(after stating the facts as above). I am strongly of opinion, as contended by the Attorney General, that upon the facts stated in the bill the suit, while nol nominally such, is within the principles announced in Fitts v. McGhee, 172 U. S. 516, 529, 19 Sup. Ct. 269, 43 L. Ed. 535, Morenci Copper Co. v. Freer (C. C.) 127 Fed. 199, 203, and Union Trust Co. v. Stearns (C. C.) 119 Fed. 791, to be regarded as, in its legal effect, one against the state, and so not within the judicial power conferred upon the courts of the United States by the Constitution. Const. art. 11, § 1.
It is not necessary, however, to pass definitely upon that question, since I am fully satisfied that the facts alleged do not make a case for the equitable intervention of this court. While the bill proceeds against the defendant, both in his official capacity as Secretary of State and as an individual, nothing is alleged against him in the latter capacity; nor, having in view the terms of the act, can it readily be perceived what of an actionable character could be so alleged that would not as well apply to any other private citizen. All that is alleged is the taking by defendant of the various steps required of him in his official capacity looking to the carrying out oí the provisions of the statute, all of which are preliminary to its enforcement, and the fact that lie “claims and contends” that the complainant is liable to the tax, that he “will attempt to declare that orator has forfeited its rights” under the act, and “threatens and gives out that he will enforce said law' and the imposition of said license fee, tax, and penalty against orator to the uttermost, unless he is restrained and enjoined by some court of competent jurisdiction from so doing.”
As to the steps required by the statute to be taken by defendant, it is obvious that as to those already performed equity can afford no relief, since it is not the province of a court of equity to restrain acts *982already accomplished. The single act required at defendant’s hands which yet remained unperformed at the filing of the amended bill was that of certifying the list of delinquent corporations to the county clerks of the. state; and that it is asked that he be restrained from doing. But, in the first place, that step is required to be taken on or before the 31st day of December of each year, and presumptively, there being no restraining order, that act was taken long before the hearing of this application, so' that it is now beyond restraint. In the next place, however, it is clear from the terms of the act that that step was not necessary as a jurisdictional prerequisite to proceedings to enforce the act, nor essential to fix the complainant’s liability thereunder; and therefore its performance could work no injury that had not been already inflicted. The bill also prays that defendant be enjoined from “demanding 6f orator said two hundred and fifty dollars ás a license tax, or any part thereof, and from demanding the penalty of ten dollars for the nonpayment thereof.” But no duty is cast upon defendant to make such demand. In fact, under the terms of the statute, no express demand is required to be made by any one. The act itself makes the demand and fixes the date of delinquency for. nonpayment — a date which had elapsed prior to the filing of the bill. Such a demand, therefore, by the defendant, would not only be a wholly unwarranted and unnecessary thing, but could work no possible wrong- to complainant.
We have, then, nothing left but defendant’s alleged threats to have the statute “enforced” as against complainant. These threats, regarded in the light of the provisions of the statute, are idle and meaningless things, and can work no possible legal injury to complainant. It is quite true that, where an officer is charged with some specific duty looking to the enforcement of a statute alleged to be unconstitutional, the performance of such duty, if not already accomplished, and if one of a nature to injure the complainant, may be enjoined pending- the determination of the question of the validity of the statute; but that is not this case. Here the defendant is not charged with any further duty in the premises. He has no more power under the act than any other ministerial officer of the state to see that its provisions are enforced against complainant. It is very evident, indeed, from the terms of the act, that its eventual enforcement was intended by the Legislature to be left to the law officers of the staté usually and generally charged with such functions and to be accomplished through the in* strumentality of ordinary and proper judicial proceedings in its courts. In this respect, therefore, the case is clearly within the principles of Fitts v. McGhee, above referred to, where, speaking of the class of cases relied upon here by complainant, it is said:
“Upon examination, it will be found that the defendants in each of those cases were officers of the state, especially 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 about to commit some specific wrong or trespass to the injury of plaintiff's rights. There is a wide difference between a suit against individuals holding official positions under a state to prevent them, under 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 *983ihe enforcement of which those officers will act only by formal .judicial pro-feedings in the courts of the state. Tn 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 statuie hy 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 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 the Attorney General, might represent the state in litigation involving the enforcement of its statutes. That would he a very convenient way for obtaining a speedy judicial determination of questions of constilntional law which may be raised by individuals, hut it is a inode 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.”
Here the statute in question is not even alleged to be positively tip-constitutional, but only that it will be “if so construed” as to make complainant liable for the tax imposed thereby under the facts alleged. No presumption can be indulged that it will be so construed by the state tribunals, if such construction would render it obnoxious to the Constitution or laws of the United States. The obligation to sustain and uphold that Constitution and the laws enacted thereunder rests as solemnly and is as obligatory upon the courts of the state as upon those of the United States, and the presumption must always he that this obligation will be observed. There is, therefore, absolutely nothing of substance in the bill tending to show that complainant is threatened with any wrong at the hands of the defendant Curry calling for the interposition of a court of equity. Should the state attempt to enforce the act against it, it will necessarily be by civil action to collect the tax, or by a prosecution under the penal clause, and such proceedings can only be bad under the forms of law and by some appropriate judicial process; and, when that is attempted, there will be no difficulty to complainant in invoking and securing the protection of the Constitution and laws of the United States. Thus far it does not appear to be in need of that protection.
The demurrer will be sustained, the application for an injunction denied, and the bill dismissed.