Joseph McKenna

“ Justice Gray, speaking for the court, said: 'In a suit to which the state is neither formally nor really a party, its officers, although acting by its order and for its benefit, may be restrained by injunction, when the remedy at law is inadequate, from doing positive acts, for which they are personally and individually liable, taking or injuring the plaintiff's property, contrary to a plain official duty requiring no exercise of discretion, and in violation of the Constitution or laws of the United States.' Cases were cited. ”

“ Opposing these contentions, plaintiff in error urges that whether a suit is one against a state cannot depend upon the declaration of a statute, but depends upon the essential nature of the suit, and that the supreme court recognized that the statute 'added nothing to the axiomatic principle that the state, as a sovereign, is not subject to suit save by its own consent.' And it is hence insisted that the court, by dismissing the bill, gave effect to the law which was attacked. ”

“ The privileges which it affords to one class it must afford to the other. Any law by which privileges to begin actions in the courts are given to its own citizens, and withheld from the citizens of other states, is void, because in conflict with the supreme law of the land.'
But in none of these cases was the same question presented that is presented here, nor were all of the cases cited by plaintiff in error to sustain the jurisdiction of this court cases in the Federal courts. ”

“ Cases of taxation upon property before it has entered the channels of interstate transportation, or after the transportation has finally ended, seem to me to have no application. In the former class the property is taxable because it has not ceased to be a part of the mass of the property of the state ”

“ There need not, however, be imagination of extremes, if by extremes be meant a deliberate purpose to prevent the assertion of constitutional rights. Zeal for policies, estimable, it may be, of themselves, may overlook or underestimate private rights. The swift execution of the law may seem the only good, and the rights and interests which obstruct it be regarded as a kind of outlawry. ”

“ If a suit against state officers is precluded in the national courts by the 11th Amendment to the Constitution, and may be forbidden by a state to its courts, as it is contended in the case at bar that it may be, without power of review by this court, it must be evident that an easy way is open to prevent the enforcement of many provisions of the Constitution ”

“ The court overruled a demurrer to the bill, one of the grounds of demurrer being that the suit was one 'against the state or against an officer of the state, acting by authority of the state, with a view to reach the state, its treasury, funds, or property.' It thereby sustained its jurisdiction, and proceeded to a decree on the merits. The case being carried to the supreme court of Tennessee, that court reversed the judgment and hled that no court of Tennessee could, under its statutes, take cognizance of this suit and give the decree asked. ”

“ Rep. 259, a flock of sheep driven from a point in Utah across Wyoming to a point in Nebraska, for the purpose of shipment by rail from the latter point, was held to be property engaged in interstate commerce, and exempt from taxation by Wyoming under the statute taxing all live stock brought into the state 'for the purpose of being grazed.' There was no difficulty in the case except that which arose from the contention that the manner of transit was adopted as an evasion of the statute. ”

“ The court, however, distinguishes that case from the one at bar by saying that plaintiff in error did not assail the inspection law for being void upon its face, but only on the ground 'that the oil upon which defendant was about to impose inspection fees was in law affected with interstate commerce.' To enter into the inquiry involved in the contention, it was further said, 'the court would be bound first to determine whether the oil in these tanks was in fact and in law, as claimed by complainant, a part of interstate commerce ”

“ We have considered this case so far in view of the cases which involve the power of taxation. It may be that such power is more limited than the power to enact inspection laws. Patapsco Guano Co. v. Board of Agriculture, 171 U.S. 356, 43 L. ed. 195, 18 Sup. Ct. Rep. 862. The difference, if any exists, it is not necessary to observe. The cases based on the taxing power show the contentions of plaintiff in error are without merit; in other words, show that its oil was not property in interstate commerce. ”