In Hagood v. Southern3 the court said: "A broad line of demarcation separates from such cases as the present, in which the decree requires, by affirmative official action on the part of the defendants, the performance of an obligation which belongs to the State in its political capacity, those in which actions at law or suits in equity are maintained against defendants who, while claiming to act as officers of the State, violate and invade the personal and property rights of the plaintiffs under color of authority, unconstitutional and void. Of such actions, for the redress of the wrong, it was said by Mr. Justice Miller in Cunningham v. Macon & Brunswick R. R. Co. (109 U. S. 446; 3 Sup. Ct. Rep. 292; 27 L. ed. 992): 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 defense, he must show that his authority was sufficient in law to protect him.'

" 38

Therefore, the new Constitution, as to that contract, is to be treated as though it had never existed. . . . Nor is there any force in the objection that the funds which the complainants and petitioners seek to reach are in the treasury of the State. They are appropriated by the law of 1874 and by the constitutional amendment of that year to the payment of the interest on the consolidated bonds. The ministerial duty only remained with the officer of the State having charge of the fund, whatever it might be, to apply it. . . . Nor is there any weight in the objection that the officers of the State are called upon to enforce the collection of the tax. They are simply called upon to obey the mandates of the law and Constitution of the .State. Both levy the tax and designate the amount and the officers to collect it. The State cannot speak through an enactment which controverts the federal Constitution."

37 117 U. S. 52; 6 Sup. Ct. Rep. 608; 29 L. ed. 805.

38 The opinion continues: "Of such cases, that of United States v. Lee, 106 U. S. 196; 1 Sup. Ct. Rep. 240; 27 L. ed. 171), is a conspicuous example, and it was upon this ground that the judgment in Poindexter v. Greenhow (114 U. S. 270; 5 Sup. Ct. Rep. 903; 29 L. ed. 185) was rested. And so the preventive remedies of equity by injunction may be employed in similar cases to anticipate and prevent the threatened wrong, where the injury would be irreparable, and there is no plain and adequate remedy at law, as was the case in Allen v. B. & O. R. R. Co. (114 U. S. 311; 5 Sup. Ct. Rep. 925; 29 L. ed. 200), where many such instances are cited."

39

In Pennoyer v. McConnaughy is again clearly stated the distinction between those suits brought against state officials which are to be regarded as suits against the State, and those which are

not.

"It is well settled," say the court in that case, "that no action can be maintained in any federal court by the citizens of one of the States against a State, without its consent, even though the sole object of such suit be to bring the State within the operation of the constitutional provision which provides that no State shall pass any law impairing the obligation of contracts.' This immunity of a State from suit is 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

performance by it of its contracts, is in effect a suit against a State itself. In the application of this latter principle 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.40

"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 in behalf of the State, or for compensation in damages, or in a proper case where the remedy at law is inade

39 140 U. S. 1; 11 Sup. Ct. Rep. 699; 35 L. ed. 363.

40 Citing In re Ayers, 123 U. S. 443; 8 Sup. Ct. Rep. 164; 31 L. ed. 216; Louisiana v. Jumel, 107 U. S. 711; 2 Sup. Ct. Rep. 128; 27 L. ed. 448; Antoni v. Greenhow, 107 U. S. 769; 2 Sup. Ct. Rep. 91; 27 L. ed. 468; Cunningham v. Macon & B. R. Co., 109 U. S. 446; 3 Sup. Ct. Rep. 292; 27 L. ed. 992; Hagood v. Southern, 117 U. S. 52; 6 Sup. Ct. Rep. 608; 29 L. ed. 805.

quate, for an injunction to prevent such wrong and injury, or for a mandamus, in a like case, to enforce upon the defendant the performance of a plain legal duty, purely ministerial, is not within the meaning of the Eleventh Amendment an action against the State." 41

In Re Tyler12 and Scott v. Donalds the doctrine is again applied that the Eleventh Amendment does not prevent the issuance of writs of injunction to prevent injuries threatened to individuals by officers claiming the authority of an unconstitutional legislative act, or to prevent the granting of mandamus to compel the performance by them of plain legal duties, purely ministerial in character.

44

In Smith v. Reeves, however, the action was held to be one against the State. In that case an action had been brought against the defendant "as treasurer of the State of California" to repay to the plaintiffs taxes which they had paid, but which, they alleged, had been unconstitutionally levied. In that case the court said: "In the present case the action is not to recover specific moneys in the hands of the state treasurer, nor to compel him to perform a plain ministerial duty. It is to enforce the liability of the State to pay a certain amount on account of the payment of taxes alleged to have been wrongfully exacted by the State from the plaintiffs. Nor is it a suit to enjoin the defendant from doing some positive or affirmative act to the injury of the plaintiffs in their persons or property, but one in effect to compel the State, through its officer, to perform its promise to return to taxpayers such amount as may be adjudged to have been taken from them under an illegal assessment."

41 Citing Osborn v. Bank of the United States, 9 Wheat. 738; 6 L. ed. 204; Davis v. Gray, 16 Wall. 203; 21 L. ed. 447; Tomlinson v. Branch, 15 Wall. 460; 21 L. ed. 189; Litchfield v. Webster County, 101 U. S. 773; 25 L. ed. 925; Allen v. Baltimore & O. R. Co., 114 U. S. 311; 5 Sup. Ct. Rep. 925; 29 L. ed. 200; Louisiana Board of Liquidation v. McComb, 92 U. S. 531; 23 L. ed. 623; Poindexter v. Greenhow, 114 U. S. 270; 5 Sup. Ct. Rep. 903; 29 L. ed. 185. 42 149 U. S. 164; 13 Sup. Ct. Rep. 785; 37 L. ed. 689. 43 165 U. S. 107; 17 Sup. Ct. Rep. 262; 41 L. ed. 648. 44 178 U. S. 436; 20 Sup. Ct. Rep. 919; 44 L. ed. 1140.

§ 623. The Virginia Debt Controversy.

The question of the suability of a State has been so fully and illuminatingly developed in the efforts of the State of Virginia to avoid the payment of certain parts of its debt, that a some what detailed account of the controversy is warranted.

The Civil War left that State in a greatly impoverished condition and at the same time saddled with a large debt and accumulated interest thereupon. In 1871 an act was passed refunding the debt and counting off one-third of it as the portion justly belonging to the State of West Virginia. By this law it was provided that the interest coupons on these new bonds should be receivable in payment of taxes and claims due to the State. This created a valid contract between the State and its bondholders.45 Soon after this there arose in the State the so-called "Readjustment" agitation led by United States Senator William Mahone, founded upon the alleged right of the State to escape if possible from the burden of this refunded debt. This led to an act passed by the State requiring, when coupons were offered in payment of taxes, that the collector should receive them only for identification, and that he should exact payment of the taxes in money, but that if, later, the coupons were satisfactorily identified and verified, the money so paid might be recovered back. This act was popularly termed the " coupon killer," as the state judges and juries were depended upon to refuse, when in any case it was possible to do so, to identify the coupons. Also an act was passed fixing the manner in which relief should be granted in case coupons were improperly refused acceptance, and providing for the taxation of bonds.

The validity of these acts was immediately contested. In Hartman v. Greenhow the Supreme Court awarded a mandamus to compel the treasurer of the State to receive the coupons in payment of taxes without first subtracting from them a tax upon the bonds to which they had been attached.

In Antoni v. Greenhow17 it was held that the "

45 Furman v. Nichol, 8 Wall. 44; 19 L. ed. 370.

46 102 U. S. 672; 26 L. ed. 271.

47 107 U. S. 769; 2 Sup. Ct. Rep. 91; 27 L. ed. 468.

coupon killer "

act was valid in so far as it merely changed the means by which the holder of the coupons could compel their application to the payment of taxes when they had been refused acceptance."

48

In its opinion the court took pains to explain that it did not pass upon the question whether the tax collector was justified in refusing to accept the coupons in payment of taxes, but simply whether, if he did refuse, the remedy provided by the new law was substantially equivalent to that which the holder of the coupons possessed at the time the bonds were issued. Thus the constitutionality of the entire act was not in question, but only that Part of it which related to the remedy afforded in case the coupons were refused acceptance. In Poindexter v. Greenhow,19 however, the constitutionality of the provision of the law of 1882 which required tax collectors to receive in payment of taxes only gold and silver and United States notes and National Bank currency, came up for consideration. Poindexter tendered coupons in payment of his taxes, and, when they were refused acceptance, refused to tender currency, and, when his personal property was seized, brought action of detinue against Greenhow, treasurer and collector of taxes of the city of Richmond, Virginia. Upon appeal to the Supreme Court of the United States, the court held the Virginia act unconstitutional as impairing the obligation of the contract into which the State had entered in 1871, and declared, therefore, that the action of Greenhow in refusing to receive the tender of coupons was unwarranted, and his seizure of the plaintiff's property a trespass.

48 From this decision Justice Field dissented. "How can it be maintained," he declared, that the legislation of January 14 and April 7, 1882, does not impair the obligation of the contract under the Funding Act. It annuls the present receivability of the coupon; it substitutes for the specific execution of the contract, a protracted litigation, and when the genuineness of the coupon and its legal receivability for taxes are judicially established, its payment is made dependent upon the existence of money in the treasury of the State." Justice Harlan also dissented. "To my mind," he said, "... the change in the remedies has impaired both the obligation and value of the contract."

49 114 U. S. 270; 5 Sup. Ct. Rep. 903; 29 L. ed. 185.