strike
down and nullify. An alternative writ of mandamus, such as the
State asked, was issued by the state court.

															The institution, in the state court, by the State, on the
relation of its Attorney General, of the mandamus proceeding
against the railway company, having been brought to the attention
of the Federal Circuit Court, a rule was issued against the
defendant Young to show cause why he should not be punished as for
contempt. Answering that rule, he alleged, among other things, that
the mandamus proceeding was brought by and on behalf of the State,
through him as its Attorney General; that in every way possible, he
had objected to such jurisdiction on the ground that the action was
commenced against him solely as the Attorney General for Minnesota,
in order to prevent him from instituting in the proper courts civil
actions for and in the name of the State, to enforce or test the
validity of its laws; that there is no other action or
proceeding pending or contemplated by this defendant against said
railway company, except said proceedings in mandamus Page 209 U. S. 172 hereinbefore referred to. Defendant expressly
disclaimed any intention to treat this court with disrespect in the
commencement of the proceedings referred to,

															"but, believing that the decision of this court in this action,
holding that it had jurisdiction to enjoin this defendant, as such
Attorney General, from performing his discretionary official
duties, was in conflict with the Eleventh Amendment of the
Constitution of the United States, as the same has been interpreted
and applied by the United States Supreme Court, defendant believed
it to be his duty as such Attorney General to commence said
mandamus proceedings for and in behalf of the State, and it was in
this belief that said proceedings were commenced solely for the
purpose of enforcing the said law of the State of Minnesota."

															The rule was heard, and the Attorney General was held to be in
contempt, the order of the Federal court being:

															"Ordered further, that said Edward T. Young forthwith
dismiss or cause to be dismissed the suit of the State of
Minnesota on the Relation of Edward T. Young, Attorney
General, Plaintiff, v. Northern Pacific Railway Company, Defendant,
heretofore instituted by him in the district court of the county of
Ramsey, Second Judicial District, State of Minnesota. Ordered
further, that, for his said contempt, said Edward T. Young be fined
the sum of $100 and stand committed in the custody of the marshal
of this court until the same be paid, and until he purge himself of
his contempt by dismissing, or causing to be dismissed, said suit
last herein mentioned."

															The present proceeding was commenced by an original application
by Young to this court for a writ of habeas corpus. The petitioner,
in his application, proceeds upon the ground that he is held in
custody in violation of the Constitution of the United States. The
petition set out all the steps taken in the suit in the Federal
court, alleging, among other things:

															"That your petitioner's office as Attorney General of the State
of Minnesota is established and provided for by the Constitution of
the said State, § 1 of article 5 thereof Page 209 U. S. 173 providing as follows, to-wit:"

															" The executive department shall consist of a Governor,
lieutenant Governor, Secretary of State, Auditor, Treasurer, and
Attorney General, who shall be chosen by the electors of the
State."

															"That neither by statute nor otherwise is your petitioner
charged with any special duty of a ministerial character in the
doing or not doing of which said complainants in the said bill of
complaint or the said Northern Pacific Railway Company had any
legal right, and that whatever duties your petitioner had or has
with respect to the several matters complained of in the said bill
of complaint are of an executive and discretionary nature. That in
no case could your petitioner, even though it was his intention so
to do, which it was not, deprive the said complainants or the said
Northern Pacific Railway Company, or either of them, of any
property, nor could he trespass upon their rights in any
particular, and that all he could do as Attorney General, as aforesaid, and all that it was his duty to do in that capacity,
and all that he intended to do or would do, was to commence
formal judicial proceedings in the appropriate court of Minnesota
against the said Northern Pacific Railway Company, its officers,
agents, and employees, to compel the said company, its
officers, agents, and servants, to adopt and put in force the
schedule of freight rates tariffs, and charges prescribed by said
chapter 232, Laws 1907, of the State of Minnesota."

															He renewed the objection that the suit instituted by Perkins and
Shepard, insofar as the same is against him, was a suit against the
State, to prevent his commencing the proposed action in the name of
the State, and was in restraint of the State itself,

															"and that the said suit is one against the said State, in
violation of the Eleventh Amendment to the Constitution of the
United States, and that therefore the same is and was, so far as
your petitioner is concerned, beyond the jurisdiction of the said
Circuit Court,"

															etc.

															This statement will sufficiently indicate the nature of the
question to be now examined upon its merits.

															Let it be observed that the suit instituted by Perkins and Page 209 U. S. 174 Shepard in the Circuit Court of the United States was, as to the
defendant Young, one against him as, and only because he was,
Attorney General of Minnesota. No relief was sought against him
individually, but only in his capacity as Attorney General. And the
manifest, indeed the avowed and admitted, object of seeking such
relief, was to tie the hands of the State, so
that it could not in any manner or by any mode of proceeding, in its own courts, test the validity of the statutes and
orders in question. It would therefore seem clear that, within the
true meaning of the Eleventh Amendment, the suit brought in the
Federal court was one, in legal effect, against the State -- as
much so as if the State had been formally named on the record as a
party -- and therefore it was a suit to which, under the Amendment,
so far as the State or its Attorney General was concerned, the
judicial power of the United States did not and could not extend.
If this proposition be sound, it will follow -- indeed, it is
conceded, that if, so far as relief is sought against the Attorney
General of Minnesota, this be a suit against the State, then the
order of the Federal court enjoining that officer from taking any
action, suit, step, or proceeding to compel the railway company to
obey the Minnesota statute was beyond the jurisdiction of that
court and wholly void, in which case, that officer was at liberty
to proceed in the discharge of his official duties as defined by
the laws of the State, and the order adjudging him to be in
contempt for bringing the mandamus proceeding in the state court
was a nullity.

															The fact that the Federal Circuit Court had, prior to the
institution of the mandamus suit in the state court, preliminarily
(but not finally) held the statutes of Minnesota and the orders of
its railroad and warehouse commission in question to be in
violation of the Constitution of the United States was no reason
why that court should have laid violent hands upon the Attorney
General of Minnesota and, by its orders, have deprived the State of
the services of its constitutional law officer in its own courts.
Yet that is what was done by Page 209 U. S. 175 the Federal Circuit Court; for the intangible thing called a
State, however extensive its powers, can never appear or be
represented or known in any court in a litigated case except by and
through its officers. When, therefore, the Federal court forbade
the defendant Young, as Attorney General of Minnesota, from taking
any action, suit, step, or proceeding whatever looking to the
enforcement of the statutes in question, it said in effect to the
State of Minnesota:

															"It is true that the powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively or to its people, and it is
true that, under the Constitution, the judicial power of the United
States does not extend to any suit brought against a State by a
citizen of another State or by a citizen or subject of a foreign
state, yet the Federal court adjudges that you, the State, although
a sovereign for many important governmental purposes, shall not
appear in your own courts, by your law officer, with the view of
enforcing, or even for determining the validity of, the state
enactments which the Federal court has, upon a preliminary hearing,
declared to be in violation of the Constitution of the United
States."

															This principle, if firmly established, would work a radical
change in our governmental system. It would inaugurate a new era in
the American judicial system and in the relations of the national
and state governments. It would enable the subordinate Federal
courts to supervise and control the official action of the States
as if they were "dependencies" or provinces. It would place the
States of the Union in a condition of inferiority never dreamed of
when the Constitution was adopted or when the Eleventh Amendment
was made a part of the supreme law of the land. I cannot suppose
that the great men who framed the Constitution ever thought the
time would come when a subordinate Federal court, having no power
to compel a State, in its corporate capacity, to appear before it
as a litigant, would yet assume to deprive a State of the right to
be represented in its own courts by its Page 209 U. S. 176 regular law officer. That is what the court below did, as to
Minnesota, when it adjudged that the appearance of the defendant
Young in the state court, as the Attorney General of
Minnesota, representing his State as its chief law officer, was a
contempt of the authority of the Federal court, punishable by fine
and imprisonment. Too little consequence has been attached to the
fact that the courts of the States are under an obligation equally
strong with that resting upon the courts of the Union to respect
and enforce the provisions of the Federal Constitution as the
supreme law of the land, and to guard rights secured or guaranteed
by that instrument. We must assume -- a decent respect for the
States requires us to assume -- that the state courts will enforce
every right secured by the Constitution. If they fail to do so, the
party complaining has a clear remedy for the protection of his
rights, for he can come by writ of error, in an orderly, judicial
way, from the highest court of the State to this tribunal for
redress in respect of every right granted or secured by that
instrument and denied by the state court. The state courts, it
should be remembered, have jurisdiction concurrent with the courts
of the United States of all suits of a civil nature, at common law
or equity, involving a prescribed amount, arising under the
Constitution or laws of the United States. 25 Stat. 434. And this
court has said:

															"A state court of original jurisdiction, having the parties
before it, may, consistently with existing Federal legislation,
determine cases at law or in equity arising under the Constitution
or laws of the United States or involving rights dependent upon
such Constitution or laws. Upon the state courts, equally with the
courts of the Union, rests the obligation to guard, enforce, and
protect every right granted or secured by the Constitution of the
United States and the laws made in pursuance thereof, whenever
those rights are involved in any suit or proceeding before them;
for the judges of the state courts are required to take an oath to
support that Constitution, and they are bound by it, and the laws
of the United States made in pursuance thereof, and all
treaties Page 209 U. S. 177 made under their authority, as the supreme law of the land,
'anything in the Constitution or laws of any State to the contrary
notwithstanding.' If they fail therein, and withhold or deny
rights, privileges, or immunities secured by the Constitution and
laws of the United States, the party aggrieved may bring the case
from the highest court of the State in which the question could be
decided to this court for final and conclusive determination." Robb v. Connolly, 111 U. S. 624 , 111 U. S. 637 .
So that an order of the Federal court preventing the State from
having the services of its Attorney General in one of its own
courts, except at the risk of his being fined and arrested, cannot
be justified upon the ground that the question of constitutional
law, involved in the enforcement of the statutes in question, was
beyond the competency of a State court to consider and determine,
primarily, as between the parties before it in a suit brought by
the State itself.

															At the argument of this case, counsel for the railway company
insisted that the provisions of the act in question were so drastic
that they could be enforced by the State in its own courts with
such persistency and in such a manner as, in a very brief period,
to have the railway officers and agents all in jail, the business
of the company destroyed, and its property confiscated by heavy and
successive penalties before a final judicial decision as to the
constitutionality of the act could be obtained. I infer from some
language in the court's opinion that these apprehensions are shared
by some of my brethren. And this supposed danger to the railway
company and its shareholders seems to have been the basis of the
action of the Federal Circuit Court when, by its order directed
against the Attorney General of Minnesota, it practically excluded
the State from its own courts in respect of the issues here
involved. But really no such question as to the state statute is
here involved or need be now considered, for it cannot possibly
arise on the hearing of the present application of that officer for
discharge on habeas corpus. The only question now before this court
is whether the suit by Perkins and Shepard in the Federal Page 209 U. S. 178 court was not, upon its face, as to the relief sought
against the Attorney General of Minnesota, a suit against the
State. Stated in another form, the question is whether that court
may, by operating upon that officer in his official
capacity, by means of fine and imprisonment, prevent the State
from being represented by its law officer in one of its own courts?
If the Federal court could not thus put manacles upon the State so
as to prevent it from being represented by its Attorney General in
its own court and from having the state court pass upon the
validity of the state enactment in question in the Perkins-Shepard
suit, that is an end to this habeas corpus proceeding, and the
Attorney General of Minnesota should be discharged by order of this
court from custody.

															It is to be observed that, when the State was, in effect,
prohibited by the order of the Federal court from appearing in its
own courts, there was no danger -- absolutely none whatever -- from
anything that the Attorney General had ever done or proposed to do
that the property of the railway company would be confiscated and
its officers and agents imprisoned, beyond the power of that
company to stay any wrong done by bringing to this court, in
regular order, any final judgment of the state court, in the
mandamus suit, which may have been in derogation of a Federal
right. When the Attorney General instituted the mandamus
proceeding in the state court against the railway company, there
was in force, it must not be forgotten, an order of injunction by
the Federal court which prevented that company from obeying the
state law. There was consequently no danger from that direction.
Besides, the mandamus proceeding was not instituted for the
recovery of any of the penalties prescribed by the state law, and
therefore no judgment in that case could operate directly upon the
property of the railway company or upon the persons of its officers
or agents. The Attorney General, in his response to the rule
against him, assured the Federal court that he did not contemplate
any proceeding whatever against the railway company except the one
in mandamus. Suppose the Page 209 U. S. 179 mandamus case had been finally decided in the state court -- the
way was open for the railway company to preserve any question it
made as to its rights under the Constitution, and, in the event of
a decision adverse to it in that court, at once to carry the case
to the highest court of Minnesota, and thence, by a writ of error,
bring it to this court. That course would have served to determine
every question of constitutional law raised by the suit in the
Federal court in an orderly way, without trampling upon the State,
and without interfering, in the meantime, with the operation of the
railway property in the accustomed way. Instead of adopting that
course -- so manifestly consistent with the dignity and authority
of both the Federal and State judicial tribunals -- the Federal
court practically closed the state courts against the State itself
when it adjudged that the Attorney General, without regard to the
wishes of the Governor of Minnesota and without reference to his
duties as prescribed by the laws of that State, should stand in the
custody of the marshal unless he dismissed the mandamus suit. If
the Federal court could thus prohibit the law officer of the State
from representing it in a suit brought in the state court, why
might not the bill in the Federal court be so amended that that
court could reach all the district attorneys in Minnesota, and
forbid them from bringing to the attention of grand juries and the
state courts violations of the state act by the railway company?
And if a grand jury was about to inquire into the acts of the
railway company in respect of the matter of its rates, why may not
the Federal court, proceeding upon the same grounds on which it has
moved against the Attorney General, enjoin the finding or returning
of indictments against the railway company? If an indictment was
returned against the railway company, and was about to be tried by
a petit jury, why could not the Federal court, upon the principles
now announced, forbid the jury to proceed against the railway
company, and, if it did, punish every petit juryman as for contempt
of court? Indeed, why may it not lay its hands on the Governor of
the State and Page 209 U. S. 180 forbid him from appealing to the courts of Minnesota in the name
of the State, to test the validity of the act in question? And why
may not the Federal court lay its hands even upon the judge of the
state court itself whenever it proceeds against the railway company
under the state law?

															The subject matter of these questions has evidently been
considered by this court, and the startling consequences that would
result from an affirmative answer to them have not been overlooked;
for, in its opinion, I find these observations:

															"It is proper to add that the right to enjoin an individual,
even though a state official, from commencing suits under
circumstances already stated, does not include the power to
restrain a court from acting in any case brought before it, either
of a civil or criminal nature, nor does it include power to prevent
any investigation or action by a grand jury. The latter body is
part of the machinery of a criminal court, and an injunction
against a State court would be a violation of the whole scheme of
our government. If an injunction against an individual is
disobeyed, and he commences proceedings before a grand jury or in a
court, such disobedience is personal only, and the court or jury
can proceed without incurring any penalty on that account. The
difference between the power to enjoin an individual from doing
certain things and the power to enjoin courts from proceeding in
their own way to exercise jurisdiction is plain, and no power to do
the latter exists because of a power to do the former."

															If an order of the Federal court forbidding a state court or its
grand jury from attempting to enforce a state enactment would be "a
violation of the whole scheme of our government," it is difficult
to perceive why an order of that court forbidding the chief law
officer and all the district attorneys of a State to represent it
in the courts in a particular case, and practically, in that way,
closing the doors of the state court against the State, would not
also be inconsistent with the whole scheme of our government, and,
therefore, beyond the power of the court to make. Page 209 U. S. 181 Whether the Minnesota statutes are or are not violative of the
Constitution is not, as already suggested, a question in this
habeas corpus proceeding. I do not, therefore, stop to consider
whether those statutes are repugnant to the Constitution upon the
ground that, by their necessary operation, when enforced, they will
prevent the railway company from contesting their validity, or upon
the ground that they are confiscatory, and therefore obnoxious to
the requirement of due process of law. While the argument at the
bar in support of each of these propositions was confessedly of
great force and persuasiveness, those points need not be now
examined. I express no opinion about them. Their soundness may,
however, be conceded for the purposes of this discussion. Indeed,
it may be assumed for the purposes of this discussion that these
state enactments are harsh and intemperate and, in some of their
features, invalid. But those questions are wholly apart from the
present proceeding. If we now consider them, we must go out of our
way in order to do so. We have no evidence in this proceeding as to
the effect which the statutes, if enforced, would have upon the
value either of the railway property or of the bonds or stocks of
the railway company. The question of their validity has not been
finally decided by the Circuit Court, and we have not before us
even the evidence upon which its preliminary injunction was based.
The essential and only question now before us or that need be
decided is whether an order by the Federal court which prevents the
State from being represented in its own courts, by its chief law
officer, upon an issue involving the constitutional validity of
certain state enactments, does not make a suit against the State
within the meaning of the Eleventh Amendment. If it be a suit of
that kind, then, it is conceded, the Circuit Court was without
jurisdiction to fine and imprison the petitioner, and he must be
discharged whatever our views may be as to the validity of those
state enactments. This must necessarily be so unless the Amendment
has less force and a more restricted meaning now than it had at the
time of its adoption, Page 209 U. S. 182 and unless a suit against the Attorney General of a State, in
his official capacity, is not one against a State under the
Eleventh Amendment when its determination depends upon a question
of constitutional power or right under the Fourteenth Amendment. In
that view, I cannot concur. In my opinion, the Eleventh Amendment
has not been modified in the slightest degree as to its scope or
meaning by the Fourteenth Amendment, and a suit which, in its
essence, is one against the State remains one of that character,
and is forbidden even when brought to strike down a state statute
alleged to be in violation of that clause of the Fourteenth
Amendment, forbidding the deprivation by a State of life, liberty,
or property without due process of law. If a suit be commenced in a
state court, and involves a right secured by the Federal
Constitution, the way is open under our incomparable judicial
system to protect that right, first by the judgment of the state
court, and ultimately by the judgment of this court, upon writ of
error. But such right cannot be protected by means of a suit which,
at the outset, is, directly or in legal effect, one against the
State whose action is alleged to be illegal. That mode of redress
is absolutely forbidden by the Eleventh Amendment, and cannot be
made legal by mere construction, or by any consideration of the
consequences that may follow from the operation of the statute.
Parties cannot, in any case, obtain redress by a suit against the
State. Such has been the uniform ruling in this court, and it is
most unfortunate that it is now declared to be competent for a
Federal Circuit Court, by exerting its authority over the chief law
officer of the State, without the consent of the State, to exclude
the State, in its sovereign capacity, from its own courts when
seeking to have the ruling of those courts as to its powers under
its own statutes. Surely the right of a State to invoke the
jurisdiction of its own courts is not less than the right of
individuals to invoke the jurisdiction of a Federal court. The
preservation of the dignity and sovereignty of the States, within
the limits of their constitutional powers, Page 209 U. S. 183 is of the last importance, and vital to the preservation of our
system of government. The courts should not permit themselves to be
driven by the hardships, real or supposed, of particular cases, to
accomplish results, even if they be just results, in a mode
forbidden by the fundamental law. The country should never be
allowed to think that the Constitution can, in any case, be evaded
or amended by mere judicial interpretation, or that its behests may
be nullified by an ingenious construction of its provisions.

															The importance of the question under consideration is a
sufficient justification for such a reference to the authorities as
will indicate the precise grounds on which this court has
oftentimes proceeded when determining what is and what is not a
suit against a State within the meaning of the Eleventh Amendment.
All the cases agree in declaring the incapacity of a Federal court
to exercise jurisdiction over a State as a party. But assaults upon
the Eleventh Amendment have oftenest been made in cases in which
the effort has been, without making the State a formal party, to
control the acts of its officers and agents by such orders directed
to them as will accomplish, by indirection, the same results that
could be accomplished by a suit directly against the State if such
a suit were possible. It will be well to look at some of the
principal adjudged cases.

															The general question was examined in Cunningham v. Macon
& Brunswick R.E. Co., 109 U. S. 446 -451,
where the court said that it was conceded in all the cases, and

															"may be accepted as a point of departure unquestioned, that
neither a State nor the United States can be sued as defendant in
any court in this country without their consent, except in the
limited class of cases in which a State may be made a party in the
Supreme Court of the United States by virtue of the original
jurisdiction conferred on this court by the Constitution."

															The court has not in any case departed from this constitutional
principle. In Pennoyer v. McConnaughy, 140 U. S.
1 , 140 U. S. 9 , it is
said that

															"this immunity of a State from suit is Page 209 U. S. 184 absolute and unqualified, and the constitutional provision
securing it is not to be so construed as to place the State within
the reach of the process of the court. Accordingly, it is equally
well settled that a suit against the officers of a State, to compel
them to do the acts which constitute a performance by it of its
contracts, is, in effect, a suit against the State itself."

															In Cunningham v. Macon & Brunswick R.R. Co., just
cited, the distinction was drawn between a suit in which the State
is the real party in interest, although not technically a party on
the record, and one in which

															"an individual is sued in tort for some act injurious 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 be is, an officer of the State,
charged with the performance of certain public duties.

															In Hagood v. Southern, 117 U. S.
52 , 117 U. S. 67 , 117 U. S. 68 ,
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 Page 209 U. S. 185 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 contract 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 Eleventh 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 immunity from suits in
Federal tribunals, it 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 Page 209 U. S. 186 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 In re
Ayers, 123 U. S. 443 , 123 U. S. 496 , 123 U. S. 497 , 123 U. S. 505 .
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 being a
decree enjoining and restraining the 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 Attorney General of Virginia had disobeyed its
order of injunction. Thereupon that officer was ruled to show cause
why he should not be fined and imprisoned. He responded to the
rule, admitting that, after being 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 Page 209 U. S. 187 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, adjudged
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 State
of Virginia" and "within the prohibition of the Eleventh 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 contains
-- supposing that such a suit could be maintained -- it would have
been subjected Page 209 U. S. 188 to the jurisdiction of the court by process served upon its
Governor and Attorney General, according to the precedents in such
cases. New Jersey v. New York , 5
Pet. 284, 30 U. S. 288 , 30 U. S.
290 ; Kentucky v. Dennison , 24 How.
66, 65 U. S. 96 , 65 U. S.
97 ; Rule 5 of 1884, 108 U.S. 574. If a decree could have
been rendered enjoining the State from bringing suits against its
taxpayers, it would have operated upon the State only through
the officers who by law were required to represent it in bringing
such suits, viz., the present defendants, its Attorney General, and
the commonwealth's attorneys for the several counties. For a
breach of such an injunction, these officers would be amenable to
the court as proceeding in contempt of its authority, and would be
liable to punishment therefor by attachment and imprisonment. The
nature of the case, as supposed, is identical with that of the case
as actually presented in the bill, with the single exception that
the State is not named as a defendant. How else can the State
be forbidden by judicial process to bring actions in its name
except by constraining the conduct of its officers, its attorneys,
and its agents? And if all such officers, attorneys, and agents are
personally subjected to the process of the court, so 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 Eleventh 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 Page 209 U. S. 189 by the Eleventh 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 representatives where the State,
though not named as such, is nevertheless the only real party
against which alone in fact the relief is asked, and against which
the judgment or decree effectively operates. But this is not
intended in any way to impinge upon the principle which justifies
suits against individual defendants, who, under color of the
authority of unconstitutional legislation by the State, are guilty
of personal trespasses and wrongs, nor to forbid suits
against officers in their official capacity either to arrest or
direct their official action by injunction or mandamus, where such
suits are authorized by law, and the act to be done or omitted
is purely ministerial, in the performance or omission of which
the plaintiff has a legal interest."

															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
controlling 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 officer, 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, Page 209 U. S. 190 against 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 Ayers 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 , 172 U. S.
528 -530. That suit was brought by the receivers of a
railroad company against the Governor and Attorney General of
Alabama. Its object was to prevent the enforcement of the
provisions of an Alabama statute prescribing the maximum rates of
toll to be charged on a certain bridge across the Tennessee river.
The statute imposed a penalty for each time that the owners,
lessees, or operators of the bridge demanded or received any higher
rate of toll than was prescribed by it. The relief asked was an
injunction prohibiting the Governor and Attorney General of the
State and all other persons from instituting any proceeding against
the complainants, or either of them, to enforce the statute. An
injunction, as prayed for, was granted. In 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. Page 209 U. S. 191 After stating the principles settled in the 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
statute of February 9, 1895, is one which 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 character. Tindal v. Wesley, 167 U. S. 204 , 167 U. S.
222 . No such case is before us."

															Again, in the same case:

															"It is to be observed that neither the Attorney General of
Alabama nor the Solicitor of the Eleventh Judicial Circuit of the
State appear to have been charged by law with any special duty in
connection with the act of February 9, 1895. In support of the
contention that the present suit is not one against the State,
reference was made by counsel to several cases, among which were Poindexter v. Greenhow, 114 U. S. 270 ; Allen v.
Baltimore & Ohio Railroad, 114 U. S.
311 ; Pennoyer v. McConnaughy, 140 U. S. 1 ; In re Tyler, 149 U. S. 164 ; Reagan v.
Farmers' Loan & Trust Co., 154 U. S.
362 , 154 U. S. 388 ; Scott v.
Donald, 165 U. S. 58 ; and Smyth v.
Ames, 169 U. S. 466 . Upon examination,
it will be found that the defendants in each of those cases were
officers of the State, especially charged with the execution of a
State enactment Page 209 U. S. 192 alleged to be unconstitutional, but under the authority of
which, it was averred, they were committing or were about to commit some specific wrong or trespass, to the injury of the
plaintiff's rights. There is a wide difference between a suit
against individuals, holding official positions under a State, to
prevent them, under the sanction of an unconstitutional statute,
from committing, by some positive act, a wrong or trespass, and a suit against officers of a State merely to test the
constitutionality of a State statute, in the enforcement of which
those officers will act only by formal judicial proceedings in the
courts of the State. In the present case, as we have said,
neither of the state officers named held any special relation to
the particular statute alleged to be unconstitutional. They were
not expressly directed to see to its enforcement. If, because they
were law officers of the State, a case could be made for the
purpose of testing the constitutionality of the statute, by an
injunction suit brought against them, then the constitutionality of
every act passed by the legislature could be tested by a suit
against the Governor and Attorney General, based upon the theory
that the former, as the executive of the State, was, in a general
sense, charged with the execution of all its laws, and the latter,
as Attorney General, might represent the State in litigation
involving the enforcement of its statutes. That would be a very
convenient way for obtaining a speedy judicial determination of
questions of constitutional law which may be raised by individuals,
but it is a mode which cannot be applied to the States of the Union
consistently with the fundamental principle that they cannot,
without their assent, be brought into any court at the suit of
private persons. If their officers commit acts of trespass or wrong
to the citizen, they may be individually proceeded against for such
trespasses or wrong. Under the view we take of the question, the
citizen is not without effective remedy when proceeded against
under a legislative enactment void for repugnancy to the supreme
law of the land; for, whatever the form of proceeding against him,
he can make his defense upon the Page 209 U. S. 193 ground that the statute is unconstitutional and void. And that
question can be ultimately brought to this court for final
determination."

															I am unable to distinguish that case, in principle, from the one
now before us. The Fitts case is not overruled, but is, I
fear, frittered away or put out of sight by unwarranted
distinctions.

															Two cases in this court are much relied on to support the
proposition that the Perkins-Shepard suit in the Circuit Court is
not a suit against the State. I refer to Reagan v. Farmers'
Loan & Trust Co., 154 U. S. 362 , and Smyth v. Ames, 169 U. S. 466 , 169 U. S. 472 .
But each of those cases differs in material respects from the one
instituted by Perkins and Shepard in the court below. In the Reagan case, it appears that the very act under which the
railroad commission proceeded authorized the railroad company, or
any interested party, if dissatisfied with the action of the
commission in establishing rates, to bring suit against that
commission in any court, in a named county, with right to appeal to
a higher court. This court, when combating the suggestion that only
the state court had jurisdiction to proceed against the commission,
and give relief in respect of the rates it established, said:

															"It may be laid down as a general proposition that, whenever a
citizen of a State can go into the courts of a State to defend his
property against the illegal acts of its officers, a citizen of
another State may invoke the jurisdiction of the Federal courts to
maintain a like defense. A State cannot tie up a citizen of another
State, having property rights within its territory invaded by
unauthorized acts of its own officers, to suits for redress in its
own courts. Given a case where a suit can be maintained in the
courts of the State to protect property rights, a citizen of
another State may invoke the jurisdiction of the Federal courts. .
. . It comes, therefore, within the very terms of the act. It
cannot be doubted that a State, like any other government, can
waive exemption from suit."

															The declaration of the court in the Reagan case that
that suit was not, within the true meaning of the Eleventh Page 209 U. S. 194 Amendment, to be regarded as a suit against the State, must
therefore be taken in connection with the declaration in the same
case that the State, having consented that the commission might be
sued in one of its own courts in respect of the rates established
by the statute, must be taken to have waived its immunity from suit
in the Circuit Court of the United States sitting in Texas. In Smyth v. Ames, above cited, which was a suit in a Circuit
Court of the United States, involving the constitutional validity
of certain rates established for railroads in Nebraska, it appeared
that the statute expressly authorized any railroad company claiming
that the rates were unreasonable to bring an action against the
State before the Supreme Court in the name of the railroad
company or companies bringing the same. Thus, the State of Nebraska
waived its immunity from suit, and having authorized a suit against
itself in one of its courts in respect of the rates there in
question, it could not, according to the decision in the Reagan case, deny its liability to like suit in a court of
the United States. It is true that this court, in its opinion in Smyth v. Ames, did not lay any special stress on the fact
that Nebraska, by the statute, agreed that it might be sued, but it
took especial care in its extended statement of the case to bring
out that fact. Its silence on that point is not extraordinary, in
view of the fact, as appears from the opinion of this court, that
the question whether that suit was to be deemed one against the
State was not discussed at the bar by the Nebraska State Board. We
there quoted from the Reagan case these words:

															"Whenever a citizen of a State can go into the courts of a State
to defend his property against the illegal acts of its officers, a
citizen of another State may invoke the jurisdiction of the Federal
courts to maintain a like defense. A State cannot tie up a citizen
of another State, having property rights within its territory
invaded by unauthorized acts of its own officers, to suits for
redress in its own courts."

															That the Reagan and Smyth cases did not go as
far as is now claimed for them is made clear by the later case of Fitts v. McGhee, already referred Page 209 U. S. 195 to, in which the doctrines of In re Ayers were
reaffirmed and applied.

															We may refer in this connection to Gunter v. Atlantic Coast
Line, 200 U. S. 273 , 200 U. S. 291 ,
in which case one of the points made was that the Circuit Court of
the United States had no power to restrain the Attorney General of
South Carolina and the counsel associated with him from prosecuting
in the state courts actions authorized by the laws of the State,
and hence that the court erred in awarding an injunction against
said officers. This court said:

															"Support for the proposition is rested upon the terms of the
Eleventh Amendment and the provisions of § 720 of the Revised
Statutes forbidding the granting of a writ by any court of the
United States to stay proceedings in any court of a State, except
in cases where such injunction may be authorized by any law
relating to proceedings in bankruptcy. The soundness of the
doctrine relied upon is undoubted. In re Ayers, 123 U. S.
443 ; Fitts v. McGhee, 172 U. S.
516 . The difficulty is that the doctrine is inapplicable
to this case. Section 720 of the Revised Statutes was originally
adopted in 1793, whilst the Eleventh Amendment was in process of
formation in Congress for submission to the States, and long,
therefore, before the ratification of that Amendment. The
restrictions embodied in the section were therefore but a partial
accomplishment of the more comprehensive result effectuated by the
prohibitions of the Eleventh Amendment. Both the statute and the
amendment relate to the power of courts of the United States to
deal, against the will and consent of a State, with controversies
between it and individuals. None of the prohibitions, therefore, of
the Amendment or of the statute relate to the power of a Federal
court to administer relief in causes where jurisdiction as to a
State and its officers has been acquired as a result of the
voluntary action of the State in submitting its rights to judicial
determination. To confound the two classes of cases is but to
overlook the distinction which exists between the power of a court
to deal with a subject over which it has Page 209 U. S. 196 jurisdiction and its want of authority to entertain a
controversy as to which jurisdiction is not possessed."

															Counsel for the railway company placed some reliance on Pennoyer v. McConnaughy, 140 U. S. 1 , 140 U. S. 18 , in
which the previous cases on the general subject of suits against
the States were classified. That case was a suit in equity against
certain parties

															"who, under the Constitution of Oregon, as Governor, Secretary
of State, and Treasurer of State, comprised the Board of Land
Commissioners of that State, to restrain and enjoin them from
selling and conveying a large amount of land in that State to which
the appellee asserted title."

															That suit, in view of the nature of the relief asked, and of the
relations of the defendants to the matters involved, was held not
to be one against the State within the meaning of the Eleventh
Amendment. But after a review of the facts, the court, as
explanatory of the conclusion reached by it, took especial
care to observe:

															"In this connection, it must be borne in mind that this suit is
not nominally against the Governor, Secretary of State, and
Treasurer, as such officers, but against them
collectively, as the Board of Land Commissioners."

															The present suit is, in terms, against Young "as Attorney
General of Minnesota," and the decree was sought against him as
such officer; not against him individually, or as a mere
administrative officer charged with certain duties.

															One of the cases cited in support of the decision now rendered
is Missouri, Kansas & Texas Railway Co. v. Missouri R.R.
& Warehouse Commissioners, 183 U. S.
53 , 183 U. S. 58 , 183 U. S. 59 .
But although that particular suit was held not to be one against
the State, the case, in respect of the principles announced by the
court, is in harmony with the views I have expressed. For the court
there says:

															"Was the State the real party plaintiff? It was at an early day
held by this court, construing the Eleventh Amendment, that, in all
cases where jurisdiction depends on the party, it is the party
named in the record. Osborn v. United States
Bank , 9 Wheat. 738. But that technical construction
has yielded to one more in consonance with the Page 209 U. S. 197 spirit of the Amendment, and in In re Ayers, supra, it
was ruled upon full consideration that the Amendment covers not
only suits against a State by name, but those also against its
officers, agents, and representatives where the State, though not
named as such, is nevertheless the only real party against which in
fact the relief is asked, and against which the judgment or decree
effectively operates. And that construction of the Amendment
has since been followed."

															In the present case, the State, although not named on the record
as a party, is the real party whose action it is sought to
control.

															There are other cases in this court in which the scope and
meaning of the Eleventh Amendment were under consideration, but
they need not be cited, for they are well known. They are all cited
in In re Ayers, 123 U. S. 443 , 123 U. S. 500 .
"The vital principle in all such cases," this court said in the Ayers case,

															"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,"

															or cases in which the officer sued refused to perform a purely
ministerial duty, about which he had no discretion and in the
performance of which the plaintiff had a direct interest. The case
before us is altogether different. The statutes in question did not
impose upon the Attorney General of Minnesota any special duty to
see to their enforcement. In bringing the mandamus suit, he acted
under the general authority inhering in him as the chief law
officer of his State. He could not become personally liable to the
railway company simply because of his bringing the mandamus
suit. The Attorney General stated that all he did, or
contemplated doing, was to bring the mandamus suit. The mere
bringing of such a suit could not be alleged against him as an
individual, in violation of any legal right of the railway company
or its shareholders. In re Ayers, 123 U.
S. 443 , 123 U. S. 496 .
The plaintiffs recognized this fact, and hence did not proceed in
their suit upon the ground that the defendant was individually
liable. They sued him only as Attorney General, Page 209 U. S. 198 and sought a decree against him in his official capacity, not
otherwise.

															Some reference has been made to Ex parte Royall, 117 U. S. 241 , and
other cases, that affirm the authority of a Federal court, under
existing statutes, to discharge upon habeas corpus, from the
custody of a State officer, one who is held in violation of the
Federal Constitution for an alleged crime against a State. Those
cases are not at all in point in the present discussion. Such a
habeas corpus proceeding is ex parte, having for its
object only to inquire whether the applicant for the writ is
illegally restrained of his liberty. If he is, then the state
officer holding him in custody is a trespasser, and cannot defend
the wrong or tort committed by him, by pleading his official
character. The power in a Federal court to discharge a person from
the custody of a trespasser may well exist, and yet the court have
no power in a suit before it, by an order directed against the
Attorney General of a State, as such, to prevent the State from
being represented by that officer as a litigant in one of its own
courts. The former cases, it may be argued, come within the
decisions which hold that a suit which only seeks to prevent or
restrain a trespass upon property or person by one who happens to
be a state officer, but is proceeding in violation of the
Constitution of the United States, is not a suit against a State
within the meaning of the Eleventh Amendment, but a suit against
the trespasser or wrongdoer. But the authority of the Federal court
to protect one against a trespass committed or about to be
committed by a state officer, in violation of the Constitution of
the United States, is very different from the power now asserted,
and recognized by this court as existing, to shut out a sovereign
State from its own courts by the device of forbidding its Attorney
General, under the penalty of fine and imprisonment from appearing
in such courts in its behalf. The mere bringing of a suit on
behalf of a State by its Attorney General cannot (this court
has decided in the Ayers case) make that officer a
trespasser and individually liable to the Page 209 U. S. 199 party sued. To enjoin him from representing the State in such
suit is therefore, for every practical or legal purpose, to enjoin
the State itself. This court, in In re Debs, 158 U.
S. 564 , 158 U. S. 584 ,
said:

															"Every government, intrusted, by the very terms of its being,
with powers and duties to be exercised and discharged for the
general welfare, has a right to apply to its own courts for any
proper assistance in the exercise of the one and the discharge of
the other, and it is no sufficient answer to its appeal to one of
those courts that it has no pecuniary interest in the matter. The
obligations which it is under to promote the interest of all, and
to prevent the wrongdoing of one resulting in injury to the general
welfare, is often of itself sufficient to give it a standing in
court. This proposition in some of its relations has heretofore
received the sanction of this court."

															If there be one power that a State possesses which ought to be
deemed beyond the control, in any mode, of the national government
or of any of its courts, it is the power, by judicial
proceedings, to appear in its own courts, by its law officer
or by attorneys, and seek the guidance of those courts in respect
of matters of a justiciable nature. If the state court, by its
judgment, in such a suit, should disregard the injunctions of the
Federal Constitution, that judgment would be subject to review by
this court upon writ of error or appeal.

															It will be well now to look at the course of decisions in other
Federal courts.

															Attention is first directed to Arbuckle v. Blackburn, 113 Fed.Rep. 616, 622, which was a suit in equity, one of the
principal objects of which was to restrain the enforcement of an
act of the Ohio legislature relating to food products, particularly
of a named coffee in which the plaintiffs were interested. The
Circuit Court of appeals held that the bill was properly dismissed,
saying, among other things:

															"What, then, is the object of the injunction sought in this
case? It is no more or less than to restrain the officer of the
State from bringing prosecutions for violations of an act which
such officer Page 209 U. S. 200 is expressly charged to enforce in the only way he is authorized
to proceed -- by bringing criminal prosecutions in the name of the
State. This is virtually to enjoin the State from proceeding
through its duly qualified and acting officers. If the food
commissioner may be enjoined from instituting such prosecutions,
why may not the prosecuting attorney, or any officer of the State,
charged with the execution of the criminal laws of the State? While
the State may not be sued, if the bill can be sustained against its
officers, it is as effectually prevented from proceeding to enforce
its laws as it would be by an action directly against the State.
This view of the case, in our judgment, is amply sustained by the
cases above cited, and by the later case of Fitts v.
McGhee, 172 U. S. 516 . . . . Insofar as
this action seeks an injunction against the respondent from
proceeding to enforce by prosecution the provisions of the statutes
of Ohio above cited, the courts of the United States are deprived
of jurisdiction by the Eleventh Amendment to the Constitution."

															In Union Trust Co. v. Stearns, 119 Fed.Rep. 790, 791,
792, 795, the Circuit Court of the United States for the district
of Rhode Island had occasion to consider the scope of the Eleventh
Amendment. The case related to a statute regulating the hours of
labor of certain employees of street railways, and imposing a fine
for a violation of its provisions. The court, upon an elaborate
review of all the cases in this court, dismissed the action. The
defendants Stearns and Greenough were, respectively, the Attorney
General and assistant Attorney General of the State. They were not
named in the act, nor charged with any special duty in connection
therewith. The court said:

															"The purpose of the present bill, in substance and effect, is to
enjoin the State of Rhode Island from the enforcement of a penal
statute. Indictments under the act are brought in the name and on
behalf of the State, for the protection of the State. These
defendants, the Attorney General and his assistant, merely
represent the State in such proceedings. They are simply the
officers and agents of the State. It is not as Page 209 U. S. 201 individuals, but solely by virtue of their holding such offices,
that they prefer and prosecute indictments in the name of the
State. A State can only act or be proceeded against through its
officers. If a decree could be entered against the State of Rhode
Island, enjoining prosecutions under this act, it could only
operate against the State through enjoining these defendants. An
order restraining the Attorney General and his assistant from the
enforcement of this statute is an order restraining the State
itself. The present suit, therefore, is as much against the State
of Rhode Island as if the State itself were named a party
defendant."

															After referring to In re Ayers and Fitts v.
McGhee, and upon a review of the cases, the court
proceeded:

															"The defendants Stearns and Greenough hold no special relation
to the act of June 1, 1902. They are not specially charged with its
execution. They are not thereby constituted a board or commission
with administrative powers, nor are they, as individuals, and apart
from the official authority under which they act, threatening to
seize the property of the complainant, or to commit any wrong or
trespass against its personal or property rights. They have no
other connection with this statute than the institution of formal
judicial proceedings for its enforcement in the courts of the
State, in the name and behalf of the State. Upon reason and
authority, the present bill is a suit against the State of Rhode
Island within the meaning of the Eleventh Amendment to the
Constitution of the United States."

															In Morenci Copper Co. v. Freer, 127 Fed.Rep. 199, 205,
which was an action in equity to restrain and inhibit the
defendant, in his official capacity as Attorney General of West
Virginia, from proceeding to institute an action in the state court
for forfeiture of the charter of the plaintiff corporation for a
failure to pay a license tax imposed by a state statute, and which
statute was alleged to be in violation of the Federal Constitution,
the Circuit Court reviewed the decision of this court upon the
question as to what were and what were not suits against the State.
The Circuit Court held that it had no jurisdiction Page 209 U. S. 202 of the case, saying:

															"But it may be said, if the court holds that no remedy of this
sort will lie in the Circuit Court of the United States to prevent
this breach of a contract by the State of West Virginia by means of
the machinery of a law violative of the Constitution of the United
States, how are the rights of corporations to be preserved? The
answer is that such alleged unconstitutionality is matter of
defense to any suit brought for the forfeiture of complainant's
charter, and could be set up as an answer and defense to any bill
brought for that purpose; and, if the highest court of the State
ruled adversely to that contention, appeal would lie to the Supreme
Court of the United States. Or the case can be removed to the
Circuit Court of the United States if it presents a case arising
under the Constitution or laws of the United States."

															A well considered case is that of Western Union Tel. Co. v.
Andrews, 154 Fed.Rep. 95, 107. In that case, the telegraph
company sought by bill to enjoin the prosecuting attorneys of the
various judicial circuits of Arkansas from instituting any
proceeding for penalties for its failure or refusal to comply with
the provisions of an act of the legislature of Arkansas relating to
foreign corporations doing business in that State and fixing fees,
etc. The bill charged that the various prosecuting attorneys would,
unless restrained, institute numerous actions for the recovery of
the penalties prescribed by the act, which was no less than $1,000
for each alleged violation. The defense was, among other things,
that the action was one against the State, and, therefore,
prohibited by the Constitution. After a careful review of the
adjudged cases in this court and in the subordinate Federal courts,
the Circuit Court held the action to be one against the State,
forbidden by the Eleventh Amendment, saying, among other
things:

															"The allegations in the bill show that this is an attempt to
prevent the State of Arkansas, through its officers, who, by its
laws, are merely its attorneys, to represent it in all legal
actions in its favor or in which it is interested, from instituting
and prosecuting suits for the recovery of penalties incurred for
alleged Page 209 U. S. 203 violation of its laws -- actions which can only be instituted in
the name of the State and for its use and benefit."

															Upon the fullest consideration and after a careful examination
of the authorities, my mind has been brought to the conclusion that
no case heretofore determined by this court requires us to hold
that the Federal Circuit Court had authority to forbid the Attorney
General of Minnesota from representing the State in the mandamus
suit in the state court, or to adjudge that he was in contempt and
liable to be fined and imprisoned simply because of his having, as
Attorney General, brought that suit for the State in one of its
courts. On the contrary, my conviction is very strong that, if
regard be had to former utterances of this court, the suit of
Perkins and Shepard in the Federal court, in respect of the relief
sought therein against Young, in his official capacity, as Attorney
General of Minnesota, is to be deemed -- under the Ayers and Fitts cases particularly -- a suit against the State,
of which the Circuit Court of the United States could not take
cognizance without violating the Eleventh Amendment of the
Constitution. Even if it were held that suits to restrain the
instituting of actions directly to recover the prescribed penalties
would not be suits against the State, it would not follow that we
should go further and hold that a proceeding under which the State
was, in effect, denied access, by its Attorney General, to its own
courts would be consistent with the Eleventh Amendment. A different
view means, as I think, that although the judicial power of the
United States does not extend to any suit expressly brought against
a State by a citizen of another State without its consent, or to
any suit the legal effect of which is to tie the hands of the
State, although not formally named as a party, yet a Circuit Court
of the United States, in a suit brought against the Attorney
General of a State, may, by orders directed specifically against
that officer, control, entirely control, by indirection, the action
of the State itself in judicial proceedings in its own courts
involving the constitutional validity of its statutes. This court
has heretofore held that Page 209 U. S. 204 that could not be done, and that such a result would, for most
purposes, practically obliterate the Eleventh Amendment, and place
the States, in vital particulars, as absolutely under the control
of the subordinate Federal courts as if they were capable of being
directly sued. I put the matter in this way because to forbid the
Attorney General of a State (under the penalty of being punished as
for contempt) from representing his State in suits of a particular
kind in its own courts is to forbid the State itself from appearing
and being heard in such suits. Neither the words nor the policy of
the Eleventh Amendment will, under our former decisions, justify
any order of a Federal court the necessary effect of which will be
to exclude a State from its own courts. Such an order, attended by
such results, cannot, I submit, be sustained consistently with the
powers which the States, according to the uniform declarations of
this court, possess under the Constitution. I am justified, by what
this court has heretofore declared, in now saying that the men who
framed the Constitution, and who caused the adoption of the
Eleventh Amendment, would have been amazed by the suggestion that a
State of the Union can be prevented, by an order of a subordinate
Federal court, from being represented by its Attorney General in a
suit brought by it in one of its own courts; and that such an order
would be inconsistent with the dignity of the States as involved in
their constitutional immunity from the judicial process of the
Federal courts (except in the limited cases in which they may
constitutionally be made parties in this court), and would be
attended by most pernicious results.

															I dissent from the opinion and judgment. Dissent.