mischief, by whose power and for whose advantage it is done, be himself above the law, it would be subversive of the best established principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong which they would afford against him could his principal be joined in the suit."

16. United States v. Lee, 106 U. S., 196; cited and affirmed in Davis v. Gray, 16 Wal., 203-220.—“Where the State is concerned, the State should be made a party, if it could be done. That it cannot be done is a sufficient reason for the omission to do it, and the court may proceed against the officers of the State in all respects as if the State were a party to the record." In deciding who are the parties to the suit, the court will not look beyond the record. Making a State officer a party does not make the State a party, although her law may have prompted his action, and the State may stand behind him as the real party in interest.

In Davis v. Gray, the Governor and the Commissioner of the General Land Office of Texas were "enjoined from issuing, or causing or permitting to issue," patents of certain lands, the sale of which her Constitution had authorized, upon the supposition that the title of a corporation to them had been lost. In considering the right of a private party to maintain suit against those officers, inasmuch as a suit could not be brought directly against the State, the court reasserted the doctrine announced in Osborn v. Bank of the United States.

The objection suggested was also considered and disposed of in the Board of Liquidation v. McComb, a case against these very officers, decided in 1865. There the board undertook to liquidate a debt contracted in reconstructing and keeping in repair levees on the

Mississippi River, with consolidated bonds issued under the act of 1874, pursuant to the authority of a subsequent statute of the Legislature. A citizen of Delaware holding some of the consolidated bonds contended that the levee debt was not one of the debts to fund which these bonds had been issued, and that the use of them for that purpose would defeat one of the benefits of the funding scheme. He therefore applied to the Circuit Court of the United States for an injunction to restrain the board from funding the levee debt with these bonds, and obtained it. The injunction was made perpetual by a final decree, which was affirmed here. "In our judg ment, therefore," we said, speaking by Mr. Justice Bradley, "the court below was right in granting the injunction as to the consolidated bonds, if the defendants, occupying the official position they do, are amenable to such a process. On this branch of the subject, the numerous and well-considered cases heretofore decided by this court leave little to be said. The objections to proceeding against State officers by mandamus or injunction are, first, that it is in effect proceeding against the State itself, and, secondly, that it interferes with the official discretion vested in the officers. It is conceded that neither of these things can be done. A State, without its consent, cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officers in matters belonging to the proper jurisdiction of the latter. But it has been well settled that when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal, may have a mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will

sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. In such cases the writs of mandamus and injunction are somewhat correlative to each other. In either case, if the officer plead the authority of an unconstitutional law for the non-performance or violation of his duty, it will not prevent the issuing of the writ. An unconstitutional law will be treated by the courts as null and void."-92 U. S., 531, 541.

For another view, see La. v. Jumel., 17 Otto, 711, and dissenting opinion of J. J. Field and Harlan. There may be a statutable obligation on a public officer to fulfil a public duty of such a kind as to be enforcible in Federal

courts.

17. U.S. v. Diekelman, U. S., 520; N. H. v. La.; N. Y. v. La., U. S., 77. A State cannot allow the use of its name in a suit against another State for the benefit of one of its citizens, or become a mere collecting agent of his bonds or coupons.

18. The law which governs the police power of States is important, because the elasticity of these powers would seem to be extraordinarily great. If they are so interpreted as merely to sustain the inherent power of States to regulate railroad business within the ordinary meaning of the term "regulation," the investor in the securities of Granger States has no special cause for apprehension. But, if they are so interpreted as to amount, in effect, to indirect confiscation of the increment of value and of vested interests in various other forms, they are plainly calculated to alarm and alienate foreign capital. It may be worthy of note that the mind of the highest tribunal in this country would appear to be not finally made up on this very important subject. While the general tenour of

the Granger cases favours an interpretation of police regulation strongly adverse to the interests of an intending investor, the dissenting opinions of very strong and able Judges tend in the opposite direction, and incline to the protection of contracts under the provisions of the Federal Constitution. The cases cited below will repay the casual investor for the trouble of considering them attentively. Munn vs. Illinois, 4 Otto, 113; C., B., & Q. R. R. vs. Iowa, 4 Otto, 155; Peik vs. C. & N. W. R. R.; Winona and St. Peters vs. Blake, 4 Otto, 164.

RESERVED POWER OF STATES TO REPEAL OR MODIFY CHARTERS.

19. When a State reserves to itself under the provisions of an old existing constitution the right to repeal or modify at will the charters which it grants,—and by inference the contracts which it makes,—a railroad corporation accepts a charter subject to the risks and losses incident to the future exercise by the State of such reserved power. See Tilley v. Sav., Florida, and Western R. R. Co., 5 Fed. Rep., 641. Woods, C. J., speaks as follows: "It has been the policy of Georgia, at least since January 1st, 1863, to grant no charter which should not be subject to revision or repeal by the General Assembly. Whether wise or unwise, this policy has been embodied in the constitution of 1877. It was clearly the purpose of the people, in the adoption of that revision of the organic law, to keep the charges of the railroad companies of the State within legislative control. They were not satisfied with the rules of the common law on this subject. The act of October 14, 1879, is but the practical expression of the will of the people of the State as embodied in their organic law. It

is the exercise of a right which they have been careful to reserve, and subject to which the defendant company were allowed to exist as a corporation."

The case is important, because it indicates the necessity of strictly investigating the reserved powers of States to repeal charters or modify a contract by ex post facto legislation, after the valuable consideration of building a railroad has been paid by a corporation. Acquiescence in the consolidation of chartered railroads and in the issue of their securities does not affect the right of a State to exercise reserved power. The investor in railroads must depend on the virtue of the people rather than on enforcible rights of contract, and this is, of course, a matter of taste and judgment.

20. As regards the right of a State to decline to permit itself to be sued, and the point to which and limitations under which this protection is extended to public [State] officers, acting in conformity with their official instructions, see Hagood v. Southern, 117 U. S. Rep.; R. R. Company v. Alabama, 101 U. S. Rep.; Poindexter v. Greenhow, 114 U. S. Rep., and cases connected therewith, known as the Virginia Coupon Cases.

21. In view of the great injury to railway business arising from strikes, and the intimidation and obstruction incident thereto, a case recently decided by the New York Court of Appeals, the highest authority in that State [reported in the New York Railway Age, July 8, 1886], may be worth perusal.

The action was that of Meyer Geismer, respondent, v. Lake Shore & Michigan Southern Railroad Company, appellant, and was brought by the plaintiff to recover damages caused by delay of many days on account of the great strike at Cleveland and along the line in 1877. The