Messrs. Rush Taggart, George B. Rose, and Henry D. Estabrook for appellant.
Messrs. Hal. L. Norwood, William F. Kirby, Joseph M. Hill, and Otis T. Wingo for appellees.
Mr. Justice Day delivered the opinion of the court:
This case grows out of alleged actions about to be taken to enforce against the Western Union Telegraph Company the penalties denounced in the act of May 13, 1907, of the legislature of Arkansas, entitled, 'An Act to Permit Foreign Corporations to Do Business in Arkansas, and Fix Fees to Be Paid by All Corporations.'
As this act has just been the subject of consideration in Ludwig v. Western U. Teleg. [216 U.S. 165, 166] Co. decided to-day [ 216 U.S. 146 , 54 L. ed.-, 30 Sup. Ct. Rep. 280], it is unnecessary to set out at large the provisions of the statute in question.
The bill in this case was brought against the prosecuting attorneys of the seventeenth judicial circuits of the state of Arkansas to enjoin them from instituting actions against the Western Union Telegraph Company to recover the penalties of $1,000 for each alleged violation of the act. It was averred in the bill that the defendant prosecuting attorneys would, unless restrained by the order of the court, institute numerous actions, as they had threatened to do, for the recovery of the penalties aforesaid. The learned district judge sustained the demurrer to the bill, and dismissed the case upon the ground that the action is, in effect, a suit against the state of Arkansas, and for that reason prohibited by the 11th Amendment to the Federal Constitution. The sole question presented upon this record is as to the correctness of that ruling.
Since the decision in the circuit court, this court has decided the case of Ex parte Young, 209 U.S. 123 , 52 L. ed. 714, 13 L.R.A.(N.S.) 932, 28 Sup. Ct. Rep. 441. In that case the previous cases in this court concerning the application of the 11th Amendment of the Constitution were fully considered, and it was then said by Mr. Justice Peckham, speaking for the court:
This doctrine is precisely applicable to the case at bar. The statute specifically charges the prosecuting attorneys with the duty of bringing actions to recover the penalties. It is averred in the bill, and admitted by the demurrer, that they threatened and were about to commence proceedings for that purpose. [216 U.S. 165, 167] The unconstitutionality of the act is averred, and relief is sought against its enforcement. As this case is ruled, upon the question of jurisdiction, by the case of Ex parte Young, it is unnecessary to consider the question further. Upon the authority of that case the decree of the Circuit Court dismissing the bill for want of jurisdiction is reversed, and the cause remanded for further proceedings.