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. He relied on the Act of January 26, 1882, requiring him to collect taxes in gold, silver, United States Treasury notes, national bank currency, and nothing else, and thus forbidding his receipt of coupons in lieu of money. That, it is true, is a legislative act of the government of Virginia, but it is not a law, of the State of Virginia. The State has passed no such law, for it cannot; and what it cannot do, it certainly, in contemplation of law, has not done. The constitution of the United States and its own contract, both irrepealable by any act on its part, are the law of Virginia; and that law made it the duty of the defendant to receive the coupons tendered in payment of taxes, and declared every step to enforce the tax, thereafter taken, to be without warrant of law, and therefore a wrong. He stands, then, stripped of his official character, and, confessing a personal violation of the plaintiff's rights, for which he must personally answer, he is without defense. The thing prohibited by the Eleventh Amendment is the exercise of jurisdiction in a 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.' Nothing else is touched; and suits between individuals, unless the State is the party in a substantial sense, are left untouched, no matter how much their determination may incidentally and consequentially affect the interests of a State or the operations of its government. The fancied inconvenience of an interference with the collection of its taxes by the government of Virginia, by suits against its tax collectors, vanishes at once upon the suggestion that such interference is not possible except when that government seeks to enforce the collection of its taxes contrary to the law and contract of the State and in violation of the Constitution of the United States." 51

51 Chief Justice Waite and Justices Miller, Bradley, and Gray dissented.

The law of 1882 having been held void, the State next passed an act requiring the bond to which it had been annexed to be produced when a coupon was presented in payınent of taxes. By another act was also prohibited the testimony of "expert" witnesses as to the genuineness of the coupons. These laws the Virginia court held constitutional.

In McGahey v. Virginia52 when the State brought suit for taxes against certain individuals who had tendered payment in coupons but had not produced the bond to which they had been attached, as provided for by the Virginia law, spoken of above, the Supreme Court held this provision unconstitutional as an unreasonable condition, and, therefore, as impairing the obligation entered into by the State in 1871. "If enforced," said the court, "it would have the effect of rendering valueless all coupons which have been separated from the bonds to which they were attached, and have been sold in the open market. It would deprive them of their negotiable character. It would be so onerous and impracticable as not only to affect, but virtually destroy, the value of the instruments in the hands of the holder who had purchased them." In like manner the provision prohibiting expert testimony establishing the genuineness of the coupons was held unconstitutional and void. Also was held unconstitutional, as unreasonable, the law which the State had passed requiring for the sale of coupons a license fee of one thousand dollars in towns of more than 10,000 inhabitants, and of five hundred dollars in other counties and towns, together with an exaction of twenty per cent. of the face value of every coupon sold. A law fixing a limit of time within which the coupons should be presented or tendered in payment of taxes met a similar fate. In 1886 Virginia had passed an act providing that any lawyer who should give his professional services in matters pertaining to payment to the State of coupons for taxes or other demands, should be adjudged guilty of barratry and be disbarred, and that any one not a lawyer, who should tender advice or 52 135 U. S. 662; 10 Sup. Ct. Rep. 972; 34 L. ed. 304.

assistance in reference to these matters should be held guilty of champerty and subjected to a fine of three hundred dollars and imprisonment for sixty days. In pursuance of this law it became known that the grand jury was considering indictments against a Mr. Royall, a lawyer who had been for years identified with suits brought to compel the acceptance by the State of the coupons of the bonds of 1871. Thereupon Mr. Royall published a letter in which he asserted that the law in question was unconstitutiona? and that he would sue for damages any member of the grand jury who should find a true bill against him for a violation of it. Upon this, the grand jury reported that it had sufficient evidence to indict Mr. Roy all, but that in view of his threats, it would not return a true bill against him. A Virginia court thereupon fined Mr. Royall for an attempt to intimidate the grand jury, and in default of payment of the fine committed him to jail. Mr. Royall sued out a writ of habeas corpus to a federal court, which discharged him upon the ground that it was a right of a citizen of the United States to sue, or threater to sue, whomsoever he pleased. The final judicial phase of the controversy was brought before the Supreme Court in the case of McCullough v. Virginia,53 a case which has already been considered in the chapter dealing with the Obligation of Contracts.

§ 624. In Re Ayers.

54

In 1884, the State of Virginia had passed an act which became known as the "coupon crusher," which provided that when coupons were tendered, the collector was to report the fact to the law officer of the Commonwealth and he was to bring suit for the taxes for the payment of which they were offered, and, if the coupons should not prove genuine, judgment, interest, a penalty, and an attorney's fee were to be given against the one offering them; execution should issue on the judgment, and if this was not paid, a second suit, with more interest, penalties, and attorney's fees should be brought, and so on ad infinitum.

53 172 U. S. 102; 19 Sup. Ct. Rep. 134; 43 L. ed. 182.

54 See section 513.

An injunction was asked by certain citizens and granted by a federal circuit court to restrain the attorney-general of the State from putting these acts into force. This injunction that officer disobeyed. For this he was fined by the circuit court and, upon his refusal to pay the fine, was committed to jail. Thereupon he sued out a writ of habeas corpus to the Supreme Court of the United States.55

That court held that the writ of injunction had been improvidently granted, that the commitment for contempt was consequently void, and released Ayers. The following was the argument of the court. The tender of the coupon, though constituting upon its face a legal tender of payment of taxes, did not deprive the State of the right to attempt by suit to prove the coupons not valid, and, therefore, that their tender in payment of the taxes was not a sufficient tender. The bringing of a suit by the law officer of the State after tender of coupons had been made was, in itself, no violation of a personal or property right and was in itself the breach of no contract. Indeed, the court declared, there was not a contract between the bondholders and the law officers of the State, personally considered. The suit was, therefore, not against them personally, but as officers of the State, to prevent them from bringing suits in the name and for the use of the State of Virginia. Therefore, it was declared, to restrain them was directly to coerce the State by judicial process at the instance of private individuals, a proceeding which the Eleventh Amendment forbids. But, the court is careful to say, "it 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 65 Ex parte Ayers, 123 U. S. 443; 8 Sup. Ct. Rep. 164; 31 L. ed. 216.

or omitted is purely ministerial, in the performance or omission of which the plaintiff has a legal interest.'

§ 625. Reagan v. Trust Co.

1956

In Reagan v. Farmers' Loan & Trust Co. an injunction was sustained against the attorney-general of a State and the members of a state board of railway commissioners, restraining them from putting into force a schedule of rates which the board, acting under statutory authority, had established. The jurisdiction of the lower federal court which had granted the writ was sustained, among other grounds, for the reason that the Eleventh Amendment did not apply to cases in which the States have not a pecuniary or proprietary interest, but only a governmental interest in the matter involved. The same position seems to have been accepted in Smyth v. Ames.58

In the Reagan case the court say: "So far from the State being the only real party in interest, and upon whom alone the judgment effectively operates, it has in a pecuniary sense no interest at all. Going back of all matters of form, the only parties pecuniarily affected are the shippers and the carriers, and the only direct pecuniary interest which the State can have arises when it abandons its governmental character, and, as an individual employs the railroad company to carry its property." "There is a sense, doubtless," the opinion continues, "in which it may be said that the State is interested in the question, but only a governmental sense. It is interested in the well-being of

56 Citing with approval Board of Liquidation v. McComb, 92 U. S. 531; 23 L. ed. 623.

Justice Harlan rendered a dissenting opinion in which he declared: “The difference between a suit against officers of the State, enjoining them from seizing 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."

57 154 U. S. 362; 14 Sup. Ct. Rep. 1047; 38 L. ed. 1014. 58 109 U. S. 466; 18 Sup. Ct. Rep. 418; 42 L. ed. 819.