Furthermore, in Fitts v. McGhee,61 a case in which was dissolved an injunction obtained by a railroad company preventing the attorney-general of a State from executing an act which the plaintiff alleged to be unconstitutional, the court does not refer to the distinction made in the Reagan case and accepted in the Smyth case, but, instead, advances a new test for distinguishing between those suits against state officials which are to be held suits against the State, and those which are not.

After reviewing the case of In re Ayers and holding that it covered the case at bar, the court say: "It is to be observed that neither the attorney-general of Alabama nor the solicitor of the eleventh judicial circuit of the State appear to have been charged by law with any special duty in connection with the act of February 9, 1885." After citing the cases relied upon by the petitioner,62 the court continue: "Upon examination it will be found that the defendants in each of those cases were officers of the State, specially charged with the execution of a state enactment alleged to be unconstitutional, but under the authority of which, it was averred, they were committing, or were about to commit, some specific wrong or trespass to the injury of the plaintiff's rights. There is a wide difference between a suit against individuals, holding official positions under a State to prevent them, under the sanction of an unconstitutional statute, from committing by some positive act a wrong or trespass, and a suit against officers of a State merely to test the constitutionality of a state statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the State. In the present case, as we have said, neither of the state officers named held any special relation to the particular statute alleged to be unconstitutional. They were not expressly directed to see to its enforcement. If, because they were law officers of the State, a case could be made for the purpose of testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the governor and the attorney-general, based upon the theory that the former, as the executive of the State, was, in a general sense, charged with the execution of all its laws, and the latter, as attorney-general, might represent the State in litigation involving the enforcement of its statutes That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the States of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons."

59 180 U. S. 208; 21 Sup. Ct. Rep. 331; 45 L. ed. 497.

60 206 U. S. 46; 27 Sup. Ct. Rep. 655; 51 L. ed. 956.

61 172 U. S. 516; 19 Sup. Ct. Rep. 269; 43 L. ed. 6

62 Poindexter v. Greenhow, 114 U. S. 270; 5 Sup. Ct. Rep. 903; 29 L. ed. 185; Allen v. Railroad, 114 U. S. 311; 5 Sup. Ct, Rep. 925; 29 L. ed. 200; Pennoyer v. McConnaughy, 140 U. S. 1; 11 Sup. Ct. Rep. 699; 35 L. ed. 363; In re Tyler, 149 U. S. 164; 13 Sup. Ct. Rep. 785: 37 L. ed. 689; Reagran v. Trust Co., 154 U. S. 362; 14 Sup. Ct. Rep. 1047; 38 L. ed. 1014; Scott v. Donald, 165 U. S. 58; 17 Sup. Ct. Rep. 265; 41 L. ed. 632; Smyth v. Ames, 169 U. S. 466; 18 Sup. Ct. Rep. 418; 42 L. ed. 819.