# Fitts v. McGhee/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
172 U.S. 516
Fitts v. McGhee
The principal question before us is whether this suit is one of which a circuit court of the United States may take cognizance consistently with the constitution of the United States.
From the history given of the proceedings below, it appears that the circuit court adjudged:
That the legislative enactment of February 9, 1895, was unconstitutional and void, in that it did not permit the owners of the Florence Bridge, and the plaintiffs as their representatives, to charge rates of toll that were fairly and reasonably compensatory; and,
That the defendants Fitts and Carmichael, holding, respectively, the offices of attorney general of Alabama and solicitor of the Eleventh judicial circuit of the state, should not institute or prosecute any indictment or criminal proceeding against any one for violating the provisions of that act.
Is this a suit against the state of Alabama? It is true that the eleventh amendment of the constitution of the United States does not in terms declare that the judicial power of the United States shall not extend to suits against a state by citizens of such state. But it has been adjudged by this court, upon full consideration, that a suit against a state by one of its own citizens, the state not having consented to be sued, was unknown to and forbidden by the law, as much so as suits against a state by citizens of another state of the Union, or by citizens or subjects of foreign states. Hans v. Louisiana, 134 U.S. 1, 10, 15, 10 Sup. Ct. 504; North Carolina v. Temple, 134 U.S. 22, 10 Sup. Ct. 509. It is therefore an immaterial circumstance in the present case that the plaintiffs do not appear to be citizens of another state than Alabama, and may be citizens of that state.
What is and what is not a suit against a state has so frequently been the subject of consideration by this court that nothing of importance remains to be suggested on either side of that question. It is only necessary to ascertain, in each case as it arises, whether it falls on one side or the other of the line marked out by our former decisions.
We are of opinion that the present case comes within the principles announced in Re Ayers, 123 U.S. 443, 485, 496-500, 505, 8 Sup. Ct. 164. It appears from the report of that case that the circuit court of the United States for the Eastern district of Virginia in Cooper v. Marye made an order forbidding the attorney general of Virginia and other officers of that commonwealth from bringing suits under a certain statute of Virginia, in its name and on its behalf, for the recovery of taxes, in payment of which the taxpayers had previously tendered tax-receivable coupons. The state officers did not obey this order, and, having been proceeded against for contempt of court, they sued out writs of habeas corpus, and asked to be discharged upon the ground that the circuit court had no power to make the order for disobeying which the proceedings in contempt were commenced. This court said that the question really was whether the circuit court had jurisdiction to entertain the suit in which that order was made, the sole purpose and prayer of the bill therein being by final decree to enjoin the defendants, officers of Virginia, from taking any steps in execution of the statute the validity of which was questioned.
It was adjudged that, although Virginia was not named on the record as a party defendant, nevertheless, when the nature of the case against its officers was considered, that commonwealth was to be regarded as the actual party in the sense of the constitutional prohibition. The court said: 'It follows, therefore, in the present case, that the personal act of the petitioners sought to be restrained by the order of the circuit court, reduced to the mere bringing of an action in the name of and for the state against taxpayers, who, although they may have tendered the tax-receivable coupons, are charged as delinquents, cannot be alleged against them as an individual act in violation of any legal or contract rights of such taxpayers.' Again: 'The relief sought is against the defendants, not in their individual, but in their representative, capacity, as officers of the state of Virginia, The acts sought to be restrained are the bringing of suits by the state of Virginia in its own name and for its own use. If the state had been made a defendant to this bill by name, charged according to the allegations it now contains,-supposing that such a suit could be maintained,-it would have been subjected to the jurisdiction of the court by process served upon its governor and attorney general, according to the precedents in such cases. New Jersey v. New York, 5 Pet. 284, 288, 290; Kentucky v. Dennison, 24 How. 66, 96, 97; Rule 5 of 1884, 108 U.S. 574. If a decree could have been rendered enjoining the state from bringing suits against its taxpayers, it would have operated upon the state only through the officers who by law were required to represent it in bringing such suits, viz. the present defendants, its attorney general, and the commonwealth's attorneys for the several counties. For a breach of such an injunction, these officers would be amenable to the court as proceeding in contempt of its authority, and would be liable to punishment therefor by attachment and imprisonment. The nature of the case, as supposed, is identical with that of the case as actually presented in the bill, with the single exception that the state is not named as a defendant. How else can the state be forbidden by judicial process to bring actions in its name, except by constraining the conduct of its officers, its attorneys, and its agents? And if all such officers, attorneys, and agents are personally subjected to the process of the court, so as to forbid their acting in its behalf, how can it be said that the state itself is not subjected to the jurisdiction of the court as an actual and real defendant?'
One of the arguments made in the Ayers Case was that the circuit court had jurisdiction to restrain by injunction officers of the state from executing the provisions of state enactments void by reason of repugnancy to the constitution of the United States. In support of that position, reference was made to Osborn v. Bank, 9 Wheat. 738. But this court said: 'There is nothing, therefore, in the judgment in that cause, as finally defined, which extends its authority beyond the prevention and restraint of the specific act done in pursuance of the unconstitutional statute of Ohio, and in violation of the act of congress chartering the bank, which consisted of the unlawful seizure and detention of its property. It was conceded throughout that case, in the argument at the bar and in the opinion of the court, that an action at law would lie, either of trespass or detinue, against the defendants as individual trespassers guilty of a wrong in taking the property of the complainant illegally, vainly seeking to defend themselves under the authority of a void act of the general assembly of Ohio. One of the principal questions in the case was whether equity had jurisdiction to restrain the commission of such a mere trespass, a jurisdiction which was upheld upon the circumstances and nature of the case, and which has been repeatedly exercised since. But the very ground on which it was adjudged not to be a suit against the state, and not to be one in which the state was a necessary party, was that the defendants personally and individually were wrongdoers, against whom the complainants had a clear right of action for the recovery of the property taken, or its value, and that, therefore, it was a case in which no other parties were necessary. The right asserted and the relief asked were against the defendants as individuals. They sought to protect themselves against personal liability by their official character as representatives of the state. This they were not permitted to do, because the authority under which they professed to act was void.' And these were stated by the court to be the grounds upon which it had proceeded in other cases; citing Allen v. Railroad Co., 114 U.S. 311, 5 Sup. Ct. 925, 962; Poindexter v. Greenhow, 114 U.S. 270, 282, 5 Sup. Ct. 903, 962; U.S. v. Lee, 106 U.S. 196, 1 Sup. Ct. 240. The court further said: 'The very object and purpose of the eleventh amendment were to prevent the indignity of subjecting a state to the coercive process of judicial tribunals at the instance of private parties. It was thought to be neither becoming nor convenient that the several states of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons, whether citizens of other states or aliens, or that the course of their public policy and the administration of their public affairs should be subject to, and controlled by, the mandates of judicial tribunals without their consent, and in favor of individual interests. To secure the manifest purposes of the constitutional exemption guarantied by the eleventh amendment requires that it should be interpreted, not literally and too narrowly, but fairly, and with such breadth and largeness as effectually to accomplish the substance of its purpose. In this spirit it must be held to cover, not only suits brought against a state by name, but those also against its officers, agents, and representatives, where the state, though not named as such, is, nevertheless, the only real party against which alone in fact the relief is asked, and against which the judgment or decree effectively operates. But this 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 or omitted is purely ministerial, in the performance or omission of which the plaintiff has a legal interest.'
It was accordingly adjudged that the suit in which injunctions were granted against officers of Virginia was, in substance and in law, one against that commonwealth, of which the circuit court of the United States could not take cognizance.
If these principles be applied in the present case, there is no escape from the conclusion that, although the state of Alabama was dismissed as a party defendant, this suit against its officers is really one against the state. As a state can act only by its officers, an order restraining those officers from taking any steps, by means of judicial proceedings, in execution of the statute of February 9, 1895, is one which restrains the state itself, and the suit is consequently as much against the state as if the state were named as a party defendant on the record. If the individual defendants held possession, or were about to take possession of, or to commit any trespass upon, any property belonging to or under the control of the plaintiffs, in violation of the latter's constitutional rights, they could not resist the judicial determination, in a suit against them, of the question of the right such possession, by simply asserting that they held or were entitled to hold the property in their capacity as officers of the state. In the case supposed, they would be compelled to make good the state's claim to the property, and could not shield themselves against suit because of their official character. Tindal v. We ley, 167 U.S. 204, 222, 17 Sup. Ct. 770. No such case is before us.
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, 1895. In support of the contention that the present suit is not one against the state, reference was made by counsel to several cases, among which were Poindexter v. Greenhow, 114 U.S. 270, 5 Sup. Ct. 903, 962; Allen v. Railroad, 114 U.S. 311, 5 Sup. Ct. 925, 962; Pennoyer v. McConnaughy, 140 U.S. 1, 11 Sup. Ct. 699; In re Tyler, 149 U.S. 164, 13 Sup. Ct. 785; Reagan v. Trust Co., 154 U.S. 362, 388, 14 Sup. Ct. 1047; Scott v. Donald, 165 U.S. 58, 17 Sup. Ct. 265; and Smyth v. Ames, 169 U.S. 466, 18 Sup. Ct. 418. Upon examination, it will be found that the defendants in each of those cases were officers of 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 plaintiffs' 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 statutes. 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. If their officers commit acts of trespass or wrong to the citizen, they may be individually proceeded against for such trespasses or wrongs. Under the view we take of the question, the citizen is not without effective remedy, when proceeded against under a legislative enactment void for repugnancy to the supreme law of the land; for, whatever the form of proceeding against him, he can make his defense upon the ground that the statute is unconstitutional and void. And that question can be ultimately brought to this court for final determination.
What has been said has reference to that part of the final decree which holds the act of February 9, 1895, to be invalid and inoperative. Whether the owners of the bridge, and the plaintiffs as their representatives, were denied by the statute fair and reasonable compensation for the use of the property by the public was a question that could not be considered in this case. That is not a matter to be determined in a suit against the state, for of such a suit the circuit court could not take cognizance.
It remains only to consider the case so far as the final decree assumes to enjoin the officers of the state from instituting or prosecuting any indictment or criminal roceedings having for their object the enforcement of the statute of 1895. We are of opinion that the circuit court of the United States, sitting in equity, was without jurisdiction to enjoin the institution or prosecution of these criminal proceedings commenced in the state court. This view is sustained by In re Sawyer, 124 U.S. 200, 209, 210, 8 Sup. Ct. 482. It was there said: 'Under the constitution and laws of the United States, the distinction between common law and equity, as existing in England at the time of the separation of the two countries, has been maintained, although both jurisdictions are vested in the same courts. Fenn v. Holme, 21 How. 481, 484-487; Thompson v. Railroad Co., 6 Wall. 134; Heine v. Commissioners, 19 Wall. 655.' Again: 'The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes and misdemeanors, or over the appointment and removal of public officers. To assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment or offenses, or for the removal of public officers, is to invade the domain of the courts of common law, or of the executive and administrative departments of the government.' At the present term of the court, in Harkrader v. Wadley, 172 U.S. 148, 169, 170, 19 Sup. Ct. 119, we said: 'In proceeding by indictment to enforce a criminal statute, the state can only act by officers or attorneys, and to enjoin the latter is to enjoin the state.' Again: 'Much more are we of opinion that a circuit court of the United States, sitting in equity in the administration of civil remedies, has no jurisdiction to stay by injunction proceedings pending in a state court in the name of a state to enforce the criminal laws of such state.' Undoubtedly, the courts of the United States have the power, under existing legislation, by writ of habeas corpus, to discharge from custody any person held by state authorities under criminal proceedings instituted under state enactments, if such enactments are void for repugnancy to the constitution, laws, or treaties of the United States. But even in such case we have held that this power will not be exercised, in the first instance, except in extraordinary cases, and the party will be left to make his defense in the state court. Ex parte Royall, 117 U.S. 241, 6 Sup. Ct. 734; New York v. Eno, 155 U.S. 89, 15 Sup. Ct. 30; Whitten v. Tomlinson, 160 U.S. 231, 16 Sup. Ct. 297; Baker v. Grice, 169 U.S. 284, 18 Sup. Ct. 323. But the existence of the power in the courts of the United States to discharge upon habeas corpus by no means implies that they may, in the exercise of their equity powers, interrupt or enjoin proceedings of a criminal character in a state court. The plaintiffs state that the toll gatherers in their service had been indicted in a state court for violating the provisions of the act of 1895 in respect of tolls. Let them appear to the indictment, and defend themselves upon the ground that the state statute is repugnant to the constitution of the United States. The state court is competent to determine the question thus raised, and is under a duty to enforce the mandates of the supreme law of the land. Robb v. Connolly, 111 U.S. 624, 4 Sup. Ct. 544. And, if the question is determined adversely to the defendants in the highest court of the state in which the decision could be had, the judgment may be reexamined by this court upon writ of error. That the defendants may be frequently indicted constitutes no reason why a federal court of equity should assume to interfere with the ordinary course of criminal procedure in a state court.
It appears from the record that Clem and Brabson were indicted in the state court under section 4151 of the Criminal Code of Alabama. Having been arrested under those indictments, they sued out, as we have seen, writs of habeas corpus upon the ground that they were indict d for taking tolls in violation of the above act of February 9, 1895, which they alleged to be unconstitutional, and that their arrest was in disregard of the injunction of the circuit court restraining the institution and prosecution of indictments or other criminal proceedings in execution of that act. The circuit court discharged the petitioners upon their own recognizances. It was error to discharge them, and thereby interfere with their trial in the state court. As already indicated, the circuit court, sitting in equity, was without jurisdiction to prohibit the institution or prosecution of these criminal proceedings in the state court. Further, even if the circuit court regarded the act of 1895 as repugnant to the constitution of the United States, the custody of the accused by the state authorities should not have been disturbed by any order of that court, and the accused should have been left to be dealt with by the state court, with the right, after the determination of the case in that court, to prosecute a writ of error from this court for the re-examination of the final judgment so far as it involved any privileges secured to the accused by the constitution of the United States. Ex parte Royall, New York v. Eno, Whitten v. Tomlinson, and Baker v. Grice, above cited. There were no exceptional or extraordinary circumstances in these cases to have justified the interference by the circuit court, under writs of habeas corpus, with the trial of the indictments found in the state courts.
The judgment of the circuit court is reversed, with directions to dissolve the injunction restraining the institution or prosecution of indictments or other criminal proceedings in the state court, to dismiss the suit brought by the receivers against the attorney general of Alabama and the solicitor of the Eleventh judicial circuit of the state, and to remand Clem and Brabson to the custody of the proper state authority.
Reversed.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse