cution by a private individual of a suit against a State as a party defendant. Cases have, however, often arisen where, although a State was not a formal party, yet it had rights which it claimed would be affected by the determination of a suit before the court. To accurately determine the jurisdiction of the Federal courts in these cases has been a very difficult and delicate matter, and the questions which thus constantly arise are hard to answer. The fact that a State is not named as a party to the record does; not of itself remove a case from the terms of the Eleventh Amendment. Whether a State is an actual party in the sense of the prohibition must be determined by a consideration of the nature of the case as presented by the whole record. The subject was recently discussed by Mr. Justice Miller, with the apparent approval of a majority of the Supreme Court: "It 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. This principle is conceded in all the cases; and whenever it can be clearly seen that the State is an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction. But in the desire to do that justice which in many cases the courts can see will be defeated by an unwarranted extension of this principle, they have in some instances gone a long way in holding the State not to be a necessary party, though some interest of hers may be more or less affected by the decision. In many of these cases the action of the court has been based upon principles whose soundness cannot be disputed. A reference to a few of them may enlighten us in regard to the case now under consideration. 1. It has been held in a class of cases, where property of the State, or property in which the State has an interest, comes before the court and under its control, in the regular course of judicial administration, without being forcibly taken

Elliott v. Wiltz, 107 U. S. 711; Cunningham v. Macon & Brunswick R. R. Co, 109 U. S. 446; Hagood v. Southern, 117 U. S. 52; In re Ayers, 123 U. S. 443.

5 Poindexter v. Greenhow, 114 U. S. 270, 287; In re Ayers, 123 U. S. 443, 492.

6

from the possession of the government, the court will proceed to discharge its duty in regard to that property, and the State, if it choose to come in as plaintiff, as in prize cases, or to intervene in other cases where she may have a lien or other claim on the property, will be permitted to do so, but subject to the rule that her rights will receive the same consideration as any other party interested in the matter, and be subjected in like manner to the judgment of the court. 2. Another class of cases is: where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defence is that he has acted under the orders of the government. In these cases he 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. To make out his defence he must show that his authority was sufficient in law to protect him. 3. A third class, which has given rise to more controversy, is where the law has imposed upon an officer of the government a well-defined duty in regard to a specific matter, not affecting the general powers or functions of the government, but in the performance of which one or more individuals have a distinct interest capable of enforcement by judicial process. Of this class are writs of mandamus to public officers." 8 "But in all such cases, from the nature of the remedy of mandamus, the duty to be performed must be merely ministerial, and must involve no element of discretion to be exercised by the officer. It has, however, been much insisted on that in this class of cases, where it shall be found necessary to enforce the rights of the individual, a court of chancery may, by a mandatory decree or by an injunction, compel the performance of the appropriate duty, or enjoin the officer from doing that which is inconsistent with that duty and with plaintiff's

6 Cunningham v. Macon & Brunswick R. R. Co., 109 U. S. 446, 451, 452; citing on this point The Siren, 7 Wall. 152, 157; The Davis, 10 Wall. 15, 20; Clark v. Barnard, 108 U. S. 436.

7 Cunningham v. Macon & Brunswick R. R. Co., 109 U. S. 446, 452; citing Mitchell v. Harmony, 13 How. 115; Bates v. Clark, 95 U. S. 204; Meigs v. McClung, 9 Cranch, 11; Wilcox v. Jackson, 13 Pet. 498; Brown v. Huger, 21 How. 305; Grisar v. McDowell, 6 Wall.

363; United States v. Lee, 106 U. S. 196; Virginia Coupon Cases, 114 U. S. 269.

8 Cunningham v. Macon & Brunswick R. R. Co., 109 U. S. 446, 452, 453; citing Marbury v. Madison, 1 Cranch, 137; Kendall v. Stokes, 3 How. 87; United States v. Schurz, 102 U. S. 378; United States v. Boutwell, 17 Wall. 604. See Rolston v. Missouri Fund Commissioners, 120 U. S. 390, 411.

rights in the premises. Perhaps the strongest assertion of this doctrine is found in the case of Davis v. Gray, 16 Wall. 203. In that case, the State of Texas, having made a grant of the alternate sections of land along which a railroad should thereafter be located, and the railroad company having surveyed the land at its own expense and located its road through it, the commissioner of the State land office and the governor of the State were, in violation of the rights of the company, selling and delivering patents for the sections to which the company had an undoubted vested right. The circuit court enjoined them from doing this by its decree, which was affirmed in this court."9 "But it is clear that in enjoining the governor of the State in the performance of one of his executive functions, the case goes to the verge of sound doctrine, if not beyond it, and that the principle should be extended no further.10 Nor was there in that case any affirmative relief granted by ordering the governor and land commissioner to perform any act towards perfecting the title of the company. The case of The Board of Liquidation v. McComb, 92 U. S. 531, is to the same effect. The board of liquidation was charged by the statute of Louisiana with certain duties in regard to issuing new bonds of the State in place of old ones which might be surrendered for exchange by the holders of the latter. The amount of new bonds to be issued was limited by a constitutional provision. McComb, the owner of some of the new bonds already issued, filed his bill to restrain the board from issuing that class of bonds in exchange for a class of indebtedness not included within the purview of the statute, on the ground that his own bonds would thereby be rendered less valuable. This court affirmed the decree of the circuit court enjoining the board from exceeding its power in taking up by the new issue a class of State indebtedness not within the provisions of the law on that subject. In the opinion in that case the language used by Mr. Justice Bradley well and truly thus expresses the rule and its limitations: The objections to proceeding against State officers by mandamus or injunction are, first, that it is in effect proceeding against the State

9 Cunningham v. Macon & Brunswick R. R. Co., 109 U. S. 446, 453. See also Pennoyer v. McConnaughy, 140 U. S. 1; s. c. 43 Fed. R. 196; s. c. 43 Fed. R. 339.

10 Davis v. Gray, 16 Wall. 203, was followed and approved as to the point questioned here in Pennoyer v. McConnaughy, 140 U. S. 1; s. c. 43 Fed. R. 196; s. c. 43 Fed. R. 339.

itself; and, second, that it interferes with the official discretion vested in the officers. It is conceded that neither of these can be done. A State, without its consent, cannot be sued as an individual; and a court cannot substitute its own discretion for that of executive officers, in matters belonging to the proper jurisdiction of the latter. But it has been settled that where a plain official duty requiring no exercise of discretion is to be performed, and performance is refused, any person who will sustain a personal injury by such refusal may have a mandamus to compel performance; and when such duty is threatened to be violated by some official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it.' It is believed that this is as far as the court has gone in granting relief in this class of cases. The case of Osborne v. Bank of the United States, 9 Wheat. 738, often referred to, was decided upon this principle, and goes no further; for, in that case, a preliminary injunction of the court forbidding a State officer from placing the money of the bank, which he had seized, in the treasury of the State, having been disregarded, the final decree corrected this violation of the injunction, by requiring the restoration of the money thus removed." 11 "On the other hand, in the cases of Louisiana v. Jumel, and Elliott v. Wiltz, 107 U. S. 711, decided at the last term, very ably argued and very fully considered, the court declined to go any further. In the first of these cases the owners of the new bonds issued by the board of liquidation mentioned in McComb's case, above cited, brought the bill in equity in the Circuit Court of the United States, to compel the auditor of the State and the treasurer of the State to pay, out of the treasury of the State, the overdue interest coupons on their bonds, and to enjoin them from paying any part of the taxes collected for that purpose for the ordinary expenses of the government. They at the same time applied to the State court for a writ of mandamus to the same officers, which suit was then removed into the Circuit Court of the United States. In this they asked that these officers be commanded to pay, out of the moneys in the treasury, the taxes which they main

11 See also Pennoyer v. McConnaughy, 135 U. S. 662, 684; Louisiana v. Jumel, 140 U. S. 1; s. c. 43 Fed. R. 196; s. c. 107 U. S. 711. 43 Fed. R. 339; McGahey v. Virginia,

tained had been assessed for the purpose of paying the interest on their bonds, and to pay such sums as had already been diverted from that purpose to others by the officers of the government. The Circuit Court refused the relief asked in such case, and this court affirmed the judgment of that court." 12 "We think the foregoing cases mark, with reasonable precision, the limit of the power of the courts in cases affecting the rights of the State or Federal governments in suits to which they are not voluntary parties. In actions at law, of which mandamus is one, where an individual is sued, as for injuries to persons or property, real or personal, or in regard to a duty which he is personally bound to perform, the government does not stand behind him to defend him. If he has the authority of law to sustain him in what he has done, like any other defendant he must show it to the court and abide the result. In either case the State is not bound by the judgment of the court, and generally its rights remain unaffected. It is no answer for the defendant to say, I am an officer of the government and acted under its authority, unless he shows the sufficiency of that authority. Courts of Equity proceed upon different principles in regard to parties.” 13 "Two classes of cases have appeared in the decisions of this court, and it is in determining to which class a particular case belongs that differing views have been presented. The first class is where the suit is brought against the officers of the State, as representing the State's action and liability, thus making it, though not a party to the record, the real party against which the judgment will so operate as to compel it to specifically perform its contracts. 14 The other class is where a suit is brought against defendants who, claiming to act as officers of the State, and under the color of an unconstitutional statute, commit acts of wrong and injury to the rights and property of the plaintiff acquired under a contract with the State. Such suit, whether brought to recover money or property in the hands of such defendants, unlawfully taken by them

12 Cunningham v. Macon & Brunswick R. R. Co., 109 U. S. 446, 454, 455. See also Governor of Georgia v. Madrazo, 1 Pet. 124; Hagood v. Southern, 117 U. S. 52; North Carolina v. Temple, 134 U. S. 22; Louisiana, ex rel. N. Y. Guaranty & Indemnity Co., v. Steele, 134 U. S. 230.

18 Cunningham v. Macon & Brunswick R. R. Co., 109 U. S. 446, 456. See Virginia Coupon Cases, 114 U. S. 269.

14 Pennoyer v. McConnaughy, 140 U. S. 1, 9, 10, per Mr. Justice Lamar.