1. A suit against a state officer in a federal court, alleging
that a state statute is unconstitutional, that the defendant
threatens to enforce it by suing colori officii
drastic penalties prescribed by the statute for its violation, and
so will subject the plaintiff to irreparable injury unless
enjoined, is a suit against the defendant as an individual, Ex
parte Young, 209 U. S. 123
289 U. S.
2. Such a suit abates upon the defendant's retirement from
office, unless it can be revived against his successor under
authority of a statute. P. 289
3. Arizona laws do not provide for substitution of the
successor. Irwin v. Wright, 258 U.
. P. 289 U.S.
4. Section 780(b), U.S.C. Title 28, providing for substitution
of state officials in suits by or against them in the federal
courts "relating to the present or future discharge of official
duties," does not authorize the imposition of liability or
restraint upon the successor on account of anything done or
threatened by the predecessor individually. P. 289 U. S.
5. In construing § 78, supra,
which relates to
substitution of both federal and state officers, it is to be borne
in mind that, while Congress can direct the conduct of federal
officers in proceedings brought by or against them as such, and may
ordain that they may sue or be sued as representatives of the
United States and stand in judgment on its behalf, it is not so
empowered as to state officers. P. 289 U. S.
6. Wrongs committed or threatened by an officer under an
unconstitutional statute do not constitute ground for an injunction
against his successor; nor does a declaration of the statute that
he shall bring penalty suits to enforce it, since he might hold it
unconstitutional and deem himself justified by his official oath in
refraining. P. 289 U. S.
7. In the absence of statutory authority, the District Court had
no jurisdiction to substitute the successor as defendant in this
case or to direct that the suit be continued against him. P.
289 U. S. 459
8. The question is reserved whether or in what circumstances a
successor in office who adopts the attitude of his predecessor and
is proceeding or threatening to enforce an unconstitutional statute
may be substituted in a pending suit. P. 289 U. S. 459
Mandamus to issue.
Motion for leave to file a petition for a writ of mandamus
requiring a circuit and two district judges to dismiss, as to the
relator, two suits in which he was made party defendant by orders
of substitution. The argument was on the motion for leave to file
and the judges' return to an order to show cause.
See 2 F. Supp.
Page 289 U. S. 451
MR. JUSTICE BUTLER delivered the opinion of the Court.
Arthur T. La Prade, Attorney General of Arizona, applied for
leave to file a tendered petition for writ of mandamus requiring
Circuit Judge Wilbur and two district judges constituting a United
States District Court in that state to dismiss as to petitioner two
suits in equity to which the court, against his opposition, had
made him a
Page 289 U. S. 452
party defendant in substitution for his predecessor in office.
We directed the judges to show cause why the leave prayed should
not be granted, assigned the case for argument, directed briefs to
be filed on or before the day set, stayed proceedings against
petitioner, and directed the District Court to continue its term
pending the final determination of petitioner's application. The
judges made their return to the rule. On the appointed day, there
being no material controversy as to controlling facts, we heard
oral arguments upon the merits.
The Act of the Arizona Legislature approved by the Governor, May
16, 1912, and on referendum by a majority of the voters of the
state November 5, 1912, being § 647, Revised Code 1928, declares
that it shall be unlawful for any company operating a railroad in
that state to run over its line any train consisting of more than
70 freight or other cars exclusive of caboose, or any passenger
train of more than 14 cars, and provides that any company that
shall willfully violate any of the provisions of the Act shall be
liable to the state for a penalty of not less than $100 nor more
than $1,000 for each offense, and that such penalty shall be
recovered, and suits therefor brought, by the Attorney General in
the name of the state.
July 24, 1929, the Atchison, Topeka & Santa Fe Railway
Company and the Southern Pacific Company, respectively, brought
suits in the federal court above referred to against K. Berry
Peterson, then Attorney General of the state. By its complaint,
each of the plaintiffs shows that it operates a line of railroad
and trains for interstate transportation in and through Arizona,
sets forth facts on which it claims that enforcement of the statute
against it would violate the commerce clause, the due process
clause of the Fourteenth Amendment, various provisions of the
Interstate Commerce Act, and other laws of the United States
regulating interstate transportation by railroad; alleges that, if
plaintiff shall operate consisting
Page 289 U. S. 453
of more than the specified number of cars, the defendant, unless
enjoined, will institute numerous prosecutions for recovery of the
prescribed penalties, asserts that the damage and injury which it
daily sustains by reason of the statute is great and irreparable,
and prays that defendant be temporarily and permanently
In each case, defendant answered and moved to dismiss the bill
on the ground that the suit was one against the state prohibited by
the Eleventh Amendment. The court consolidated the cases, refused
temporary injunctions, and denied defendant's motions to dismiss.
43 F.2d 198. It then appointed a master who heard and reported the
evidence, together with his findings of fact, conclusions of law,
and recommendations for decrees in favor of plaintiffs. Defendant
filed exceptions to, and moved to suppress, the report. The parties
filed their briefs, and the court, in accordance with their
stipulation, set down the causes for hearing at San Francisco on
February 8, 1933. In the meantime, January 3, 1933, defendant's
term of office expired, and the petitioner, La Prade, then became
the Attorney General of the state. January 30, the plaintiffs
delivered to petitioner a copy of an application to the court for
an order substituting him as party defendant and gave notice that
the application would be presented to the court at the time and
place so fixed.
The applications for substitution were made under 28 U.S.C. §
that, where a suit brought
Page 289 U. S. 454
by or against a state officer is pending in a federal court at
the time of his separation from his office, the court may permit
the cause to be continued and maintained by or against such
officer's successor if, within six months, it be satisfactorily
shown that there is a substantial need for so continuing and
maintaining the cause and obtaining an adjudication of the
questions involved. The section requires that the officer, unless
expressly consenting thereto, be given reasonable notice of the
application and an opportunity to present any objection which he
may have. As grounds for the substitution, plaintiffs' application
merely stated that each suit relates to the future discharge of the
official duties of the Attorney General of Arizona and, following
the language of the statute, that there is a substantial need for
continuing and maintaining it and obtaining adjudication of the
Plaintiffs, at the appointed time and place, applied to the
court for the order of substitution. The petitioner appeared
specially and objected. He insisted that, each of the suits being
against his predecessor individually, the questions involved became
moot upon the expiration of the latter's term of office; that,
there being no pleading
Page 289 U. S. 455
charging him with having threatened to enforce the state
enactment, there was no cause of action against him, that he could
not be held for the costs theretofore incurred, and that the suits
should be dismissed. After hearing the parties, the court, by an
order merely containing a recital in the general words of the
statute as to the need for continuing the suits, made the
petitioner defendant in each case.
Promptly, upon somewhat amplified grounds, he filed a motion
that the cases be dismissed. The court denied the motion.
Petitioner and his counsel declined to participate in further
proceedings in the case. The court heard plaintiffs orally and
March 8, 1933, filed its opinion, findings of fact and conclusions
of law, and entered decrees adjudging the statute unconstitutional
and enjoining petitioner. It declared that no costs up to and
including the entry of the final decree should be assessed against
petitioner or his predecessor. The opinion, 2 F.
, construes the statute to impose the duty of
enforcement upon each succeeding Attorney General and declares
that, as long as there is an Attorney General in the state, the
threat of prosecution is always present, and the resulting injury,
if any, always impends.
The injunctions sought are not aimed at the state or the office
of Attorney General or to restrain exertion of any authority that
belongs to either. Each complaint charges that, because of a void
enactment and the purpose of defendant under color of his office to
enforce it by means of suits which it purports to authorize,
plaintiff is prevented from operating trains that are of suitable
size and necessary for the proper conduct of the transportation
business, and so continuously suffers great and irreparable injury.
The suits were brought against defendant not as a representative of
the state, but to restrain him individually from, as it is alleged,
wrongfully subjecting plaintiff to such unauthorized prosecutions.
In Ex parte
Page 289 U. S. 456
Young, 209 U. S. 123
Court said (p. 209 U. S.
"The Act to be enforced is alleged to be unconstitutional, and
if it be so, the use of the name of the state to enforce an
unconstitutional act to the injury of complainants is a proceeding
without the authority of, and one which does not affect, the state
in its sovereign or governmental capacity. It is simply an illegal
act upon the part of a state official in attempting, by the use of
the name of the state, to enforce a legislative enactment which is
void because unconstitutional. If the act which the state Attorney
General seeks to enforce be a violation of the Federal
Constitution, the officer, in proceeding under such enactment,
comes into conflict with the superior authority of that
Constitution, and he is in that case stripped of his official or
representative character, and is subjected in his person to the
consequences of his individual conduct."
The principle there stated has since been applied in numerous
decisions here. See e.g., Hopkins v. Clemson College,
221 U. S. 636
221 U. S. 642
et seq.; Truax v. Raich, 239 U. S. 33
239 U. S. 37
Terrace v. Thompson, 263 U. S. 197
263 U. S. 214
Sterling v. Constantin, 287 U. S. 378
287 U. S.
The laws of Arizona do not authorize substitution of petitioner
for his predecessor. See Irwin v. Wright, 258 U.
, 258 U. S. 222
The suits abated when defendant Peterson ceased to be attorney
general. And, unless empowered by § 780, the District Court is
without jurisdiction to direct that petitioner be substituted and
that the suits be continued and maintained against him. United
States ex rel. Bernardin v. Butterworth, 169 U.
, 169 U. S. 605
Shaffer v. Howard, 249 U. S. 200
249 U. S. 201
Gorham Mfg. Co. v. Wendell, 261 U. S.
Subdivision (a) of § 780 applies only to proceedings brought by
or against officers of the United States or those holding office
directly or mediately under the authority of Congress. It is
derived from the Act of February 13, 1925, c. 229, § 11(a), 43
Stat. 941. It enlarges the Act
Page 289 U. S. 457
of February 8, 1899, c. 121, 30 Stat. 822, which was passed
after our decision in United States ex rel. Bernardin v.
It was there held that a suit to compel
the Commissioner of Patents to issue a patent abated by the death
of the Commissioner, and could not be revived so as to bring in his
successor even upon consent of the latter. At the conclusion of its
opinion, the Court said (p. 169 U. S.
"In view of the inconvenience, of which the present case is a
striking instance, occasioned by this state of the law, it would
seem desirable that congress should provide for the difficulty by
enacting that, in the case of suits against the heads of
departments abating by death or resignation, it should be lawful
for the successor in office to be brought into the case by
petition, or some other appropriate method."
Subdivision (b) applies only to proceedings brought by or
against those holding office under state authority. As to such, it
authorizes "similar proceedings" to those specified in subdivision
(a). It was passed after our decision in Irwin v. Wright,
The opinion shows (p. 258 U. S. 222
that a suit to enjoin a public officer from enforcing a statute is
personal, and, in the absence of statutory provision for continuing
it against his successor, abates upon his death or retirement from
office. The Court held that the Act of February 8, 1899, did not
authorize the substitution of a county treasurer for his
predecessor in a suit against the latter to enjoin collection of
taxes. We suggested that it would promote justice if Congress were
to enlarge the scope of that Act so as to authorize substitution in
suits by or against state officers, and said:
"Under the present state of the law, an important litigation may
be begun and carried through to this Court after much effort and
expense, only to end in dismissal because, in the necessary time
consumed in reaching here, state officials, parties to the action,
have retired from office. It is a defect which only legislation can
Page 289 U. S. 458
Subdivision (c) extends to all cases covered by (a) and (b). It
merely requires that, before substitution, a nonconsenting officer
shall be given notice and opportunity to object. It does not
prescribe the showing of facts necessary to warrant an order that
the proceeding be continued by or against the successor. When
construing the section, it is to be borne in mind that Congress has
authority to direct the conduct of federal officers in proceedings
brought by or against them as such, and may ordain that they may
sue or be sued as representatives of the United States and stand in
judgment on its behalf (ICC v. Oregon-Washington R. & Nav.
Co., 288 U. S. 14
288 U. S. 27
but that Congress is not so empowered as to state officers. The
section is merely permissive; it does not require, but merely
authorizes, the court to order substitution in the cases covered.
It extends only to suits "relating to the present or future
discharge of . . . official duties." At least as to state officers,
it does not purport to authorize the imposition of liability or
restraint upon the successor on account of anything done or
threatened by the predecessor individually.
As shown above, the purpose of the suits was to prevent a wrong
about to be committed by defendant acting outside, and in abuse of
the powers of, his office. The wrongs threatened or committed by
him constitute no ground for injunction against petitioner.
Plaintiffs did not allege that petitioner threatened or intended to
do anything for the enforcement of the statute. The mere
declaration of the statute that suits for recovery of penalties
shall be brought by the Attorney General is not sufficient.
Petitioner might hold, as plaintiffs maintain, that the statute is
unconstitutional and that, having regard to his official oath, he
rightly may refrain from effort to enforce it. United States
Constitution, Art. VI, cl. 3; Arizona Revised Code 1928, § 63. The
statement of Chief Justice Taft, writing for the Court in
Gorham Mfg. Co. v. Wendell,
Page 289 U. S. 459
is pertinent. He said (p. 261 U. S. 4
"The inherent difficulty in all these cases is not in the
liability and suability of the successor in a new suit. It is in
the shifting from the personal liability of the first officer for
threatened wrong or abuse of his office to the personal liability
of his successor when there is no privity between them, as there is
not if the officer sued is injuring or is threatening to injure the
complainant without lawful official authority. There is no legal
relation between the wrong committed or about to be committed by
the one and that by the other."
It follows from what has been said that § 780 has no application
to the case as presented, and that the District Court had no
jurisdiction to substitute petitioner as a party defendant in place
of his predecessor or to direct that the suits be continued and
maintained against him. We have no occasion to decide whether or in
what circumstances a successor in office who adopts the attitude of
his predecessor and is proceeding or threatening to proceed to
enforce the statute may be substituted in a pending suit. That
question is not here, and is reserved.
Petitioner's application for leave to file is granted, the case
will be docketed and respondents' return filed, and a writ of
mandamus will issue commanding the respondents to vacate the
decrees against petitioner and to dismiss the suits as to him.
It is so ordered.
"(a) Where, during the pendency of an action, suit, or other
proceeding brought by or against an officer of the United States,
or of the District of Columbia, or the Canal Zone, or of a
Territory or an insular possession of the United States or of a
county, city, or other governmental agency of such Territory or
insular possession, and relating to the present or future discharge
of his official duties, such officer dies, resigns, or otherwise
ceases to hold such office, it shall be competent for the court
wherein the action, suit, or proceeding is pending, whether the
court be one of first instance or an appellate tribunal, to permit
the cause to be continued and maintained by or against the
successor in office of such officer if, within six months after his
death or separation from the office, it be satisfactorily shown to
the court that there is a substantial need for so continuing and
maintaining the cause and obtaining an adjudication of the
"(b) Similar proceedings may be had and taken where an action,
suit, or proceeding brought by or against an officer of a state, or
of a county, city, or other governmental agency of a state is
pending in a court of the United States at the time of the
officer's death or separation from the office."
"(c) Before a substitution under this section is made, the party
or officer to be affected, unless expressly consenting thereto,
must be given reasonable notice of the application therefor and
accorded an opportunity to present any objection which he may