Ex parte Young

Statement of the Case
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 [p127] 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 twenty-five hundred, nor more than five thousand dollars for the first offense, and not less than five thousand dollars nor more than ten thousand dollars 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 twenty-five hundred dollars nor more than five thousand dollars, and for each subsequent offense not less than five thousand dollars nor more than ten thousand dollars, to be recovered in a civil action."

This provision covered disobedience to the orders of the commission.

On the fourth of April, 1907, the legislature of the state of Minnesota passed an act fixing two cents a mile as the maximum passenger rate to be charged by railroads in Minnesota. (The rate had been theretofore three cents per mile.) The act was to take effect on the first of May, 1907, and was put into effect on that day by the railroad companies, and the same [p128] 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 eighteenth 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 employé 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 employé 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 [p129] 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 thirty-first 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 [p130] 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 [p131] 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 employés. 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 employés, 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.

[p132] 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 Eleventh 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 twenty-third 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.

[p133] 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 [p134] 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 misconduct 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 Eleventh 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.

Argument for Petitioner
Mr. Thomas D. O'Brien, Mr. Herbert S. Hadley, and Mr. Edward T. Young, with whom Mr. Royal A. Stone, Mr. George T. Simpson, and Mr. Charles S. Jelly were on the brief, for petitioner:

[p135] This court in this proceeding will determine the jurisdiction of the Circuit Court in the suit in which the order punishing for contempt was made, and if it is found that the Circuit Court had no jurisdiction in the suit, or was without power or authority to make the order enjoining the petitioner, will direct his discharge from custody.

This application does not fall within those decisions where this court has held that the case was not a proper one to be considered in proceedings under the writ of habeas corpus or those holding that this court may exercise its discretion in granting or withholding the writ. It is in accordance with the decision rendered in Ex parte Yarbrough, 110 U.S. 651. See also Ex parte Fisk, 113 U.S. 713; Ex parte Wells, 18 How. 307; Ex parte Lange, 18 Wall. 163; Ex parte Rowland, 104 U.S. 604; Ex parte Parks, 93 U.S. 18; Ex parte Ayers, 123 U.S. 443; Ex parte Siebold, 100 U.S. 371; Ex parte Kearney, 7 Wheat. 38; Ex parte Royall, 117 U.S. 241; Ex parte Mayfield, 141 U.S. 107; Ex parte McKenzie, 180 U.S. 536; Delgado v. Chaves, 140 U.S. 586; Ex parte Watkins, 3 Peters, 193.

The Circuit Court did not have jurisdiction because of diverse citizenship, and no Federal question was presented by the bill of complaint which justified the Circuit Court in assuming jurisdiction.

The sufficiency of the intrastate rates prescribed by chapter 232, did not present a question involving the construction of the Constitution of the United States. The adequacy or inadequacy of a prescribed rate is a question of fact only. Illinois C. R. Co. v. Interstate Commerce Com., 206 U.S. 441.

Where the true meaning and construction of a constitutional provision has been settled by decisions of this court, the jurisdiction of the Circuit Court will be determined, upon a consideration of the bill of complainant, in the same manner as it would be if it appeared from all the pleadings in the case that there was no controversy as to the meaning orconstruction of the Constitution or law under which it is claimed the controversy arises. Western Union Tel. Co. v. Ann Arbor R. Co., [p136] 178 U.S. 239; Equitable Life Assurance Co. v. Brown, 187 U.S. 308; New Orleans Water Works Co. v. Louisiana, 185 U.S. 336.

The construction and effect of the provisions of the Constitution of the United States relied upon in the suit in the Circuit Court are settled beyond controversy by the following as well as many other decisions: Munn v. Illinois, 94 U.S. 113; C. M. & St. P. R. R. v. Minnesota, 134 U.S. 418; ''Wisconsin &c. R. R. v. Jacobson, 179 U.S. 287; Covington v. Bridge Co., 154 U.S. 204; Houston Central Ry. Co. v. Mayes, 201 U.S. 321; Railroad Commission Cases, 116 U.S. 307; Dow v. Beidleman, 125 U.S. 680; Carson v. Durham, 121 U.S. 421; Tennessee v. Davis, 100 U.S. 257; New Orleans v. Benjamin, 153 U.S. 411; McCain v. Des Moines, 174 U.S. 168; Defiance Water Co. v. City of Defiance, 191 U.S. 184; Hooker v. Los Angeles, 188 U.S. 314; Shoshone Min. Co. v. Rutter, 177 U.S. 505; Blackburn v. Gold Min. Co., 175 U.S. 571; Carson v. Durham, 121 U.S. 421; Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 185 U.S. 282; Minnesota v. Northern Securities Co., 194 U.S. 48; Western Union Tel. Co. v. Ann Arbor R. Co., 178 U.S. 239; Equitable Life Assurance Co. v. Brown, 187 U.S. 308; New Orleans Water Works Co. v. Louisiana, 185 U.S. 336; New Orleans v. Water Works Co., 142 U.S. 79; Hamblin v. Western Land Co., 147 U.S. 531; St. Joseph &c. Co. v. Steele, 167 U.S. 659; Wilson v. North Carolina'', 169 U.S. 586.

The Circuit Court exceeded its power and authority in making its order.that the petitioner be enjoined as Attorney General from taking appropriate legal proceedings to compel the railway companies to comply with the act of April 18, 1907.

Had the Eleventh Amendment never been adopted, this suit against the Attorney General could not be maintained, and had he in the first instance fully submitted himself to the jurisdiction of the Circuit Court, any order attempting to control the exercise of the executive discretion vested in him, would be beyond the power and authority of the court.

It should not be assumed under the authority of Chisholm v. Georgia, that in the absence of the Eleventh Amendment, [p137] a State would be subject to all suits. In that case, it was claimed that the State was indebted to the complainant upon a money demand. The political or governmental powers of the State were in no way involved.

However, be this as it may, the decision in the Chisholm case was based upon the positive language of the Constitution. The Eleventh Amendment restored not only immunity of the States from suit, but secured the same immunity to each department of a State which under the Constitution thereof was made independent of the judicial power.

The authority of the Attorney General to prosecute or defend a suit in which the State is concerned is necessarily implied from the nature of his office and he may bring an action where the wrong or injury complained of affects the public. 4 Cyc. 1028–1031; Hunt v. ''Ry. Co., 121 Illinois, 638; Orton v. State, 12 Wisconsin, 567; Atty. Genl. v. Williams, 174 Massachusetts, 476; People v. Oakland, 118 California, 234; Atty. Genl. v. Detroit'', 26 Michigan, 262.

The Attorney General of Minnesota is, therefore, an executive officer of the State second to none in the character and importance of his duties. The name and power of the State, so far as their use in litigation is concerned, are confined to his discretion, subject to control by no other officer, except in certain cases not material here. State v. Tracy, 48 Minnesota, 497.

Under the statutes of Minnesota, the Attorney General is not required to institute criminal proceedings. except on the request of the Governor. Criminal proceedings are in the first instance instituted by the attorneys for the various counties, who have the right, however, to call on the Attorney General for assistance. But when any criminal case reaches the Supreme Court of the State, it comes into the exclusive charge of the Attorney General. Therefore the injunction issued in the Circuit Court interferes with the administration of the criminal laws of the State. Such interference is beyond the power of a court of equity, except where the criminal case is [p138] instituted by a party to a suit already pending before it of which it has jurisdiction to try the same question therein involved. In re Sawyer, 124 U.S. 200.

The suit in the Circuit Court against the Attorney General was in effect a suit against the State of Minnesota.

The immunity of a State from suit, as provided by the Eleventh Amendment, is not dependent upon any pecuniary interest, as contended by respondents.

Where the decree of the court can operate only upon the State and only to restrain the action of the State, the suit, no matter against whom it is brought, is in effect one against the State and in such case the pecuniary interest the State may or may not have in the result of the litigation is immaterial. Governor of Georgia v. Madrazo, 1 Pet. 110; United States v. Beebe, 127 U.S. 338; Savings Bank v. United States, 19 Wall. 227; United States v. American Bell Telephone Co., 128 U.S. 315; United States v. American Bell Telephone Co., 159 U.S. 548; United States v. Telephone Co., 167 U.S. 224; Hans v. Louisiana, 134 U.S. 19. Reagan Case, 154 U.S. 362 and ''M., K. & T. Ry. Co. v. Hickman'', 183 U.S. 53, discussed and distinguished.

The Circuit Court was without jurisdiction under Fitts v. McGhee, 172 U.S. 516, which cannot be distinguished, and to sustain the suit in Minnesota, it must be shown that Fitts v. McGhee has been or should be overruled.

The doctrine of that case, however, was in accordance with the previous decisions of this court. Governor of Georgia v. Madrazo, 1 Pet. 110; Board of Liquidation v. McComb, 92 U.S. 531; Pennoyer v. McConnaughy, 140 U.S. 1; In re Ayers, 123 U.S. 443.

The doctrine established by these cases has become the settled rule of decision. And see Cotting v. Godard, 183 U.S. 79; ''Davis & Farnum Mfg. Co. v. Los Angeles, 189 U.S. 207; Barney v. State of New York, 193 U.S. 430; Gunter v. Atlantic Coast Line R. R. Co., 200 U.S. 273; Farmers' Nat. Bank v. Jones'', 105 Fed. Rep. 459; Haverhill Gas Light Co. v. Parker, [p139] 109 Fed. Rep. 694; Copper Co. v. Freer, Attorney General, 127 Fed. Rep. 199; Coneter v. Weir, 127 Fed. Rep. 897; Coulter v. Fargo, 127 Fed. Rep. 912; Hitchesen v. Smith, 140 Fed. Rep. 983; Smith v. Alexander, 146 Fed. Rep. 106; Telegraph Co. v. Anderson, 154 Fed. Rep. 95.

By leave of court, Mr. Edward B. Whitney filed a brief herein as amicus curiæ, in support of petitioner's contentions as to the Eleventh Amendment. With him on this brief was Mr. Abel E. Blackmar.

Argument for Respondent
Mr. Charles W. Bunn, Mr. Jared How and Mr. J. F. McGee, with whom Mr. Frank B. Kellogg, Mr. Cordenio A. Severance, Mr. Robert E. Olds, Mr. Stiles W. Burr, Mr. Pierce Butler, Mr. William D. Mitchell and Mr. William A. Lancaster were on the briefs, for respondent:

The objections which petitioner makes against the validity of the injunctional order are matters which cannot be inquired into on writ of habeas corpus.

Where the contempt, the punishment for which is under review in a habeas corpus proceeding, consists of the violation of an order or decree of a court, the commitment will be sustained unless it is found that the order or decree disobeyed was absolutely void because the court was wholly without jurisdiction or power to make it. The proceeding being in the nature of a collateral attack upon the order or judgment which has been disobeyed, the inquiry is limited to the question of jurisdiction. Ex parte Watkins, 3 Pet. 193; In re Coy, 127 U.S. 731, 757; In re Wilson, 140 U.S. 575, 583.

Among the very numerous cases which deal with this question the following are most nearly in point: Ex parte Watkins, 3 Pet. 193; Ex parte Yarbrough, 110 U.S. 651; In re Coy, 127 U.S. 731, 756; In re Wilson, 140 U.S. 575, 582; In re Delgado, 140 U.S. 586; In re Schneider, 148 U.S. 162; In re Frederich, 149 U.S. 70, 76; In re Tyler, 149 U.S. 164, 180; In re Swan, 150 U.S. 637, 648; In re Chapman, 156 U.S. 211; In re Lennon, 166 U.S. 548; In re McKenzie, 180 U.S. 536.

[p140] That the injunctional order, for violation of which the petitioner was adjudged in contempt, was not void for want of jurisdiction, and could not be ignored or disobeyed with impunity, as an absolute nullity, and is not subject to collateral attack in any form of proceeding, see Illinois Central v. Adams, 180 U.S. 28.

As to what matters are open for review upon a writ of habeas corpus is likewise a question of procedure; and the principles invoked in the Adams case are equally applicable to either question.

The case involves a Federal question sufficient to sustain jurisdiction upon that ground alone.

The penalty provisions of the law attacked are violative of the Fourteenth Amendment; as to this see Cotting v. Kansas City Stock Yards Company, 183 U.S. 79, 99–102; Consolidated Gas Company v. Mayer, 146 Fed. Rep. 150; Ex parte Wood, 155 Fed. Rep. 190.

The rates fixed are confiscatory and the legislation is therefore unconstitutional and void under the Fourteenth Amendment. Hastings v. Ames, 68 Fed. Rep. 726.

Neither the suit itself, nor the injunction against petitioner is within the prohibition of the Eleventh Amendment.

The doctrine of Fitts v. McGhee, 172 U.S. 516, if held applicable to the facts of the present case, is not supported by any other decision of this court, is inconsistent with the uniform current of authority, and has been overruled by later decisions of this court: ''Davis & Farnum Mfg. Co. v. Los Angeles, 189 U.S. 207, 218; Dobbins v. Los Angeles'', 195 U.S. 223, 241. Fitts v. McGhee is also inconsistent with the subsequent case of Prout v. Starr, 188 U.S. 537, and other still more recent cases. The case of In re Ayers, 123 U.S. 443, is not in point and does not support the doctrine of Fitts v. McGhee in any direct sense.

The distinction between the case of In re Ayers and cases like the case at bar has been clearly drawn by this court itself in the case of Pennoyer v. McConnaughy, 140 U.S. 1, 9, 10. [p141] See also Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362; Tindall v. Wesley, 167 U.S. 204; Starr v. C., R. I. & P. Ry., 110 Fed. Rep. 3.

The same principle of distinction is applied, in varying language and with greater or less explicitness, in a number of other cases decided since the Ayers case, among which are: In re Tyler, 149 U.S. 164; Scott v. Donald, 165 U.S. 107; Smith v. Reeves, 178 U.S. 436; C. & N. W. Ry. v. Dey (Brewer, J.), 35 Fed. Rep. 866.

The following cases deal with a state of facts like that in the case at bar and are squarely in conflict with Fitts v. McGhee, supra; in the view of that case which makes it applicable to the present situation. Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362; Smyth v. Ames, 169 U.S. 466; Prout v. Starr, 188 U.S. 537; Gunter v. Atlantic Coast Line, 200 U.S. 273, 284; ''Miss. R. R. Comm. v. Illinois Central'', 203 U.S. 335, 340.

If Fitts v. McGhee can be held applicable to the present case, then that decision is unsound in principle and ought to be overruled upon the ground that the Eleventh Amendment should not be given a construction which would tend to impair the full efficacy of the protecting clauses of the Fourteenth Amendment.

It has become the aim of some legislatures to frame their enactments with such cunning adroitness, and to hedge them about with such savage and drastic penalties, as to make it impossible to test the validity of such statutes in the courts save at a risk no prudent man would dare to assume. An apt comment upon this tendency, and upon the character of such legislation, appears in the opinion by Mr. Justice Brewer in Cotting v. Kansas City Stock Yards Company, 183 U.S. 79, 99–102.

There is but one effective protection against, such, legislation—the power that may be exercised by courts of equity, and especially by the Circuit Courts of the United States. If it shall beheld that a state statute may be so adroitly framed that the Eleventh Amendment will bar any suit in the Federal [p142] courts of equity jurisdiction, then no corporation nor individual will dare assume the risk of the savage punishments which may be inflicted under such acts, and legislation which flagrantly violates the provisions of the Fourteenth Amendment will be made operative for all practical purposes.

By leave of court, Mr. Walker D. Hines filed a brief herein in behalf of the Southern Railway Company, in support of the contentions of the respondent.