It is well settled in this Court that while the exercise of the
power of punishment for contempt of their orders by courts of
general jurisdiction is not subject to review by writ of error, or
by appeal, yet, when a court of the United States undertakes, by
its process of contempt, to punish a man for refusing to comply
with an order which that court had no authority to make, the
original order being void for want of jurisdiction, the order
punishing for contempt is equally void, and if the proceeding for
contempt result in imprisonment, this Court will, by its writ of
habeas corpus, discharge the prisoner.
Whether a state is the actual party defendant in a suit within
the meaning of the Eleventh Amendment to the Constitution of the
United States is to be determined by a consideration of the nature
of the case as presented by the whole record, and not in every case
by a reference to the nominal parties of the record.
Osborn v. Bank of the United
States, 9 Wheat. 738,
22 U. S. 857,
explained and limited.
In order to secure the manifest purpose of the constitutional
exemption guaranteed by the Eleventh Amendment, it should be
interpreted not literally and too narrowly, but with the breadth
and largeness necessary to enable it to accomplish its purpose, and
must be held to cover not only suits brought against a state by
name, but those against its officers, agents, and representatives
where the state, though not named, is the real party against which
the relief is asked and the judgment will operate.
If a bill in equity be brought against the officers and agents
of a state, the nominal defendants having no personal interest in
the subject matter of the suit and defending only as representing
the state, and the relief prayed for is a decree that the
defendants may be ordered to do and perform certain acts which,
when done, will constitute a performance of an alleged contract of
the state, it is a suit against the state for the specific
performance of the contract within the terms of the Eleventh
Amendment to the Constitution, although the state may not be named
as a defendant, and conversely a bill for an injunction against
such officers and agents to restrain and enjoin them from acts
which it is alleged they threaten to do in pursuance of a statute
of the state in its name and for its use
Page 123 U. S. 444
and which if done would constitute a breach on the part of the
an alleged contract between it and the complainants, is in like
manner a suit against the state within the meaning of that
Amendment although the state may not be named as a party
defendant.
The Court does not intend to impinge upon the principle which
justifies suits against individual defendants who, under color of
the authority of unconstitutional state legislation, are guilty of
personal trespasses and wrongs, nor to forbid suits against
officers in their official capacity either to arrest or direct
their official action by injunction or mandamus, where such suits
are authorized by law and the act to be done or omitted is purely
ministerial, in the performance or omission of which the plaintiff
has a legal interest.
A bill in equity was filed by aliens against the Auditor of the
State pf Virginia, its Attorney General, and various Commonwealth
attorneys for its counties seeking to enjoin them from bringing and
prosecuting suits in the name and for the use of the state under
the Act of its General Assembly of May 12, 1887, against taxpayers
reported to be delinquent, but who had tendered in payment of the
taxes sought to be recovered in such suits tax receivable coupons
cut from bonds of the state. An injunction having been granted
according to the prayer of the bill, proceedings were taken against
the attorney general of the state and two commonwealth attorneys
for contempt in disobeying the orders of the court in this respect,
and they were fined and were committed until the fine should be
paid and they should be purged of the contempt.
Held that
the suit was a suit against the State of Virginia within the
meaning of the Eleventh Amendment to the Constitution of the United
States, and was not within the jurisdiction of the courts of the
United States; that the injunction granted by the circuit court was
null and void; that the imprisonment of the officers of the state
for an alleged contempt of the authority of the circuit court was
illegal, and that the prisoners, being before this Court on a writ
of habeas corpus, should be discharged.
The Virginia act of 1877 concerning suits to collect taxes from
persons who had tendered coupons in payment contains no provision
as to the tender, or the proof of it, or the proof of the
genuineness of the coupon, which violates legal or contract rights
of the party sued.
If the holder of Virginia coupons receivable in payment of state
taxes sells them, agreeing with the purchaser that they shall be so
received by the state, the refusal of the state to receive them
constitutes no injury to him for which he could sue the state, even
if it were suable, and cannot be made the foundation for preventive
relief in equity against officers of the state.
On the 11th October, 1887, these petitioners each moved through
his counsel for leave to file a petition for a writ of habeas
corpus. On the 12th October, leave was granted, and the writs were
ordered to be made returnable on Monday, the
Page 123 U. S. 445
17th October. On the return day, return having been made, the
court directed the prisoners to be placed in the custody of the
marshal of the court. The same day, a motion was made and argued to
release them on bail and to fix a day for hearing. On the 18th
October, the court ordered the prisoners to be released on their
own recognizances, each in the sum of $1,000, and assigned the
cause for argument on the 14th day of the next November.
The case for argument and decision, as stated by the court, was
as follows:
"A writ of habeas corpus, directed to the Marshal of the United
States for the Eastern District of Virginia, having heretofore been
issued, by this Court on the application of Rufus A. Avers,
Attorney General of the State of Virginia, the marshal has made
return thereto that the petitioner, whose body he produces, was in
his custody and detained by him by virtue of an order, judgment,
decree, and commitment of the Circuit Court of the United States
for the Eastern District of Virginia, a certified copy of which is
attached as a part of the return, and further returned that the
petitioner had not paid, and refuses to pay, the fine imposed upon
him by said order. The order of commitment, dated at Richmond,
October 8, 1887, is as follows:"
"
On Attachment for Contempt"
"
I
n the Circuit Court of the United States"
"
for the Eastern District of Virginia"
"
I
n Re RUFUS A. AYERS"
" This matter came on this day to be heard upon the rule
heretofore issued against Rufus A. Avers, Attorney General of the
State of Virginia, to show cause why he should not be attached for
contempt in disobeying the restraining order heretofore granted in
the suit of
Cooper et al. v. Marye et al. on the 6th day
of June, 1887, and his answer thereto."
" On consideration whereof, the court is of opinion and doth
order and adjudge that the said Rufus A. Ayers is guilty of
Page 123 U. S. 446
contempt in his disobedience of said order, and that he do
forthwith dismiss the suit of
The Commonwealth v. The Baltimore
& Ohio Railroad Company, instituted by him in the Circuit
Court of the City of Richmond, and that for his said contempt he be
fined the sum of $500, and stand committed in the custody of the
marshal of this court until the same be paid, and he purge himself
of his contempt by dismissing said suit last herein mentioned."
A transcript of the proceedings, orders, and decrees of the
Circuit Court of the United States for the Eastern District of
Virginia in the suit of
Cooper et al. v. Marye et al.,
referred to in the order of commitment, is also produced, and set
out in full as a part of the record in this matter. From that it
appears that on June 6, 1887, James P. Cooper and others, suing on
their own behalf and for all others similarly situated, being
aliens, subjects of Great Britain, filed their bill of complaint in
the Circuit Court of the United States for the Eastern District of
Virginia against Morton Marye, Auditor of the State of Virginia,
Rufus A. Ayers, the Attorney General thereof, and the treasurers of
counties, cities, and towns in Virginia, and the commonwealth
attorneys of counties, cities, and towns in said state, whose names
they prayed they might be allowed to insert in the bill as
defendants when discovered.
In that bill it is alleged that by an Act of the General
Assembly of Virginia approved March 30, 1871, and another approved
March 28, 1879, the State of Virginia had provided for the issue of
a large number of bonds bearing interest coupons, which she thereby
contracted should be received in payment of all taxes, debts, and
demands due to her, of which large numbers, amounting to many
millions of dollars, had been in fact issued; that said coupons,
issued under both of said acts, are payable to bearer, and both as
a contract to pay interest and as a contract that they shall be
received in payment of taxes, are negotiable instruments, free in
the hands of any
bona fide purchaser for value from any
equity or burden whatever; that there are outstanding and overdue
in the hands of the public at large more than four millions of
dollars
Page 123 U. S. 447
of these overdue coupons; that in pursuance of a plan
subsequently conceived and adopted to destroy the marketable value
of these coupons, the General Assembly of the State of Virginia, by
the fifteenth section of an Act dated February 14, 1882, forbade
all the officers of the state to pay and redeem the same according
to the tenor of the contract contained therein, and by an act dated
January 26, 1882, the collectors of taxes were forbidden to receive
the same in payment of any taxes due to them; that nevertheless
these statutes were declared by the Supreme Court of the United
States to be unconstitutional and void; that thereafter the
complainants, on the faith of said decision, and the belief caused
thereby that the said state would be utterly unable by any
legislative enactment to impair the value of said coupons as a
tender for taxes, had bought a large quantity of said coupons in
the open money market of the City of London and elsewhere,
amounting to more than $100,000 nominally at a cost of more than
$30,000; that this purchase was made for the purpose of selling
said coupons to the taxpayers of Virginia, to be used by them as
tenders for taxes due said state, the complainants believing that
they would be able to sell said coupons to such taxpayers at a
considerable advance on the price paid for them, many of which the
complainants have sold to said taxpayers; that the General Assembly
of Virginia enacted another statute, dated May 12, 1887, a copy of
which is set out as an exhibit to the bill, whereby, as is
alleged,
"The treasurer of each county, city, and town in the state is
ordered to furnish to the commonwealth's attorney thereof a list of
all persons who have tendered the said state's coupons in payment
of their taxes, and said commonwealth's attorneys are ordered to
institute suits by summary proceedings in the name of said state
against all such persons to recover a judgment against them for the
amount of said taxes so previously due by them; that the said
taxpayers are thereby required to submit to a judgment against them
by default, or to appear in court and plead a tender of said
coupons, and then prove affirmatively that the coupons tendered by
them are the state's coupons, and not
Page 123 U. S. 448
counterfeit and spurious coupons, the burden of proving the same
being placed upon the taxpayer, and the coupon being taken to be
prima facie spurious and counterfeit."
In the bill it is further alleged
"That said act is repugnant to section ten of article one of the
Constitution of the United States for the reason that, taken in
connection with said act before mentioned of January 26, 1882, it
first commands the state's officers to refuse to receive those
coupons which are undoubtedly her own, as well as those which are
spurious (and your orators charge that there are none such), and
then commands her officers to bring said suits against those who
have tendered said coupons of said state, as well as against those
who have tendered spurious coupons; that it imposes upon the
defendants heavy costs and fees, although all taxes due by them
were paid by said tender, and it makes the judgment to be recovered
in said suit a perpetual lien upon all the property of said
taxpayer for said taxes, and for said costs and fees also, thus
fixing a perpetual cloud upon the title of said taxpayer to his
property."
It is further alleged in the bill
"That, by another Act of the General Assembly of said state
approved January 26, 1886, it is provided that upon a trial of the
issue to be made up under said Act of May 12, 1887, the defendant
shall produce the bond from which the coupon so tendered by him was
cut, and prove that it was cut from said bond,"
and that as very few of said bonds are owned by persons residing
in Virginia, the taxpayers would be utterly unable to produce said
bonds as required by said act.
It is further alleged therein
"That by another Act of said General Assembly, approved _____,
1886, it is provided that the taxpayer undertaking to prove said
tender shall not be allowed to introduced expert evidence to prove
the genuineness of said coupons, and all that have been issued
under either of said acts are engraved only, as said acts provided
they may be, and are not signed manually."
Wherefore it is alleged that
"said taxpayers who cannot produce said bonds will be utterly
unable to prove their coupons to be genuine upon said trial, the
state thus forcing them into a lawsuit in her own courts,
Page 123 U. S. 449
in which she has taken effectual precautions beforehand to make
it impossible they can win, and to make it a legal certainty that
they must lose when they cannot produce said bonds; that said act
is a device and trick enacted to take away from and deprive said
coupons of their value as tender for taxes."
It is further alleged therein that the Supreme Court of appeals
of the State of Virginia has decided that said last-named two acts,
requiring said bonds to be produced, and forbidding the use of
expert testimony, are valid laws, not repugnant to the Constitution
of the United States.
It is further alleged in the bill that as the great bulk of the
taxpayers of Virginia pay small sums,
"if her officers are allowed to enforce said Act of May 12,
1887, against them, the profit to be derived from purchasing year
orators' coupons will be too small to induce them to do so, and
indeed it will be impossible for them to use said coupons at all
except in the very limited cases in which they can produce said
bonds,"
and that
"your orators will not only loss the profit which they had a
right to expect they would make when they purchased said coupons,
but they will be unable to sell them to Virginia's taxpayers at any
price, and thus their entire property in the same will be
destroyed, and your orators charge and aver that in any event,
unless they are granted the injunction hereinafter prayed for, they
will lose a sum greater than $2,000."
It is further charged in the bill
"That the treasurer of each county, city, and town in said state
is about to report to each commonwealth's attorney the name of
every taxpayer who has tendered coupons, and each commonwealth's
attorney is going at once to institute the suits provided for by
said Act of May 12, 1887, against persons holding coupons bought
from your orators, as well as against all others, and they are
informed and believe, and so charge, that in every case in which
tenders of coupons have been made to the auditor of the state, who
is Morton Marye (and many have been made to him), the said auditor,
and Hon. R. A. Ayers, who is attorney general thereof, are about to
institute the suits
Page 123 U. S. 450
which said act provides for their instituting, whereby all
coupons which your orators have sold to Virginia taxpayers will be
condemned as spurious, although they are all genuine coupons issued
by the State of Virginia, and all her taxpayers will be intimidated
and deterred from buying from your orators, and all others in the
future, any more of said coupons."
It is further charged in an amended bill
"That acts of the General Assembly of the State of Virginia,
which are repugnant to § 10 of Article I of the Constitution
of the United States, commanded the treasurer of each county to
levy on and sell the property of each taxpayer who has tendered
coupons in payment of his taxes, and said acts also command said
treasurers to return the real property of such taxpayers delinquent
where no personal property can be found to be seized and sold, and
your orators charge therefore that unless said officers are
enjoined from bringing said suits hereinbefore described, the
treasurer of each county will proceed to execute said other
unconstitutional acts by levying on such taxpayer's property or by
returning the same delinquent where no personal property can be
found, thus creating a cloud upon the title of such taxpayer's
property."
The prayer of the bill is that
"The said Morton Marye, Auditor of Virginia, R. A. Ayers, the
Attorney General thereof, and the treasurer and commonwealth's
attorney of each county, city, and town in the State of Virginia
may be made parties defendant hereto, and that they, their agents
and attorneys, may be restrained and enjoined from bringing or
commencing any suit provided for by said Act of May 12, 1887, or
from doing any other act to put said statute into force and effect,
and that until the hearing of a motion for said injunction, a
restraining order may be made to that effect,"
and for general relief.
The Act of May 12, 1887, set out as an exhibit to the bill, is
as follows:
Page 123 U. S. 451
"An act to provide for the recovery, by motion, of taxes and
certain debts due the commonwealth for the payment of which papers
purporting to be genuine coupons of the commonwealth have been
tendered. (Approved May 12, 1887.)"
"1. Be it enacted by the General Assembly of Virginia that all
taxes, including taxes on licenses, now due or which may hereafter
become due to the commonwealth in payment of which any paper of
instrument purporting to be a coupon detached from a bond of this
state shall have been or may here after be tendered and not
accepted as payment and not otherwise paid may be recovered in the
circuit court having jurisdiction over the county or corporation in
which said taxes shall have been assessed or, if the tender was
made to the auditor of public accounts in payment of taxes which he
is authorized by law to receive, the said taxes may be recovered in
the Circuit Court of the City of Richmond."
"2. The court shall have jurisdiction without regard to the
amount of the taxes claimed, and though the amount be less than
twenty dollars."
"3. The proceeding shall be by motion, in the name of the
commonwealth, on ten days' notice, and shall be instituted and
prosecuted by the attorney for the commonwealth or corporation in
which the proceeding is, or, if it be instituted by direction of
the auditor of public accounts, in the Circuit Court of the City of
Richmond."
"4. The notice may be served in any county or corporation in the
state in the mode prescribed by the first section of chapter one
hundred and sixty-four of the Code (edition of eighteen hundred and
seventy-three), or it may be served on any agent of the defendant
in the county or corporation in which the proceeding is, and the
word 'agent,' as here used, shall include any person who shall have
made the tender aforesaid on behalf of the defendant, or if there
be no known agent of the defendant in the said county or
corporation, it may be served by the publishing the same one time
in some newspaper printed in the county or city where the tax was
assessed; or if there be no paper printed in such county
Page 123 U. S. 452
or city, then in some newspaper published in some county or city
nearest to the county or city where such tax was assessed."
"5. The motion may be tried or heard by the court or jury as
motions in other civil cases. If the defendant relies on a tender
of coupons as payment of the taxes claimed, he shall plead the same
specifically and in writing, and file with the plea the coupons
averred therein to have been tendered, and the clerk shall
carefully preserve them. Upon such plea filed, the burden of
proving the tender and the genuineness of the coupons shall be on
the defendant. If the tender and the genuineness of the coupons be
established, judgment shall be for the defendant on the plea of
tender. In such case, the clerk shall write the word 'proved,' and
thereunder his name in his official character, across the face of
the coupons, and transmit them, together with a certificate of the
court that they have been proven in the case, to the auditor of
public accounts, who shall deliver the coupons to the second
auditor, receiving therefor the check of the second auditor upon
the treasurer, which check he shall pay into the treasury to the
credit of the proper tax account."
"6. If the defendant fails in his defense, and the taxes claimed
are found to be due the state, any coupon filed by him with a plea
of tender (and not spurious) shall be returned to him, and there
shall be judgment for the commonwealth for the aggregate amount of
the taxes due, and the interest thereon from the time they became
due till the date of the judgment, with interest on the said
aggregate amount from the date of the judgment until payment, and
costs."
"7. No antecedent lien of the commonwealth for the taxes for
which any judgment is rendered shall be deemed to be merged in the
judgment or otherwise impaired by the recovery of the same, but
such lien shall continue in force notwithstanding the
judgment."
"8. Every such judgment shall be docketed as prescribed by law
in other cases, and the clerk shall issue execution thereon,
directed to the sheriff of any county (or sergeant of any city),
who shall account for the money collected thereon to the auditor of
public accounts. "
Page 123 U. S. 453
"9. Should coupons be tendered the officer in satisfaction of
said execution, he shall note the fact of such tender upon the
execution, and return it to the clerk's office, and thereupon the
auditor of public accounts may direct an action to be brought upon
the judgment. This action shall be instituted and prosecuted in the
mode herein prescribed for actions to recover judgments for taxes,
and similar actions may be instituted whenever coupons are tendered
in satisfaction of any judgment obtained by the commonwealth under
the provisions of this act."
"10. The clerk of the court in which any such judgment is
rendered in behalf of the commonwealth shall, as soon as it is
rendered, transmit a certified abstract thereof to the auditor of
public accounts, who shall record the same in a book to be kept for
that purpose."
"11. Immediately after the passage of this act the county and
city treasurers, and all other officers authorized by law to
collect or receive money for taxes due the commonwealth, including
the license taxes, shall report to the commonwealth's attorneys of
their respective counties and cities, and also to the auditor of
public accounts, the names of all persons assessed or liable
therein for taxes due the commonwealth who have heretofore tendered
(otherwise than for identification and verification) coupons for
such taxes, and which taxes remain unpaid, the amount of the taxes
due, on what account, and when they become payable, and a
description, as far as possible, of the coupons tendered, and when
tendered, and they shall thereafter make like reports whenever and
as soon as any such tender may be made. As soon as the auditor of
public accounts shall receive such reports, he shall credit the
proper officer with the taxes named therein for which coupons were
tendered."
"12. The attorneys for the commonwealth and the Attorney
General, when it is his duty under this act to represent the
commonwealth in any case in the Circuit Court in the City of
Richmond, upon such report being made to them or whenever they are
otherwise informed of any such tender having been made, shall
forthwith institute and prosecute such proceedings as are
hereinbefore required. "
Page 123 U. S. 454
"13. In any case instituted under the provisions of this act in
which there is a judgment for the commonwealth, a fee of ten
dollars shall be allowed the attorney for the commonwealth or the
Attorney General, as the case may be, which fee and fees of the
clerk and other officers for services rendered in the case, as well
as such other costs as are allowed by law in other cases in which
the commonwealth is a party, shall be taxed in the costs against
the defendant. The commonwealth shall not be liable for any fees or
costs in any proceedings under this act."
"14. If any officer fail to perform any duty required of him by
this act, he shall be fined not less than one hundred dollars, nor
more than five hundred dollars."
"15. This act shall be in force from its passage."
On this bill the following order was made:
"
Circuit Court of the United States for the Eastern District
of Virginia"
"James P. Cooper, H. R. Beeton, F. J. Burt, N. J."
"Chinnery, W. M. Chinnery, F. P. Leon, and"
"W. G. Woolsgon"
"
against"
"Morton Marye, Auditor, R. A. Ayers, Attorney General,"
"the Treasurers of Counties, Cities, and Towns in"
"Virginia, and the Commonwealth Attorneys of Counties,"
"Cities, and Towns in said state, whose names"
"complainants have leave to insert as they may be"
"discovered"
"Upon reading the bill of the complainants, it is ordered that
Morton Marye, Auditor, R. A. Ayers, Attorney General, each and
every treasurer of a county, city, or town in the State of
Virginia, and each and every commonwealth attorney for a county,
city, or town in said state, be restrained from bringing or
commencing any suit against any person who has tendered the State
of Virginia's tax receivable coupons in payment of taxes due to
said state, as provided for and directed by the Act of the
Legislature of Virginia approved May 12, 1887, described in the
bill, and of which a copy is attached
Page 123 U. S. 455
thereto, and that each and all of said parties, their agents and
attorneys, be restrained from doing any act to put said statute
into force and effect until the further order of the court."
"And it is ordered that the motion for an injunction in this
case be set down for hearing at the Circuit Court of the United
States at Richmond, Virginia, on the first Monday in October next,
provided that the Attorney General of the State of Virginia or
either of the defendants may move the court for an earlier hearing
thereof after ten days' written notice to the solicitor of the
complainants, and provided further that a copy of this bill and of
this order be served on the Attorney General of the State of
Virginia within ten days after the filing thereof."
"June 6, 1887."
A copy of this order, together with a copy of the bill, was
served on the petitioner Ayers, the Attorney General of Virginia,
on June 7, 1887.
On October 8, 1887, the following proceedings took place,
viz.,
"And now at this day, to-wit at a Circuit Court of the United
States for the Eastern District of Virginia held at Richmond, in
said district, this eighth day of October, A.D. 1887:"
"J. P. Cooper and others"
"against In Equity"
"Morton Marye, Auditor, etc., and others"
"This cause came on this day to be heard upon the motion of the
complainants for a preliminary injunction, and was argued by
counsel, upon consideration whereof it is adjudged, ordered, and
decreed, for reasons stated in writing and made part of the record,
that the injunction be issued as prayed in the bill, and remain in
force until the further order of the court."
"HUGH L. BOND"
"Circuit Judge"
"Thereupon the complainants, by counsel, called the attention of
the court to the fact that the defendant R. A. Ayers, Attorney
General of the State of Virginia, was guilty of
Page 123 U. S. 456
contempt by his disobedience of the restraining order issued in
this cause on sixth day of June, 1887, and the said R. A. Ayers,
being called upon to answer in this behalf, filed in open court his
answer in writing, which answer is in the words following
to-wit:"
"
Answer of Defendant R. A. Ayers"
"The answer of R. A. Ayers, Attorney General of the State of
Virginia, to a rule awarded against him by this Honorable
Court."
"To the Honorable Judge of the Circuit Court of the United
States for the Eastern District of Virginia:"
"By an order entered in the chancery cause of James P. Cooper et
als. against Morton Marye and others, summoning him to show cause
why he should not be fined and imprisoned for disobeying the
injunction heretofore awarded in said suit, restraining him and
others from instituting the suits required by an act of the General
Assembly of Virginia entitled"
"An act to provide for the recovery by motion of taxes and
certain debts due the commonwealth, for the payment of which papers
purporting to be genuine coupons of the commonwealth have been
tendered,"
"approved May 12, 1887, by instituting a suit against the
Baltimore and Ohio Railroad Co., respondent, answering, says that
he admits that he instituted the suit against the Baltimore and
Ohio Railroad Company to recover taxes due by it to the State of
Virginia after he had been served with the injunction order in this
case; that he instituted the said suit because he was thereunto
required by the act of the General Assembly of Virginia aforesaid
and because he believed this Court had no jurisdiction whatever to
award the injunction violated. Respondent disclaims any intention
to treat the court with disrespect, and states that he has been
actuated alone with the desire to have the law properly
administered."
"R. A. AYERS"
"Atty.Gen. of Virginia"
"Subscribed and sworn to before me this eighth day of October,
1887."
"M. F. PLEASANTS, Clerk"
Page 123 U. S. 457
And thereupon the order was made adjudging the petitioner guilty
of contempt by his disobedience of said order and requiring him
forthwith to dismiss the suit of
The Commonwealth v. The
Baltimore and Ohio Railroad Company instituted by him in the
Circuit Court of the City of Richmond fining him $500 for his
contempt and directing that he stand committed in the custody of
the marshal of the court until the same be paid, and he purge
himself of his contempt by dismissing said suit last mentioned.
In the same case, the proceedings resulting in the commitment
and imprisonment of the petitioner John Scott are as follows:
On August 23, 1887, on affidavit showing that John Scott,
attorney for the commonwealth for Fauquier County, Virginia, had
been served with a copy of the restraining order of June 6, 1877,
and that in violation thereof he had brought certain suits against
parties in said county for the recovery of taxes alleged to the due
by them to the State of Virginia for the year 1886, for which they
had previously tendered tax receivable coupons, said actions being
brought under the Act of the General Assembly of May 12, 1887, a
rule was entered upon the said Scott to show cause, on September
22, 1887, why he should not be attached for contempt. On that day,
the said Scott answered the rule, justifying his action on the
ground that the order which he had disobeyed was void for want of
jurisdiction in the circuit court to make it. On September 24,
1887, in pursuance of leave given, the complainants filed an
amendment to their bill making Scott, as attorney for the
commonwealth for said County of Fauquier, a formal party defendant
and alleging that a judgment had been rendered against the
defendant in each of the suits brought by the said Scott under the
said act, a list of which, with the amounts of the several
judgments, was set out. Thereupon, on October 8, 1887, the
following order was made:
"The court therefore doth adjudge, order, and decree that, for
his contempt of this Court, said John Scott do pay a fine of $10,
and dismiss the cases which he has brought in the Circuit Court of
Fauquier County, Virginia, in violation of the
Page 123 U. S. 458
restraining order heretofore made in the cause of
Cooper and
others v. Marye and others on the 6th day of June, 1887, and
further that he enter satisfaction of the judgments heretofore
obtained by him against the defendants in said causes, and that he
stand committed to the custody of the marshal of this Court until
this order is obeyed and the fine hereby imposed upon him is paid.
And it is further ordered that the said John Scott do pay the costs
of these proceedings."
Similar proceedings were had in respect to J. B. McCabe, the
commonwealth's attorney for Loudoun County, Virginia, the other
petitioner. On July 11, 1887, an order was entered granting a rule
against him to show cause why he should not be attached for an
alleged contempt of the court in disobeying the restraining order
made in the cause on June 6, 1887. Upon proof by affidavit that the
said McCabe, as such attorney, had commenced proceedings under the
Act of May 12, 1887, to recover taxes alleged to be due to the
State of Virginia from certain parties therein named, who had
previously tendered tax receivable coupons in payment thereof, he
answered the rule denying the validity of the order which he had
violated, and thereupon, on October 8, 1887, the matter coming on
to be heard, it was ordered and adjudged by the court
"That the said J. B. McCabe is guilty of contempt in his
disobedience of said order, and that he do forthwith dismiss all
suits under the Act of May 12, 1887, now pending in the Circuit
Court of Loudoun County. And the court doth further order and
adjudge that the said J. B. McCabe, for his said contempt, be fined
$100; that he be taken into the custody of the marshal of this
court and by him held until the said fine be paid and he purge
himself of the said contempt by dismissing the suits brought or
prosecuted in violation of the restraining order of this court, and
that he pay the costs of these proceedings. "
Page 123 U. S. 485
MR. JUSTICE MATTHEWS delivered the opinion of the Court.
It is established by the decisions of this Court that while
"The exercise of the power of punishment for contempt of their
orders by courts of general jurisdiction is not subject to review
by writ of error or appeal to this Court,"
yet when
"a court of the United States undertakes, by its process of
contempt, to punish a man for refusing to comply with an order
which that court had no authority to make, the order itself, being
without jurisdiction, is void, and the order punishing for the
contempt is equally void,"
and that
"when the proceeding for contempt in such a case results in
imprisonment, this Court will, by its writ of habeas corpus,
discharge the prisoner."
Ex Parte Fisk, 113 U. S. 713,
113 U. S.
718.
In
Ex Parte Rowland, 104 U. S. 604, the
commissioners of a county in Alabama were, on a writ of habeas
corpus, discharged by this Court from imprisonment to which they
had been adjudged in consequence of an alleged contempt of the
Circuit Court of the United States for the Middle District of
Page 123 U. S. 486
Alabama in refusing to obey the command of a peremptory writ of
mandamus issued by that court requiring them to levy certain taxes.
This Court said (page
104 U. S.
612):
"If the command of the peremptory writ of mandamus was in all
respects such as the circuit court had jurisdiction to make, the
proceedings for the contempt are not reviewable here. But if the
command was, in whole or in part, beyond the power of the court,
the writ, or so much as was in excess of jurisdiction, was void,
and the court had no right in law to punish for any contempt of its
unauthorized requirements. Such is the settled rule of decision in
this Court.
Ex Parte Lange, 18 Wall. 163;
Ex Parte
Parks, 93 U. S. 18;
Ex Parte
Siebold, 100 U. S. 371;
Ex Parte
Virginia, 100 U. S. 339."
In
Ex Parte Bain, 121 U. S. 1, it was
held that a prisoner who had been tried, convicted, and sentenced
to imprisonment by a circuit court of the United States, the
indictment having been amended by the district attorney, by leave
of the court, after it had been returned by the grand jury, was
entitled to his discharge under a writ of habeas corpus issued by
this Court on the ground that the proceeding was void. The Court
said (page
121 U. S.
13):
"It is of no avail under such circumstances to say that the
court still has jurisdiction of the person and of the crime, for
though it has possession of the person and would have jurisdiction
of the crime if it were properly presented by indictment, the
jurisdiction of the offense is gone, and the court has no right to
proceed any further in the progress of the case, for want of an
indictment."
The question in the present case, therefore, is whether the
order of the circuit court of June 6, 1887, forbidding the
petitioners from bringing suits under the Act of May 12, 1887, in
the name and on behalf of the State of Virginia, as its attorneys,
for the recovery of taxes in payment of which the taxpayers had
previously tendered tax receivable coupons is an order which that
court had power by law to make. The question really is whether the
circuit court had jurisdiction to entertain the suit in which that
order was made, because the sole purpose and prayer of the bill are
by a final decree perpetually to enjoin the defendants from taking
any steps in
Page 123 U. S. 487
execution of the Act of May 12, 1887. If the court had power,
upon the case made in the record, to entertain the suit for that
purpose, it had equal power, as a provisional remedy, to grant the
restraining order, the violation of which constitutes the contempt
adjudged against the petitioners.
The principal contention on the part of the petitioners is that
the suit, nominally against them, is in fact and in law a suit
against the State of Virginia whose officers they are, jurisdiction
to entertain which is denied by the Eleventh Amendment to the
Constitution, which declares that
"The judicial power of the United States shall not be construed
to extend to any suit in law or equity commenced or prosecuted
against one of the United States by citizens of another state or by
citizens or subjects of any foreign state."
On the other hand, it is contended by counsel for the
complainants in that cause, who have argued against the discharge
of the petitioners, that the suit is not within that
prohibition.
It must be regarded as the settled doctrine of this Court,
established by its recent decisions,
"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."
Poindexter v. Greenhow, 114 U.
S. 270,
114 U. S. 287.
This, it is true, is not in harmony with what was said by Chief
Justice Marshall in
Osborn v. Bank of the United
States, 9 Wheat. 738,
22 U. S. 857.
In his opinion in that case, he said:
"It may, we think, be laid down as a rule which admits of no
exception 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."
And the point as involved in that case was stated by Mr. Justice
Swayne, delivering the opinion of the Court in
Davis v.
Gray, 16 Wall. 203,
83 U. S. 220,
as follows:
"In deciding who are parties to the suit, the
Page 123 U. S. 488
court will not look beyond the record. Making a state officer a
party does not make the state a party, although her law may have
prompted his action and the state may stand behind him as the real
party in interest. A state can be made a party only by shaping the
bill expressly with that view, as where individuals or corporations
are intended to be put in that relation to the case."
But what was said by Chief Justice Marshall in
Osborn v.
Bank of the United States, supra, must be taken in connection
with its immediate context, wherein he adds (page
22 U. S.
858):
"The state not being a party on the record, and the court having
jurisdiction over those who are parties on the record, the true
question is not one of jurisdiction, but whether, in the exercise
of its jurisdiction, the court ought to make a decree against the
defendants -- whether they are to be considered as having a real
interest or as being only nominal parties."
This conveys the intimation that where the defendants, who are
sued as officers of the state, have not a real, but merely a
nominal, interest in the controversy, the state appearing to be the
real defendant and therefore an indispensable party, if the
jurisdiction does not fail for want of power over the parties, it
does fail, as to the nominal defendants, for want of a suitable
subject matter.
This, indeed, seems to be the interpretation put upon this
language by Chief Justice Marshall himself in the opinion of the
Court delivered by him in the case of
The
Governor of Georgia v. Madrazo, 1 Pet. 110,
26 U. S.
123-124. After quoting the paragraphs from the opinion
in the case of
Osborn v. Bank of the United States, above
extracted, the Chief Justice mentioned the case of
Georgia v.
Brailsford, 2 Dall. 402, where the action was not
in the name of the state, but was brought by the governor in its
behalf, and added: "If, therefore, the state was properly
considered as a party in that case, it may be considered as a party
in this." He further said:
"The claim upon the governor is as a governor. He is sued not by
his name, but by his title. The demand made upon him is not made
personally, but officially. The decree is pronounced not against
the person, but the officer, and appeared to have been pronounced
against the successor of the original defendant,
Page 123 U. S. 489
as the appeal bond was executed by a different governor from him
who filed the information. In such a case, 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. If the state is not a party, there is no party
against whom a decree can be made. No person in his natural
capacity is brought before the court as defendant."
It was therefore held in that case that the state was in fact,
though not in form, a party defendant to the suit, and that
consequently the circuit court had no jurisdiction to pronounce the
decree appealed from.
See also Ex Parte
Madrazzo, 7 Pet. 627. This view was reiterated by
this Court in
Kentucky v.
Dennison, 24 How. 66,
65 U. S. 98,
where it was said to be settled
"that where the state is a party, plaintiff or defendant, the
governor represents the state, and the suit may be, in form, a suit
by him as governor in behalf of the state where the state is
plaintiff, and he must be summoned or notified as the officer
representing the state where the state is defendant."
Accordingly, in
Cunningham v. Macon & Brunswick Railroad
Co., 109 U. S. 446, it
was decided that in those cases where it is clearly seen upon the
record that a 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. The inference
is that where it is manifest upon the face of the record that the
defendants have no individual interest in the controversy and that
the relief sought against them is only in their official capacity
as representatives of the state, which alone is to be affected by
the judgment or decree, the question then arising whether the suit
is not substantially a suit against the state is one of
jurisdiction.
The very question was presented in the cases of
New
Hampshire v. Louisiana and
New York v. Louisiana,
108 U. S. 76. In
each of those cases, there was, upon the face of the record,
nominally a controversy between two states which, according to the
terms of the Constitution, was subject to the judicial power of the
United States. So far as could be determined
Page 123 U. S. 490
by reference to the parties named in the record, the suits were
within the jurisdiction of this Court, but, on an examination of
the cases as stated in the pleadings, it appeared that the state,
which was plaintiff, was suing not for its own use and interest,
but for the use and on behalf of certain individual citizens
thereof who had transferred their claims to the state for the
purposes of suit. It was accordingly unanimously held by this Court
that it would look behind and through the nominal parties on the
record to ascertain who were the real parties to the suit. The
Chief Justice, speaking for the Court in that case, made a review
of the circumstances which led to the adoption of the Eleventh
Amendment, and in concluding his opinion said:
"The evident purpose of the amendment, so promptly proposed and
finally adopted, was to prohibit all suits against a state by or
for citizens of other states, or aliens, without the consent of the
state to be sued, and in our opinion one state cannot create a
controversy with another state, within the meaning of that term as
used in the judicial clauses of the Constitution, by assuming the
prosecution of debts owing by the other state to its citizens. Such
being the case, we are satisfied that we are prohibited both by the
letter and the spirit of the Constitution from entertaining these
suits, and the bill in each case is dismissed."
The converse of that case is to be found in
Hagood v.
Southern, 117 U. S. 52. There
the State of South Carolina, which was the party in interest, was
not nominally a defendant. The nominal defendants were the
Treasurer of the State of South Carolina, its Comptroller General,
and the treasurers of its various counties and their successors in
office. The object of the bills was to obtain on behalf of the
complainants, by judicial process, the redemption by the state of
certain scrip of which they were holders, according to the terms of
a statute in pursuance of which it was issued, by the levy,
collection, and appropriation of a special tax pledged to that
purpose, as they claimed, by an irrepealable law constituting a
contract protected from violation by the Constitution of the United
States. The decrees of the circuit court granting the relief were
reversed, and the cause remanded with
Page 123 U. S. 491
instructions to dismiss the bills on the ground that the suits,
though nominally against the officers of the state, were really
against the state itself. In its opinion, this Court said (page
117 U. S.
67):
"These suits are accurately described as bills for the specific
performance of a contract between the complainants and the State of
South Carolina, who are the only parties to it. But to these bills
the state is not in name made a party defendant, though leave is
given to it to become such if it chooses, and except with that
consent it could not be brought before the court, and be made to
appear and defend. And yet it is the actual party to the alleged
contract the performance of which is decreed, the one required to
perform the decree, and the only party by whom it can be performed.
Though not nominally a party to the record, it is the real and only
party in interest, the nominal defendants being the officers and
agents of the state, having no personal interest in the subject
matter of the suit and defending only as representing the state.
And the things required by the decrees to be done and performed by
them are the very things which, when done and performed, constitute
a performance of the alleged contract by the state. The state is
not only the real party to the controversy, but the real party
against which relief is sought by the suit, and the suit is
therefore substantially within the prohibition of the Eleventh
Amendment to the Constitution of the United States."
The conclusions in the case of
Hagood v. Southern were
justified by what had previously been decided by this Court in the
cases of
Louisiana v. Jumel and
Elliott v. Wiltz,
107 U. S. 711.
Those cases had for their object, one, by injunction, to restrain
the officers of the state from executing the provisions of the act
of the General Assembly alleged to be in violation of the contract
rights of the plaintiffs, and the other, by mandamus, to require
the appropriation of money from the treasury of the state in
accordance with the contract. This relief, it was decided, was not
within the competency of the judicial power. The Chief Justice said
on that point (page
107 U. S.
727):
"The remedy sought, in order to be complete, would require the
court to assume all the executive authority
Page 123 U. S. 492
of the state so far as it related to the enforcement of this
law, and to supervise the conduct of all persons charged with any
official duty in respect to the levy, collection, and disbursement
of the tax in question until the bonds, principal and interest,
were paid in full, and that too in a proceeding in which the state,
as a state, was not and could not be made a party. It needs no
argument to show that the political power cannot be thus ousted of
its jurisdiction and the judiciary set in its place. When a state
submits itself without reservation to the jurisdiction of a court
in a particular case, that jurisdiction may be used to give full
effect to what the state has by its act of submission allowed to be
done, and if the law permits coercion of the public officers to
enforce any judgment that may be rendered, then such coercion may
be employed for that purpose. But this is very far from authorizing
the court, when a state cannot be sued, to set up its jurisdiction
over the officers in charge of the public moneys, so as to control
them as against the political power, in their administration of the
finances of the state."
It is therefore not conclusive of the principal question in this
case that the State of Virginia is not named as a party defendant.
Whether it is the actual party in the sense of the prohibition of
the Constitution must be determined by a consideration of the
nature of the case as presented on the whole record.
The substantial averments of the bill are 1st, that the
complainants were the owners of $100,000 worth of tax-receivable
coupons of Virginia, for which they had paid over $30,000; 2d, that
they have sold $50,000 of that amount for $15,000 or more to
taxpayers of Virginia, who have tendered the same to the proper
state officials in payment of their taxes, but the said officers
have refused to receive the same; 3d, that if the officers of the
state are permitted to enforce the Act of May 12, 1887, the
complainants will be unable to sell the remaining $50,000 of their
coupons to the taxpayers of that state at any price, and thus their
entire property in the same will be destroyed; 4th, that the Act of
May 12, 1887, is unconstitutional and void, because it impairs the
obligation of the contract of
Page 123 U. S. 493
the State of Virginia by which it agreed to receive coupons cut
from its bonds in payment of debts, demands, and taxes due to
it.
The particulars in which this contract is alleged to be violated
by the provisions of that act are first that, in disregard of
tenders of tax receivable coupons made by taxpayers in payment of
taxes, the act of the General Assembly peremptorily requires
actions at law to be brought in the name of the State of Virginia
against all such taxpayers as delinquent; second, because in the
trial of such actions it is required that the defendant shall not
only prove the fact of tender, but the genuineness of the coupons
tendered; third, that as part of that proof, he is required to
produce the bond itself from which such coupon is said to have been
cut; and, fourth, that he is not permitted to produce expert
testimony to prove the genuineness of the coupons tendered. The
prayer of the bill is that the Attorney General of the State of
Virginia, and the commonwealth's attorneys for the counties, be
restrained by injunction from commencing and prosecuting any suits
under the Act of May 12, 1887, for the recovery of taxes against
parties alleged to be delinquent, but who in fact have tendered tax
receivable coupons in payment of taxes due.
It is to be noted that there is no direct averment in the
original or amended bills that the coupons alleged to have been
tendered in payment of taxes by those taxpayers against whom the
defendants threatened to bring suits under the Act of May 12, 1887,
were purchased from the complainants, although it incidentally
appears otherwise upon the record that some of them may have been.
The injunction, however, prayed for is to prevent the bringing of
any suits under that act against taxpayers who have tendered
coupons, whether the coupons were purchased from the complainants
or not. It is also to be observed that the only personal act on the
part of the petitioners sought to be restrained by the original
order of June 6, 1887, in pursuance of the prayer of the bill, is
the bringing of any suit under the Act of May 12, 1887, against any
person who had tendered tax receivable coupons in payment of taxes
due to the State of Virginia. Any such suit
Page 123 U. S. 494
must, by the statute, be brought in the name of the state and
for its use.
It is immaterial, in our opinion, to consider the matters which
are alleged in respect to the course and conduct of such a suit
after its institution, by reason of the provisions contained in
other acts of the General Assembly of the state restricting the
mode of proof of the genuineness of the coupons tendered. What is
required by the Act of May 12, 1887, is that,
"If the defendant relies on a tender of coupons as payment of
the taxes claimed, he shall plead the same specifically and in
writing, and file with the plea the coupons averred therein to have
been tendered, and the clerk shall carefully preserve them. Upon
such plea filed, the burden of proving the tender and the
genuineness of the coupons shall be on the defendant. If the tender
and the genuineness of the coupons be established, judgment shall
be for the defendant on the plea of tender. In such case, the clerk
shall write the word 'proved' and thereunder his name in his
official character, across the face of the coupons, and transmit
them, together with a certificate of the court that they have been
proven in the case, to the auditor of public accounts, who shall
deliver the coupons to the second auditor, receiving therefor the
check of the second auditor upon the treasurer, which check he
shall pay into the treasury to the credit of the proper tax
account."
If a suit may be rightfully brought at all by the state to
recover a judgment for taxes in such a case, certainly there is
nothing in these provisions that violates any legal or contract
right of the party sued. If he defends the action on the ground of
a lawful tender of payment, he must, of course, plead the tender,
and may rightfully be required to bring into court the tender
alleged to have been made. Under the issue upon this plea, the
burden is upon the defendant of proving the truth of its
allegations. What shall be the amount and kind of proof necessary
to establish the defense involves questions of law which can only
be raised and decided in the course of the trial. Their
determination is for the court where the trial is to be had. If, in
pursuance of other acts of the General Assembly, the contract
rights of the defendant, as a taxpayer having
Page 123 U. S. 495
tendered tax receivable coupons, are denied to him in that
trial, by reason of requirements in regard to the nature and
quantity of proof as to the genuineness of the coupons, the errors
of law thus committed can only be remedied, according to the common
course of judicial proceedings, by a writ of error which, as it
would present a federal question, might ultimately be sued out in
this Court. But it is not to be assumed in advance, either, that
such questions will arise, or that if they arise they will be
erroneously decided. The question, therefore, is narrowed to the
single inquiry of the equitable right of the complainants to enjoin
the petitioners against bringing any such suits at all.
It seems to be supposed in argument that the right of taxpayers
in Virginia who have tendered tax receivable coupons in payment of
their taxes to the proper collecting officer to be forever
thereafter free from suit by the state to recover judgment for such
taxes rests upon the proposition that such a tender is in law a
payment of the taxes, so as to extinguish all claim for them on the
part of the state. This proposition, indeed, is said to be
justified by the authority of certain language in the opinion of
this Court in the case of
Poindexter v. Greenhow,
114 U. S. 270. In
that case, the effect of a tender in payment of taxes upon the
subsequent act of the collector in seizing the personal property of
the taxpayer was considered and decided, but there is nothing in
the opinion which countenances the idea that such a tender was a
payment of the taxes so as to extinguish all subsequent claim of
the state therefor. Its effect was precisely defined in the
following statement (page
114 U. S.
299):
"His tender, as we have already seen, was equivalent to payment
so far as concerns the legality of all subsequent steps by the
collector to enforce payment by distraint of his
property."
There is nothing in the opinion to indicate that the party
making the tender was relieved from the operation of the rule of
law, making it necessary to keep the tender good, or that a
subsequent action at law for the recovery of the taxes would be
unlawful, reserving, of course, in such a case, the admitted right
of the defendant to plead the fact of his tender and bring it into
court, in pursuance of the usual practice in such cases, as a
defense.
Page 123 U. S. 496
It follows, therefore, in the present case that the personal act
of the petitioners sought to be restrained by the order of the
circuit court, reduced to the mere bringing of an action in the
name of and for the state against taxpayers, who, although they may
have tendered tax receivable coupons, are charged as delinquents,
cannot be alleged against them as an individual act in violation of
any legal or contract rights of such taxpayers.
Much more difficult is it to conceive that it constitutes a
grievance of which the complainants in the principal suit have any
legal right to complain. No suits against the complainants
themselves are apprehended, and their pecuniary interest in the
actions threatened against taxpayers who have made tenders of tax
receivable coupons purchased from them, with their guarantee
against loss in consequence thereof, is collateral and remote. The
bringing of such actions is no breach of any contract subsisting
between the complainants and the State of Virginia. All rights
under the contract contained in the coupons they parted with when
they transferred them to taxpayers. If the complainants have agreed
in that transfer that they shall be received by the state in
payment of taxes, that is a contract between the complainants and
the taxpayer, their assignee, to which the state is not a party. It
is one the complainants have voluntarily entered into, and for
which the state cannot be held responsible.
In that aspect, the case does not differ in principle from
Marye v. Parsons, 114 U. S. 325. The
consequential losses in the diminution of the market value of the
coupons which they still hold, and the liability of the
complainants to make good their warranty to taxpayers to whom they
have transferred the others, are not direct and legal consequences
of any breach of the contract made with the State of Virginia by
which the coupons are made receivable in payment of taxes. As such
damage could not be recovered in a direct action upon the contract
if the state were suable at law, so neither can it be made the
foundation of any preventive relief by injunction.
These considerations, however, are adverted to in this
connection
Page 123 U. S. 497
not so much for the purpose of showing that the substance of the
bill presents a case the subject matter of which is not within the
jurisdiction of the court as to show that it does not allege any
grounds of equitable relief against the individual defendants for
any personal wrong committed or threatened by them. It does not
charge against them in their individual character anything done or
threatened which constitutes, in contemplation of law, a violation
of personal or property rights or a breach of contract to which
they are parties.
The relief sought is against the defendants, not in their
individual but in their representative capacity, as officers of the
State of Virginia. The acts sought to be restrained are the
bringing of suits by the State of Virginia in its own name and for
its own use. If the state had been made a defendant to this bill by
name, charged according to the allegations it now contains --
supposing that such a suit could be maintained -- it would have
been subjected to the jurisdiction of the court by process served
upon its governor and attorney general according to the precedents
in such cases.
New Jersey v. New
York, 5 Pet. 284,
30 U. S. 288,
30 U. S. 290;
Kentucky v.
Dennison, 24 How. 66,
65 U. S. 96-97;
Rule 5 of 1884, 108 U.S. 574. If a decree could have been rendered
enjoining the state from bringing suits against its taxpayers, it
would have operated upon the state only through the officers who by
law were required to represent it in bringing such suits,
viz., the present defendants, its attorney general, and
the commonwealth's attorneys for the several counties. For a breach
of such an injunction these officers would be amenable to the court
as proceeding in contempt of its authority, and would be liable to
punishment therefor by attachment and imprisonment.
The nature of the case, as supposed, is identical with that of
the case as actually presented in the bill, with the single
exception that the state is not named as a defendant. How else can
the state be forbidden by judicial process to bring actions in its
name, except by constraining the conduct of its officers, its
attorneys, and its agents? And if all such officers, attorneys, and
agents are personally subjected to the process of the
Page 123 U. S. 498
court so as to forbid their acting in its behalf, how can it be
said that the state itself is not subjected to the jurisdiction of
the court as an actual and real defendant?
It is, however, insisted upon in argument that it is within the
jurisdiction of the circuit court of the United States to restrain
by injunction officers of the states from executing the provisions
of state statutes void by reason of repugnancy to the Constitution
of the United States; that there are many precedents in which that
jurisdiction has been exercised under the sanction of this Court,
and that the present case is covered by their authority.
The principal authority relied upon to maintain this proposition
is the judgment of this Court in the case of
Osborn v.
Bank of the United States, 9 Wheat. 738. As
strengthening the argument based upon that decision, our attention
is called by counsel to a feature of the case which it is said does
not clearly appear from the official report by Mr. Wheaton. The
original record of the case shows that the bill, after setting out
the substance of the act of the Legislature of Ohio complained of,
alleged that Osborn, the auditor of the state, and the officer upon
whom the execution of the statute of the state was enjoined, "daily
gives it out in speeches that he will execute and enforce the
provisions of the said act of Ohio against your orators." And it is
part of the prayer of the bill
"to stay and enjoin said Ralph Osborn, auditor as aforesaid, and
all others which it may concern in any wise, from proceeding
against your orators under and in virtue of the act of Ohio
aforesaid, or any section, part, or provision thereof."
It also appears that it was part of the decree of the circuit
court, from which the appeal was prosecuted,
"that the defendants, and each of them, be perpetually enjoined
from proceeding to collect any tax, which has accrued or may
hereafter accrue, from the complainants under the act of the
General Assembly of Ohio in the bill and proceedings
mentioned."
But the act of the Legislature of Ohio declared to be
unconstitutional and void in that case had for its sole purpose the
levy and collection of an annual tax of $50,000 upon each office of
discount and deposit of the bank of the United States within that
state, to
Page 123 U. S. 499
be collected, in case of refusal to pay, by the auditor of state
by a levy upon the money, banknotes, or other goods and chattels,
the property of the bank, to seize which it was made lawful, under
the warrant of the auditor, for the person to whom it was directed
to enter the bank for the purpose of finding and seizing property
to satisfy the same. The wrong complained of and sought to be
prevented by the injunction prayed for was this threatened seizure
of the property of the bank. An actual seizure thereof in violation
of the injunction was treated as a contempt of the court for which
the parties were attached, and the final decree of the circuit
court restored the property taken to the possession of the
complainant. In disposing of the case in this Court, the opinion of
Chief Justice Marshall, 9 Wheat.
22 U. S. 871,
concludes as follows:
"We think then that there is no error in the decree of the
Circuit Court for the District of Ohio so far as it directs
restitution of the specific sum of $98,000 which was taken out of
the bank unlawfully and was in the possession of the defendant
Samuel Sullivan when the injunction was awarded in September, 1820,
to restrain him from paying it away or in any manner using it and
so far as it directs the payment of the remaining sum of $2,000 by
the defendants Ralph Osborn and John L. Harper, but that the same
is erroneous so far as respects the interest on the coin, part of
the said $98,000, it being the opinion of this Court that while the
parties were restrained by the authority of the circuit court from
using it, they ought not to be charged with interest. The decree of
the Circuit Court for the District of Ohio is affirmed as to the
said sums of $98,000 and $2,000, and reversed as to the
residue."
The mandate from this Court was in accordance with the terms of
this judgment.
There is nothing, therefore, in the judgment in that cause as
finally defined which extends its authority beyond the prevention
and restraint of the specific act done in pursuance of the
unconstitutional statute of Ohio, and in violation of the act of
Congress chartering the bank, which consisted of the unlawful
seizure and detention of its property. It was conceded throughout
that case, in the argument at the bar and in the
Page 123 U. S. 500
opinion of the court, that an action at law would lie either of
trespass or continue against the defendants as individual
trespassers guilty of a wrong in taking the property of the
complainant illegally, vainly seeking to defend themselves under
the authority of a void act of the General Assembly of Ohio. One of
the principal questions in the case was whether equity had
jurisdiction to restrain the commission of such a mere trespass --
a jurisdiction which was upheld upon the circumstances and nature
of the case and which has been repeatedly exercised since. But the
very ground on which it was adjudged not to be a suit against the
state and not to be one in which the state was a necessary party
was that the defendants personally and individually were wrongdoers
against whom the complainants had a clear right of action for the
recovery of the property taken, or its value, and that therefore it
was a case in which no other parties were necessary. The right
asserted and the relief asked were against the defendants as
individuals. They sought to protect themselves against personal
liability by their official character as representatives of the
state. This they were not permitted to do, because the authority
under which they professed to act was void.
In pursuance of the principles adjudged in the case of
Osborn v. Bank of the United States, supra, it has been
repeatedly and uniformly held by this Court that an injunction will
lie to restrain the collection of taxes sought to be collected by
seizures of property imposed in the name of the state, but contrary
to the Constitution of the United States, the defendants being
officers of the state threatening the distraint complained of. The
grounds of this jurisdiction were stated in
Allen v. Baltimore
& Ohio Railroad Co., 114 U. S. 311. The
vital principle in all such cases is that the defendants, though
professing to act as officers of the state, are threatening a
violation of the personal or property rights of the complainant,
for which they are personally and individually liable. This
principle was plainly stated in the opinion of the court in
Poindexter v. Greenhow, 114 U. S. 270, as
follows (page
114 U. S.
282):
"The case, then, of the plaintiff below is reduced to this: he
had paid the tax demanded of him by a
Page 123 U. S. 501
lawful tender. The defendant had no authority of law thereafter
to attempt to enforce other payment by seizing his property. In
doing so, he ceased to be an officer of the law and became a
private wrongdoer. It is the simple case in which the defendant, a
natural private person, has unlawfully, with force and arms,
seized, taken, and detained the personal property of another."
It was also stated (page
114 U. S.
288):
"The
ratio decidendi in this class of cases is very
plain. A defendant sued as a wrongdoer, who seeks to substitute the
state in his place, or to justify by the authority of the state, or
to defend on the ground that the state has adopted his act and
exonerated him, cannot rest on the bare assertion of his defense.
He is bound to establish it. The state is a political corporate
body, can act only through agents, and can command only by laws. It
is necessary, therefore, for such a defendant, in order to complete
his defense, to produce a law of the state which constitutes his
commission as its agent and a warrant for his act. This the
defendant in the present case undertook to do."
The legislation under which the defendant justified, being
declared to be null and void as contrary to the Constitution of the
United States, therefore, left him defenseless, subject to answer
to the consequences of his personal act in the seizure and
detention of the plaintiff's property and responsible for the
damages occasioned thereby.
This principle is illustrated and enforced by the case of
United States v. Lee, 106 U. S. 196. In
that case, the plaintiffs had been wrongfully dispossessed of their
real estate by defendants claiming to act under the authority of
the United States. That authority could exist only as it was
conferred by law, and as they were unable to show any lawful
authority under the United States, it was held that there was
nothing to prevent the judgment of the court against them as
individuals for their individual wrong and trespass. This feature
will be found on an examination to characterize every case where
persons have been made defendants for acts done or threatened by
them as officers of the government, either of a state or of the
United States, where the objection has been interposed that the
state was the real defendant, and has been
Page 123 U. S. 502
overruled. The action has been sustained only in those instances
where the act complained of, considered apart from the official
authority alleged as its justification and as the personal act of
the individual defendant, constituted a violation of right for
which the plaintiff was entitled to a remedy at law or in equity
against the wrongdoer in his individual character.
The present case stands upon a footing altogether different.
Admitting all that is claimed on the part of the complainants as to
the breach of its contract on the part of the State of Virginia by
the acts of its General Assembly referred to in the bill of
complaint, there is nevertheless no foundation in law for the
relief asked. For a breach of its contract by the state it is
conceded there is no remedy by suit against the state itself. This
results from the Eleventh Amendment to the Constitution, which
secures to the state immunity from suit by individual citizens of
other states or aliens. This immunity includes not only direct
actions for damages for the breach of the contract brought against
the state by name, but all other actions and suits against it,
whether at law or in equity. A bill in equity for the specific
performance of the contract against the state by name it is
admitted could not be brought. In
Hagood v. Southern,
117 U. S. 52, it
was decided that in such a bill, where the state was not nominally
a party to the record, brought against its officers and agents,
having no personal interest in the subject matter of the suit and
defending only as representing the state, where
"the things required by the decree to be done and performed by
them are the very things which, when done and performed, constitute
a performance of the alleged contract by the state,"
the Court was without jurisdiction, because it was a suit
against a state.
The converse of that proposition must be equally true, because
it is contained in it -- that is, a bill the object of which is by
injunction indirectly to compel the specific performance of the
contract by forbidding all those acts and doings which constitute
breaches of the contract must also necessarily be a suit against
the state. In such a case, though the state be
Page 123 U. S. 503
not nominally a party on the record, if the defendants are its
officers and agents, through whom alone it can act in doing and
refusing to do the things which constitute a breach of its
contract, the suit is still, in substance, though not in form, a
suit against the state. Such is the precise character of the suit
in the circuit court against the petitioners, in which the order
was made the violation of which constitutes the contempt for which
they have been committed to the imprisonment from which they seek
delivery by these writs.
It may be asked what is the true ground of distinction, so far
as the protection of the Constitution of the United States is
invoked, between the contract rights of the complainant in such a
suit and other rights of person and of property. In these latter
cases, it is said that jurisdiction may be exercised against
individual defendants notwithstanding the official character of
their acts, while in cases of the former description, the
jurisdiction is denied.
The distinction, however, is obvious. The acts alleged in the
bill as threatened by the defendants, the present petitioners, are
violations of the assumed contract between the State of Virginia
and the complainants, only as they are considered to be the acts of
the State of Virginia. The defendants, as individuals, not being
parties to that contract, are not capable in law of committing a
breach of it. There is no remedy for a breach of a contract, actual
or apprehended, except upon the contract itself and between those
who are by law parties to it. In a certain sense and in certain
ways, the Constitution of the United States protects contracts
against laws of a state subsequently passed impairing their
obligation, and this provision is recognized as extending to
contracts between an individual and a state; but this, as is
apparent, is subject to the other constitutional principle, of
equal authority, contained in the Eleventh Amendment which secures
to the state an immunity from suit. Wherever the question arises in
a litigation between individuals which does not involve a suit
against a state, the contract will be judicially recognized as of
binding force notwithstanding any subsequent law of the state
impairing its obligation. But this right is incidental to
Page 123 U. S. 504
the judicial proceeding in the course of which the question
concerning it arises. It is not a positive and substantive right of
an absolute character, secured by the Constitution of the United
States against every possible infraction, or for which redress is
given as against strangers to the contract itself, for the
injurious consequences of acts done or omitted by them.
Accordingly, it was held in
Carter v. Greenhow,
114 U. S. 317,
that no direct action for the denial of the right secured by a
contract, other than upon the contract itself, would lie under any
provisions of the statutes of the United States authorizing actions
to redress the deprivation, under color of state law, of any right,
privilege, or immunity secured by the Constitution of the United
States. In that case, it was said (page
114 U. S.
322):
"How, and in what sense, are these rights secured to him by the
Constitution of the United States? The answer is by the provision
of Article I, Section 10, which forbids any state to pass laws
impairing the obligation of contracts. That constitutional
provision, so far as it can be said to confer upon or secure to any
person any individual rights, does so only indirectly and
incidentally. It forbids the passage by the states of laws such as
are described. If any such are nevertheless passed by the
legislature of a state, they are unconstitutional and void. In any
judicial proceeding necessary to vindicate his rights under a
contract affected by such legislation, the individual has a right
to have a judicial determination declaring the nullity of the
attempt to impair its obligation. This is the only right secured to
him by that clause of the Constitution."
But where the contract is between the individual and the state,
no action will lie against the state, and any action founded upon
it against defendants who are officers of the state the object of
which is to enforce its specific performance by compelling those
things to be done by the defendants which, when done, would
constitute a performance by the state, or to forbid the doing of
those things which, if done, would be merely breaches of the
contract by the state, is in substance a suit against the state
itself, and equally within the prohibition of the Constitution.
It cannot be doubted that the Eleventh Amendment to the
Constitution
Page 123 U. S. 505
operates to create an important distinction between contracts of
a state with individuals and contracts between individual parties.
In the case of contracts between individuals, the remedies for
their enforcement or breach in existence at the time they were
entered into are a part of the agreement itself, and constitute a
substantial part of its obligation.
Louisiana v. New
Orleans, 102 U. S. 203.
That obligation, by virtue of the provision of Article I, Section
10, of the Constitution of the United States, cannot be impaired by
any subsequent state legislation. Thus, not only the covenants and
conditions of the contract are preserved, but also the substance of
the original remedies for its enforcement. It is different with
contracts between individuals and a state. In respect to these, by
virtue of the Eleventh Amendment to the Constitution, there being
no remedy by a suit against the state, the contract is
substantially without sanction except that which arises out of the
honor and good faith of the state itself, and these are not subject
to coercion. Although the state may at the inception of the
contract have consented as one of its conditions to subject itself
to suit, it may subsequently withdraw that consent and resume its
original immunity without any violation of the obligation of its
contract in the constitutional sense.
Beers v.
Arkansas, 20 How. 527;
Railroad Co. v.
Tennessee, 101 U. S. 337. The
very object and purpose of the Eleventh Amendment were to prevent
the indignity of subjecting a state to the coercive process of
judicial tribunals at the instance of private parties. It was
thought to be neither becoming nor convenient that the several
states of the union, invested with that large residuum of
sovereignty which had not been delegated to the United States,
should be summoned as defendants to answer to complaints of private
persons, whether citizens of other states or aliens, or that the
course of their public policy and the administration of their
public affairs should be subject to and controlled by the mandates
of judicial tribunals without their consent and in favor of
individual interests. To secure the manifest purposes of the
constitutional exemption guaranteed by the Eleventh Amendment
requires that it should be interpreted
Page 123 U. S. 506
not literally and too narrowly, but fairly and with such breadth
and largeness as effectually to accomplish the substance of its
purpose. In this spirit, it must be held to cover not only suits
brought against a state by name, but those also against its
officers, agents, and representatives where the state, though not
named as such, is nevertheless the only real party against which
alone in fact the relief is asked and against which the judgment or
decree effectively operates.
But this is not intended in any way to impinge upon the
principle which justifies suits against individual defendants who,
under color of the authority of unconstitutional legislation by the
state, are guilty of personal trespasses and wrongs, nor to forbid
suits against officers in their official capacity either to arrest
or direct their official action by injunction or mandamus where
such suits are authorized by law and the act to be done or omitted
is purely ministerial, in the performance or omission of which the
plaintiff has a legal interest. In respect to the latter class of
cases, we repeat what was said by this Court in
Board of
Liquidation v. McComb, 92 U. S. 531,
92 U. S.
541:
"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 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 nonperformance 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."
An example and illustration of this class will be found in
Seibert v. Lewis, 122 U. S. 284.
Page 123 U. S. 507
Nor need it be apprehended that the construction of the Eleventh
Amendment, applied in this case, will in any wise embarrass or
obstruct the execution of the laws of the United States in cases
where officers of a state are guilty of acting in violation of them
under color of its authority. The government of the United States,
in the enforcement of its laws, deals with all persons within its
territorial jurisdiction as individuals owing obedience to its
authority. The penalties of disobedience may be visited upon them
without regard to the character in which they assume to act or the
nature of the exemption they may plead in justification. Nothing
can be interposed between the individual and the obligation he owes
to the Constitution and laws of the United States, which can shield
or defend him from their just authority, and the extent and limits
of that authority the government of the United States, by means of
its judicial power, interprets and applies for itself. If,
therefore, an individual, acting under the assumed authority of a
state, as one of its officers, and under color of its laws comes
into conflict with the superior authority of a valid law of the
United States, he is stripped of his representative character and
subjected in his person to the consequences of his individual
conduct. The state has no power to impart to him any immunity from
responsibility to the supreme authority of the United States.
In contradistinction to these classes of cases, for the reasons
given, we adjudge the suit of
Cooper and Others v. Marye and
Others, in which the injunctions were granted against the
present petitioners, to be in substance and in law a suit against
the State of Virginia. It is therefore within the prohibition of
the Eleventh Amendment to the Constitution. By the terms of that
provision, it is a case to which the judicial power of the United
States does not extend. The circuit court was without jurisdiction
to entertain it. All the proceedings in the exercise of the
jurisdiction which it assumed are null and void. The orders
forbidding the petitioners to bring the suits for bringing which
they were adjudged in contempt of its authority it had no power to
make. The orders adjudging
Page 123 U. S. 508
them in contempt were equally void, and their imprisonment is
without authority of law. It is ordered, therefore, that the
petitioners be discharged.
MR. JUSTICE FIELD, concurring.
I concur in the judgment discharging from arrest and
imprisonment the Attorney General of Virginia, and other officers
of the state, who were adjudged by the circuit court to be guilty
of contempt in refusing to obey the order of that court in the case
of
Cooper v. Marye, and were fined, and committed until
the fine should be paid and they should purge themselves of their
contempt by doing the acts commanded. I also concur in the main
position stated in the opinion of the Court, upon which the
discharge of the petitioners is ordered -- namely that the case of
Cooper v. Marye was in law and fact a suit by subjects of
a foreign state against the State of Virginia. To a suit of that
character the judicial power of the United States cannot, by the
Eleventh Amendment of the Constitution, be extended. The object of
that suit was to enjoin the attorney general and the commonwealth's
attorneys of the several counties, cities, and towns of Virginia
from bringing any suits in the name of the commonwealth to enforce
the collection of taxes for the payment of which coupons originally
attached to her bonds had been tendered. To enjoin the officers of
the commonwealth, charged with the supervision and management of
legal proceedings in her behalf, from bringing suits in her name is
nothing less than to enjoin the commonwealth, for only by her
officers can such suits be instituted and prosecuted. This seems to
me an obvious conclusion.
The reason given in the bill in
Cooper v. Marye for
seeking the injunction is that the state has passed various acts
creating impediments in the way of holders of coupons establishing
their genuineness, by which their value will be practically
destroyed, and the performance of these obligations be evaded,
unless the officers of the state are restrained from prosecuting
such suits. The numerous devices to which the state has resorted in
order to escape from her obligations under the
Page 123 U. S. 509
forms of law may, it is true, seriously embarrass the coupon
holder in the assertion of his claims; but that is not a sufficient
reason for denying to the state the right to prosecute her demands
for taxes in her own courts. If the obstacles to the maintenance of
the claims of the coupon holder, presented by the state
legislation, are repugnant to the Constitution and laws of the
United States, we cannot assume in advance that they will be
sustained by the courts of Virginia when the coupons tendered are
produced in the suits mentioned, and for that reason deny to her a
hearing there upon her own demands. If they should be sustained, a
remedy may be found in this tribunal, where decisions in conflict
with the Constitution and laws of the United States may be reviewed
and corrected.
There are many cases -- indeed, they are of frequent occurrence
-- where officers of the state, acting under legislation in
conflict with the Constitution and laws of the United States, may
be restrained by the federal courts, as where those officers
attempt, by virtue of such legislation, to take private property
for public use without offering compensation or in other ways to
deprive one of the use and enjoyment of his property. I do not
understand that the opinion of the Court is against this doctrine,
but, on the contrary, that it is recognized and approved. There is
a wide difference between restraining officers of the state from
interfering in such cases with the property of the citizen and
restraining them from prosecuting a suit in the name of the state
in her own courts to collect an alleged claim. Her courts are at
all times as open to her for the prosecution of her demands as they
are open to her citizens for the prosecution of their claims.
I, however, make this special concurrence in the opinion of the
majority because of language in it expressing approval of the
positions taken by the Court in
Louisiana v. Jumel, from
which I dissented -- not agreeing with the majority either in the
statement of the object of that case or in the law applicable to
it. 107 U.S.
101 U. S. 728. I
considered that case as brought to compel the officers of the state
to do what she had by her laws and former constitution consented
they might
Page 123 U. S. 510
by the judicial tribunals be required to do. I expressed at the
time, against the majority of the Court, my conviction of the
invalidity and unconstitutionality of the ordinance of repudiation
embodied in the new Constitution of Louisiana. At the same time, I
also expressed, in
Antoni v. Greenhow, my opinion of the
equally invalid legislation of Virginia. 107 U.S.
107 U. S. 784.
I adhere to my dissenting opinions in those cases, and in
concurring in the judgment in this case, I do not in any respect
depart from or qualify what I there said.
MR. JUSTICE HARLAN, dissenting.
As I adhere to the views expressed by me in
Louisiana v.
Jumel, 107 U. S. 746;
Antoni v. Greenhow, 107 U. S. 801,
and
Cunningham v. Macon, 109 U. S. 458,
and as I concurred in the judgments in
Poindexter v.
Greenhow, 114 U. S. 273,
and
Allen v. Baltimore & Ohio Railroad Company,
114 U. S. 311, I
feel obliged to dissent from the opinion and judgment in these
cases.
In
Cooper v. Marye, &c., the jurisdiction of the
circuit court cannot be questioned so far as it depends upon the
citizenship of the parties, for the plaintiffs are subjects or
citizens of Great Britain, and the defendants are citizens of
Virginia. Whether the plaintiffs merely as holders of Virginia
coupons, and not taxpayers in that commonwealth, have any legal
ground of complaint by reason of the refusal of her officers to
accept, when tendered, like coupons which the plaintiffs sold or
transferred to taxpayers to be used in meeting their taxes; whether
the statutes under which those officers proceeded, or intend to
proceed, are repugnant to the Constitution of the United States,
and therefore void; whether the preliminary injunction in question
should or should not have been refused upon the ground that such
taxpayers have a complete and adequate remedy at law; whether the
necessity of avoiding conflicts between the courts of the United
States and the officers of a state, acting in obedience to her
statutes, was not ample reason for refusing
Page 123 U. S. 511
to grant such injunction; or whether an officer ought to be
enjoined from merely bringing a suit in behalf of the public -- the
suit itself not necessarily, or before judgment therein, involving
an invasion of the property rights of the defendant therein -- are
all matters which the circuit court, sitting in equity, was
competent to determine upon the final hearing in
Cooper v.
Marye, &c. Those questions are not open for consideration
here except upon the appeal from the final decree in that case;
consequently I am not at liberty now to express an opinion as to
any of them.
The only inquiry now to be made is whether
Cooper v.
Marye is a suit against Virginia within the meaning of the
Eleventh Amendment to the Constitution of the United States. If it
be, I agree that the prisoners must be discharged, for the judicial
power of the United States does not extend to suits against a state
by citizens of another state or by subjects of foreign countries.
But I am of opinion that it is not a suit of that character. I
stand upon what was adjudged in
Osborn v. United States
Bank, 9 Wheat. at page
22 U. S. 857.
Chief Justice Marshall, speaking for the Court in that case,
said:
"It may, we think, be laid down as a rule
which admits of no
exception that in all cases where jurisdiction depends on the
party, it is the party
named on 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 citizen
of another state or by aliens. The state not being a party on the
record, and the court having jurisdiction over those who are
parties on the record, the true question is not one of
jurisdiction, but whether,
in the exercise of its
jurisdiction, the court
ought to make a decree against the
defendants, whether they are to be considered as having a real
interest or as being only nominal parties."
These principles have been recognized in several decisions
of
Page 123 U. S. 512
this Court, notably in
United States v. Lee and
Kaufman v. Lee, 106 U. S. 196,
106 U. S.
213-215. That was an action to recover a body of land in
Alexandria County, Virginia, two hundred acres of which constituted
Arlington Cemetery, previously established by the United States as
a military station and as a national cemetery for the soldiers and
sailors of the union. When the action was brought, that cemetery
was in the actual possession of the United States by the
defendants, as their officers. Those officers certainly had no
personal interest in the result of the suit. They simply
represented the United States, who were the real parties in
interest. As the United States were not parties to the record, and
because they could not be made parties, the Court proceeded to a
determination of the case between the parties before it. The result
was a judgment determining that Lee had a legal right to the
possession of Arlington Cemetery as against the officers of the
United States having it under their control. The authority and duty
of the Court to proceed in the case, notwithstanding the United
States were not before the Court, was rested mainly upon the
decision in
Osborn v. Bank of the United States, from
which was quoted, with emphatic approval, the following
language:
"If the State of Ohio could have been made a party defendant, it
can scarcely be denied that this would be a strong case for an
injunction. The objection is that, as the real party cannot be
brought before the court, a suit cannot be sustained against the
agents of that party, and cases have been cited to show that a
court of chancery will not make a decree unless all those who are
substantially interested be made parties to the suit. This is
certainly true where it is in the power of the plaintiff to make
them parties; but if the person who is the real principal, the
person who is the true source of the mischief by whose power and
for whose advantage it is done, be himself above the law, be exempt
from all judicial process, it would be subversive of the best
established principles to say that the laws could not afford the
same remedies against the agent employed in doing the wrong which
they would afford against him could his principal be joined in the
suit."
And in order that no one might suppose that
Osborn v. Bank
of the United
Page 123 U. S. 513
States had been modified or overruled by subsequent
decisions, the Court in the
Lee case, after referring to
several decisions, said:
"These decisions have never been overruled. On the contrary, as
late as the case of
Davis v. Gray, 16 Wall. 203,
the case of
Osborn v. Bank of the United States is cited
with approval as establishing these among other propositions:"
"Where the state is concerned, the state should be made a party
if it can be done. That it cannot be done is a sufficient reason
for the omission to do it, and the Court may proceed to decree
against the officers of the state in all respects as if the state
were a party to the record. In deciding who are parties to the
suit, the Court will not look beyond the record. Making a state
officer a party does not make the state a party,
although her
law may have prompted his action and the state may stand behind him
as a real party in interest. A state can be made a party only
by shaping the bill expressly with that view, as where individuals
or corporations are intended to be put in that relation to the
case."
"Though not prepared to say now that the Court can proceed
against the officer 'in all respects' as if the state were a party,
this may be taken as intimating, in a general way, the views of the
Court at that time."
In
Poindexter v. Greenhow, 114 U.
S. 270, we sustained a suit by a private individual
against a treasurer, charged with the duty of collecting taxes, to
recover certain personal property which the defendant had seized
for the nonpayment of taxes due Virginia from the plaintiff in that
suit. In seizing the property, the officer disregarded the tender,
previously made, of the state's coupons. It was earnestly contended
that as the officer only did what the state by her statutes had
commanded him to do, and had himself no personal interest in the
matter, the suit against him was in legal effect one against the
state; that a suit to recover property seized for the nonpayment of
taxes, in conformity with the statutes of Virginia, had the same
result as a direct suit against the state to compel her performance
of her contract with the coupon holder or to enjoin her officer
from carrying those statutes into effect. But this view was
overruled, mainly upon the authority of
Osborn v. Bank of the
United States, from which the Court
Page 123 U. S. 514
quoted with approval the same passages as are to be found in the
opinion in
Lee's Case, and in reference thereto
observed:
"This language, it may be observed, was quoted with approval in
United States v. Lee. The principle which it enunciates
constitutes the very foundation upon which the decision in that
case rested."
In
Poindexter's Case, we said that the immunity from
suit secured to the states by the Constitution
"does not exempt the state from the operation of the
constitutional provision that no state shall pass any law impairing
the obligation of contracts, for it has long been settled that
contracts between a state and an individual are as fully protected
by the Constitution as contracts between two individuals. It is
true that no remedy for a breach of its contract by a state, by way
of damages as compensation, or by means of process to compel its
performance, is open, under the Constitution, in the courts of the
United States by a direct suit against the state itself on the part
of the injured party, being a citizen of another state or a citizen
or subject of a foreign state. But it is equally true that
whenever, in a controversy between parties to a suit of which these
courts have jurisdiction, the question arises upon the validity of
a law by a state impairing the obligation of its contract,
the
jurisdiction is not thereby ousted, but must be exercised,
with whatever legal consequences to the rights of the litigants may
be the result of the determination."
Upon identically the same grounds rests our decision in
Allen v. Baltimore & Ohio Railroad, 114 U.
S. 311, in which we maintained the right of that company
to an injunction to prevent the collection of taxes by distraint
upon its property after a tender of the state's tax receivable
coupons in payment of such taxes. That suit was against the Auditor
of Public Accounts and the Treasurer of Virginia. They certainly
had no personal interest in the collection of the taxes, but were
only obeying the statutes of the state which they assumed to be
constitutional and binding upon them. But the effect of that suit
was to say to the State of Virginia that she should not collect her
revenue in the mode proposed by the statute, and thereby violate
rights secured by the Constitution of the United States. In vain
was it urged by the officers of the
Page 123 U. S. 515
state that Virginia was the real party in interest; that, as the
state could only act by her officers, to enjoin them was to enjoin
the state, and that consequently the suit was one against the state
within the meaning of the Eleventh Amendment. This Court overruled
that contention, holding in substance that, the State of Virginia
not being named as a party and it being impossible to make her a
party, her officers could be prevented from touching the property
of the railroad under a statute void under the Constitution of the
United States.
The result, then, of former decisions is that a suit against
officers of the United States to recover property not legally in
their possession is not a suit against the United States, and that
neither a suit against officers of the state to recover property
illegally taken by them in obedience to the statutes of the state
nor a suit brought against state officers to enjoin them from
taking, under the command of the state, the property of a taxpayer
who has tendered coupons for taxes due to her were suits against
the state within the meaning of the Eleventh Amendment of the
Constitution. And now it is adjudged in the cases before us that a
suit merely against state officers to enjoin them from bringing
actions against taxpayers who have previously tendered tax
receivable coupons is a suit against the state. There is, I grant,
a difference between the cases heretofore decided and the case of
Cooper v. Marye, but the difference is not such as to
involve the jurisdiction of the circuit court, but rather, to use
the language of Chief Justice Marshall, "the exercise of its
jurisdiction."
The Commonwealth of Virginia has no more authority to enact
statutes impairing the obligation of her contracts than statutes
impairing the obligation of contracts exclusively between
individuals.
New Jersey v.
Wilson, 7 Cranch 164,
11 U. S. 166;
Providence Bank v.
Billings, 4 Pet. 514,
29 U. S. 560;
Green v. Biddle,
8 Wheat. 1,
21 U. S. 84;
Woodruff v.
Trapnall, 10 How. 190,
51 U. S. 207;
Wolff v. New Orleans, 103 U. S. 358,
103 U. S. 367;
New Orleans Gas Co. v. Louisiana Light Co., 115 U.
S. 650,
115 U. S. 673.
A statute which is void as impairing the obligation of the state's
contract affords no justification to anyone and confers no
authority. If an officer proposes to enforce such a
Page 123 U. S. 516
statute against a party the obligation of whose contract is
sought to be impaired, the latter, in my judgment, may proceed by
suit against such officer, and thereby obtain protection in his
rights of contract as against the proposed action of that officer.
A contrary view enables the state to use her immunity from suit to
effect what the Constitution of the United States forbids her from
doing -- namely to enact statutes impairing the obligation of her
contract. If an officer of the state can take shelter behind such
immunity while he proceeds with the execution of a void enactment
to the injury of the citizen's rights of contract, it would look as
if that provision which declares that the Constitution of the
United States shall be the supreme law of the land, anything in the
Constitution or laws of a state to the contrary notwithstanding,
had lost most, if not all, of its value in respect to contracts
which a state makes with individuals.
I repeat that the difference between a suit against officers of
the state enjoining them from seizing the property of the citizen
in obedience to a void statute of the state and a suit enjoining
such officers from bringing, under the order of the state and in
her name, an action which, it is alleged, will result in injury to
the rights of the complainant is not a difference that affects the
jurisdiction of the Court, but only its exercise of jurisdiction.
If the former is not a suit against the state, the latter should
not be deemed of that class.
