alleged that a mere suggestion of title in a State to property, in possession of an individual, must arrest the proceedings of the court and prevent their looking into the suggestion and examining the validity of the title."

Marshall then goes on to show that in the case at bar the property in question had in fact never been paid over to and thus gone into the possession of the State.

§ 620. Osborn v. Bank of the United States.

In the case of Osborn v. Bank of the United States an injunction was asked of the federal court to restrain the auditor of the State of Ohio from proceeding against the Bank of the United States under a tax law of that State which law, it was alleged, was in violation of the federal Constitution. Among other grounds for resistance to this application it was argued that the actual defendant in interest in the case was the State; that the State was not and could not be made a defendant of record, and that, therefore, its agents might not be restrained. To this Marshall, who rendered the opinion of the court, replied that the direct interest of the State in the suit was admitted, and, also, that under the Eleventh Amendment it could not be made a party of record, but that this did not render the federal court powerless to restrain the State's agents from proceeding under an unconstitutional law against an individual or corporation. In supporting this contention, Marshall, as was his wont, argued not so much from the requirements of technical procedure or from the letter of the Constitution, as from the general character of the government intended to be established and maintained by that instrument, and from the politically inconvenient and destructive results that would follow from an acceptance of the doctrine he was controverting. "A denial of jurisdiction" he said, "forbids all inquiry into the nature of the case. It applies to cases perfectly clear in themselves; to cases where the government is in the exercise of its best established and most essential powers, as well as to whose which may be deemed questionable. It asserts that the

30 9 Wh. 738; 6 L. ed. 204.

agents of a State, alleging the authority of a law void in itself, because repugnant to the Constitution, may arrest the execution of any law in the United States. It maintains that, if a State shall impose a fine or penalty on any person employed in the execution of any law of the United States, it may levy that fine or penalty by a ministerial officer, without the sanction even of its own courts; and that the individual, though he perceives the approaching danger, can obtain no protection from the judicial department of the government. The person thus obstructed in the performance of his duty may indeed resort to his action for damages, after the infliction of the injury, but cannot avail himself of the preventive justice of the nation to protect him in the performance of his duties."

In the Osborn case the Supreme Court did not permit a State to interfere with the exercise of the functions of a federal agent and shield itself behind the Eleventh Amendment. In succeeding cases the Supreme Court has in similar manner refused to allow the States, through their respective agents, to interfere with the personal and property rights of private individuals. In some cases it has awarded mandamus to compel the performance by state officials of duties legally imposed upon them. In other cases, it has restrained them by writs of injunction from violating private rights under color of authority derived from unconstitutional laws. Thus in Board of Liquidation v. McComb the court said: "A State, without its consent, cannot be sued by 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 well settled, that, when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance; and when such duty is threatened to be violated by some positive 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. In such 31 92 U. S. 531; 23 L. ed. 623.

cases, the writs of mandamus and injunction are somewhat correlative to each other. In either case, if the officer plead the authority of an unconstitutional law for the non-performance or violation of his duty, it will not prevent the issuing of the writ. An unconstitutional law will be treated by the courts as null and void."

In a number of cases, however, the Supreme Court has not permitted this principle of the legal responsibility of the agents of a State to countenance what is in actual effect a suit not against them personally, but against them officially as agents of the State, and, therefore, in reality against the States themselves whose officials they are. Nor has the court been willing to command the performance by a state official of other than mere ministerial acts in which no official discretion has been involved.

§ 621. Rule as to States Being Parties of Record.

As a conclusion from his argument in Osborn v. Bank of the United States, Marshall laid down the following rule: "It may, we think, be laid down as a rule that in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently, the Eleventh Amendment, which restrains the jurisdiction granted by the Constitution over suits against States is, of necessity, limited to those suits in which a State is a party on the record. The amendment has its full effect, if the Constitution be construed as it would have been construed, had the jurisdiction of the court never been extended to suits brought against a State by the citizens of another State or by aliens."

The rule thus laid down has not been adhered to. Indeed it had almost immediately to be altered. In Governor of Georgia v. Madrazo2 it was held that the Eleventh Amendment forbade the prosecution of a suit for money actually in the treasury of the State and mixed with its general funds or property legally in the hands of the governor acting officially as its chief executive. "The claim upon the governor," said Marshall," is as a governor; he is sued, not by his name, but by his title. The demand made 321 Pet. 110; 7 L. ed. 73.

In such a case,

upon him is not personally, but officially. . . where the chief magistrate of a State is sued not by his name, but by his style of office and the claim made upon him is entirely in his official character, we think the State itself may be considered as a party on the record." With a consequence, of course, that the jurisdiction of the court is ousted by the Eleventh Amendment.

And thus from time to time the court has refused to follow Marshall's rule, and has now definitely abandoned it. In Pennoyer v. McConnaughy33 the court declare: "It is the settled doctrine of this court that the question whether a suit is within the prohibition of the Eleventh Amendment is not always determined by reference to the nominal parties on the record, as the court will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit." 34

§ 622. Mandamus to State Officials.

The case of Louisiana v. Jumel35 is a leading one upon the question as to when the Supreme Court will award a mandamus 'to compel the performance by a state officer of a duty which, under color of an unconstitutional law, he refuses to perform to the prejudice of the parties plaintiff.

The State of Louisiana in 1874 provided for an issue of bonds, and in the same law provided for the levying and collection of a particular tax to create a sinking fund for their payment. In 1880, however, by a new Constitution, this provision for payment was abolished. Thereupon Jumel, as one of the holders of the bonds, alleging that that part of the new Constitution which had this effect was in violation of the federal Constitution as an impairment of the contract between the State and the holders of its bonds, applied for a mandamus to compel the treasurer of the State to apply the sinking fund that had been created to the pay

33.140 U. S. 1; 11 Sup. Ct. Rep. 699; 35 L. ed. 363.

34 Citing New Hampshire v. Louisiana, 108 U. S. 76; 2 Sup. Ct. Rep. 176; 27 L. ed. 056; and In re Ayers, 123 U. S. 443; 8 Sup. Ct. Rep. 164; 31 L. ed.

35 107 U. S. 711; 2 Sup. Ct. Rep. 128; 27 L. ed. 448.

ment of the bonds, and to continue to levy and collect the tax originally provided for. Upon appeal, the Supreme Court of the United States admitted the existence of a valid contract, but denied the relief prayed upon the following grounds:

"The relief asked will require the officers, against whom the process goes, to act contrary to the positive orders of the supreme political power of the State, whose creatures they are and to which they are ultimately responsible in law for what they do. They must use the public money in the Treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared it shall not be done. "In The Arlington Case U. S. v. Lee (106 U. S. 196; 1 Sup. Ct. Rep. 240; 27 L. ed. 171)- it was held that the officers of the United States, holding in their official capacity the possession of lands to which the United States had no title, could be required to surrender their possession to the rightful owner even though the United States were not a party to the judgment under which the eviction was to be had. Here, however, the money in question is lawfully the property of the State. It is in the manual possession of an officer of the State. The bondholders never owned it. The most they can claim is that the State ought to use it to pay their coupons, but until so used it is in no sense

theirs." "36

36 Justices Field and Harlan rendered dissenting opinions. In his dissent Justice Field argued that the act asked of the Treasurer was a purely ministerial one which the court had repeatedly said might be compelled. (Board of Liquidation v. McComb, 92 U. S. 531; 23 L. ed. 623), and denied that there was any necessity that the particular money for the payment of the bonds should have been segregated in the state treasury.

"If," he said, "the new Constitution had never been adopted there could be no question as to the power of the state courts to require that the money's collected be applied to the payment of the interest. It would not only have been the duty of the Board of Liquidation to thus apply them, but it would have been a felony to have refused to do so. Now, whatever enactment, constitutional or legislative, impairs the obligation of the contract with the bondholders, that is, abrogates or lessens the means of its enforcement, is void.