Barney v. New York/Opinion of the Court
'In this connection it is proper to state that civil rights, such as are guaranteed by the Constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the state, or not done under state authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the state for redress.'

There are many cases in this court involving the application of the 11th Amendment which draw the distinction between acts of public officers virtute officii, and their acts without lawful right, colore officii; and in Pennoyer v. McConnaughy, 140 U.S. 1, 35 L. ed 363, 11 Sup. Ct. Rep. 699, Mr. Justice Lamar defined the two classes to be, those brought against officers of the state as representing the state's action and liability, and those against officers of the state when claiming to act as such without lawful authority. The subject is discussed to be, those brought against officers of the Wesley, 167 U.S. 204, 42 L. ed. 137, 17 Sup. Ct. Rep. 770, and Fitts v. McGhee, 172 U.S. 516, 43 L. ed. 535, 19 Sup. Ct. Rep. 269. Appellant's counsel rely on certain expressions in the opinion in Ex parte Virginia, 100 U.S. 339, 25 L. ed. 676, but that was a case in which what was regarded as the final judgment of a state court was under consideration, and Mr. Justice Strong also said: 'Whoever, by virtue of public position under a state government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the state, and is clothed with the state's power, his act is that of the state.'

And case Manhattan R. Co. v. New York, 18 Fed. 195; Kiernan v. Multnomah County, 95 Fed. 849; Re Storti, 109 Fed. 807.

Scott v. McNeal, 154 U.S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 1108, and Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581, are cited by appellant, but in those cases judgments of the highest judicial tribunals of the state were treated as acts of the state, and no question of the correctness of that view arises here.

And so in Reagan v. Farmers' Loan & T. Co. 154 U.S. 362, 38 L. ed. 1014, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047, the general assembly of Texas had established a railroad commission and given it power to fix reasonable rates, with discretion to determine what rates were reasonable. The act provided that suits might be brought by individuals against the commission 'in a court of competent jurisdiction in Travis county, Texas,' and a citizen of another state sued them in the circuit court of the United States for the district which embraced Travis county, and this was held to be authorized by the state statute.

And as the establishment of rates by the commission was the establishment of rates by the state itself, and the determination of what was reasonable was left to the discretion of the commission, their action could not be regarded as unauthorized, even though they may have exercised the discretion unfairly.

Similarly in Pacific Gas Improv. v. Ellert, 64 Fed. 421, where a public board was given power to improve streets, and proceeded in excess of its powers, but not in violation of them, its action was regarded by Mr. Justice McKenna, then circuit judge, as state action.

In the present case defendants were proceeding, not only in violation of provisions of the state law, but in opposition to plain prohibitions.

Section 5 of the act of March 3, 1875, 18 Stat. at L. 470, chap. 137 (U.S.C.omp. Stat. 1901, p. 508), provided that if, in any suit in the circuit court, it should appear, to the satisfaction of the court, at any time, that the suit did not really and substantially involve a dispute or controversy properly within its jurisdiction, the court should proceed no further, but dismiss the suit. The last paragraph of this section was in terms repealed by the act of March 3, 1887, 24 Stat. at L. 522, chap. 373, re-enacted August 13, 1888, 25 Stat. at L. 433, chap. 866 (U.S.C.omp. Stat. 1901, p. 515) (the part repealed not being material here), but otherwise the section remained and remains in full force. This case went off on the motion for preliminary injunction, and the bill was properly dismissed, whether treated as if heard on demurrer, or on the proofs by affidavit.

Decree affirmed. 

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