State

In cases arising under and since the adop tion of the 11 th amendment, the question which has been mainly presented for decision has been whether, where the state itself was not a party to the record, but the action was against some officer of the state, it was in fact a suit against the state and therefore within the provision of the amendment. In Osborn v. Bank of U. S., 9 Wheat. 738, 6 L. Ed. 204, it was held that the 11th amendment applied only to suits in which the state is a party on the record, but subsequently this strict construction was not followed, and it was held that when the state is the real party in interest, though the defendants are its officers or agents, the suit is in sub stance against the state and within the amendment ; Cunningham v. R. Co., 109 U. S. 446, 3. Sup. Ct. 292, 609, 27 L. Ed. 992 ; In re Ayers, 123 U. S. 443, 8 Sup. Ct. 164, 31 L. Ed. 216 ; Pennoyer v. McConnaughy, 140 U. S. 1, 11 Sup. Ct. 699, 35 L."Ed. 363; though the mere fact that the state may have an interest in the result does not make it a defendant in the relief sought and will not bring the case within the amend ment ; U. S. v. Peters, 5 Cra. (U. S.) 115, 3 L. Ed. 53. Whether a suit is in fact against the state, although it is not a party to the record, is of the merits and not to the juris diction ; Illinois Cent. R. R. CO. v. Adams, 180 U. S. 28, 21 Sup. Ct. 251, 45 L. Ed. 410. Suits against state officers held to be in fact against the state are: Those to recover money or property actually in possession of the state and mixed with its general funds ; Governor of Ga. v. Madrazo, 1 Pet. (U. S.) 110, 7 L. Ed. 73 ; to recover taxes illegally assessed ; Smith v. Reeves, 178 U. S. 436, 20 Sup. Ct. 919, 44 L. Ed. 1140 ; to foreclose a mortgage on a railroad of which the state hdd possession and legal title; Cunningham v. R. Co:, 109 U. S. 446, 3 Sup. Ct. 292, 609, 27 L. Ed. 992 ; to have railroad bonds de clared a lien on railroad stock owned by the state ; Christian v. A. Co., 133 U. S. t33, 10 Sup. Ct. 260, 33 L. Ed. 589; to set aside a tax sale ; Chandler v. Dix, 194 U. S. 590, 24 Sup. Ct. 766, 48 L. Ed. 1129 ; any suit on state bonds or coupons or evidence of debt of the state ; Hagood v. Southern, 117 U. S. 52, 6 Sup. Ct. 608, 29 L. Ed. 805; McGahey v. Virginia, 135 U. S. 662, 10 Sup. Ct. 972, 34 L. Ed. 394; to compel the appropriation of cer tain funds to their payment ; Louisiana v. Jumei, 107 U. S. 711, 2 Sup. Ct. 128, 27 L. Ed. 448 ; or to force the levy of a special tax therefor; North Carolina v. Temple, 134 U. S. 22, 10 Sup. Ct. 509, 33 L. Ed. 849 ; Louisi ana v. Steele, 134 U. S. 230, 10 Sup. Ct. 511, 33 L. Ed. 891; or prevent the use of state bonds to pay a certain debt; Board of Liqui dation v. McComb, 92 U. S. 531, 23 L. Ed. 623; to restrain state officers proceeding un der a valid statute from reducing bridge tolls from those permitted under a previous law ; Fitts v. McGhee, 172 U. S. 516, 19 Sup. Ct. 269, 43 L. Ed. 535; by a non-resident insur ance company which seeks an injunction to restrain the state superintendent of insurance from revoking its license to do business in the state ; Metropolitan Life Ins. Co. v. Mc Nall, 81 Fed. 888 ; a suit against the state dispensary of South Carolina in the course of winding up its business ; Murray v. Wilson Distilling Co., 213 U. S. 151, 29 Sup. Ct. 458, 53 L. Ed. 742; one against the governor in his official character ; Moore v. American Transp. CO., 24 How. (U. S.) 16, 16 L. Ed. 674; one against officers of the state as rep resenting the state's action ; Oregon v. Hitch cock, 202 U. S. 60, 26 Sup. Ct. 568, 50 L. Ed. 935; an effort to enjoin state officers charged with the collection of taxes, and seeking to establish exemption from taxation under the state laws and the repayment of amounts previously collected, was, to all intents and purposes, a suit against the state, and in part for the recovery of money, and the state court had no jurisdiction ; Bloxham v. R. Co., 35 Fla. 625, 17 South. 902 ; against the state board of agriculture to recover money alleged to be wrongfully collected by it as a license tax; Lord & Polk Chemical Co. v. Board, 111 N. C. 135, 15 S. E. 1032 ; a suit by a private citizen to enjoin the erection of al state building at a place other than that pre scribed by law ; Sherman v. Bellows, 24 Or. 553, 34 Pac. 549 ; a suit to determine the rights of conflicting claimants to a fund granted by congress to the states for agricultural col leges; Brown University v. Rhode Island

College of Agri. & Mech. Arts, 56 Fed. 55.

Since a state is liable to suit only under a statute permitting it, the act authorizing the same must be strictly followed and carefully considered by the court in determining the scope and limitation of its power and juris diction ; Wright v. State Bd. of Liquidation, 49 La. Ann. 1213, 22 South. 361.. A state constitutional provision providing how suits may be brought against the state, has no ap plication to municipal corporations ; Goldtree v. San Diego, 8 Cal. App. 505, 97 Pac. 216.

The suit is held not to be against the state wherever it is against an officer of a state, as an individual, for some act done under color of office, pursuant to an unconstitu tional statute; Grisar v. McDowell, 6 Wall. (U. S.) 363, 18 L. Ed. 863; Bates v. Clark; 95 U. S. 204, 24 L. Ed. 471; Scott v. Don ald (No. 1), 165 U. S. 58, 17 Sup. Ct. 265, 41 L. Ed. 632; Tindal v. Wesley, 167 U. S. 204, 17 Sup. Ct. 770, 42 L. Ed. 137; where the law imposes upon a state officer a specific duty not affecting the general governmental affairs of the state, by the performance of which an individual has a distinct interest, which may be enforced by mandamus to compel performance or injunction to restrain inconsistent action; Rolston v. Fund. Com'rs, 120 U. S. 390, 7 Sup. Ct. 599, 30 L. Ed. 721; Scott v. Donald (No. 2), 165 U. S. 107, 17 Sup. Ct. 262, 41 L. Ed. 648; as an injunction at suit of a railroad company to restrain rail road commissioners from enforcing an un constitutional rate law; McNeill v. R.' Co., 202 U. S. 543, 26 Sup-. Ct. 722, 50 L. Ed. 1142; Reagan v. Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. Ed. 1014; Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819 ; Prout v. Starr, 188 U. S. 537, 23 Sup. Ct. 398, 47 L. Ed. 584; contra, State v.. R. Co., 145 N. C. 495, 59 S. E. 570, 13 L. R. A. (N. S.) 966; or against state land com missioners to restrain them from acts alleg ed to be in violation of the plaintiff's con tract of purchase of the lands from the state ; Pennoyer v. McConnaughy, 140 U. S. 1, 11 Sup. Ct. 699, 35 L. Ed. 363; or against a state board of officers to restrain them from proceeding against a corporation engag ed in interstate commerce, for failure to com ply with state and statutory regulations; Louisiana v. ,Lagarde, 60 Fed. 186 ; or a pro ceeding for contempt in the federal courts against a state officer who has seized prop erty in the hands of a receiver in attempt ing to collect a tax alleged to be illegal and attacked by proceeding in the federal court; In re Tyler, 149 U. S. 164, 13 Sup. Ct. 785, 37 L. Ed. 689; or by an individual from en forcing an unconstitutional law under which his rights and privileges would be violated ; Davis v. Gray, 16 Wall. (U. S.) 203, 21 L. Ed. 447; Gunter v. R. Co., 200 U. S. 273, 26 Sup. Ct. 252, 50 L. Ed. 477 ; General Oil Co. v. Crain, 209 U. S. 211, 28 Sup. Ct. 475, 52 L. Ed. 754; particularly an invalid tax; Litch field v. Webster Co., 101 U. S. 773, 25 L. Ed. 925 ; Memphis & L. R. R. Co. v. Railroad Com'rs, 112 U. S. 609, 5 Sup. Ct. 299, 28 L. Ed. 837 ; Allen v. R. Co., 114 U. S. 311, 5 Sup. Ct. 925, 962, 29 L. Ed. 200.

A citizen of another state cannot sue a state by the use of the name of his own state which he is permitted to use for that purpose; New Hampshire v. Louisiana, 108 U. S. 76, 2 Sup. Ct. 176, 27 L. Ed. 656; Louisiana v. Texas, 176 U. S. 1, 20 Sup. Ct. 251, 44 L. Ed. 347; but It was held that the supreme court has jurisdiction to enforce a property right in an action by one state against another; and one state may sue an other on bonds of the latter of which the former is the donee and absolute owner ; South Dakota v. North Carolina, 192 U. S. 286, 24 Sup. Ct. 269, 48 L. Ed. 448, where in a dissenting opinion, White, 1, takes the ground that a state, by acquiring a claim of a private citizen on which under the 11th amendment he could not sue the state, can not convert it into the subject-matter of a justiciable controversy, since to do so would destroy the prohibition of that amendment. Three justices concurred in the dissent. A state, even if it consents to be sued, cannot be sued by its own citizens in a federal court; Hans v. Louisiana, 134 U. S. 1, 10 Sup. Ct. 504, 33 L. Ed. 842; Murray v. Wil son Distilling Co., 213 U. S. 151, 29 Sup. Ct. 458, 53 L. Ed. 742; and a corporation can not sue a state without its consent; Smith v. Reeves, 178 U. S. 436, 20 Sup. Ct. 919, 44 L. Ed. 1140.