Opinion of the Court.

we think they must be held to be in the clause in question, bearing in mind that the object of the act was to give the surface for cultivation to the commoners and to leave in the lord what it did not take away for that purpose." This case was followed in Micklethwait v. Winter, 6 Exch. 644, in which the same act of Parliament was held to include stone dug from quarries. In Midland Ry. v. Checkley, L. R. 4 Eq. 19, stone for road making or paving was held to be a mineral, the Master of the Rolls observing: "Stone is, in my opinion, clearly a mineral; and in fact everything except the mere surface, which is used for agricultural purposes; anything beyond that which is useful for any purpose whatever, whether it is gravel, marble, fire clay, or the like, comes within the word 'mineral' when there is a reservation of the mines and minerals from a grant of land." In Midland Ry. Co. v. Haunchwood, L. R. 20 Chan. Div. 552, brick clay was held to be a mineral; and in Hext v. Gill, L. R. 7 Chan. App. 699, the House of Lords held that china clay, and

every substance which can be got from underneath the surface of the earth for the purpose of profit," was a mineral, "unless there is something in the context or in the nature of the transaction to induce the court to give it a more limited meaning." The same rule was applied in several analogous cases of granite, sandstone, flintstone and in other similar circumstances. Attorney General v. Welsh Granite Co., 35 W. R. 617 (granite); Bell v. Wilson, 2 Drew. & S. 395 (sandstone); Tucker v. Linger, L. R. 8 App. Cas. 508 (flintstone), and a dozen other cases to the same effect.

We do not deem it necessary to attempt an exact definition of the words "mineral lands" as used in the act of July 2, 1864. With our present light upon the subject it might be difficult to do so. It is sufficient to say that we see nothing in that act, or in the legislation of Congress up to the time this road was definitely located, which can be construed as putting a different definition upon these words from that generally accepted by the text writers upon the subject. Indeed, we are of opinion that this legislation consists with, rather than opposes, the overwhelming weight of authority to the effect that mineral lands include not merely metalliferous lands, but all such as are chiefly

Statement of the Case.

valuable for their deposits of a mineral character, which are useful in the arts or valuable for purposes of manufacture. The decree of the Court of Appeals is therefore

Affirmed.

MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissented.

PROUT v. STARR.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.

No. 150. Argued January 26, 27, 1903.-Decided February 23, 1903.

It is competent and proper for all the parties to an action to agree to dispense with taking evidence, to accept the evidence taken in other cases in which the allegations of fact and the contentions of law are the same, and to abide by decrees to be entered therein. And, where the decrees entered in such other cases have been affirmed by this court, the Circuit Court in which the cases are pending should enter a similar decree in the case in which the agreement is made.

Such agreement when made by the attorney general of the State as a party to any action is binding upon his successors in office who have been properly substituted as parties to the action in his place.

The Constitution of the United States, with the several amendments thereof, must be regarded as one instrument, all of whose provisions are to be deemed of equal validity. And in an action properly instituted against a state official the Eleventh Amendment is not a barrier to a judicial inquiry as to whether the provisions of the Fourteenth Amendment have been disregarded by state enactments.

The contentions of law in this case were considered and determined by this court in Smyth v. Ames, 169 U. S. 466, which is now followed.

ON August 3, 1893, James C. Starr and Samuel W. Allerton, citizens of the State of Illinois, on their own behalf and on behalf of others similarly situated, filed a bill of complaint in the Circuit Court of the United States for the District of Nebraska, against the Chicago, Rock Island and Pacific Railway Company; George H. Hastings, Attorney General; John C. Allen,

Statement of the Case.

Secretary of State; Eugene Moore, Auditor of Public Accounts; Joseph F. Bartley, State Treasurer, and A. R. Humphrey, Commissioner of Public Lands, all of whom were officers of the State of Nebraska, and as such constituted its board of transportation, and William A. Dilworth, J. M. Rountz and J. W. Johnson, secretaries of said board, and all citizens of Nebraska.

The bill brought into question, under the Constitution and laws of the United States, the validity of a certain act of the legislature of Nebraska, approved April 12, 1893, entitled "An act to regulate railroads, to classify freights, to fix reasonable maximum rates to be charged for the transportation of freights upon each of the railroads in the State of Nebraska and to provide penalties for the violation of this act." It was alleged that if the provisions of the act were put into effect, the earnings of the said railroad company from its business in the State would be materially lessened and would not pay the operating expenses thereof, nor yield any money from which the railroad property could be maintained, and would in effect work a confiscation thereof; that if the penalties imposed in the said act were enforced the entire property of the company would be taken away; that the plaintiff's were stockholders of the company, and had requested the officers and directors thereof to take proceedings to contest the validity of said act, but they had refused to do so. The principal prayers of the bill were that the company, its officers, agents and employés, should be restrained by injunction from adopting a schedule of rates to be charged for the transportation of freight on its road, according to the terms and provisions of the said act; and that the said board of transportation, and its members and secretaries, should be enjoined from entertaining or determining any complaint, and from instituting or prosecuting any proceeding or action to enforce the observance of the provisions of said act; and that the attorney general should in like manner be enjoined from bringing any proceedings by way of injunction or by other process or civil action or indictment against said company for or on account of the non-observance by it of the provisions of said act.

Thereupon a restraining order of the Circuit Court was is

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sued, enjoining the railroad company, the board of transportation and its members and the said attorney general, as prayed for in the bill; said order was to remain in force until a formal motion for injunction or to set aside the order be made, heard and decided; and a bond was to be given in the sum of $10,000. This order was duly served upon each and every of the said defendants, together with process of subpoena.

Afterwards, on the 2d day of September, 1893, a joint and several answer was filed by the said board of transportation, its members and secretaries. Therein it was averred that the said defendants were all agents and officers of the State of Nebraska, and had no personal or pecuniary interest whatever in the event of the suit, and were not proper parties thereto, but that said bill of complaint should have been brought against the State of Nebraska; that the said State was the real party in interest, and that the State had not and did not in any way whatever consent to the bringing of the action, and had not and did not submit in any way to the jurisdiction of the said Circuit Court to hear and determine the matters complained of in said bill; and the defendants submitted that, under the Eleventh Amendment of the Constitution of the United States, the courts of the United States were wholly without jurisdiction to try, hear and determine the several matters in difference charged and set forth in the bill of complaint; and that, under the Constitution of the United States and the constitution and laws of the State of Nebraska, the complainants had a full and adequate remedy at law. The defendants further denied that the state legislation in question violated the provisions of the Constitution of the United States which forbid any State to deprive any person of his property without due process of law, or to deny any person within its jurisdiction the equal protection of the laws, or to pass a law impairing the obligation of a contract, or which interferes with commerce between the States.

On October 3, 1893, the complainants filed their replication to the answer.

At and about the same time, and in the same court, certain stockholders of the Chicago, Burlington and Quincy Railroad

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Company, of the Chicago and Northwestern Railway Company, and of the Union Pacific Railway Company, filed three other bills of complaint, in which the said railroad companies and the said persons comprising the board of transportation were defendants, and in which bills the same facts and circumstances were alleged and the same relief was prayed for as in the bill in the present case. All of the state officers appeared and answered by the same counsel, and alleged the same defences and contentions as were alleged in their answer in this suit. Those cases were put at issue, and after a large amount of evidence was put in, final decrees were rendered against the defendants, and, on March 7, 1898, the decrees of the Circuit Court were affirmed by this court. Smyth v. Ames, 169 U. S. 466. No testimony was taken by either party in the present case, but it was agreed, while the other cases were pending, that the proofs taken in them should be accepted with the same force and effect as if taken in this case; that the case should not be further particularly proceeded in until the Supreme Court should have rendered its decree in the other cases, when a decree should be entered conformable to those entered by the Supreme Court in the other three cases.

Meanwhile, Hastings, the attorney general when the bills were filed, was succeeded in his office by Smyth, who by proper order was substituted as defendant and appellant. Overlooking or disregarding the existing preliminary injunction of the Circuit Court, and the agreement that this case should abide the result in the other cases, Smyth, as attorney general, brought an action in the Supreme Court of the State of Nebraska against the said Chicago, Rock Island and Pacific Railway Company, alleging that the company, in violation of the act of April 12, 1893, at divers times had charged for the transportation of freight between points on its road in Nebraska rates in excess of those fixed by the act, and claiming judgment for $310,000, the amount of penalties alleged to have accrued. The attention of Attorney General Smyth was then called to the injunction order of the Circuit Court, and he thereupon gave the counsel of the company to understand that before the expiration of his term of office he would dismiss said action. Relying upon the under