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to resist its execution by a course of legislation? The laws must be executed by individuals acting within the several States. If these individuals may be exposed to penalties, and if the courts of the Union cannot correct the judgments by which these penalties may be enforced, the course of the government may be, at any time arrested by the will of the one of its members. Each member will possess a veto on the will of the whole." Concluding his argument upon this point, Marshall says: "After bestowing on this subject the most attentive consideration, the court can perceive no reason founded on the character of the parties for introducing an exception which the Constitution has not made, and we think that the judicial power, as originally given, extends to all cases arising under the Constitution or a law of the United States, whoever may be the parties."

The State of Virginia had, however, as we have said, still another argument which had to be overcome. Granting, counsel said, that the case be construed to come within the federal judicial power as originally granted by the Constitution, it has nevertheless been withdrawn from that power since the adoption of the Eleventh Amendment. To this argument, Marshall replied that the Amendment was not intended to cover cases in which a State might be defendant in error, but only those originally instituted against her by an individual. By that amendment the judicial power is not to extend to any suit" commenced or prosecuted against a State by citizens of another State. "To commence a suit," says Marshall, "is to demand something by the institution of a process in a court of justice, and to prosecute the suit is, according to the common acceptation of language, to continue that demand. By a suit commenced by an individual against a State, we should understand the process sued out by that individual against the State, for the purpose of establishing some claim against it by the judgment of a court; and the prosecution of that suit is its continuance. Whatever may be the stages of its progress, the actor is still the same. If a suit brought

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in one court, and carried by legal process to a supervising court,

be a continuation of the same suit, then this suit [at bar] is not commenced nor prosecuted against a State. It is clearly in its commencement the suit of a State against an individual, which suit is transferred to this court, not for the purpose of asserting any claim against the State, but for the purpose of asserting a constitutional defense against a claim made by a State."

§ 616. Corporations Chartered by, and of Which the State is a Stockholder, May Be Sued.

In Bank of the United States v. The Planters' Bank of Georgia25 it was held that a suit against a corporation chartered and partly owned by the State was not a suit against the State. "The State does not," said Marshall, "by becoming a corporator, identify itself with the corporation. The Planters' Bank of Georgia is not the State of Georgia, although the State holds an interest in it. It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted."

The principle laid down in this case was again applied in the 'cases of Briscoe v. Bank of Kentucky,26 and Bank of Kentucky v. Wister, although the State in these cases was the exclusive owner of the stock of the bank.

§ 617. Effect of Eleventh Amendment upon Federal Constitutional Rights Guaranteed against State Violation.

In a series of great cases the Supreme Court of the United States has laid down the doctrine that the Eleventh Amendment does not grant to States nor to their agents a power, unrestrain

25 9 Wh. 904; 6 L. ed. 244. 26 11 Pet. 257; 9 L. ed. 709. 272 Pet. 318; 7 L. ed. 437.

able by judicial process, either to interfere with the exercise of federal rights or, under color of unconstitutional legislation, to violate the private rights of individuals. Where this danger has been threatened, writs of injunction have been issued, and, for the performance by state officials of purely ministerial acts prescribed by law, mandamus has been awarded. Thus in Hans v. Louisiana the court, after admitting the non-suability of a State either by its own citizens or citizens of other States, took the precaution to say: "To avoid misapprehension it may be proper to add that, although the obligations of a State rest for their per formance upon its honor and good faith, and cannot be made the subject of judicial cognizance unless the State consents to be sued, or comes itself into court; yet, where property or rights are enjoyed under a grant or contract made by a State, they cannot wantonly be invaded. Whilst the State cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under the contracts, may be judicially resisted; and a law impairing the obligation of contracts under which such property or rights are held is void and powerless to affect their enjoyment."

Acting under the right thus declared of preventing a State, or rather the officials of a State, from acting under laws unconstitutional, either because impairing the obligation of contracts, or taking property without due process of law the federal courts, while declaring themselves unable to secure to private individuals an enforcement of their claims against States, have nevertheless been able to extend their protecting power to prevent the States from taking action upon their part to enforce against individuals and against its federal officials claims not supported by valid laws. The following are instances illustrating this:

§ 618. Suits against State Officers: When Considered Suits against the State.

Though, as has been seen, the suability of the United States, and, since the Eleventh Amendment, of an individual State of the 28 134 U. S. 1; 10 Sup. Ct. Rep. 504; 33 L. ed. 842.

Union, by a citizen is not and has not been questioned, the courts have often found great difficulty in determining just when a suit may be said to be against the State itself, and, therefore, beyond their jurisdiction, and when against the officials of the State personally, in which case they have jurisdiction. Because the courts have not been able to lay down any fully satisfactory rule upon this point, it will be necessary to consider seriatim the more important cases in which the question has been involved.

There will first be considered the cases in which the claim has been set up, but denied by the court, that the suit on trial is one against the State, and as such beyond the competence of the court to entertain.

§ 619. United States v. Peters.

In the case of United States v. Peters,29 decided in 1809, a judgment was given against the heirs of the state treasurer of Pennsylvania, for money improperly received and held by him as such treasurer but not actually paid into the state treasury. The State of Pennsylvania among other grounds set up that the judgment, though in form against an individual, was in fact against itself and as such prohibited by the Eleventh Amendment. As to this Chief Justice Marshall, who rendered the unanimous opinion of the court, declared: "The right of a State to assert as plaintiff, any interest it may have in a subject, which forms the matter of controversy between individuals, in one of the courts of the United States is not affected by this Amendment; nor can it be so construed as to oust the court of its jurisdiction, should such claim be suggested. The amendment simply provides that no suit shall be commenced or prosecuted against a State. The State cannot be made a defendant to a suit brought by an individual; but it remains the duty of the courts of the United States to decide all cases brought before them by citizens of one State against citizens of a different State, where a State is not necessarily a defendant. It certainly can never be

29 5 Cr. 115; 3 L. ed. 53.

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alleged that a mere suggestion of title in a State to property, in possession of an individual, must arrest the proceedings of the court and prevent their looking into the suggestion and examining the validity of the title."

Marshall then goes on to show that in the case at bar the property in question had in fact never been paid over to and thus gone into the possession of the State.

§ 620. Osborn v. Bank of the United States.

30

In the case of Osborn v. Bank of the United States an injunction was asked of the federal court to restrain the auditor of the State of Ohio from proceeding against the Bank of the United States under a tax law of that State which law, it was alleged, was in violation of the federal Constitution. Among other grounds for resistance to this application it was argued that the actual defendant in interest in the case was the State; that the State was not and could not be made a defendant of record, and that, therefore, its agents might not be restrained. To this Marshall, who rendered the opinion of the court, replied that the direct interest of the State in the suit was admitted, and, also, that under the Eleventh Amendment it could not be made a party of record, but that this did not render the federal court powerless to restrain the State's agents from proceeding under an unconstitutional law against an individual or corporation. In supporting this contention, Marshall, as was his wont, argued not so much from the requirements of technical procedure or from the letter of the Constitution, as from the general character of the government intended to be established and maintained by that instrument, and from the politically inconvenient and destructive results that would follow from an acceptance of the doctrine he was controverting. "A denial of jurisdiction" he said, "forbids all inquiry into the nature of the case. It applies to cases perfectly clear in themselves; to cases where the government is in the exereise of its best established and most essential powers, as well as to whose which may be deemed questionable. It asserts that the 309 Wh. 738; 6 L. ed. 204.

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