its citizens, in the just and equal enforcement of all its laws; but such governmental interest is not the pecuniary interest which causes it to bear the burden of an adverse judgment." The position here taken, it is to be observed, furnishes but one of the grounds upon which the decision of the case at bar is rested, and, it would seem, not a very strong one, especially if there be taken into consideration the position which has since been taken by the court in Missouri v. Illinois and Kansas v. Colorado that the State in its character as parens patriæ may bring suit to maintain the general interests of its citizens. § 626. Fitts v. McGhee. 61 Furthermore, in Fitts v. McGhee, a case in which was dissolved an injunction obtained by a railroad company preventing the attorney-general of a State from executing an act which the plaintiff alleged to be unconstitutional, the court does not refer to the distinction made in the Reagan case and accepted in the Smyth case, but, instead, advances a new test for distinguishing between those suits against state officials which are to be held suits against the State, and those which are not. After reviewing the case of In re Ayers and holding that it covered the case at bar, the court say: "It is to be observed that neither the attorney-general of Alabama nor the solicitor of the eleventh judicial circuit of the State appear to have been charged by law with any special duty in connection with the act of February 9, 1885." After citing the cases relied upon by the petitioner, the court continue: "Upon examination it will be found that the defendants in each of those cases were officers of 62 59 180 U. S. 208; 21 Sup. Ct. Rep. 331; 45 L. ed. 497. 62 Poindexter v. Greenhow, 114 U. S. 270; 5 Sup. Ct. Rep. 903; 29 L. ed. 185; Allen v. Railroad, 114 U. S. 311; 5 Sup. Ct. Rep. 925; 29 L. ed. 200; Pennoyer v. McConnaughy, 140 U. S. 1; 11 Sup. Ct. Rep. 699; 35 L. ed. 363; In re Tyler, 149 U. S. 164; 13 Sup. Ct. Rep. 785; 37 L. ed. 689; Reagan v. Trust Co., 154 U. S. 362; 14 Sup. Ct. Rep. 1047; 38 L. ed. 1014; Scott v. Donald, 165 U. S. 58; 17 Sup. Ct. Rep. 265; 41 L. ed. 632; Smyth v. Ames, 169 U. S. 466; 18 Sup. Ct. Rep. 418; 42 L. ed. 819. the State, specially charged with the execution of a state enactment alleged to be unconstitutional, but under the authority of which, it was averred, they were committing, or were about to commit, some specific wrong or trespass to the injury of the plaintiff's rights. There is a wide difference between a suit against individuals, holding official positions under a State to prevent them, under the sanction of an unconstitutional statute, from committing by some positive act a wrong or trespass, and a suit against officers of a State merely to test the constitutionality of a state statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the State. 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 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." statutes § 627. In Re Young. 63 In Re Young a further extension of the authority of the federal courts to enjoin the execution by state officials of a state law alleged to be unconstitutional was made necessary. In this case a maximum freight rate law had been enacted. No state €3 209 U. S. 123; 28 Sup. Ct. Rep. 441; 52 L. ed. 714. officers were especially charged by the law with the enforcement of the act, and, therefore, the only opportunity offered the railway companies to contest the constitutionality of the law, was upon a petition for an injunction, or by refusing obedience to its provisions, and raising the point when action should be brought against them to enforce the penalties prescribed by the law for its violation. But this latter mode was, by the enormous penalties which were provided, made practically unavailable. Under the circumstances a lower federal court issued an injunction restraining the attorney-general from instituting any proceedings to enforce the law; this injunction was violated by that officer, an order was issued by the circuit court directing the attorney-general to show cause why he should not be punished for contempt, that officer denied the jurisdiction of the court, and on petition for writs of habeas corpus and certiorari the case was brought before the Supreme Court. That tribunal held the rate law, by the enormous penalties which it imposed as the result of an unsuccessful attempt to test its validity, unconstitutional upon its face, without regard to the question of the insufficiency of the rates. "We have, therefore," say the court, 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." 66 As to the case of Fitts v. McGhee the court deny that it overruled the doctrine of Reagan v. Farmers' Loan & Trust Co. or of Smyth v. Ames. In the Fitts case, the court say, the state officer who was made a party bore no close official connection with the statute in question, and the making of him a party defendant was there a simple effort to test the constitutionality of the law in a way that, upon principle, could not be done. The court then go on to state that the true doctrine is that while, 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 necessary that such officers 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 is not necessary that such duty shall be declared in the act which he is called upon to enforce. "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." To the objection that the injunction was an interference with the discretionary power of the attorney-general as to the enforcement of the act, the court point out that no affirmative action of any nature is directed. "The officer is simply prohibited from doing an act which he had no legal right to do. An injunction to prevent him from doing that which he had no legal right to do is not an interference with the discretion of an officer." In Murray v. Wilson Distilling Co. the important doctrine is declared that when a State undertakes a private business, as, for example, the selling of liquor, it does not forfeit its immunity to suit under the Eleventh Amendment, and may not, therefore, be sued with reference to transactions connected with such nongovernmental business. In South Carolina v. United States it will be remembered that the Supreme Court recognized a clear 64 213 U. S. 151; 29 Sup. Ct. Rep. 458. 65 199 U. S. 437; 26 Sup. Ct. Rep. 110; 50 L. ed. 261. 65 line of decision between state functions essentially political or governmental in nature, and those of a private or commercial character, and said that, as to these, the limitation upon the taxation by the Federal Government of State agencies does not apply. Furthermore, as has been earlier pointed out, corporations wholly or in part owned by a State are not, for that reason, exempt from suit, but the State when it becomes the owner and participant in the management of a private enterprise throws off, as to such enterprise, its sovereign character. The question raised in the case of Murray v. Wilson Distilling Co. is whether the same doctrine as to immunity of suit applies when the business is directly conducted by a State itself and not through a private corporation, chartered by itself, and of whose stock it is the part or sole owner. § 628. Suits to Recover Specific Pieces of Property Held by the State. Thus far in the discussion of the suability of the State, according to American constitutional law, reference has been had to suits involving the recovery of money judgments or the issuance of writs of mandamus or of injunction to state officials. There now is to be considered the question whether the principles that have been laid down are sufficient to warrant suits brought by individuals to recover possession of specific pieces of property held, in their official capacities, by officials of the States or of the United States. § 629. Set-offs Against the State. 66 In United States v. Clarke it was declared by Marshall that the United States was not suable of common right, and that unless the plaintiff could bring his suit within the terms of some permissive act of Congress, the court could not entertain it. In The Siren v. United States7 this was quoted with approval and the further observation made that the exemption from suit 66 8 Pet. 436; 8 L. ed. 1001. 677 Wall. 152; 19 L. ed. 129. |