apply. It has been said: "The Constitution, with its amendments, is construed as one instrument, and the Eleventh Amendment cannot be applied to nullify the power conferred on Congress to regulate commerce among the several States. It is not a barrier to judicial investigation to ascertain whether other provisions of the Constitution have been disregarded by the State action.” 6

A corporation chartered by Congress cannot sue a State."

8

An action at law or a suit in equity or in admiralty, against a municipal corporation, or against a county, or any other political subdivision of a State, 10 is not a suit against a State and a State statute cannot divest a Federal court of jurisdiction over such a suit." Where a State statute authorizes suits against the State only in a State court, the District Courts of the United States have no jurisdiction.12 An action against a corporation, such as a railroad company, all the stock of which is owned by a State, is not an action against a State.13 A State agricultural college may be sued for a tort.14

It has been held at circuit, that a crossbill may be filed against

5 Perkins v. Northern Pac. Ry. Co., 155 Fed. 445, 447; Ex parte Young, 209 U. S. 123, 150, 52 L. ed. 714, 725, 13 L.R.A. (N.S.) 932, 14 Ann. Cas. 764.

6 Illinois Cent. R. Co. v. Mississippi Railroad Commission, C. C. A., 138 Fed. 327, 331; per Shelby, J. See also Southern Ry. Co. v. Greensboro Ice & Coal Co., 134 Fed.

82.

7 Smith v. Reeves, 178 U. S. 436, 44 L. ed. 1140.

8 Camden Interstate Ry. Co. v. Catlettsburg, 129 Fed. 421; U. S. v. Port of Portland, 147 Fed. 865.

Lincoln County v. Luning, 133 U. S. 529, 33 L. ed. 766; Eaton v. Shiawassee County, C. C. A., 218 Fed. 588; Lauderdale County v. Kittel, C. C. A., 229 Fed. 593; United States V. C. A. Riffle Co., 247 Fed. 374.

10 Hopkins v. Clemson Agricul

tural College of South Carolina, 221 U. S. 636, 55 L. ed. 890. See supra, § 95.

11 Lincoln County v. Luning, 133 U S. 529, 33 L. ed. 766.

12 Smith v. Reeves, 178 U. S. 436, 44 L. ed. 1140; Smith v. Rackliffe, C. C. A., 87 Fed. 964; Deseret Water, Oil & Irr. Co. v. State of California, C. C. A., 202 Fed. 498.

13 Southern Ry. Co. v. North Carolina R. Co., 81 Fed. 595, 599, 600; Simonton, J.: "When the State entered into this enterprise with private persons, she did not carry into it her functions of sovereignty; but stripped herself of them."

14 Hopkins v. Clemson Agricultural College of South Carolina, 221 U. S. 636, 55 L. ed. 890. But a State court has held that an action against a State industrial school in Alabama is an action against the

a State, which has brought an original bill; 15 but it seems that no affirmative judgment can be rendered against the State in such case.16 It has been held at circuit: that after the removal of a suit brought by a State, an injunction may be granted to stay further proceedings in the State court therein.17

A State may waive its exemption from suit.18 An appearance by the State attorney general, "for and on behalf of the State," under statutory authority is a waiver, by the State, of its immunity from suit.19 But not when the statute limits his right of appearance in such litigation to the Courts of the State,20 nor when he has no statutory authority.21

When the statute creating a State board makes it a body corporate, with power to sue and be sued without limitations, the State waives its immunity so far as such board is concerned.22 A statute providing that a State officer should be made a party defendant to all actions to recover taxes 23 or to set aside tax sales 24 was held not to be a waiver, by the State, of its constitutional immunity from suit in a Federal Court. It has been held that the defense that the defendant is a State, which cannot be sued without its consent, may be raised for the first time upon an appeal.25

Where, in the regular course of judicial administration, property of the State, or in which the State has an interest, has

State. Alabama Girls' Industrial
School v. Reynolds, 143 Ala. 579, 42
So. 114.

15 Port Royal & A. Ry. Co. v. South Carolina, 60 Fed. 552. See the Siren, 7 Wall. 152, 154, 19 L. ed. 129, 130. Supra, § 95.

16 Reeside v. Walker, 11 How. (U. S.) 272, 13 L. ed. 693; New York v. Dennison, 84 N. Y. 272.

17 Abeel v. Culberson, 56 Fed. 329. See infra, §§ 268, 284, 361.

18 Gunter v. Atlantic Coast Line R. R. Co., 200 U. S. 273, 50 L. ed. 477; Interstate Const. Co. v. Regents of the University of Idaho, 199 Fed. 509.

19 Gunter v. Atlantic Coast Line R. R. Co., 200 U. S. 273, 50 L. ed.

477. See Cotting v. Kansas City Stock Yards Co., 183 U. S. 79, 114, 46 L. ed. 92, 110. See supra, § 95.

20 Deseret Water, Oil & Irr. Co. v. State of California, C. C. A., 202 Fed. 498.

21 Farish v. State Banking Board of Okla., 235 U. S. 489, 512.

22 Interstate Const. Co. v. Regents of the University of Idaho, 199 Fed. 509.

23 Smith v. Reeves, 178 U. S. 436, 46 L. ed. 1140.

24 Chandler v. Dix, 194 U. S. 590, 48 L. ed. 1129.

25 Alabama Girls' Industrial School v. Reynolds, 143 Ala. 579, 42 So. 114.

come under the control of the court, without being forcibly taken from the possession of the government; the court will proceed to discharge its duty in regard to the same; and the State, if it choose to come in as plaintiff, as in prize cases, or to intervene in other cases where it has a lien or other claim upon the property, will be permitted so to do, subject, however, to the State's rights and will receive the same consideration as those of any other party interested in the matter, and will so far as its rights in such property are concerned be subjected in like manner to the judgment of the court.26

Cases have often arisen where, although a State was not a party to the record, it had rights which it claimed would be affected by the determination of the suit before the court. To determine accurately the jurisdiction of the Federal court in such cases has been a very difficult and delicate matter; and the questions which thus continually arise are hard to answer. The fact that a State is not named as a party to the record does not of itself remove a case from the terms of the Eleventh Amendment.27 Whether a State is an actual party in the sense of the prohibition must be determined by a consideration of the nature of the case as presented by the whole record.28

§ 105a. Actions at common law against State officers. An action at common law against a public officer who is sued as an individual and justifies under the authority of the State, is usually held not to be an action against the State. To make out his defense, he must show that his authority was sufficient in law to protect him.2 It has been so held of an action of

26 Clark v. Barnard, 108 U. S. 436, 27 L. ed. 780; Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446, 452, 27 L. ed. 992, 994; citing The Siren, 7 Wall. 152, 157, 19 L. ed. 129; The Davis, 10 Wall. 15, 20, 19 L. ed. 875, 877. Supra, § 95.

27 Elliott v. Wiltz, 107 U. S. 711, 27 L. ed. 448; Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446, 27 L. ed. 992; Hagood v. Southern, 117 U. S. 52, 29 L. ed. 805; In re Ayers, 123 U. S. 443, 31 L. ed. 216; Fitts v. McGhee, 172 U. S. 516, 43 L. ed. 535.

28 Poindexter v. Greenhow, 114 U. S. 270, 287, 29 L. ed. 185, 191; In re Ayers, 123 U. S 443, 492, 29 L. ed. 185, 191; Fitts v. McGhee, 172 U. S. 516, 43 L. ed. 535. See supra, §§ 95, 100.

§ 105a. 1 Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446, 452, 27 L. ed. 992, 994.

2 Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446, 452, 27. L. ed. 992, 994.

ejectment against a State officer, who held land in the name and for the uses of the State; 3 even when the defendant was sued as Comptroller of the State; and that after a judgment in ejectment against him, another State officer cannot intervene and have the judgment opened upon an answer containing the same defense.5 An action of detinue may be maintained against a State officer, to recover the possession of personal property, which he has seized under State authority. A State officer may be sued in trespass for the seizure of personal property in obedience to an unconstitutional statute of the State. A State Bank Commissioner may be sued for damages caused by his loss in guarding the business and assets of a bank, but an action against a State treasurer, to recover taxes illegally exacted, and an action against a County Dispensary Board, in South Carolina, to recover the price of supplies bought on behalf of the State, the proceeds of the sale of which had been paid to other State officers, 10 are suits against the State, and cannot be maintained. And, it has been held, that a State officer cannot be sued for damages under the Federal anti-trust law 11 for aiding the State in monopolizing interstate commerce.1 12 When a State officer has a well defined duty in regard to a specific matter, which is not discretionary, and which does not affect the general powers or function of the government; but in the performance of which one or more individuals have a distinct interest capable of enforcement by judicial process: a writ of mandamus will usually issue against

3 Tindal v. Wesley, 167 U. S. 204, 42 L. ed. 137.

4 Saranac, L. & T. Co., v. Roberts, 68 Fed. 521.

5 Vance v. Wesley, 85 Fed. 157. 6 Poindexter v. Greenhow, 114 U. S. 270, 29 L. ed. 185.

7 Virginia Coupon Cases, 114 U. S. 269, 29 L. ed. 185; McGahey v. Virginia, 135 U. S. 662, 684, 34 L. ed. 304, 312; Scott v. Donald, 165 U. S. 58, 41 L. ed. 632.

8 Johnson v. Lankford, 245 U. S. 541. But see Lankford v. Platte Iron Works Co., 235 U. S. 461 cited infra, § 105b.

him; and it is ordinarily held, that an application for such a writ is not a suit against the State; 13 but an application for a writ of mandamus, to compel a State officer to pay money out of the treasury of a State, is a suit against the State and cannot be maintained.14

§ 105b. Suits in equity to which a State is an indispensable party defendant. Courts of equity proceed upon different principles in regard to parties.1 A suit in equity cannot be maintained, in a case where the State would be an indispensable party if it were an individual similarly affected. Consequently, a suit cannot be maintained against the officers of a State, to compel specific performance by them of its contract for the sale of land.3 Nor for the reformation of such a contract. Nor to enjoin acts such as the taking of water authorized by a contract with the State.5 Nor to compel its officers to pay out of the money in its treasury, taxes which have been assessed for the purpose of paying interest upon the plaintiff's bonds, or to pay out of such treasury any money in discharge

13 Board of Liquidation of McComb, 92 U. S. 531, 23 L. ed. 623; Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446, 453, 27 L. ed. 992, 994. See Rolston v. Missouri Fund Commissions, 120 U. S. 390, 411, 30 L. ed. 721, 728.

14 Elliott v. Wiltz, 107 U. S. 711, 27 L. ed. 448.

$ 105b. 1 Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446, 456, 27 L. ed. 992, 995.

2 Louisiana v. Jumel, 107 U. S. 711, 27 L. ed. 448; Walsh v. Preston, 109 U. S. 297, 27 L. ed. 940; Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446, 456, 27 L. ed. 992; Hagood v. Southern, 117 U. S. 52, 29 L. ed. 805; Rolston v. Missouri Fund Com 'rs, 120 U. S. 390, 30 L. ed. 721; Christian v. Atlantic & N. C. R. Co., 133 U. S. 233, 33 L. ed. 589; Chandler v. Dix, 194 U. S. 590, 48 L. ed. 1129; Preston v. Walsh, 10 Fed. 315; Brown University

V.

Rhode Island College, 56 Fed. 55; Morrill v. American Reserve Bond Co., 151 Fed. 305; Sanders v. Saxton, 182 N. Y. 477. See supra, §§ 41, 43, infra, §§ 119, 120. But see Swasey v. N. C. R. Co., 1 Hughes, 17.

3 Preston v. Walsh, 10 Fed. 315. See Walsh v. Preston, 109 U. S. 297, 27 L. ed. 940; Jobe v. Urquhart, 98 Ark. 525, 136 S. W. 663. 4 Jobe v. Urquhart, 98 Ark. 525, 136 S. W. 663.

5 Veitia v. Fortuna Estates, C. C. A., 240 Fed. 256.

6 Louisiana v. Jumel, 107 U. S. 711, 27 L. ed. 448. It has been held, however, that a State treasurer may be compelled to deliver to receivers of a corporation, securities depos ited with him, to secure performance of the contracts of such company. Morrill V. American Reserve Bond Co., 151 Fed. 305.