69 § 203. Controversies between a State and citizens of another State. Under the original form of the Constitution, the United States courts had jurisdiction of cases brought against a State by a citizen of another State. The existence of this right was decided in Chisholm v. Georgia. This decision aroused so much fear and jealousy on the part of the individual States, that the constitutional provision on this point was changed by the adoption of the eleventh amendment. "The judicial power of the United States shall not be construed to extend to any 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." This immunity granted to the States by the eleventh amendment includes not only direct actions for breach of contract brought against a State by name, but also all other actions and suit against it, whether at law or in equity.70 No United States court can proceed to the determination of any suit to which a State is an indispensable party, except suits brought against such State by the United States or by another State, without the consent of such State to be sued."1 A State cannot be sued in the United States courts by one of its own citizens, regardless of what the nature of the controversy may be.72 A suit against a State officer to compel him to do what a statute requires of him, is not a suit against the State, within the meaning of the eleventh amendment.73 Jurisdiction under this clause noyer v. McConnaughty, 140 U. S. 9; Smith v. Reeves, 178 U. S. 439. The following summary of cases on this point is taken from the Columbia Law Review: "State Immunity From Suit Under the Eleventh Amendment. The United States Supreme Court has rejected the narrow view of what constitutes a suit against a State, laid down by Chief Justice Marshall in Osborn v. The Bank (1824) 9 Wheat. 738, that a State is not sued unless a party to the record, New Hampshire 74 does not extend to the determination of political questions; the grant is of judicial power, and was not intended to confer upon etc. v. Louisiana (1882) 108 U. S. 76; In Re Ayers (1887) 123 U. S. 443, and has established in its place the rule that a suit against a State is an action in which the adverse interest is in the State, against whom alone relief is asked and judgment will effectively operate. In Re Ayers, supra; Fitts v. McGhee (1899) 172 U. S. 516. However, since a State can act only through its officers, every act done by them in its behalf, whether upon valid authority or not, affects the interests of the State in a greater or less degree. It is evident, on the other hand, that the mere fact of being a State officer and acting to benefit the State, should not be enough to shield all illegal acts under the doctrine of State immunity from suit. Limits to the doctrine being once recognized, it is natural from the very complexity and extent of the situations arising under State official actions, that the exact limits should be fixed, not by any broad principle supplying a universal criterion, but by a number of narrower rules, each applicable to its special class of cases. Fitts v. McGhee, supra, 516, 528; Reagan v. Farmer' Loan & Trust Company (1894) 154 U. S. 362, 390. The best classification of these authorities is based upon the subject matter of the suit: State contracts, torts by State officials, property owned by the State, special financial interests of the State, and suits affecting the discretion of State officers. The first two classes are well settled. A suit against a State officer, the real purpose of which is to obtain specific performance of the State's contract, is a suit against the State; Hagood v. Southern (1886) 117 U. S. 52; North Carolina v. Temple (1890) 134 U. S. 22; Louisiana v. Jumel (1882) 107 U. S. 711; In Re Ayers, supra; but a State officer about to commit a tort under color of an unconstitutional statute is not protected. Pennoyer v. McConnaughy (1891) 140 U. S. 1; Virginia Coupon Cases (1885) 114 U. S. 311. Thus a suit to compel an officer to accept bond coupons in payment of taxes, as agreed by the State upon the issue of the bonds, cannot be maintained; Antoni v. Greenhow (1882) 107 U. S. 769, 783; North Carolina v. Temple, supra; but an injunction to restrain him from distraining property under an unconstitutional statute may be. The suit may be for money or property in the hands of the defendant unlawfully taken in behalf of the State, Virginia Coupon Cases, supra, 270, or for an injunction to prevent such unlawful taking, Virginia Coupon Cases, supra, 311, or to enforce a plain ministerial duty resting upon the defendant. Graham v. Folsom (1906) 200 U. S. 248; Seibert v. Lewis (1887) 122 U. S. 284. A failure to discriminate the courts of the United States jurisdiction of a suit or prosecution by the one State of such a nature that it could not, on the clearly between these two classes of cases gave rise to numerous dicta, Cunningham v. Macon etc. (1883) 109 U. S. 446, 453; Hagood v. Southern, supra; cf. Pennoyer v. McConnaughy, supra, 1, 16, 18, which intimated that the division was one between positive and negative relief against an officer. It finally took form in the statement that an officer would not be compelled to do an affirmative act contrary to the supreme power which created him. This rule has no basis in principle; for the latter part appears inapplicable to the cases where the statute is unconstitutional, but even if applicable, would seem to be of equal force whether the statute was positive or negative: the form of relief would seem immaterial. It is submitted that this distinction arose from the accidental circumstance that relief denied under the State contract rule was always positive, while that permitted under the personal tort rule was nearly always negative. The cases of Graham v. Folsom, supra, and Seibert v. Lewis, supra, would seem to have necessarily obliterated this erroneous view. In both, affirmative relief was granted compelling disobedience to an unconstitutional statute. The rule in the property cases is that a suit against a State officer, the real purpose of which is to obtain possession of prop erty to which the State has title and possession, Cunningham v. Macon etc., supra; Christian v. N. C. R. R. (1890) 133 U. S. 233, or to compel the officer to pay money out of the State treasury, Louisiana v. Jumel, supra; Smith v. Reeves (1899) 178 U. S. 436, 439, or to prevent the State from using its own property, Belknap v. Schild (1895) 161 U. S. 10, is a suit against the State. This principle is so strong that in the last case it overrode the personal tort rule and barred an injunction restraining an officer from using government property made in infringement of a patent. But the courts will not refuse to dispose of property, though the State has some minor interest therein, which comes into their hands in the ordinary course of judicial administration. Christian v. N. C. R. R., supra, 233, 243. Certain interests are so peculiarly a State's own that suits involving them are deemed suits against the State. Thus her attorneys, though specially charged, may not be restrained from bringing suits in the name of the State to enforce an unconstitutional statute, when the purpose of the statute is to benefit the State financially, e. g., to raise a revenue. In Re Ayers, supra; Morenci Copper Co. V. Freer (1903) 127 Fed. 199; cf. Reagan v. Farmers' Loan & Trust Co., supra, 362, 390." "Louisiana v. Texas, 176 U. S. 23. settled principles of public and Inernational Law be entertained by the judiciary of the other State at all. $204. "Between citizens of different States."-The object of this clause was to secure the citizen against local prejudice, which might injure him if he was compelled to litigate his controversy in the court of the State of which his antagonist was a citizen. The Constitution imposes no limitation upon the class of cases involving controversies between citizens of different States, to which the judicial power of the United States may be extended; and Congress may, therefore lawfully provide for bringing, at the option of either party, all such controversies within the jurisdiction of the Federal judiciary." In order for the United States courts to take jurisdiction under this clause all the defendants must be citizens of different States from any of the plaintiffs;78 and diversity of citizenship must appear in the pleadings. The jurisdiction of the Federal courts, however, will not be lost on account of the citizenship of formal or nominal parties; the citizenship of the real parties in interest determine the jurisdiction. 80 Federal jurisdiction cannot be resisted by any State law.81 Under the judiciary act of the United States, a non-resident sued in any State court has the absolute right to have his case, if involving over $2,000, removed to the United States Circuit Court, and any agreement with the State not to thus remove the cases is void.82 A State can, however, make a non-resident Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 289. Whelan v. New York, etc., R. Co., 35 Fed. Rep. 858. "Gaines v. Fuentes, 92 U. S. 18. 75 Strawbridge V. Curtiss, 3 Cranch, 267; New Orleans v. Winter, 1 Wheaton, 95; Coal Co. v. Blatchford, 11 Wallace, 174; Case of Sewing Machine Companies, 18 Wallace, 575; Smith v. Lyon, 133 U. S. 316. 19 Turner V. Bank of North America, Dallas, 8; Godfrey v. Terry, 97 U. S. 171... corporation abstaining from thus removing cases a condition of its continuing to do business in the State, as the right to do business in any State is a privilege granted by the State and not an absolute right.83 This clause giving jurisdiction to the United States courts in cases between citizens of different States, does not apply to citizens of the territories; nor of the District of Columbia.85 86 A corporation is not recognized by the United States Constitution as a citizen of the United States, or of any particular State. It cannot sue or be sued in the United States courts under this clause of the Constitution, except in consequence of the citizenship of its stockholders. 80 A corporation aggregate, composed of citizens of one State may sue a citizen of another State in the United States courts. By a legal fiction the stockholders of any private corporation are conclusively presumed, for purposes of litigation in Federal courts, to be citizens of the State, which created the corporation; this need not be averred, and cannot be rebutted.88 87 $ 205. "Between citizens of the same State claiming land under grants from different States."-Under this clause the Federal courts have jurisdiction where one of the grants was made prior to the separation of the States. Very few cases have ever been brought before the United States courts under this provision. 89 |