for the purposes of suit. It was accordingly unanimously held by this court that it would look behind and through the nominal parties on the record, to ascertain who were the real parties to the suit. The chief justice, speaking for the court in that case, made a review of the circumstances which led to the adoption of the eleventh amendment, and in concluding his opinion, said: "The evident purpose of the amendment, so promptly proposed and finally adopted, was to prohibit all suits against a state by or for citizens of other states, or aliens, without the consent of the state to be sued; and, in our opinion, one state cannot create a controversy with another state, within the meaning of that term as used in the judicial clauses of the constitution, by assuming the prosecution of debts owing by the other state to its citizens. Such being the case, we are satisfied that we are prohibited, both by the letter and the spirit of the constitution, from entertaining these suits, and the bill in each case is dismissed."

The converse of that case is to be found in Hagood v. Southern, 117 U. S. 52, 6 Sup. Ct. Rep. 608. There the state of South Carolina, which was the party in interest, was not nominally a defendant. The nominal defendants were the treasurer of the state of South Carolina, its comptroller general, and the treasurers of its various counties and their successors in office. The ob

ject of the bills was to obtain on behalf of the complainants, by judicial process, the redemption by the state of certain scrip of which they were holders, according to the terms of a statute in pursuance of which it was issued, by the levy, collection, and appropriation of a special tax pledged to that purpose, as they claimed, by an irrepealable law constituting a contract protected from violation by the constitution of the United States. The decrees of the circuit court granting the relief were reversed, and the cause remanded, with instructions to dismiss the bills, on the ground that the suits, though nominally against the officers of the state, were really against the state itself. In its opinion this court said, (page 67:) "These suits are accurately described as bills for the specific performance of a contract between the complainants and the state of South Carolina, who are the only parties to it. But to these bills the state is not in name made a party defendant, though leave is given to it to become such if it chooses; and except with that consent it could not be brought before the court, and be made to appear and defend. And yet it is the actual party to the alleged contract, the performance of which is decreed, the one required to perform the decree, and the only party by whom it can be performed. Though not nominally a party to the record, it is the real and only party in interest, the nominal defendants being the officers and agents of the state, having no personal interest in the subject-matter of the suit, and defending only as representing the state. And the things required by the decrees to be done and performed by them are the very things which, when done and performed, constitute a performance of the alleged contract by the state. The state is not only the real party to the controversy, but the real party against which relief is sought by the suit, and the suit is therefore substantially within the prohibition of the eleventh amendment to the constitution of the United States."

The conclusions in the case of Hagood v. Southern were justified by what had previously been decided by this court in the cases of Louisiana v. Jumel and Elliott v. Wiltz, 107 U. S. 711, 2 Sup. Ct Rep. 128. Those cases had for their object, one, by injunction, to restrain the officers of the state from executing the provisions of the act of the general assembly alleged to be in violation of the contract rights of the plaintiffs, and the other, by mandamus, to require the appropriation of money from the treasury of the state in accordance with the contract. This relief, it was decided, was not within the competency of the judicial power. The chief justice said, on that point, (page 727:) "The remedy sought, in order to be complete, would require the court to assume all the executive authority of the state, so far as it related to the

enforcement of this law, and to supervise the conduct of all persons charged with any official duty in respect to the levy, collection, and disbursement of the tax in question until the bonds, principal and interest, were paid in full; and that, too, in a proceeding in which the state, as a state, was not and could not be made a party. It needs no argument to show that the political power cannot be thus ousted of its jurisdiction, and the judiciary set in its place. When a state submits itself, without reservation, to the jurisdiction of a court in a particular case, that jurisdiction may be used to give full effect to what the state has, by its act of submission, allowed to be done; and if the law permits coercion of the public officers to enforce any judgment that may be rendered, then such coercion may be employed for that purpose. But this is very far from authorizing the court, when a state cannot be sued, to set up its jurisdiction over the officers in charge of the public moneys, so as to control them as against the political power, in their administration of the finances of the state."

It is therefore not conclusive of the principal question in this case that the state of Virginia is not named as a party defendant. Whether it is the actual party, in the sense of the prohibition of the constitution, must be determined by a consideration of the nature of the case as presented on the whole record. The substantial averments of the bill are (1) that the complainants were the owners of $100,000 worth of tax-receivable coupons of Virginia, for which they had paid over $30,000; (2) that they have sold $50,000 of that amount for $15,000 or more to tax-payers of Virginia, who have tendered the same to the proper state officials in payment of their taxes, but the said officers have refused to receive the same; (3) that if the officers of the state are permitted to enforce the act of May 12, 1887, the complainants will be unable to sell the remaining $50,000 of their coupons to the tax-payers of that state at any price, and thus their entire property in the same will be destroyed; (4) that the act of May 12, 1887, is unconstitutional and void, because it impairs the obligation of the contract of the state of Virginia by which it agreed to receive coupons cut from its bonds in payment of debts, demands, and taxes due to it.

The particulars in which this contract is alleged to be violated by the provisions of that act are-First, that, in disregard of tenders of tax-receivable coupons made by tax-payers in payment of taxes, the act of the general assembly peremptorily requires actions at law to be brought in the name of the state of Virginia against all such tax-payers as delinquent; second, because in the trial of such actions it is required that the defendant shall not only prove the fact of tender, but the genuineness of the coupons tendered; third, that as part of that proof he is required to produce the bond itself from which such coupon is said to have been cut; and, fourth, that he is not permitted to troduce expert testimony to prove the genuineness of the coupons tendered. The prayer of the bill is that the attorney general of the state of Virginia, and the commonwealth's attorneys for the counties, be restrained by injunction from commencing and prosecuting any suits under the act of May 12, 1887, for the recovery of taxes against parties alleged to be delinquent, but who in fact have tendered tax-receivable coupons in payment of taxes due.

It is to be noted that there is no direct averment in the original or amended bills that the coupons alleged to have been tendered in payment of taxes by those tax-payers against whom the defendants threatened to bring suits under the act of May 12, 1887, were purchased from the complainants, although it incidentally appears otherwise upon the record that some of them may have been. The injunction, however, prayed for is to prevent the bringing of any suits under that act against tax-payers who have tendered coupons, whether the coupons were purchased from the complainants or not. It is also to be observed that the only personal act on the part of the petitioners sought to be restrained by the original order of June 6, 1887, in pursuance of the prayer

of the bill, is the bringing of any suit under the act of May 12, 1887, against any person who had tendered tax-receivable coupons in payment of taxes due to the state of Virginia. Any such suit must, by the statute, be brought in the name of the state and for its use.

It is immaterial, in our opinion, to consider the matters which are alleged in respect to the course and conduct of such a suit after its institution, by reason of the provisions contained in other acts of the general assembly of the state restricting the mode of proof of the genuineness of the coupons tendered. What is required by the act of May 12, 1887, is that, "if the defendant relies on a tender of coupons as payment of the taxes claimed, he shall plead the same specifically and in writing, and file with the plea the coupons averred therein to have been tendered, and the clerk shall carefully preserve them. Upon such plea filed the burden of proving the tender and the genuineness of the coupons shall be. on the defendant. If the tender and the genuineness of the coupons be established, judgment shall be for the defendant on the plea of tender. In such case the clerk shall write the word 'proved' and thereunder his name in his official character, across the face of the coupons, and transmit them, together with a certificate of the court that they have been proven in the case, to the auditor of public accounts, who shall deliver the coupons to the second auditor, receiving therefor the check of the second auditor upon the treasurer, which check he shall pay into the treasury to the credit of the proper tax account."

If a suit may be rightfully brought at all by the state to recover a judgment for taxes in such a case, certainly there is nothing in these provisions that violates any legal or contract right of the party sued. If he defends the action on the ground of a lawful tender of payment, he must, of course, plead the tender, and may rightfully be required to bring into court the tender alleged to have been made. Under the issue upon this plea, the burden is upon the defendant of proving the truth of its allegations. What shall be the amount and kind of proof necessary to establish the defense involves questions of law which can only be raised and decided in the course of the trial. Their determination is for the court where the trial is to be had. If, in pursuance of other acts of the general assembly, the contract rights of the defend--ant, as a tax-payer having tendered tax-receivable coupons, are denied to him. in that trial, by reason of requirements in regard to the nature and quantity of proof as to the genuineness of the coupons, the errors of law thus committed can only be remedied, according to the common course of judicial proceedings, by a writ of error, which, as it would present a federal question,.. might ultimately be sued out in this court. But it is not to be assumed in advance, either, that such questions will arise, or that, if they arise, they will be erroneously decided. The question, therefore, is narrowed to the single inquiry of the equitable right of the complainants to enjoin the petitioners: against bringing any such suits at all.

It seems to be supposed in argument that the right of tax-payers in Virginia, who have tendered tax-receivable coupons in payment of their taxes to the proper collecting officer, to be forever thereafter free from suit by the state to recover judgment for such taxes, rests upon the proposition that such a tender is in law a payment of the taxes, so as to extinguish all claim for them on the part of the state. This proposition, indeed, is said to be justified by the authority of certain language in the opinion of this court in the case of Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. Rep. 903. In that case the effect of a tender in payment of taxes upon the subsequent act of the collector in seizing the personal property of the tax-payer was considered and decided, but there is nothing in the opinion which countenances the idea that such a tender was a payment of the taxes, so as to extinguish all subsequent claim of the state therefor. Its effect was precisely defined in the following statement, (page 299:) "His tender, as we have already seen, was equivv.8s.c.-12

alent to payment, so far as concerns the legality of all subsequent steps by the collector to enforce payment by distraint of his property.” There is nothing in the opinion to indicate that the party making the tender was relieved from the operation of the rule of law, making it necessary to keep the tender good, or that a subsequent action at law for the recovery of the taxes would be unlawful, reserving, of course, in such a case, the admitted right of the defendant to plead the fact of his tender, and bring it into court, in pursuance of the usual practice in such cases, as a defense.

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 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 tax-payers. Much more difficult is it to conceive that it constitutes a grievance of which the complainants in the principal suit have any legal right to complain. No suits against the complainants themselves are apprehended, and their pecuniary interest in the actions threatened against tax-payers who have made tenders of tax-receivable coupons purchased from them, with their guaranty against loss in consequence thereof, is collateral and remote. The bringing of such actions is no breach of any contract subsisting between the complainants and the state of Virginia. All rights under the contract contained in the coupons they parted with when they transferred them to tax-payers. If the complainants have agreed in that transfer that they shall be received by the state in payment of taxes, that is a contract between the complainants and the taxpayer, their assignee, to which the state is not a party. It is one the complainants have voluntarily entered into, and for which the state cannot be held responsible.

In that aspect the case does not differ in principle from Marye v. Parsons, 114 U.S. 325, 5 Sup. Ct. Rep. 932. The consequential losses in the diminution of the market value of the coupons which they still hold, and the liability of the complainants to make good their warranty to tax-payers to whom they have transferred the others, are not direct and legal consequences of any breach of the contract made with the state of Virginia by which the coupons are made receivable in payment of taxes. As such damage could not be recovered in a direct action upon the contract, if the state were suable at law, so neither can it be made the foundation of any preventive relief by injunction.

These considerations, however, are adverted to in this connection, not so much for the purpose of showing that the substance of the bill presents a case the subject-matter of which is not within the jurisdiction of the court, as to show that it does not allege any grounds of equitable relief against the individual defendants for any personal wrong committed or threatened by them. It does not charge against them in their individual character anything done or threatened which constitutes, in contemplation of law, a violation of personal or property rights, or a breach of contract to which they are parties. 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, 3 Sup. Ct. Rep. vi.) If a decree could have been rendered enjoining the state froin bringing suits against its tax-payers, 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?

It is, however, insisted upon in argument that it is within the jurisdiction of the circuit court of the United States to restrain by injunction officers of the states from executing the provisions of state statutes void by reason of repugnancy to the constitution of the United States; that there are many precedents in which that jurisdiction has been exercised under the sanction of this court; and that the present case is covered by their authority.

The principal authority relied upon to maintain this proposition is the judgment of this court in the case of Osborn v. Bank, 9 Wheat. 738. As strengthening the argument based upon that decision, our attention is called by counsel to a feature of the case which it is said does not clearly appear from the official report by Mr. Wheaton. The original record of the case shows that the bill, after setting out the substance of the act of the legislature of Ohio complained of, alleged that Osborn, the auditor of the state, and the officer upon whom the execution of the statute of the state was enjoined, "daily gives it out in speeches that he will execute and enforce the provisions of the said act of Ohio against your orators." And it is part of the prayer of the bill "to stay and enjoin said Ralph Osborn, auditor as aforesaid, and all others which it may concern in anywise, from proceeding against your orators under and in virtue of the act of Ohio aforesaid, or any section, part, or provision thereof." It also appears that it was part of the decree of the circuit court, from which the appeal was prosecuted, "that the defendants, and each of them, be perpetually enjoined from proceeding to collect any tax, which has accrued or may hereafter accrue, from the complainants under the act of the general assembly of Ohio in the bill and proceedings mentioned." But the act of the legislature of Ohio, declared to be unconstitutional and void in that case, had for its sole purpose the levy and collection of an annual tax of $50,000 upon each office of discount and deposit of the bank of the United States within that state, to be collected, in case of refusal to pay, by the auditor of state by a levy upon the money, bank-notes, or other goods and chattels, the property of the bank; to seize which it was made lawful, under the warrant of the auditor, for the person to whom it was directed to enter the bank for the purpose of finding and seizing property to satisfy the same. The wrong complained of and sought to be prevented by the injunction prayed for was this threatened seizure of the property of the bank. An actual seizure thereof, in violation of the injunction, was treated as a contempt of the court, for which the parties were attached, and the final decree of the circuit court restored the property taken to the possession of the complainant. In disposing of the case in this court, the opinion of Chief Justice MARSHALL, 9 Wheat. 871, concludes as follows: "We think then that there is no error in the decree of the circuit court for the District of Ohio, so far as it directs restitution of the specific sum of $98,000, which was taken out of the bank unlawfully, and was in the possession of the defendant Samuel Sullivan when the injunction was awarded in September, 1820, to restrain him from paying it away, or in any manner using it, and so far as it