U.S. Supreme Court

EX PARTE YOUNG, 209 U.S. 123 (1908)

209 U.S. 123

EX PARTE: EDWARD T. YOUNG, Petitioner.

No. 10, Original.

Argued December 2, 3, 1907.

Decided March 23, 1908.

An original application was made to this court for leave to file a petition for writs of habeas corpus and certiorari in behalf of Edward T. Young, petitioner, as attorney general of the state of Minnesota.

Leave was granted and a rule entered directing the United States marshal for the district of Minnesota, third division, who held the petitioner in his custody, to show cause why such petition should not be granted.

The marshal, upon the return of the order to show cause, justified his detention on the petitioner by virtue of an order of the circuit court of the United States for the district of Minnesota, which adjudged the petitioner builty of contempt of that court, and directed that he be fined the sum of $100, and that he should dismiss the mandamus proceedings brought by him in the name and in behalf of the state, in the circuit court of the state, and that he should stand committed to the custody of the marshal until that order was obeyed. The case

involves the validity of the order of the circuit court committing him for contempt.

The facts are these: The legislature of the state of Minnesota duly created a railroad and warehouse commission, and that commission, on the 6th of September, 1906, made an order fixing the rates for the various railroad companies for the carriage of merchandise between stations in that state of the kind and classes specified in what is known as the 'Western Classification.' These rates materially reduced those then existing, and were by the order to take effect November 15, 1906. In obedience to the order the railroads filed and published the schedules of rates, which have ever since that time been carried out by the companies.

At the time of the making of the above order it was provided by the Revised Laws of Minnesota, 1905 ( 1987), that any common carrier who violated the provisions of that section or wilfully suffered any such unlawful act or omission, when no specific penalty is imposed therefor, 'if a natural person, shall be guilty of a gross misdemeanor, and shall be punished by a find of not less than $2,500, nor more than $5,000 for the first offense, and not less than $5,000 nor more than $10,000 for each subsequent offense; and, if such carrier or warehouseman be a corporation, it shall forfeit to the state for the first offense not less than $2,500 nor more than $5,000, and for each subsequent offense not less than $5,000 nor more than $10,000, to be recovered in a civil action.'

This provision covered disobedience to the orders of the commission.

On the 4th of April, 1907, the legislature of the state of Minnesota passed an act fixing 2 cents a mile as the maximum passenger rate to be charged by railroads in Minnesota. (The rate had been theretofore 3 cents per mile.) The act was to take effect on the 1st of May, 1907, and was put into effect on that day by the railroad companies, and the same

has been observed by them up to the present time. It was provided in the act that 'any railroad company, or any officer, agent, or representative thereof, who shall violate any provision of this act, shall be guilty of a felony, and, upon conviction thereof, shall be punished by a fine not exceeding five thousand ($5,000) dollars, or by imprisonment in the state prison for a period not exceeding five (5) years, or both such fine and imprisonment.'

On the 18th of April, 1907, the legislature passed an act (chapter 232 of the laws of that year), which established rates for the transportation of certain commodities (not included in the Western Classification) between stations in that state. The act divided the commodities to which it referred into seven classes, and set forth a schedule of maximum rates for each class when transported in car-load lots, and established the minimum weight which constituted a car load of each class.

Section 5 provided that it should not affect the power or authority of the railroad and warehouse commission, except that no duty should rest upon that commission to enforce any rates specifically fixed by the act or any other statute of the state. The section further provided generally that the orders made by the railroad and warehouse commission prescribing rates should be the exclusive legal maximum rates for the transportation of the commodities enumerated in the act between points within that state.

Section 6 directed that every railroad company in the state should adopt and publish and put into effect the rates specified in the statute, and that every officer, director, traffic manager, or agent, or employee of such railroad company should cause the adoption, publication, and use by such railroad company of rates not exceeding those specified in the act; 'and any officer, director, or such agent or employee of any such railroad company who violates any of the provisions of this section, or who causes or counsels, advises or assists, any such railroad company to violate any of the provisions of this section, shall be guilty of a misdemeanor, and may be prosecuted therefor*

in any county into which its railroad extends, and in which it has a station, and upon a conviction thereof be punished by imprisonment in the county jail for a period not exceeding ninety days.' The act was to take effect June 1, 1907

The railroad companies did not obey the provisions of this act so far as concerned the adoption and publication of rates as specified therein.

On the 31st of May, 1907, the day before the act was to take effect, nine suits in equity were commenced in the circuit court of the United States for the district of Minnesota, third division, each suit being brought by stockholders of the particular railroad mentioned in the bill, and in each case the defendants named were the railroad company of which the complainants were, respectively, stockholders, and the members of the railroad and warehouse commission, and the attorney general of the state, Edward T. Young, and individual defendants, representing the shippers of freight upon the railroad.

The order punishing Mr. Young for contempt was made in the suit in which Charles E. Perkins, a citizen of the state of Iowa, and David C. Shepare, a citizen of the state of Minnesota, were complainants, and the Northern Pacific Railway Company, a corporation organized under the laws of the state of Wisconsin, Edward T. Young, petitioner herein, and others, were parties defendant. All of the defendants, except the railway company, are citizens and residents of the state of Minnesota.

It was averred in the bill that the suit was not a collusive one to confer on the court jurisdiction of a case of which it could not otherwise have cognizance, but that the objects and purposes of the suit were to enjoin the railway company from publishing or adopting (or continuing to observe, if already adopted) the rates and tariffs prescribed and set forth in the two acts of the legislature above mentioned and in the orders of the railroad and warehouse commission, and also to enjoin the other defendants from attempting to enforce such provisions, or from instituting any action or proceeding against

the defendant railway company, its officers, etc., on account of any violation thereof, for the reason that the said acts and orders were and each of them was violative of the Constitution of the United States.

The bill also alleged that the orders of the railroad commission of September 6, 1906, May 3, 1907, the passenger-rate act of April 4, 1907, and the act of April 18, 1907, reducing the tariffs and charges which the railway company had theretofore been permitted to make, were each and all of them unjust, unreasonable, and confiscatory, in that they each of them would, and will if enforced, deprive complainants and the railway company of their property without due process of law, and deprive them and it of the equal protection of the laws, contrary to and in violation of the Constitution of the United States and the amendments thereof. It was also averred that the complainants had demanded of the president and managing directors of the railway company that they should cease obedience to the orders of the commission dated September 6, 1906, and May 3, 1907, and to the acts already mentioned, and that the rates prescribed in such orders and acts should not be put into effect, and that the said corporation, its officers and directors, should institute proper suit or suits to prevent said rates (named in the orders and in the acts of the legislature) from continuing or becoming effective, as the case might be, and to have the same declared illegal; but the said corporation, its president and directors, had positively declined and refused to do so, not because they considered the rates a fair and just return upon the capital invested, or that they would not be confiscatory, but because of the severity of the penalties provided for the violation of such acts and orders, and therefore they could not subject themselves to the ruinous consequences which would inevitably result from failure on their part to obey the said laws and orders,-a result which no action by themselves, their stockholders or directors, could possibly prevent.

The bill further alleged that the orders of the commission

of September, 1906, and May, 1907, and the acts of April 4, 1907, and April 18, 1907, were, in the penalties prescribed for their violation, so drastic that no owner or operator of a railway property could invoke the jurisdiction of any court to test the validity thereof, except at the risk of confiscation of its property, and the imprisonment for long terms in jails and penitentiaries of its officers, agents, and employees. For this reason the complainants alleged that the above-mentioned orders and acts, and each of them, denied to the defendant railway company and its stockholders, including the complainants, the equal protection of the laws, and deprived it and them of their property without due process of law, and that each of them was, for that reason, unconstitutional and void.

The bill also contained an averment that if the railway company should fail to continue to observe and keep in force, or to observe and put in force, the orders of the commission and the acts of April 4, 1907, and April 18, 1907, such failure might result in an action against the company or criminal proceedings against its officers, directors, agents, or employees, subjecting the company and such officers to an endless number of actions at law and criminal proceedings; that if the company should fail to obey the order of the commission or the acts of April 4, 1907, and April 18, 1907, the said Edward T. Young, as attorney general of the state of Minnesota, would, as complainants were advised and believed, institute proceedings by mandamus or otherwise against the railway company, its officers, directors, agents, or employees, to enforce said orders and all the provisions thereof, and that he threatened and would take other proceedings against the company, its officers, etc., to the same end and for the same purpose, and that he would, on such failure, institute mandamus or other proceedings for the purpose of enforcing said acts and each thereof, and the provisions and penalties thereof. Appropriate relief by injunction against the action of the defendant Young and the railroad commission was asked for.

A temporary restraining order was made by the circuit court, which only restrained the railway company from publishing the rates as provided for in the act of April 18, 1907, and from reducing its tariffs to the figures set forth in that act; the court refusing for the present to interfere by injunction with regard to the orders of the commission and the act of April 4, 1907, as the railroads had already put them in operation; but it restrained Edward T. Young, attorney general, from taking any steps against the railroads to enforce the remedies or penalties specified in the act of April 18, 1907.

Copies of the bill and the restraining order were served, among others, upon the defendant Mr. Edward T. Young, attorney general, who appeared specially and only for the purpose of moving to dismiss the bill as to him, on the ground that the court had no jurisdiction over him as attorney general; and he averred that the state of Minnesota had not consented, and did not consent, to the commencement of this suit against him as attorney general of the state, which suit was in truth and effect a suit against the said state of Minnesota, contrary to the 11th Amendment of the Constitution of the United States.

The attorney general also filed a demurrer to the bill, on the same ground stated in the motion to dismiss. The motion was denied and the demurrer overruled.

Thereupon, on the 23d of September, 1907, the court, after a hearing of all parties and taking proofs in regard to the issues involved, ordered a temporary injunction to issue against the railway company, restraining it, pending the final hearing of the cause, from putting into effect the tariffs, rates, or charges set forth in the act approved April 18, 1907. The court also enjoined the defendant Young, as attorney general of the state of Minnesota, pending the final hearing of the cause, from taking or instituting any action or proceeding to enforce the penalties and remedies specified in the act above mentioned, or to compel obedience to that act, or compliance therewith, or any part thereof.

As the court refused to grant any preliminary injunction restraining the enforcement of the rates fixed by the railroad and warehouse commission, or the passenger rates under the act of April 4, 1907, because the same had been accepted by the railroads and were in operation, the court stated that, in omitting the granting of such preliminary injunction, the necessity was obviated upon that hearing of determining whether the rates fixed by the commission, or the passenger rates, together or singly, were confiscatory and did not afford reasonable compensation for the service rendered and a proper allowance for the property employed, and for those reasons that question had not been considered; but inasmuch as the rates fixed by the act of April 18, 1907, had not gone into force, the court observed: 'It seems to me, upon this evidence of the conditions before either of those new rates were put into effect (that is, the order of the commission of September, 1906, or the act of April 4, 1907) and the reductions made by those rates, that, if there is added the reduction which is attempted to be made by the commodity act (April 18, 1907), it will reduce the compensation received by the companies below what would be a fair compensation for the services performed, including an adequate return upon the property invested. And I think, on the whole, that a preliminary injunction should issue, in respect to the rates fixed by chapter 232 (act of April 18) talked of as the commodity rates, and that there should be no preliminary injunction as to the other rates, although the matter as to whether they are compensatory or not is a matter which may be determined in the final determination of the action.'

The day after the granting of this preliminary injunction the attorney general, in violation of such injunction, filed a petition for an alternative writ of mandamus in one of the courts of the state, and obtained an order from that court September 24, 1907, directing the alternative writ to issue as prayed for in the petition. The writ was thereafter issued and served upon the Northern Pacific Railway Company,

commanding the company, immediately after its receipt, 'to adopt and publish and keep for public inspection, as provided by law, as the rates and charges to be made, demanded, and maintained by you for the transportation of freight between stations in the state of Minnesota of the kind, character, and class named and specified in chapter 232 of the Session Laws of the state of Minnesota for the year 1907, rates and charges which do not exceed those declared to be just and reasonable in and by the terms and provisions of said chapter 232.'

Upon an affidavit showing these facts the United States circuit court ordered Mr. Young to show cause why he should not be punished as for a contempt for his miseonduct in violating the temporary injunction issuded by that court in the case therein pending.

Upon the return of this order the attorney general filed his answer, in which he set up the same objections which he had made to the jurisdiction of the court in his motion to dismiss the bill, and in his demurrer; he disclaimed any intention to treat the court with disrespect in the commencement of the proceedings referred to, but believing that the decision of the court in the action, holding that it had jurisdiction to enjoin him, as attorney general, from performing his discretionary official duties, was in conflict with the 11th Amendment of the Constitution of the United States, as the same has been interpreted and applied by the United States Supreme Court, he believed it to be his duty, as such attorney general, to commence the mandamus proceedings for and in behalf of the state, and it was in this belief that the proceedings were commenced solely for the purpose of enforcing the law of the state of Minnesota. The order adjudging him in contempt was then made.

Messrs. Thomas D. O'Brien, Herbert S. Hadley, Edward T. Young, George T. Simpson, Charles S. Jelly, Royal A. Stone, and F. W. Lehman for petitioner.

Messrs. Charles W. Bunn, Jared How, J. F. McGee, Pierce Butler, William D. Mitchell, William A. Lancaster, Frank B. Kellogg, Cordenio A. Severance, Robert E. Olds, Stiles W. Burr, and Walker D. Hines for respondent.

Messrs. Edward B. Whitney and Abel E. Blackmar as amici curice.

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:

We recognize and appreciate to the fullest extent the very great importance of this case, not only to the parties now before the court, but also to the great mass of the citizens of this country, all of whom are interested in the practical working of the courts of justice throughout the land, both Federal and state, and in the proper exercise of the jurisdiction of the Federal courts, as limited and controlled by the Federal Constitution and the laws of Congress.

That there has been room for difference of opinion with regard to such limitations the reported cases in this court bear conclusive testimony. It cannot be stated that the case before us is entirely free from any possible doubt, nor that intelligent men may not differ as to the correct answer to the question we are called upon to decide.

The question of jurisdiction, whether of the circuit court or of this court, is frequently a delicate matter to deal with, and it is especially so in this case, where the material and most important objection to the jurisdiction of the circuit court is the assertion that the suit is, in effect, against one of the states of the Union. It is a question, however, which we are called upon, and which it is our duty to decide. Under these circumstances, the language of Chief Justice Marshall in Cohen v. Virginia, 6 Wheat. 264-404, 5 L. ed. 257-291, is most apposite. In that case he said:

'It is most true that this court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment, and conscientiously to perform our duty.'

Coming to a consideration of the case, we find that the complainants in the suit commenced in the circuit court were stockholders in the Northern Pacific Railway Company, and the reason for commencing it and making the railroad company one of the parties defendant is sufficiently set forth in the bill. Davis & F. Mfg. Co. v. Los Angeles,  189 U.S. 207, 220 , 47 S. L. ed. 778, 781, 23 Sup. Ct. Rep. 498; equity rule 94, Supreme Court.

It is primarily asserted on the part of the petitioner that jurisdiction did not exist in the circuit court because there was not the requisite diversity of citizenship, and there was no question arising under the Constitution or laws of the United States to otherwise give jurisdiction to that court. There is no claim made here of jurisdiction on the ground of diversity of citizenship, and the claim, if made, would be unfounded in fact. If no other ground exists, then the order of the circuit court, assuming to punish petitioner for contempt, was an unlawful order, made by a court without jurisdiction. In such case this court, upon proper application, will discharge the person from imprisonment. Ex parte Yarbrough,  110 U.S. 651 , 26 L. ed. 274, 4 Sup. Ct. Rep. 152; Ex parte Fisk,  113 U.S. 713 , 28 L. ed. 1117, 5 Sup. Ct. Rep. 724; Re Ayers,  123 U.S. 443, 485 , 31 S. L. ed. 216, 223, 8 Sup. Ct. Rep. 164. But an examination of the record before us shows that there are Federal questions in this case.

It is insisted by the petitioner that there is no Federal ques-

tion presented under the 14th Amendment, because there is no dispute as to the meaning of the Constitution, where it provides that no state shall deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws; and whatever dispute there may be in this case is one of fact simply, whether the freight or passenger rates, as fixed by the legislature or by the railroad commission, are so low as to be confiscatory; and that is not a Federal question.

Jurisdiction is given to the circuit court in suits involving the requisite amount, arising under the Constitution or laws of the United States (18 Stat. at L. 470, chap. 137, U. S. Comp. Stat. 1901, p. 508), and the question really to be determined under this objection is whether the acts of the legislature and the orders of the railroad commission, if enforced, would take property without due process of law; and although that question might incidentally involve a question of fact, its solution, nevertheless, is one which raises a Federal question. See Hastings v. Ames ( C. C. App. 8th C.) 15 C. C. A. 628, 32 U. S. App. 485, 68 Fed. 726. The sufficiency of rates with reference to the Federal Constitution is a judicial question, and one over which Federal courts have jurisdiction by reason of its Federal nature. Chicago, M. & St. P. R. Co. v. Minnesota,  134 U.S. 418 , 33 L. ed. 970, 3 Inters. Com. Rep. 209, 10 Sup. Ct. Rep. 462, 702; Reagan v. Farmers' Loan & T. Co. 154 U.S. 369-399, 38 L. ed. 1014-1024, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; St. Louis & S. F. R. Co. v. Gill,  156 U.S. 649 , 39 L. ed. 567, 15 Sup. Ct. Rep. 484; Covington & L. Turnp. Road Co. v. Sandford,  164 U.S. 578 , 41 L. ed. 560, 17 Sup. Ct. Rep. 198; Smyth v. Ames,  169 U.S. 466 -522, 42 L. ed. 819-840, 18 Sup. Ct. Rep. 418; Chicago, M. & St. P. R. Co. v. Rompkins, 170 U.S. 167, 172, 44 S. L. ed. 417, 420, 20 Sup. Ct. Rep. 336.

Another Federal question is the alleged unconstitutionality of these acts because of the enormous penalties denounced for their violation, which prevent the railway company, as alleged, or any of its servants or employees, from resorting to the courts for the purpose of determining the validity of such acts. The contention is urged by the complainants in the suit that the company is denied the equal protection of the laws and its property is liable to be taken without due process of law, because it is only allowed a hearing upon the claim of of

the unconstitutionality of the acts and orders in question, at the risk, if mistaken, of being subjected to such enormous penalties, resulting in the possible confiscation of its whole property, that rather than take such risks the company would obey the laws, although such obedience might also result in the end (though by a slower process) in such confiscation.

Still another Federal question is urged, growing out of the assertion that the laws are, by their necessary effect, an interference with and a regulation of interstate commerce, the grounds for which assertion it is not now necessary to enlarge upon. The question is not, at any rate, frivolous.

We conclude that the circuit court had jurisdiction in the case before it, because it involved the decision of Federal questions arising under the Constitution of the United States.

Coming to the inquiry regarding the alleged invalidity of these acts, we take up the contention that they are invalid on their face on account of the penalties. For disobedience to the freight act the officers, directors, agents, and employees of the company are made guilty of a misdemeanor, and upon conviction each may be punished by imprisonment in the county jail for a period not exceeding ninety days. Each violation would be a separate offense, and, therefore, might result in imprisonment of the various agents of the company who would dare disobey for a term of ninety days each for each offense. Disobedience to the passenger-rate act renders the party guilty of a felony and subject to a fine not exceeding $ 5,000 or imprisonment in the state prison for a period not exceeding five years, or both fine and imprisonment. The sale of each ticket above the price permitted by the act would be a violation thereof. It would be difficult, if not impossible, for the company to obtain officers, agents, or employees willing to carry on its affairs except in obedience to the act and orders in question. The company itself would also, in case of disobedience, be liable to the immense fines provided for in violating orders of the commission. The company, in order to test the validity of the acts, must find some

agent or employee to disobey them at the risk stated. The necessary effect and result of such legislation must be to preclude a resort to the courts ( either state or Federal) for the purpose of testing its validity. The officers and employees could not be expected to disobey any of the provisions of the acts or orders at the risk of such fines and penalties being imposed upon them, in case the court should decide that the law was valid. The result would be a denial of any hearing to the company. The observations upon a similar question, made by Mr. Justice Brewer in Cotting v. Kansas City Stock Yards Co. (Cotting v. Godard)  183 U.S. 79, 99 , 100 S., 102, 46 L. ed. 92, 105, 106, 22 Sup. Ct. Rep. 30, 38-40, are very apt. At page 100 he stated: 'Do the laws secure to an individual an equal protection when he is allowed to come into court and make his claim or defense subject to the condition that, upon a failure to make good that claim or defense, the penalty for such failure either appropriates all his property or subjects him to extravagant and unreasonable loss?' Again, at page 102, he says: 'It is doubtless true that the state may impose penalties such as will tend to compel obedience to its mandates by all, individuals or corporations, and if extreme and cumulative penalties are imposed only after there has been a final determination of the validity of the statute, the question would be very different from that here presented. But when the legislature, in an effort to prevent any inquiry of the validity of a particular statute, so burdens any challenge thereof in the courts that the party affected is necessarily constrained to submit rather than take the chances of the penalties imposed, then it becomes a serious question whether the party is not deprived of the equal protection of the laws.' The question was not decided in that case, as it went off on another ground. We have the same question now before us, only the penalties are more severe in the way of fines, to which is added, in the case of officers, agents, or employees of the company, the risk of imprisonment for years as a common felon. See also Mercantile Trust Co. v. Texas & P. R. Co. 51 Fed. 529-543; Louisville & N. R. Co. v. McChord, 103

Fed. 216-223; Consolidated Gas Co. v. Mayer, 146 Fed. 150-153. In McGahey v. Virginia,  135 U.S. 662 -694, 34 L. ed. 304-314, 10 Sup. Ct. Rep. 972, it was held that to provide a different remedy to enforce a contract, which is unreasonable, and which imposes conditions not existing when the contract was made, was to offer no remedy; and, when the remedy is so onerous and impracticable as to substantially give none at all, the law is invalid, although what is termed a remedy is in fact given. See also Bronson v. Kinzie, 1 How. 311, 317, 11 L. ed. 143, 145; Seibert v. Lewis ( Seibert v. United States)  122 U.S. 284 , 30 L. ed. 1161, 7 Sup. Ct. Rep. 1190. If the law be such as to make the decision of the legislature or of a commission conclusive as to the sufficiency of the rates, this court has held such a law to be unconstitutional. Chicago, M. & St. P. R. Co. v. Minnesota, supra. A law which indirectly accomplishes a like result by imposing such conditions upon the right to appeal for judicial relief as work an abandonment of the right rather than face the conditions upon which it is offered or may be obtained is also unconstitutional. It may therefore be said that when the penalties for disobedience are by fines so enormous and imprisonment so severe as to intimidate the company and its officers from resorting to the courts to test the validity of the legislation, the result is the same as if the law in terms prohibited the company from seeking judicial construction of laws which deeply affect its rights.

It is urged that there is no principle upon which to base the claim that a person is which to bse the claim that a person is entitled to disobey a statute at least once, for the purpose of testing its validity, without subjecting himself to the penalties for disobedience provided by the statute in case it is valid. This is not an accurate state ment of the case. Ordinarily a law creating offenses in the nature of misdemeanors or felonies relates to a subject over which the jurisdiction of the legislature is complete in any event. In the case, however, of the establishment of certain rates without any hearing, the validity of such rates necessarily depends upon whether they are high enough to permit at least some return upon the investment (how much it is not now

necessary to state), and an inquiry as to that fact is a proper subject of judicial investigation. If it turns out that the rates are too low for that purpose, then they are illegal. Now, to impose upon a party interested the burden of obtaining a judicial decision of such a question ( no prior hearing having ever been given) only upon the condition that, if unsuccessful, he must suffer imprisonment and pay fines, as provided in these acts, is, in effect, to close up all approaches to the courts, and thus prevent any hearing upon the question whether the rates as provided by the acts are not too low, and therefore invalid. The distinction is obvious between a case where the validity of the act depends upon the existence of a fact which can be determined only after investigation of a very complicated and technical character, and the ordinary case of a statute upon a subject requiring no such investigation, and over which the jurisdiction of the legislature is complete in any event.

We hold, therefore, that the provisions of the acts relating to the enforcement of the rates, either for freight or passengers, by imposing such enormous fines and possible imprisonment as a result of an unsuccessful effort to test the validity of the laws themselves, are unconstitutional on their face, without regard to the question of the insufficiency of those rates. We also hold that the circuit court had jurisdiction under the cases already cited (and it was therefore its duty) to inquire whether the rates permitted by these acts or orders were too low and therefore confiscatory, and, if so held, that the court then had jurisdiction to permanently enjoin the railroad company from putting them in force, and that it also had power, while the inquiry was pending, to grant a temporary injunction to the same effect.

Various affidavits were received upon the hearing before the court prior to the granting of the temporary injunction, and the hearing itself was, as appears from the opinion, full and deliberate, and the fact was found that the rates fixed by the commodity act, under the circumstances existing with

reference to the passenger-rate act and the orders of the commission, were not sufficient to be compensatory, and were in fact confiscatory, and the act was therefore unconstitutional. The injunction was thereupon granted with reference to the enforcement of the commodity act.

We have, therefore, upon this record, the case of an unconstitutional act of the state legislature and an intention by the attorney general of the state to endeavor to enforce its provisions, to the injury of the company, in compelling it, at great expense, to defend legal proceedings of a complicated and unusual character, and involving questions of vast importance to all employees and officers of the company, as well as to the company itself. The question that arises is whether there is a remedy that the parties interested may resort to, by going into a Federal court of equity, in a case involving a violation of the Federal Constitution, and obtaining a judicial investigation of the problem, and, pending its solution, obtain freedom from suits, civil or criminal, by a temporary injunction, and, if the question be finally decided favorably to the contention of the company, a permanent injunction restraining all such actions or proceedings.

This inquiry necessitates an examination of the most material and important objection made to the jurisdiction of the circuit court,-the objection being that the suit is, in effect, one against the state of Minnesota, and that the injunction issued against the attorney general illegally prohibits state action, either criminal or civil, to enforce obedience to the statutes of the state. This objection is to be considered with reference to the 11th and 14th Amendments to the Federal Constitution. The 11th Amendment prohibits the commencement or prosecution of any suit against one of the United States by citizens of another state or citizens or subjects of any foreign state. The 14th Amendment provides that no state shall deprive any person of life, liberty, or property without due process of law, nor shall it deny to any person within its jurisdiction the equal protection of the laws.

The case before the circuit court proceeded upon the theory that the orders and acts heretofore mentioned would, if enforced, violate rights of the complainants protected by the latter amendment. We think that whatever the rights of complainants may be, they are largely founded upon that Amendment, but a decision of this case does not require an examination or decision of the question whether its adoption in any way altered or limited the effect of the earlier Amendment. We may assume that each exists in full force, and that we must give to the 11th Amendment all the effect it naturally would have, without cutting it down or rendering its meaning any more narrow than the language, fairly interpreted, would warrant. It applies to a suit brought against a state by one of its own citizens, as well as to a suit brought by a citizen of another state. Hans v. Louisiana,  134 U.S. 1 , 33 L. ed. 842, 10 Sup. Ct. Rep. 504. It was adopted after the decision of this court in Chisholm v. Georgia (1792) 2 Dall. 419, 1 L. ed. 440, where it was held that a state might be sued by a citizen of another state. Since that time there have been many cases decided in this court involving the 11th Amendment, among them being Osborn v. Bank of United States (1824) 9 Wheat. 738, 846, 857, 6 L. ed. 204, 229, 232, which held that the Amendment applied only to those suits in which the state was a party on the record. In the subsequent case of Sundry African Slaves v. Madrazo (1828) 1 Pet. 110, 122, 123, 7 L. ed. 73, 79, that holding was somewhat enlarged, and Chief Justice Marshall, delivering the opinion of the court, while citing Osborn v. Bank of United States, supra, said that where the claim was made, as in the case then before the court, against the governor of Georgia as governor, and the demand was made upon him, not personally, but officially (for moneys in the treasury of the state and for slaves in possession of the state government), the state might be considered as the party on the record ( page 123), and therefore the suit could not be maintained.

Davis v. Gray, 16 Wall. 203, 220, 21 L. ed. 447, 453, reiterates the rule of Osborn v. Bank of United States, so far as concerns the right to enjoin a state officer from executing a state law in conflict with

the Constitution or a statute of the United States, when such execution will violate the rights of the complainant.

In Poindexter v. Greenhow,  114 U.S. 270, 296 , 29 S. L. ed. 185, 194, 5 Sup. Ct. Rep. 903, 962, it was adjudged that a suit against a tax collector who had refused coupons in payment of taxes, and, under color of a void law, was about to seize and sell the property of a taxpayer for nonpayment of his taxes, was a suit against him personally, as a wrongdoer, and not against the state.

Hagood v. Southern,  117 U.S. 52 -67, 29 L. ed. 805-810, 6 Sup. Ct. Rep. 608, decided that the bill was, in substance, a bill for the specific performance of a contract between the complainants and the state of South Carolina; and, although the state was not in name made a party defendant, yet, being the actual party to the alleged contract the performance of which was sought, and the only party by whom it could be performed, the state was, in effect, a party to the suit, and it could not be maintained for that reason. The things required to be done by the actual defendants were the very things which, when done, would constitute a performance of the alleged contract by the state.

The cases upon the subject were reviewed, and it was held (Re Ayers,  123 U.S. 443 , 31 L. ed. 216, 8 Sup. Ct. Rep. 164), that a bill in equity brought against officers of a state, who, as individuals, have no personal interest in the subject-matter of the suit, and defend only as representing the state, where the relief prayed for, if done, would constitute a performance by the state of the alleged contract of the state, was a suit against the state (page 504), following in this respect Hagood v. Southern, supra.

A suit of such a nature was simply an attempt to make the state itself, through its officers, perform its alleged contract, by directing those officers to do acts which constituted such performance. The state alone had any interest in the question, and a decree in favor of plaintiff would affect the treasury of the state.

On the other hand, United States v. Lee,  106 U.S. 196 , 27 L. ed. 171, 1 Sup. Ct. Rep. 240, determined that an individual in possession of real estate under the government of the United States, which claimed to be

its owner, was, nevertheless, properly sued by the plaintiff, as owner, to recover possession, and such suit was not one against the United States, although the individual in possession justified such possession under its authority. See also Tindal v. Wesley,  167 U.S. 204 , 42 L. ed. 137, 17 Sup. Ct. Rep. 770, to the same effect.

In Pennoyer v. McConnaughy,  140 U.S. 1, 9 , 35 S. L. ed. 363, 365, 11 Sup. Ct. Rep. 699, a suit against land commissioners of the state was said not to be against the state, although the complainants sought to restrain the defendants, officials of the state, from violating, under an unconstitutional act, the complainants' contract with the state, and thereby working irreparable damage to the property rights of the complainants. Osborn v. Bank of United States, supra, was cited, and it was stated: 'But the general doctrine of Osborn v. Bank of United States, that the circuit courts of the United States will restrain a state officer from executing an unconstitutional statute of the state, when to execute it would violate rights and privileges of the complainant which had been guaranteed by the Constitution, and would work irreparable damage and injury to him, has never been departed from.' The same principle is decided in Scott v. Donald,  165 U.S. 58 -67, 41 L. ed. 632, 633, 17 Sup. Ct. Rep. 265. And see Missouri, K. & T. R. Co. v. Missouri R. & Warehouse Comrs. (Missouri, K. & T. R. Co. v. Hickman)  183 U.S. 53 , 46 L. ed. 78, 22 Sup. Ct. Rep. 18.

The cases above cited do not include one exactly like this under discussion. They serve to illustrate the principles upon which many cases have been decided. We have not cited all the cases, as we have not thought it necessary. But the injunction asked for in the Ayers Case, 123 U. S., supra, was to restrain the state officers from commencing suits under the act of May 12, 1887 (alleged to be unconstitutional), in the name of the state and brought to recover taxes for its use, on the ground that, if such suits were commenced, they would be a breach of a contract with the state. The injunction was declared illegal because the suit itself could not be entertained, as it was one against the state, to enforce its alleged contract. It was said, however, that, if the court had power to entertain such a suit, it would have power to grant the restraining order

preventing the commencement of suits. (Page 487.) It was not stated that the suit or the injunction was necessarily confined to a case of a threatened direct trespass upon or injury to property.

Whether the commencement of a suit could ever be regarded as an actionable injury to another, equivalent, in some cases, to a trespass such as is set forth in some of the foregoing cases, has received attention of the rate cases, so called. Reagan v. Farmers' Loan & T. Co.  154 U.S. 362 , 38 L. ed. 1014, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047 (a rate case), was a suit against the members of a railroad commission (created under an act of the state of Texas) and the attorney general, all of whom were held suable, and that such suit was not one against the state. The commission was enjoined from enforcing the rates it had established under the act, and the attorney general was enjoined from instituting suits to recover penalties for failing to conform to the rates fixed by the commission under such act. It is true the statute in that case creating the board provided that suit might be maintained by any dissatisfied railroad company, or other party in interest, in a court of competent jurisdiction in Travis county, Texas, against the commission as defendant. This court held that such language permitted a suit in the United States circuit court for the western district of Texas, which embraced Travis county, but it also held that, irrespective of that consent, the suit was not in effect a suit against the state (although the attorney general was enjoined), and therefore not prohibited under the Amendment. It was said in the opinion, which was delivered by Mr. Justice Brewer, that the suit could not, in any fair sense, be considered a suit against the state (page 392), and the conclusion of the court was that the objection to the jurisdiction of the circuit court was not tenable, whether that jurisdiction was rested (page 393) 'upon the provisions of the statute, or upon the general jurisdiction of the court, existing by virtue of the statutes of Congress, under the sanction of the Constitution of the United States.' Each of these grounds is effective and both are of equal force.

Union P. R. Co. v. Mason City & Ft. D. R. Co.  199 U.S. 160 -166, 50 L. ed. 134-137, 26 Sup. Ct. Rep. 19.

In Smyth v. Ames,  169 U.S. 466 , 42 L. ed. 819, 18 Sup. Ct. Rep. 418 ( another rate case), it was again held that a suit against individuals, for the purpose of preventing them, as officers of the state, from enforcing, by the commencement of suits or by indictment, an unconstitutional enactment, to the injury of the rights of the plaintiff, was not a suit against a state, within the meaning of the Amendment. At page 518, in answer to the objection that the suit was really against the state, it was said: 'It is the settled doctrine of this court that a suit against individuals, for the purpose of preventing them, as officers of a state, from enforcing an unconstitutional enactment, to the injury of the rights of the plaintiff, is not a suit against the state within the meaning of that Amendment.' The suit was to enjoin the enforcement of a statute of Nebraska because it was alleged to be unconstitutional, on account of the rates being too low to afford some compensation to the company, and contrary, therefore, to the 14th Amendment.

There was no special provision in the statute as to rates, making it the duty of the attorney general to enforce it, but, under his general powers, he had authority to ask for a mandamus to enforce such or any other law. State ex rel. Board of Transportation v. Fremont, E. & M. Valley R. Co. 22 Neb. 313, 35 N. W. 118.

The final decree enjoined the attorney general from bringing any suit ( page 477) by way of injunction, mandamus, civil action, or indictment, for the purpose of enforcing the provisions of the act. The 5th section of the act provided that an action might be brought by a railroad company in the supreme court of the state of Nebraska; but this court did not base its decision on that section when it held that a suit of the nature of that before it was not a suit against a state, although brought against individual state officers, for the purpose of enjoining them from enforcing, either by civil proceeding or indictment, an unconstitutional enactment to the injury of the plaintiff's right. Page 518.

This decision was reaffirmed in Prout v. Starr,  188 U.S. 537, 542 , 47 S. L. ed. 584, 586, 23 Sup. Ct. Rep. 398.

Attention is also directed to the case of Missouri, K. & T. R. Co. v. Missouri R. & Warehouse Comrs. (Missouri, K. & T. R. Co. v. Hickman)  183 U.S. 53 , 46 L. ed. 78, 22 Sup. Ct. Rep. 18. That was a suit brought in a state court of Missouri by the railroad commissioners of the state, who had the powers granted them by the statutes set forth in the report. Their suit was against the railway company, to compel it to discontinue certain charges it was making for crossing the Boonville bridge over the Missouri river. The defendant sought to remove the case to the Federal court, which the plaintiffs resisted, and the state court refused to remove, on the ground that the real plaintiff was the state of Missouri, and it was proper to go behind the face of the record to determine that fact. In regular manner the case came here, and this court held that the state was not the real party plaintiff, and the case had therefore been properly removed from the state court, whose judgment was thereupon reversed.

Applying the same principles of construction to the removal act which had been applied to the 11th Amendment, it was said by this court that the state might be the real party plaintiff when the relief sought inures to it alone, and in whose favor the judgment or decree, if for the plaintiff, will effectively operate.

Although the case is one arising under the removal act, and does not involve the 11th Amendment, it nevertheless illustrates the question now before us, and reiterates the doctrine that the state is not a party to a suit simply because the state railroad commission is such party.

The doctrine of Smyth v. Ames is also referred to and reiterated in Gunter v. Atlantic Coast Line R. Co.  200 U.S. 273, 283 , 50 S. L. ed. 477, 483, 26 Sup. Ct. Rep. 252. See also McNeill v. Southern R. Co.  202 U.S. 543 -559, 50 L. ed. 1142-1147, 26 Sup. Ct. Rep. 722; Mississippi R. Commission v. Illinois C. R. Co.  203 U.S. 335, 340 , 51 S. L. ed. 209, 211, 27 Sup. Ct. Rep. 90.

The various authorities we have referred to furnish ample justification for the assertion that individuals who, as officers

of the state, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.

It is objected, however, that Fitts v. McGhee,  172 U.S. 516 , 43 L. ed. 535, 19 Sup. Ct. Rep. 269, has somewhat limited this principle, and that, upon the authority of that case, it must be held that the state was a party to the suit in the United States circuit court, and the bill should have been dismissed as to the attorney general on that ground.

We do not think such contention is well founded. The doctrine of Smyth v. Ames was neither overruled nor doubted in the Fitts Case. In that case the Alabama legislature, by the act of 1895, fixed the tolls to be charged for crossing the bridge. The penalties for disobeying that act, by demanding and receiving higher tolls, were to be collected by the persons paying them. No officer of the state had any official connection with the recovery of such penalties. The indictments mentioned were found under another state statute, set forth at page 520 of the report of the case, which provided a fine against an officer of a company for taking any greater rate of toll than was authorized by its charter, or, if the charter did not specify the amount, then the fine was imposed for charging any unreasonable toll, to be determined by a jury. This act was not claimed to be unconstitutional, and the indictments found under it were not necessarily connected with the alleged unconstitutional act fixing the tolls. As no state officer who was made a party bore any close official connection with the act fixing the tolls, the making of such officer a party defendant was a simple effort to test the constitutionality of such act in that way, and there is no principle upon which it could be done. A state superintendent of schools might as well have been made a party. In the light of this fact it was said in the opinion (page 530):

'In the present case, as we have said, neither of the state officers named held any special relation to the particular statute alleged to be unconstitutional. They were not expressly directed to see to its enforcement. If, because they were law officers of the state, a case could be made for the purpose of testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the governor and the attorney general, based upon the theory that the former, as the executive of the state, was, in a general sense, charged with the execution of all its laws, and the latter, as attorney general, might represent the state in litigation involving the enforcement of its statutes. That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the states of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons.'

In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party.

It has not, however, been held that it was necessary that such duty should be declared in the same act which is to be enforced. In some cases, it is true, the duty of enforcement has been so imposed (  154 U.S. 362 , 366, 19 of the act), but that may possibly make the duty more clear; if it otherwise exist it is equally efficacious. The fact that the state officer, by virtue of his office, has some connection with the enforcement of the act, is the important and material fact, and whether it arises out of the general law, or is specially created by the act itself, is not material so long as it exists.

In the course of the opinion in the Fitts Case the Reagan and

Smyth Cases were referred to (with others) as instances of state officers specially charged with the execution of a state enactment alleged to