Page:United States Reports, Volume 209.djvu/228

 202 OCTOBER TERM, 107. H,RL.II', J., dilting. 209 U. 8. diction of the case, saying: "But it may be said, if the court holds that no remedy of this sort will lie in the Circuit Court of the United States to prevent this breach of a contract by the State of West Virginia by means of the machinery of a law violarive of the Constitution of the United States, how are the rights of corporations to be preserved? The answer is that such alleged unconstitutionality is matter of defense to any suit brought for the forfeiture of complainant's charter, and could be set up as an answer and defense to any bill brought for that purpose, and, if the highest court of the State ruled adversely to that contention, appeal would lie to the Su- �preme Court of the United States. Or the case can be removed to the Circuit Court of the United States if it presents a case arising under the Constitution or laws of the United States." A well-considered case is that of Western Union Tel. Co. v. Andrews, 154 Fed. Rep. 95, 107. In that case the telegraph company sought by 'bill, to enjoin the prosecuting attorneys of the various judicial circuits of Arkansas from instituting any proceeding for penalties for its failure or refusal to com- ply with the provisions of an act of the legislature of Arkansas relating to foreign corporations doing busings in that State and fixing fees, etc. The bill charged that the various prose- curing attorneys would, unless restrained, institute numerous actions for the recovery of the penaltics prescribed by the act, which ws no less than $1,000 for each alleged violation. The defense was, among other things, that the action was one against the State, and, therefore, prohibited by the Cnstitu- tion. After a careful review of the adjudged cases in this court and In the subordinate Federal courts, the Circuit Court held. the action to be one against the State, forbidden by the Elev- enth Amendment, saying among other things: "The allega- tions in the bill show that this is an attempt to prevent the State of Arkansas, through its officers, who by its laws are merely its attorneys, to represent it in all legal actions in its favor or in .which it is interested, from instituting and pros- ecuting suits for the recovery of penalties incurred for alleged

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