'^^ V » ' • »* c^^ ^^ % "'^^\^^^ ""V '^^\^o^ ^\;^^J .^"""^c^^^-^ 4^ %'^'^o'> v^*y v-^'/ v-^ >^ ^ ^ THE DOCTRINE OF NON-SUABILITY OF THE STATE IN THE UNITED STATES THE DOCTRINE OF NON-SUABILITY OF THE STATE IN THE UNITED STATES BY KARL SINGEWALD A DISSERTATION Submitted to the Board of University Studies of Thie Johns Hopkins University in conformity with the requirements for the degree of Doctor of Philosophy 1910 BALTIMORE 1910 -,' Copyright 1910 by THE JOHNS HOPKINS PRESS SEP - ° \Sm Press of The new Era printing Company lancaster. pa. PREFACE. This paper is a study of the questions of public law involved in the doctrine of immunity of the state from suit, and especially of the relation of this doctrine to suits against public officers. It does not include a consideration of the extent to which suits against themselves are allowed by the United States and by the several States, nor of the prin- ciples of law governing cases brought under such per- mission. The determination of the philosophical basis of the responsibility of the state, also, does not fall within the scope of this paper. The study is based mainly on the cases decided by the supreme court of the United States, both because of the greater importance of those cases, and because the supreme court is the only tribunal before which has come any con- siderable number or variety of suits of this class. If the criticism of some of the decisions seems too free, I trust it will be pardoned; for it is not inconsistent with the most profound respect for the court. For convenience, the use of the word state in the generic sense, and the use of the word State as applied to the States of the United States, will be distinguished by capitalizing the latter. Wherever the term supreme court is used with- out other designation, reference is had to the supreme court of the United States. I gladly embrace this opportunity of expressing my grateful obligation to Professor Willoughby, head of the department of political science at the Johns Hopkins Uni- versity. It is to his broad grasp and clear exposition of constitutional law that I owe my great interest in the subject. K, S. June, 1910. TABLE OF CONTENTS. PART I. Suits against the State. CHAP. I. The General Doctrine 9 Its foundation 9 In international law 12 CHAP. II. The Doctrine in the United States. Under THE Federal Constitution 15 CHAP. III. Principles of the Constitution of the United States Governing Suits against States 27 The eleventh amendment and suits between States 27 Consent of State and jurisdiction of federal courts 29 Restriction of consent to State courts 35 Withdrawal of consent and impairment of the obligation of contracts 3^ CHAP. IV. Scope of the Doctrine of Non-suability — Forms OF Action 38 Actions that are suits against the state 38 Actions that are not suits against the state 42 PART II. Suits against Public Officers. CHAP. I. The Principle of Liability in Tort 45 CHAP. II. Injunction against Tort 47 CHAP. III. Recovery of Property in the Possession of Public Officers 54 CHAP. IV. Mandamus and Analogous Remedy in Equity. 67 CHAP. V. Extension of the Principle of Equitable Re- lief against Wrongful Acts i CHAP. VI. Ex Parte Young 9° CHAP. VII. Federal Question — when Involved in Suits AGAINST State Officers 105 CHAP. VIII. The Relation of the State to Suits against its Officers "J TABLE OF CASES. Adams, 111. Cent. R. R. Co. v., 3i> 115 Alabama, Postal Tel. Co. v., 17, 29, 33, 115 Alabama, So. & No. Ala. R. R. Co. v., 31, 36 Alexander, Buchanan v., 38 Alsbrook, R. R. Co. v., no Ames, Smyth v., 30, 91, 94 seq., 115 Antoni v. Greenhow, 36, 76, 78, 79 Arbuckle v. Blackburn, 108 Arkansas, Beers v., 31, 36, 44 Arkansas, Curran v., 31 Arkansas, Pres. & Dir. etc. v., 43 Atl. & N. C. R. R. Co., Christian v., 40, 59 Atl. Coast Line R. R. Co., Gunter v., 34, 41, 49, 89, 94, loi, 102 Atl. Coast Line R. R. Co., Pren- tis v., 103 Avery, Humbird v., 85 Avers, ex parte, 37, 77, 78, 81, 83, 87, 96 seq., 116 Bank of U. S. v. Planters' Bank of Ga., 42 Bank, Osborn v., 21, 47 seq., 54> 57, 60. 81, 83, III, 117 Barnard, Clark v., 32 Barney v. New York, 95, 106 seq. Barrow, Shield v., 40 Beers v. Arkansas, 31, 36, 44 Belknap v. Schild, 50 seq., iir, 117 Blackburn, Arbuckle v., 108 Board of Liq. v. McComb, 67, 69 seq., 88 Bouldin v. State, 44 Briggs v. Light-boats, 10, 38 Brown v. Hitchcock, 85 Brown v. Huger, 62 Bruce, Intern'l Postal Supply Co. v.. 52 Buchanan v. Alexander, 38 Budd v. Houston, 86 Burke, State ex rel. Hart v., 74, 75 Burke, State ex rel. Newman v., Carr v. U. S., 16, 44, 62, 64, 112 Carpenter, State B'd. of Land Com'rs. v., 84 Case V. Terrell, 40, 44 Chandler v. Dix, 36, 65, 89, 114 Cherokee Nation v. Ga., 17 Chisholm v. Ga., 15 seq. Christian v. Atl. & N. C. R. R. Co., 40, 59 Civil Rights Cases, 108 Clark v. Barnard, 32 Clemson Agr. College, Hopkins v., 53 Cohens v. Va., 16, 21, 42 Colorado, Kansas v., 11 Cotting v. Godard, 94, 115 Grain, General Oil Co. v., 32, 108 seq. Crittenden, Rolston v., 68, 76 Cunningham v. M. & B. R. R. Co., 40, 51, 57. 65, 68, 72, 79, 81, 112, 113 Curran v. Arkansas, 31 Dashiell v. Grosvenor, 52 Davis V. Gray, 77, 81, 82 seq., 112 Davis & F. Mfg. Co. v. Los Angeles, 94, 95, 100 Debs, In re, 41 De Groot v. U. S., 44 Dennison, Ky. v., 20 Dietzsch v. Huidekoper, 93 Dix, Chandler v., 36. 65, 89, 114 Dockery, Mo. v., 108 Dodge v. Woolsey, 49 Eckford's Ex'trs, U. S. v., 43 Ex parte Ayers, 37, 77, 78, 81, 83, 87, 96 seq., 116 Ex parte Virginia, 107 Ex parte Young, 24, 31, 52, 90 seq., 105, 116, 117 Fargo V. Hart, 87, 108 VI Table of Cases. Farmers' Loan & Trust Co., Reagan v., 30, 41, 94 seq., 108 Ferguson v. Ross, 42 Fitts V. McGhee, 95, 96 seq., 103 Florida v. Ga., 20, 25, in General Oil Co. v. Grain, 32, 108 seq. Georgia, Cherokee Nation v., 17 Georgia, Chisholm v., 15 seq. Georgia, Fla. v., 20, 25 Georgia v. Stanton, 82 Georgia v. Tenn. Copper Co., 24 Gibson, Weyler v., 65 Godard, Cotting v., 94, 115 Governor of Ga. v. Madrazo, 23, 54, 112 Gratiot v. U. S., 43 Gray, Davis v., yy, 8r, 82 seq., 112 Grayson v. Va., 20 Greenhowr, Antoni v., 36, 76, y^, 79 Greenhow, Poindexter v., 22, 36, 49, 54. 112 Grisar v. McDowell, 62 Grosvenor, Dashiell v., 52 Gunter v. Atl. Coast Line R. R. Co., 34, 41, 49, 89, 94, loi, 102 Guthrie, U. S. v., y^, Hagood V. Southern, 51, 78, 80 Hall V. Wise, 31 Hammond, Mich. State Bank v., 58,65 Hans V. La., 18, 22 Hart, Fargo v., 87, 108 Hill V. U. S., 44 Hitchcock, Brown v., 85 Hitchcock, Minn, v., 29, 41, 85, Hitchcock, Neganab v., 87 Hitchcock, Oregon v., 85 Hollingsworth v. Va., 19 Hopkins v. Clemson Agric. Col- lege, 53 Houston, Budd v., 86 Huger, Brown v., 62 Huidekoper, Dietzsch v., 93 Humbird v. Avery, 85 Humphrey v. Pegues, 34, 41 Hunter v. Wood, loi Illinois Central R. R. Co. v. Adams, 31, 115 Illinois Central R. R. Co., Miss. R. R. Com'n v., 93 Illinois, Missouri v., 11 In re Debs, 41 In re Tyler, 50, 87 Intercolonial Railway, Mason v., International Postal Supply Co. V. Bruce, 52 Jackson, Wilcox v., 61 Johnson, Miss, v., 82 Jumel, La. v., Z7, 5i, 57, 68, 69 seq., 87, 112, 117 Kansas v. Colorado, 11 Kansas v. U. S., 26 Kawanakoa v. Polybank, 10, 21 Kentucky v. Dennison, 20 Klein, U. S. v., 44 Jackson, Wilcox v., 61 Lee, U. S. v., 10, 22, 44, 51, 56, 59 seq., Ill, 112, 114, 117 Lightboats, Briggs v., 10, 38 Lord, Salem Flouring Mills Co. v., S3 Los Angeles, D. & F. Mfg. Co. v., 94, 95, 100 Louisiana, Hans v., 18, 22 Louisiana v. Jumel, 2>7, 5i, 57, 68; 69 seq., 87, 112, 117 Louisiana, N. H. v., 23, 27, 113 Louisiana v. Steele, 80 Louisiana v. Texas, 108 Lowry v. Thompson, 59, 115 McClung, Meigs v., 61 McComb, Board of Liq. v., 67, 69 seq., 88 McConnaughy, Pennoyer v., yy, 79, 84 McDaniel, U. S. v., 43 McDowell, Grisar v., 62 McGahey v. Va., 50, 96 McGhee, Fitts v., 95, 96 seq., 103 McLemore, U. S. v., 43 McNeill v. So. Pac. Ry. Co., 93 Macon & B. R. R. Co., Cunning- ham v., 40, 51, 57, 65, 68, 72, 79, 81, 112, 113 Madrazo, Gov. of Ga. v., 23, 54, 112 Marye v. Parsons, 96 Maryland, Van Stophorst v., 16 Mason v. Intercolonial Ry., 13 Massachusetts, R. I. v., 20 Meigs V. McClung, 61 Table of Cases. Vll Michigan Land & Lumber Co. y. Rust, 85 Michigan State Bank v. Ham- mond, 58, 65 Michigan, U. S. v., 25 Minnesota v. Hitchcock, 29, 41, 8S,. IIS Mississippi v. Johnson, 82 Mississippi R. R. Com'n. v. 111. Cent. R. R. Co., 93 Missouri v. Dockery, 108 Missouri v. Illinois, 11 Missouri, K. & T. R. R. Co. v. Mo. R. R. & W. Com'n., 41 Murray v. Wilson Distilling Co., 59 Nathan v. Va., 38 Neganab v. Hitchcock, 87 New Hampshire v. La., 23, 27, 113 New Jersey v. N. Y., 20 New York, Barney v., 95, 106 seq. New York, N. J. v., 20 New York, Oswald, Adm'r. v., 16 Noble V. Union R. Logging R. R. Co., 86 North Carolina, S. D. v., 24, 25, 26, 28 North Carolina v. Temple, 22 North Carolina, U. S. v., 25 Oaks, Phelps v., 33, 35 Oregon v. Hitckcock, 85 Osborn v. Bank, 21, 47 seq., 54, 57, 60, 81, 83, III, 117 Oswald, Adm'r. v. N. Y., 16 Parsons, Marye v., 96 Pegues, Humphrey v., 34, 41 Pelican Ins. Co., Wise, v., 17, 20 Pennoyer v. McConnaughy, 77, 79. 84 . . .J Pennsylvania v. Wheeling Bridge Co., 20 Peters, U. S. v., 55, 60 Phelps V. Oaks, 33, 35 Pitcock V. State, 68, 88 Planters' B'k of Ga., B'k of U. S. v., 42 Poindexter v. Greenhow, 22, 36, 49, 54, 112 Polybank, Kawanakoa v., ib, 21 Postal Tel. Co. v. Ala., 17, 29, 33. 115 Prentis v. Atl. Coast Line R. R. Co., 103 President & Dir'trs, etc. v. Ark., 43 Preston v. Walsh, 84 Prout V. Starr, 89, 90, 92, 115 Railroad Com'n. v. T. & A. R. R. Co., loi Railroad Co. v. Alsbrook, no Reagan v. Farmers' L. & T. Co., 30, 41, 94 seq., 108 Reeside v. Walker, 43 Reeves, Smith v., 23, 35, 40, 96 Rhode Island v. Mass., 20 Ringgold, U. S. v., 43 Rives, Va. v., 107 Rolston V. Crittenden, 68, 76 Ross, Ferguson v., 42 Rust, Mich. Land & Lumber Co. v., 85 Salem Flouring Mills Co. v. Lord, S3 Schild, Belknap v., 50 seq., in, 117 Schwalby, Stanley v., 16, 44, 65, III Shield V. Barrow, 40 Smith V. Reeves, 23, 35, 40, 96 Smith, Warner Valley Stock Co. v., 89 Smyth V. Ames, 30, 91, 94 seq., 115 South and No. Ala. R. R. Co. V. Ala., 31, 36 South Carolina v. U. S., 103 South Carolina v. Wesley, in South Dakota v. N. C, 24, 25, 26, 28 Southern, Hagood v., 51. 78, 80 Southern Pac. Ry. Co., McNeill v., 93 Southern Ry. Co., State v., lOi Stanley v. Schwalby, 16, 44, 65, III Stanton, Ga. v., 82 Starr, Prout v., 89, 90, 92, nS State Board of Land Com'rs. v. Carpenter, 84 State, Bouldin v., 44 State ex rel Hart v. Burke, 74, 75 Vlll Table of Cases. State ex rel Newman v. Burke, 75 State, Pitcock v., 68, 88 State V. Southern Ry. Co., loi Steamship Scotia, Young v., 13, 39 Steele, La. v., 80 Tampa & A. R. R. Co., R. R. Com'n. v., loi Temple, N. C. v., 22 Tennessee Copper Co., Ga. v., 24 Tennessee, M. & C. R. R. Co. v., 31, 36 Terrell, Case v., 40, 44 Texas, La. v., 108 Texas, U. S. v., 23, 25 The Charkieh, 12 The Davis, 12, 38, 42, 62 The Exchange, 12, 60 The Fidelitj"-, 13 The Jassy, 13 The Parlement Beige, 11, 13 The Siren, 11, 43 The St. Jago de Cuba, 43 Thompson, Lowry v., 59, 115 Tindal v. Wesley, 65 Trapnall, Woodruff v., 69 Tyler, In re, 50, 87 Union R. Logging R. R. Co., Noble v., 86 United States, Carr v., 16, 44, 62, 64, 112 United States, De Groot v., 44 United States v. Eckford's Ext'rs, 43 United States, Gratiot v., 43 United States v. Guthrie, 73 United States, Hill v., 44 United States, Kansas v., 26 United States v. Klein, 44 United States v. Lee, 10, 22, 44, 51, 56, 59 seq., iii, 112, 114, 117 United States v. McDaniel. 43 United States v. McLemore, 43 United States v. Mich., 25 United States v. N. C, 25 United States v. Peters, 55, 60 United States v. Ringgold, 43 United States, S. C. v., 103 U^nited States v. Texas, 23, 25 United States v. Wilder, 13, 38, Van Stophorst v. ]Md., 16 Virginia, Cohens v., 16, 21, 42 Virginia, Ex parte, 107 Virginia, Grayson v., 20 Virginia, Hollingsworth v., 19 Virginia, IMcGahey v., 50, 96 Virginia, Nathan v., 38 Virginia v. Rives, 107 Walker, Reeside v., 43 Walsh, Preston v., 84 Warner Valley Stock Co. v. Smith, 89 Wesley, S. C. v., iii Wesley, Tindal v., 65 Weyler v. Gibson, 65 Wheeling Bridge Co., Pa. v., 20 Wilcox v. Jackson, 61 Wilder, U. S. v., 13, 38, 42 Wilson Distilling Co., Murray v., 5.9 Wisconsin, Hall v., 31 Wisconsin v. Pelican Ins. Co., 17, 20 Wood, Hunter v., loi Woodruff V. Trapnall, 69 Woolsey. Dodge v., 49 Young, Ex parte, 24, 31, 52, 90 seq., IDS, 116, 117 Young V. S. S. Scotia, 13, 39 PART I. SUITS AGAINST THE STATE. CHAPTER I. The General Doctrine. Its foundation. The doctrine that the sovereign power may not be sued without its consent came to the United States as a part of the English law. In Continental jurisprudence it has a more limited scope than in English law. Ultimately, the doctrine goes back to the Roman law. In England, at the time of the institution of royal courts, it would have been a strange proceeding for judges, acting for the king as his personal agents, to have attempted to hale him into court against his will. The principle of Roman law that "the will of the prince is law," though never adopted in England, influenced the judges to some extent, and ser^-ed to give color to the immunity of the king. Later, the position of the courts became established, absolutism was definitely negatived by the rise of constitu- tional monarchy, and the king in his public capacity be- came differentiated from the king in his private capacity. The reason stated above then no longer applied to suits against him in his private character; and his immunit>' in this respect is simply a historical persistence.^ The same reason continued, on the other hand, for the immunity of the crown as the personification of the English state. It ^For a tendency, however, to accord a similar inununitj- to the president of the United States, as a matter of pubbc pohcy m the case of the chief executive, see Goodnow: Advitn. Law of the U. ^., pp. 9h 435- 9 lO The Non-Suability of the State. is the ground upon which Justice Miller rested the doctrine of the non-suability of the state : " It seems most probable that it has been adopted in our courts as a part of the general doctrine of publicists that the supreme power in every state, wherever it may reside, shall not be compelled, by process of courts of its own creation, to defend itself in those courts."^ And it is this ground, namely, that a court, the agent of the state, cannot subject its creator to its jurisdiction, that is here adopted as the most obvious and sensible explanation. Acceptance of this foundation of the doctrine does not prevent the recognition of other reasons in justification. The courts commonly dwell upon the public policy and practical utility of the exemption. Justice Gray expressed this view admirably : " The broader reason is that it would be inconsistent with the very idea of supreme executive power, and would endanger the performance of the public duties of the sovereign, to subject him to repeated suits as a matter of right, at the will of any citizen, and to submit to the judicial tribunals the control and disposition of his public property,, his instruments and means of carrying on his government in war and in peace, and the money in his treasury."^ Another view of the exemption, resting upon the eminent authority of Justice Holmes, is this : " A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends."^ This afforded a basis for the extension of the exemption to the territory of Hawaii: "As the ground is thus logical and practical, the doctrine is not confined to powers that are sovereign in the full sense of juridical theory, but naturally is extended to those that, in actual administration, originate and change at their will the law of contract and property, from which "■ U. S. V. Lee, io6 U. S. 196. ~ Briggs V. Light-boats, 11 Allen 157, 162. 'Kawanakoa v. Polybank, 205 U. S. 349. The General Doctrine. 1 1 persons within the jurisdiction derive their rights. A suit presupposes that the defendants are subject to the law invoked. Of course, it cannot be maintained unless they are so. But that is not the case with a territory of the United States, because the territory itself is the fountain from which rights ordinarily flow." Now, this view of Justice Holmes was not necessary to the decision. The reason of public policy might well have been held to extend to a government exercising such broad powers as the territory of Hawaii. Or, the view might have been taken — which I think is the proper view of all local governments — that a territory stands, for its. purposes, simply in the stead of the superior government, and is therefore entitled to the same immunity from suit, an immunity which the territory, not being made a mere muni- cipal corporation, has not lost. Nor do I think that the view of Justice Holmes is sound. His statement that "a suit presupposes that the defendants are subject to the law invoked " is contrary to the position towards which he inclined in Missouri v. Illinois,^ and which Justice Brewer adopted in Kansas v. Colorado,^ that, in the main, there is no law governing the States in relation to each other, and that the supreme court must build up what Justice Brewer called an " interstate common law." Law is necessary for jurisdiction; but, having jurisdiction, it is the function of a court to administer justice, according to law if any law is applicable, but to administer justice at all events. If no law is applicable, the court should, in the language of Justice Holmes, " be governed by rules explicitly or implicitly recognized" in the relations of the parties. The state, in its relations to individuals, may be considered as acting with reference to the ordinary principles of law. Certain it is that the courts are constantly applying to cases between the state and individuals, with certain modifications, the ordi- nary principles of law. And this is true, not only in the matter of contracts, but even in such cases as " The Siren "' ^ 200 U. S. 496. » 206 U. S. 46. 7 Wall. 152. 12 The Non-Suability of the State. and " The Davis,"^ in which maritime Hens were held to attach to property of the United States just as to property of individuals. In international law. The discussion thus far has related to the immunity of the state from suit in its own courts. The immunity in the courts of another state must, of course, rest upon a different basis. It is founded upon the international comity accord- ing to which, in the language of Chief Justice Marshall, " all sovereigns have consented to a relaxation, in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers,"^ in favor of other sovereigns. The extent of the exemption depends upon the point of view. Sir Robert Phillimore, in the case of " The Char- kieh,"^ stated the principle to be that the sovereign " is personally exempt from all process in a civil cause, and from any action which renders such service necessary." An admiralty proceeding in rem does not require such ser- vice. The exemption of property of a foreign sovereign from such an action he rested, therefore, not upon tne immunity from suit, but separately upon the same "object of international law" as sustains the personal immunity from suit — " to substitute negotiations between govern- ments . . . for the ordinary use of courts of justice in cases where such use would lessen the dignity or embarrass the functions of the representatives of a foreign state." He limited the exemption, accordingly, to cases where the res " can in any fair sense be said to be connected with the jus coronse of the sovereign"; though he doubted but what, even in the case of a pubHc war vessel, a proceeding in rem might be maintained where a maritime lien is given by the jus gentium. A similar view — that certain classes of prop- erty devoted to religious or public purposes are exempt from liens, but that where such a lien exists it may be en- 1 10 Wall. IS. 2 " Ti,„ rr,.^u '10 Wall. IS. ' "The Exchange," 7 Cranch ii6. 42 L. J. Adm. 17. The General Doctrine. 13 forced in rem— is indicated in the opinion of Justice Story in U. S. V. Wilder.! c^ief Justice Waite, also, in "The Fidelity,"^ took the view that the exemption of public vessels from admiralty suits in rem arises not out of a want of power to sue the public owner, but out of a want of liability on the part of the vessel. All of these expressions, it may be said, are purely obiter. The position of Sir Robert Philhmore was repudiated by the court of appeals in "The Parlement Belge,"^ revers- ing his decision refusing exemption to a vessel, the public property of Belgium, used for the mails, and incidentally engaged in ordinary carrying trade. The court criticized his " intimation of an opinion, not yet conclusively formed, that proceedings in rem are a legal procedure solely against property, and not directly or indirectly against the owner of the property"; and regarded a libel in rem as an in- direct way of impleading the owner, the result of admiralty necessity. "To implead an independent sovereign in such a way is to call upon him to sacrifice either his prop- erty or his independence. To place him in that position is a breach of the principle upon which his immunity from jurisdiction rests." The same view of a libel in rem was taken by the judicial committee of the privy council in Young V. S. S. Scotia,'' in which it was held that a lien for salvage could not be enforced against a ferry-boat, the prop- erty of the crown, destined for service in the operation of a government railway in Canada. " Where you are dealing with an action in rem for salvage, the particular form of procedure which is adopted in the seizure of the vessel is only one mode of impleading the owner." In " The Jassy,"'^ a vessel owned under similar conditions by the Roumanian government was held exempt. In Mason v. Intercolonial Railway of Canada,^ the supreme court of Massachusetts ^ 3 Sumner 308. = 16 Blatchf. 569. *5 Prob. Div. 197. ♦89L. T. 374. *75 L. J. (N.S.) P.D & Adm. Div. 93- ' 197 Mass. 349. 14 The Non-Suability of the State. dismissed for want of jurisdiction a suit by trustee process for a tort against the Intercolonial Railway, unincorporated, the property of the crown. The better view, then, of the principle governing the immunity of a state from suit in the courts of another state, is that no state will subject another state to its territorial jurisdiction; so that the immunity extends, not only to actions requiring personal process, but also to actions in rem against the property of the state. CHAPTER 11. The Doctrine in the United States. Under the Fed- eral Constitution. In Chisholm v. Georgia/ some doubt was expressed as to the applicability of the doctrine of non-suability of the state to a republic. Justice Wilson limited the doctrine to autocratic sovereigns. In the United States, according to his view, the people are sovereign; they have not delegated all their powers to the State governments; hence these governments — or, regarded as artificial persons, the States — are not sovereign in this sense. This reasoning applies as much to the United States as to a State; though Justice Wilson did not expressly say that the United States is liable to suit. Doubtless, he would have found some ground of distinction. Chief Justice Jay adopted a somewhat different line of reasoning. Immunity from suit, he said, naturally attached to a feudal sovereign as the sole fountain of justice; but where the citizens are equal and are joint tenants of the sovereignty, there is no reason why one citizen may not sue the rest. He saw no more difficulty in a suit against the fifty thousand citizens of Delaware, than against the forty thousand of the city of Philadelphia. The liability of the United States to suit he doubted simply on the practical ground that the courts of the United States could not rely on the executive arm of the government in such case to support their proceedings and judgments. Manifestly, these views are based on false political theories. And the doctrine of non-suability of the state was early established in American law. It was accepted by all in the discussions in convention over the clause in the constitution extending the judicial power of the United *2 Dall. 419. 15 1 6 The Non-Suability of the State. States to " controversies between a State and the citizens of another State." It was no doubt clinched by the storm of protest raised by Chisholm v. Georgia. No State court has seriously questioned it. And in Cohens v. Virginia/ in which, according to Justice Miller, the general doctrine was first recognized by the supreme court, it was taken for granted. A different question is whether, in our federal system, the United States and the States, respectively, are entitled to immunity from the jurisdiction of the courts of the other. The State courts have never denied the immunity of the United States. And, as might be expected, the supreme court will enforce this immunity, as in Stanley v. Schwalby,^ by reversing the action of a State court.^ This action is abundantly justified on the ground of the supremacy of the federal government, or of an implied principle of our federal system, as in the matter of exemption of federal and State governmental agencies, respectively, from taxation by the other. The question of the liability of a State to suit in a court of the United States arose upon a construction of the pro- vision of article III of the constitution, that "The judicial power of the United States shall extend ... to contro- versies . . . between a State and citizens of another State." In August term, 1791, Alexander Chisholm, a citizen of South Carolina, brought action of assumpsit in the supreme court against the State of Georgia.* On July 11, 1792, the marshal for the district of Georgia made return of service on the governor and attorney general of Georgia. On August II, Attorney General Randolph, counsel for plaintiff, moved : " That unless the State of Georgia shall, after rea- sonable previous notice of this motion, cause an appearance 1 6 Wheat. 382. ~ ~ ^162 U. S. 255. In this case, the Texas court considered that the United States had waived its immunity. The supreme court held contra. ^ See also Carr v. U. S., 98 U. S. 433. *2 Dallas 419. Similar cases brought about the same time — ^Van Stophorst V. Md., 2 Dall. 401, Oswald Admr. v. State of N. Y., 2 Dall. 401, 2 Dall. 415. The Doctrine in the United States. 17 to be entered in behalf of the said State, on the fourth day of the next term, or shall then show cause to the contrary, judgment shall be entered against the said State, and a writ of enquiry of damages be awarded." But, to avoid every appearance of precipitancy, and to give the State time to deliberate on the measures she ought to adopt, on motion of Mr. Randolph it was ordered by the court that the con- sideration of the motion be postponed to the next term. Messrs. Ingersoll and Dallas presented a written remon- strance and petition on behalf of Georgia against the exer- cise of jurisdiction in the cause; but, in consequence of positive instructions, they declined taking any part in argu- ment. The case was submitted on February 5, 1793, on the argument of Mr. Randolph alone. On February 18, the decision of the court was handed down on the great ques- tion whether a State might be involuntarily impleaded in a federal court. Four justices — John Jay, Chief Justice, of New York; John Blair, of Virginia; William Gushing, of Massachusetts; and James Wilson, of Pennsylvania — joined to hold the State liable. James Iredell, of North Carolina, alone dissented. The main stand of the majority was upon the letter of the constitution. As Mr. Randolph argued, conceding, as he did, the sovereignty of the States, if the constitution pro- vided for jurisdiction over them by the federal courts, that was simply one of many diminutions of sovereignty. On the other hand, the provision might be construed in the light of established principles, as the grant of judicial power has been construed in other respects.^ The courts of the United States are courts of limited jurisdiction; and, if the judicial power had not been extended to cases in which a State should be a party, no jurisdiction could have been enter- tained in such cases even with the consent of the State. ^ The provision covering such cases might well be construed as conferring jurisdiction subject to the established doctrine 1 Cherokee Nation v. Georgia, 5 Pet. i. Wisconsin v. Pelican Ins. Co., 127 U. S. 265. 2 Postal Tel. Co. v. Alabama, 155 U. S. 482. 1 8 The Non-Suability of the State. that a state cannot be sued without its consent. Justice Iredell was strongly of opinion that the constitution was to be construed "as intending merely a transfer of jurisdiction from one tribunal to another." And this view was adopted by Justice Bradley, speaking for the court in Hans v. Louisiana.^ " The truth is that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the constitution when establishing the judicial power of the United States. . . . The suability of a state without its consent was a thing unknown to the law." Which construction was proper should have been deter- mined upon two considerations: the spirit of the constitu- tion, and the intention of those who adopted it. Justice Wilson and Attorney General Randolph, the master minds on their side, were strongly convinced of the necessity of allowing suits against the States in the courts of the United States on federal grounds — the maintenance of harmony, and the enforcement of constitutional limitations.^ Natu- rally, with such political views, they held that the spirit of the constitution demanded a literal construction. Justice Iredell differed even upon the question of policy. The other consideration, the actual intention upon the particular point of those who adopted the constitution, was completely ignored. In the main, the provision seems to have been overlooked in the State conventions. But where its signifi- cance was appreciated, it was made the subject of violent attacks by the opponents of the constitution, attacks that were successfully met only by the solemn assurances of its friends — Hamilton, Madison, Marshall — that such an un- heard of thing as a suit by an individual against a State was never contemplated. Certainly, it may be taken for granted ^ 134 U. S. I. _^ Randolph had expressed similar views in the Virginia conven- tion, Wilson was probably responsible for the provision in ques- tion. For a collection of the historical facts upon the provision of the judiciary article, upon Chisholm v. Ga., and upon the adoption of the nth amendment, see "The Eleventh Amendment", an address before the Virginia State Bar Assn., July 30, 1907, by A. Caperton Braxton. The Doctrine in the United States. 19 that the constitution could never have been adopted if it had been understood to contain the doctrine of Chisholm v. Georgia. The action of the court was regarded as the imposition of personal political views. It was met by a storm of protest throughout the country, and the reversal of the action by the eleventh amendment.^ Justice Iredell, although expressing an opinion strongly against a literal construction of the constitution, restricted his decision to a narrower ground. He took the position that the constitutional grant of judicial power required legislation by congress to put it into effect ; and that " what- ever be the true construction of the constitution in this particular ; whether it is to be construed as intending merely a transfer of jurisdiction from one tribunal to another, or as authorizing the legislature to provide laws for the deci- sion of all possible controversies in which a State may be involved with an individual, without regard to any prior exemption; yet it is certain that the legislature has in fact proceeded upon the former supposition, and not upon the latter." The judiciary act conferred upon the courts of the United States the power to issue certain specified writs, and such other writs as should be necessary to the exercise of their jurisdiction, " agreeable to the principles and usages of law." But, Justice Iredell reasoned, this did not confer power to issue a writ against a State, because there was no mode applicable of proceeding against a State " agreeable to the principles and usages of law." None of the States made provision for such proceedings at the time of the judiciary act, even if such provision would have availed in this case. The only other possible source was the English law ; and in a learned exposition of petition of right and of process in exchequer, Justice Iredell showed that these remedies against the crown were of an entirely different nature than the action in hand. ^ In February term, 1794, judgment was entered for the plaintiff in Chisholm v. Georgia, and the writ of enquiry awarded. The writ, however, was never sued out and executed; so that the cause, with all similar causes, was swept from the records by the eleventh amendment, agreeably to the unanimous determination of the judges in Hollingsworth v. Va., February term, 1798. 20 The Non-Suability of the State. This reasoning, it seems to me, is faulty. It would limit, in cases where a State is suable as of right, to forms of action where the state is not suable as of right. If a State is suable as of right, the ordinary forms of action ought to lie. Thus, Attorney General Randolph took it for granted that, if a State is liable to suit, assumpsit would lie. The majority justices did not discuss the question upon which Justice Iredell based his decision, except as to the matter upon whom service on the State should be served, upon which they agreed that the service in the case in hand was sufficient. Certainly, the supreme court has always held itself fully equipped, as to process, service, course upon fail- ure to appear, judgment, to exercise its original jurisdiction in cases in which a State is a party.^ If the view be adopted that the constitutional provision extending the judicial power to suits between a State and the citizens of another State is to be construed in the light of established principles, the question remains whether the position of the States in the Union is such as to entitle them to the principle of exemption in a court of the United States. This question was not satisfactorily discussed in Chisholm v. Georgia. As already stated, those of the majority, in the main, whether accepting the sovereignty of the States or expressing no opinion thereupon, relied on the words of the constitution. Justice Wilson himself justi- fied his grandiloquent pronouncement that "the question . . . may, perhaps, be ultimately resolved into one no less radical than this — do the people of the United States form a nation?" by no real exposition of the position of a State in the Union. The theory of divided sovereignty accepted at the time of Chisholm v. Georgia would clearly sustain the exemption. Whether, accepting the present doctrine of the ^ For rules of court governing cases in which a State is defendant, see Grayson v. Va., 3 Dall. 320. For varying opinions as to whether the power to exercise the orig- inal jurisdiction conferred by the constitution is inherent in the supreme court, or whether it is derived from act of congress, see N. J. v. N. Y., 5 Pet. 284 ; R. I. v. Mass., 12 Pet. 657 ; Pa. v. Wheel- ing, etc. Bridge Co., 13 How. 518; Fla. v. Ga., 17 How. 478; Ky. v. Dennison, 24 How. 66. Also Wise. v. Pelican Ins. Co., 127 U. S. 265. The Doctrine in the United States. 21 unity of sovereignty in the United States, the exemption of a State may be supported upon an implied principle of our federal system of government, may be debated, in view of other federal reasons in favor of liability. Looking at the matter entirely apart from the constitutional provision, a State would, of course, be entitled to exemption upon the extension of the principle, as in Kawanakoa v. Polybank,^ to any government that exercises general legislative powers. Whether, however, a principle of exemption based upon anything less than actual sovereignty should control the words of the constitution, seems doubtful. From the above discussion, it will be seen that the court had a difficult case in Chisholm v. Georgia. The decision, whether right or wrong, that a State might be subjected to suit by a citizen of another State, was, however, overturned, and the question finally settled by the eleventh amendment, providing that " The judicial power of the United States shall not be construed to extend to any suit in law or equit}\ commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state." Evidently, the idea never occurred to anyone at the time of the adoption of the eleventh amendment that a suit might be brought in a court of the United States against a State by its own citizen, under the grant of judicial power over " all cases in law and equity arising under the consti- tution or laws of the United States." And, from the time of the eleventh amendment, it was generally recognized that no individual could subject a State to suit. It is true that, in Cohens v. Virginia,- Chief Justice Marshall used language that seemed to indicate that the exemption did not extend to suits against a State by its own citizens ; but this sugges- tion, which was later the main reliance of plaintiff in Hans v. Louisiana, was entirely unnecessary to the case. In Osborn v. Bank,^ although the bank was a corporation of ' 205 U. S. 349- » 6 Wheat. 264. *-9 Wheat. 738. 22 The Non-Suability of the State. the United States, and therefore not within the terms of the eleventh amendment, the chief justice discussed the case upon the basis of the non-suability of the State. In United States V. Lee,^ Justice Miller said : " It is obvious that, in our system of jurisprudence, the principle is as applicable to each of the States as it is to the United States." And Justice Gray declared in the same case : " The decision in Chisholm v. Georgia was based on a construction of the words of the constitution. . . . That construction was set aside by the eleventh amendment." In Poindexter v. Greenhow,^ the court discussed all the cases upon the basis of non-suability of a State, although in the title case the parties were both citizens of Virginia. And in his dissenting opinion, concurred in by three other justices. Justice Bradley expressly took the ground that, although the eleventh amendment does not apply to suits against a State by its own citizens, it would be absurd to maintain such liability. In Hans v. Louisiana,^ the question came squarely before the supreme court, on appeal from a decision of the United States circuit court, dismissing a suit brought, on a federal ground, by a citizen of Louisiana against the State of Louisiana.* The court unanimously affirmed the decision below. Justice Bradley, speaking for the court, said : "Ad- hering to the mere letter, it might be so ; and so, in fact, the court held in Chisholm v. Georgia; but looking at the subject as Hamilton did, and as Justice Iredell did, in the light of history and experience and the established order of things, the views of the latter were clearly right — as the people of the United States in their sovereign capacity subsequently decided." That the principle of immunity applied to the States, he seems not to have doubted; and the eleventh amendment he regarded as having established a rule of construction for one clause that ought to be applied also to other similar clauses. 1 io6 U. S. 196. 2 114 U. S. 270. 3 134 U. S. I. * Reaffirmed in North Carolina v. Temple, 134 U. S. 22. The Doctrine in the United States. 23 Justice Harlan expressed his disapproval of the criticism of Chisholm v. Georgia. His opinion, it seems, however, was simply that literal construction was proper at that time, and not that the principle of immunity does not naturally apply to the States ; for in United States v. Texas,^ he said of Hans v. Louisiana: "That case, and others in this court relating to the suability of States, proceeded upon the broad ground that it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its con- sent." It may be said that the decision in Chisholm v. Georgia, in favor of literal construction of the constitu- tion as it then stood, seems, also, to be approved by Chief Justice Marshall in Cohens v. Virginia, in marked incon- sistency with his assurances in the Virginia convention. In New Hampshire v. Louisiana,- Chief Justice Waite used the fact that a direct remedy was given by the original constitution to citizens of one State against another State, as an argument against allowing the indirect remedy through the action of their State in their behalf. In Smith v. Reeves,^ the principle of Hans v. Louisiana was applied to exclude from the general right of a corpora- tion of the United States to bring suits in the courts of the United States, suits against a State. In Governor of Georgia V. Madrazo,* Justice Johnson, dissenting, held, and Chief Justice Marshall noticed the objection without ruling upon it, that the eleventh amendment applies only to suits in law and equity, and that the immunity of a State does not extend to suits in admiralty. In view of the subsequent attitude of the court, in favor of the immunity of a State from all suits by individuals, this view may be regarded as wrong. Some expressions in other cases seem to indicate a view that the exclusion of all suits by individuals against States was accomplished by the eleventh amendment, not by re- versing a rule of construction so as to secure to the States their proper exemption, but directly by awarding such an " 143 U. S. 621. ' 108 U. S. 76. ' 178 U. S. 436. *i Pet. no. 24 The Non-Suability of the State. exemption. Thus, in South Dakota v. North Carolina/ Jus- tice Brewer, speaking for the majority, said: "We are not unmindful of the fact that in Hans v. Louisiana . . . Mr. Justice Bradley . . . expressed his concurrence in the views announced by Mr. Justice Iredell, in the dissenting opinion in Chisholm v. Georgia; but such expression can- not be considered as a judgment of the court, for the point decided was that, construing the eleventh amendment ac- cording to its spirit rather than by the letter, a State was relieved from liability to suit at the instance of an indi- vidual, whether one of its own citizens or a citizen of a foreign State." And in the dissenting opinion of the four justices in the same case, Justice White said of the decision in Hans v. Louisiana : " It held that the effect of the eleventh amendment was to qualify, to the extent of its prohibitions, the whole grant of judicial power; and, there- fore, although a suit by a citizen of a State against a State, to enforce assumed constitutional rights, was not within the letter of the amendment, it was within its spirit." Jus- tice Peckham, also, in delivering the opinion of the court in Ex parte Young, said, in conceding that the eleventh amendment must be given its full and fair meaning : " It applies to a suit brought against a State by one of its own citizens, as well as to a suit brought by a citizen of another State. Hans v. Louisiana. "2 In the main, hov/ever, the court has recognized the im- munity from suits by individuals as a natural attribute of the States. As Justice Miller said, in United States v. Lee : " It is obvious that, in our system of jurisprudence, the principle is as applicable to each of the States as it is to the United States." Certainly, the States, though not sover- eign in political theory, have in general been accorded the attributes of sovereignty, as — to use a term of Justice Holmes^ — quasi-sovereign. The constitution also provides that the judicial power of the United States shall extend to controversies between two ^ 192 U. S. 286. ~ ''209 U. S. 123. ^ Ga. V. Tenn. Copper Co., 206 U. S. 230. The Doctrine in the United States. 25 or more States. The undoubted intent here would demand in any view that this provision should be held not to require the consent of a State sued. The jurisdiction over "controversies between a State . . . and foreign states," also conferred by the constitu- ifji .| tion, the court has never been called upon to exercise; but, ^p^ in view of the fact that the eleventh amendment left un- \t<^ ^61 changed this part of the clause in the constitution, it may » >.^« be assumed that this provision would likewise be held not f^ to require the consent of a State sued. A question not quite so simple was whether a State could be subjected to suit by the United States. Justice Peckham, in United States v. Michigan,^ seemed to consider that such a suit might be entertained as "between States." So, also. Justice White, in South Dakota v. North Carolina.- But this view appears ill-founded. The jurisdiction must be sustained upon the clause extending the judicial power to " controversies to which the United States shall be a party." In Florida v. Georgia,^ Justices Campbell, Curtis, and McLean, dissenting, held that the United States could not sue a State ; that " the constitution did not enlarge the liability of States to suits, but only provided tribunals to which suits might be brought to which they were already subject." Chief Justice Taney, speaking for the court, touched upon the question merely in arguing that if the United States could not become a party, there was all the more reason for allowing the attorney general to argue in behalf of the United States without making the United States a party. In United States v. North Carolina,* the supreme court decided a case brought by the United States against North Carolina, the State making no objection. In United States v. Texas,^ objection was made, and the question came squarely before the court for decision. Juris- 1 190 U. S. 379. « 192 U. S. 286. ' 17 How. 478. ^136 U. S. 211. S143 U. S. 621. 26 The Non-Suability of the State. diction was upheld. Justice Harlan, delivering the opinion of the court, considered that, although " it is inherent in the nature of sovereignty not to be amenable to suit by an indi- vidual without its consent," " the question as to the suabili- ity of one government by another government rests upon wholly different grounds." This is, I think, an incorrect statement of the principle of non-suability of the State. The principle is not simply that sovereignty may not be sued by an individual, but that sovereignty is not subject to the jurisdiction of courts. The ruling in the case is abundantly justified, however, by weighty federal reasons, and by the fact that the States are subject to suit by one another. The converse of this case — a suit by a State against the United States — has also arisen. The view of Justice Har- lan that the principle of non-suability does not apply to suits by one government against another government would, of course, logically support such a case. Justice White, in South Dakota v. North Carolina,^ argued upon the assump- tion that such a suit may be maintained. In Kansas v. United States,^ however, the supreme court, without dis- sent, dismissed the case for want of jurisdiction, on two grounds : first, that the State had no substantial interest, and was simply acting for individuals ; second, that a State may not sue the United States without its consent. Chief Justice Fuller, delivering the opinion of the court, said : "It does not follow that because a State may be sued without its consent, therefore the United States may be sued by a State without its consent. Public policy forbids this con- clusion." This holding was unnecessary to the decision, and, therefore, to some extent extra-judicial. Yet it is, no doubt, to be accepted as final. It may, perhaps, be justified upon the ground that the reasons for allowing such suits are less urgent than in the converse case, upon the supremacy of the federal government, and upon the position of the court as a part of the federal government. 1192 U. S. 286. * 204 U. S. 331. CHAPTER III. Principles of the Constitution of the United States Governing Suits Against States. The eleventh amendment and suits between States. In New Hampshire v. Louisiana and New York v. Lou- isiana/ the plaintiff States brought suit in the supreme court on bonds of the State of Louisiana assigned to them by their citizens for collection, the States acquiring no bene- ficial interest, but simply allowing the use of their names for the purpose of suit. There are two possible modes of viewing these cases : first, as actions in behalf of their citi- zens by the States in their sovereign capacity; second, simply as ordinary actions by holders of a bare legal title. Chief Justice Waite, who delivered the opinion, con- ceded the right to act thus in behalf of citizens as a " well recognized incident of national sovereignty"; but argued that the means are by diplomatic negotiations, treaty, and war, and that, since the States do not possess these attri- butes of independent nations, they cannot so act. Such, it is true, are the means between independent nations. But. although the States have lost these means, it has been re- peatedly held that the constitution substituted a judicial remedy for controversies of a justiciable nature. The force of Chief Justice Waite's further argument— that the grant in the constitution of a direct remedy by citizens of one State against another State impliedly negatived the indirect remedy, and that the taking away of the direct remedy by the eleventh amendment did not restore the indirect remedy —depends upon whether Chisholm v. Georgia be viewed as right or, as it is viewed in Hans v. Louisiana, as wrong. Upon the other aspect of the case, it has been repeatedly * io8 U. S. 76. 27 28 The Non-Suability of the State. stated that jurisdiction was wanting because the plaintiff States had no real interest. But such a title is sufficient, on ordinary principles of law, to constitute the holder a real party to an action. The proper ground for the unanimous decision for dismissal is that the case was a palpable attempt to evade the eleventh amendment. As Justice White ex- plained the case in South Dakota v. North Carolina:^ " The case was decided, not upon the particular nature of the title of the bonds and coupons asserted by the States, since it was conceded that, but for the constitution, a title such as that propounded would have given rise to an adequate cause of action. The ruling of the court was that, as suits against a State upon the claims of private individuals were absolutely prohibited by the eleventh amendment, such character of claim could not be converted into a con- troversy between States, and thus be made justiciable, since to do so would destroy the prohibition which the eleventh amendment embodied." Some years later. South Dakota brought suit in the su- preme court on bonds of North Carolina that had been assigned to her outright as an absolute gift. One motive of the donor was doubtless to make North Carolina pay, even if he got no benefit. A more substantial motive was the prospect that, if the suit by South Dakota were suc- cessful, North Carolina would be inclined to make a settle- ment with other bondholders, of whom he remained one. The question was whether such a suit was prohibited by the spirit of the eleventh amendment. The case might with good reason have been decided either way; and it is not surprising that the decision upholding jurisdiction was carried by only five to four. On the one hand, was the fact of the substantial interest of the State, and the absence of interest of individuals. On the other hand, the federal policy that prompted the grant of jurisdiction over contro- versies between States hardly extends to such a suit. Moreover, to allow such suits certainly opens the way, at least, as in the case in hand, to evasions of the eleventh 1 192 U. S. 286. Principles of Constitution Governing Suits. 29 amendment. Justice White, in the able dissenting opinion, said : " My mind cannot escape the conclusion that if, wherever an individual has a claim, whether in contract or tort, against a State, he may, by transferring it to another State, bring into play the judicial power of the United States to enforce such claim, then the prohibition contained in the eleventh amendment is a mere letter, without spirit and without force." He argued that the obligations of a State taken up by individuals are without sanction, other than the good faith and honor of the sovereign itself; and that, if acquired by another State, they remain subject to the same conditions. A compromise was suggested by Air. Carman F. Ran- dolph, writing in the Columbia Law Review: "If a State of the Union becomes indebted in due course to the United States, or to another State (perhaps to a foreign state), it is Hable to suit. And this is so if evidences of debt, origi- nally in private hands, come into public treasuries in due course. But where a claim is acquired by a government only because a private claimant cannot secure its payment, a suit for its recovery should be dismissed as an attempt to evade the eleventh amendment."^ Such a distinction, even if practicable, has no real foundation in principle. The jurisdiction over controversies between States might, how- ever, perhaps with better reason, have been held to include only cases arising directly between States, and not cases arising merely from the acquisition of choses in action. Consent of State and jurisdiction of federal courts. The courts of the United States, being courts of limited jurisdiction, cannot, even by consent of the parties, exercise jurisdiction not conferred by the constitution.- If, there- fore, the constitution has not extended the judicial power to cases in which a State is party, consent of a State can- ^ " Notes on suits between States " : Col L. Rev., II, 283. * See Postal Tel. Co. v. Ala., 155 U. S. 482, in whichthe supreme court of its own motion raised an objection to jurisdiction. Also, Minn. v. Hitchcock, 185 U. S. 373. 3 30 The Non-Suability of the State. not confer it. The constitution did extend the judicial power in certain cases over suits by individuals against States. This might have been construed as allowing suits only with the consent of the States sued. In Chisholm v. Georgia, however, literal construction was adopted. Now, if the eleventh amendment had simply reversed this con- struction, jurisdiction might still have been entertained with the consent of the States sued. But the eleventh amend- ment did not stop there; it provided that "The judicial power shall not be construed to extend to any suit in law or equity commenced or prosecuted against any of the United States by citizens of another State, or by citizens or subjects of a foreign state." The effect was just as if the judicial power had never been extended to such cases. It would seem clear, therefore, that consent of the States cannot confer jurisdiction.^ Of course, unless the immunity of the States from suits by individuals in cases not covered by the terms of the eleventh amendment be held to be due, not to the reversal of a rule of construction so as to uphold their natural immunity, but to a direct extension of immunity by the spirit of the eleventh amendment,^ there is nothing to prevent jurisdiction with consent of the State in suits by individuals against States under clauses of the constitution not altered by the eleventh amendment. Although the point is so clear, there is authority to the contrary in the supreme court reports. Justice Brewer, in Reagan v. Farmers' Loan and Trust Company,^ said it might well be argued that "the limitation of the eleventh amendment simply creates a personal privilege which can at any time be waived by the State," although it was un- necessary to go so far in that case. In Smyth v. Ames,* Justice Harlan, in the opinion of the court, said of the objection that the suit was against the State: "This point ^See Wm. D. Guthrie: "The Eleventh Amendment": VIII Col. L. Rev., 183. * See above, p. 23. '154U. S. 362. *i69U. S. 466. Principles of Constitution Governing Suits. 31 is perhaps covered by the general assignments of error, but it was not discussed at the bar by the representatives of the State board. It would, therefore, be sufificient to say that these are cases of which, so far as the plaintiffs are con- cerned, the circuit court has jurisdiction," on the grounds both of diverse citizenship and of a federal question; al- though he went on to hold that the case was not a suit against the State. Now, if such a suit might be a suit against the State, it was manifestly the duty of the court, even on its own motion, to examine the question. Of course, if the view be taken of suits against public officers that, when jurisdiction is lacking, it is not because in effect suits against States, but because there is no real ground of action against the defendants, this criticism is not in point. ^ The same remark applies to Illinois Central Railroad Com- pany V. Adams,^ in which the court held that a motion to dismiss for lack of jurisdiction is not the proper method of objection on this ground. It does not, however, cover the argument of Justice Harlan in his dissenting opinion in Ex parte Young,^ explaining away the Reagan and Smyth cases as forms of suits against themselves which the States had permitted. This position of Justice Harlan, involving the opinion that consent of a State may give jurisdiction of a case within the terms of the eleventh amendment, must, however, be viewed in the light of its argumentative pur- pose ; it is contrary to his expressions in other cases, and, as to Smyth v. Ames, involves a distorted explanation of the case, and the contradiction of the unanimous opinion in Smith v. Reeves, written by himself, that a State may restrict its consent to be sued to its own courts. A number of cases in which States have provided for suits against themselves have come up to the supreme court on writs of error from the highest State courts.* In all iSee below, Part II, Chap. VIII. 2 180 U. S. 28. 3 209 U. S. 123. IS4 U. S. 362. 2 169 U. S. 466. 3 172 U. S. 516. * This, of course, involves the view, which is opposed in Part I, p. 29, that consent of a State may confer jurisdiction on the federal courts in cases coming within the prohibition of the eleventh amendment. 'D. & F. Mfg. Co. v. Los Angeles, 189 U. S. 207, 218; Barney V. N. Y., 193 U. S. 430. 96 The Non-Suability of the State. clearly that the suit was not a suit against the State. Justice Harlan's explanation of Smyth v. Ames is very weak. It involves a direct conflict with the decision in Smith V. Reeves,^ in which he himself delivered the opinion, that, in giving its consent, a State may limit suits against itself to its own courts. The cases that gave trouble were Ex parte Ayers^ and Fitts V. McGhee.^ The Ayers case was as follows. It having been held, in Poindexter v. Greenhow, that, when a taxpayer had tendered coupons which the State had con- tracted to receive for taxes, any attempt to collect the tax thereafter was an unlawful trespass, a State statute was passed, providing for suit in the name of the State for the recovery of the taxes in such cases, and imposing onerous conditions on the proof of tender, which it was alleged were unconstitutional.* A bill was brought by holders of coupons against the attorney general and various common- wealth attorneys to restrain such suits. If the case had come up simply on appeal from the circuit court, it might have been decided on other grounds, and never have risen to vex the court. For the plaintiffs were not taxpayers who had tendered coupons, and were, therefore, probably not in a position to bring the suit.^ It would seem, also, that the remedy by defense at law was adequate, and that, therefore, there was no ground for equitable rehef. How- ever, these questions did not arise ; for the case came up on petition for habeas corpus, upon sentence for contempt for violation of the temporary restraining order of the circuit court. The court held that the suit below was in effect a suit against the State. Justice Peckham stated Ex parte Ayers thus : " A suit of such a nature was simply an attempt to make the State itself, through its officers, perform its alleged contract, by ' 178 U. S. 436. ' 123 U. S. 443- " 172 U. S. S16. * So held, later, in McGahey v. Va., 135 U. S. 662. _ "See Marye v. Parsons, decided in connection with Poindexter V. Greenhow. Ex Parte Young. 97 directing those officers to do acts which constituted such performance. The State alone had any interest in the ques- tion, and a decree in favor of plaintiff would afifect the treasury of the State." And again: "But the injunction asked for . . . was to restrain the State officers from com- mencing suits under the act of May 11, 1887 (alleged to be unconstitutional), in the name of the State, and brought to recover taxes for its use, on the ground that, if such suits were commenced, they would be a breach of a contract with the State." This is all the explanation of Ex parte Ayers ; and it is manifestly no explanation at all. The suit did not attempt to compel the State officers to do anything. The fact that the alleged unconstitutional acts sought to be restrained would have been a breach of the contract of the State made no difference, if the commencement of suits under the circumstances was equivalent to a trespass like that in Poindexter v. Greenhow. The opinion in Ex parte Ayers went squarely on the ground that the mere bringing of an action in the name of the State could not be charged against the officers as an individual wrong: "It follows, therefore, in the present case, that the personal act of the petitioners sought to be restrained by the order of the circuit court, reduced to the mere bringing an action in the name of and for the State against taxpayers, who, although they may have tendered tax receivable coupons, are charged as de- linquent, cannot be alleged against them as an unconstitu- tional act in violation of any legal or contract rights of such taxpayers."^ Justice Peckham also said: "The injunction was de- clared illegal because the suit itself could not be entertained, as it was one against the State to enforce its alleged contract. It was said, however, that, if the court had power to entertain such a suit, it would have power to grant the restraining order preventing the commencement of suits. It was not stated that the suit or the injunction was necessarily confined to a case of threatened direct trespass upon or injury to prop- * For a fuller exposition of the views of Justice Matthews, see above, Chap. V. g8 The Non-Suability of the State. erty." This is sophistical. Certainly, if the suit could be entertained, the injunction could be granted. But whether the suit could be entertained, depended upon whether the suits in question might be enjoined. It is true, if the State were a party, other grounds for enjoining the suits might exist. Any equitable ground would suffice. For instance, if the State were about to bring suit upon a chose in action, to which an equitable defense existed, the suit might be en- joined if the State could be made a party, and the agents of the State incidentally included in the injunction. But, of course, this ground would not suffice, if the State could not be made a party, for an injunction against the agents. For such a separate right of action against the agents, other grounds must exist; the acts threatened must be violations of rights in rem. And the question in Ex parte Ayers was : could the threatened suits be regarded as equivalent to tres- passes like that in Poindexter v. Greenhow? It was answered in the negative. It may be said, however, that the decision was made under a general tendency to limit suits against public officers to cases " where the acts com- plained of, considered apart from the official authority alleged as justification, and as the personal acts of the indi- vidual defendants, constituted a violation of right for which the plaintiff was entitled to a remedy at law or in equity against the wrongdoer in his individual character " ; a ten- dency which has not prevailed.^ Even more directly in point was Fitts v. McGhee. A statute of Alabama, 1895, fixed the rates of toll that might ^ See above, Chap. V. The decision, though not the opinion, in Ex parte Ayers may, perhaps, be explained on the ground that, the taxes themselves being perfectly valid, the State had the right to demand them as often as it pleased, subject to the right of the taxpayers to make tender of the coupons ; that the suits were only a form of demand; and that this lawful form of demand was not made unlawful in itself by the imposition of unconstitutional condi- tions on the proof of tender. (If the taxes were unconstitutional, it would seem that there was no right even to demand them.) Consequently, that there was no unlawful act threatened. This would not, of course, be strictly a question of jurisdiction. But relief from sentence for contempt has been extended beyond the lack of jurisdiction in the strict sense. Ex Parte Young. 99 be charged for crossing a certain bridge, under a penalty of $20 for each violation, to be recovered by the persons overcharged. The receivers of the railroad company own- ing the bridge, alleging that the rates were so low as to be unconstitutional, brought suit to restrain the attorney gen- eral from instituting any proceedings, by mandamus or otherwise, to compel the observance and obedience of the act fixing the rates of toll, or for the forfeiture of the franchise of the railroad company in and to the bridge for failure to obey the act. Also, against a certain named indi- vidual and all persons whatsoever, to restrain from insti- tuting suits for penalties, and from procuring the institution of any suit by the State officers. Before final hearing, an amendment to the bill recited that numerous indictments against the agents of the company were being brought under a law of the State making it a misdemeanor to charge un- reasonable rates; and the injunction was extended to re- strain the State solicitor for the judicial district within which the bridge was located from prosecuting criminal pro- ceedings against anyone for violation of the alleged uncon- stitutional statute fixing rates. The supreme court, on appeal, held the suit to be in efifect against the State. Justice Peckham explained the case away on the ground that the act under which the indictments were brought " was not claimed to be unconstitutional, and the indictments found under it were not necessarily connected with the alleged unconstitutional act fixing the tolls," and that the penalties for disobeying the latter act, by demanding and receiving higher tolls, " were to be collected by the persons paying them," no officer of the State having " any official connection with the recovery of such penalties." This entirely overlooks the relation of the attorney general to the alleged unconstitutional act — the proceedings by mandamus or otherwise that might be instituted by him. Besides, there was no suggestion of such a distinction in the opinion in Fitts V. McGhee. The indictments under the act against unreasonable tolls seem to have been regrarded as used to lOO The Non-Suability of the State. enforce the act fixing the tolls.^ The decision was based squarely on Ex parte Ayers. True, it was said that " neither of the State officers named had any special rela- tion to the particular statute alleged to be unconstitutional." But this did not mean that the officers had no direct rela- tion to the statute; it meant that their relation was only in the ordinary exercise of their offices, and not, as in other cases which had to be distinguished, by virtue of any special connection.^ The ground of the decision is clearly shown by this quotation : " There is a wide difference be- tween a suit against individuals holding official position 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 proceeding in the courts of the State."^ So far as precedents were concerned, then, there was, on the one hand, the principle announced in the Ayers and Fitts cases, a principle which had never been questioned. On the other hand, there was the logic of the decisions in the Reagan and Smyth cases. Clearly, the court, in Ex parte Young, was not compelled by precedent. In deciding as it did, it was no doubt influenced by the fact that the principle of Fitts v. McGhee was being abused by State rate legislation imposing such enormous penalties for viola- tion as practically to coerce submission without a test of the constitutionality of the rates. Evidently, the enforce- ment of rates by such proceedings would work just as seri- ous an injury to constitutional rights as any direct trespass to accomplish the same result. Necessity seemed to require the decision. Justice Harlan showed that there was no ^The case was cited to this effect in D. & F. Mfg. Co. v. Los Angeles, 189 U. S. 207, 217. ^As already stated, this distinction was shown to be groundless by Justice Peckham. * Justice Harlem, who had delivered the opinion of the unanimous court in Fitts v. McGhee, said of Justice Peckham's explanation: " The Fitts case is not overruled, but is, I fear, frittered away or put out of sight by unwarranted distinctions." Ex Parte Young. loi such necessity in the case at hand, at least. The bill in the suit below had been brought by stockholders of the railroad companies concerned, to enjoin the railroads from obedi- ence to the rates prescribed, as well as to enjoin the State officers from enforcement of the act. So that, at the time the attorney general committed his contempt, the railroad company was acting under order of the federal court, and was, therefore, protected by this defense against any action that might be brought in the State courts, as was held in Hunter v. Wcod.^ Such a situation would arise, however, only under the operation of the equity rule which enables stockholders, in certain circumstances, to enjoin the cor- poration from obeying an unconstitutional law to the injury of the corporation.^ Accepting the view that suits to enforce an unconstitu- tional statute may be equivalent to a trespass, there remain other objections. There is, in the first place, section 720 of the revised statutes,^ forbidding the granting of a writ by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bank- ruptcy. Strangely, this statute, though much relied upon in Gunter v. Atlantic Coast Line Railroad Company, was not discussed in either opinion in Ex parte Young. Yet it seems to ofifer an insuperable bar. Its prohibition extends, of course, not merely to writs addressed directly to State courts, but also to writs to enjoin parties from instituting proceedings in State courts. It is limited, to be true, by the doctrine of Dietzsch v. Huidekoper, that a federal court may enjoin such proceedings where necessary to the effective exercise of its own jurisdiction. Under this doc- trine, a party to a suit in a federal court may be enjoined from bringing in the State courts suits involving the same question between the same parties. In the Gunter case, for example, the State having been a party to the original suit, »209 U. S. 205. * State decisions contrary to Ex parte Young are R. R. Com. v. T. & A. R. R. Co., 24 Fla. 417; State v. So. Ry. Co., 145 N. C. 495. «U. S. Comp. Stat. 1901, p. 581. I02 The Non-Suability of the State. in which a certain tax was held unconstitutional, it was held that section 720 did not bar an ancillary suit to enjoin the agents of the State from suing in the name of the State for the same taxes. In Ex parte Young, Justice Peckham said : " The ques- tion that arises is whether there is a remedy that the parties interested may resort to, by going into a federal court of equity, in a case involving a violation of the federal con- stitution, and obtaining a judicial investigation of the prob- lem, and, pending its solution, obtain freedom from suits, civil or criminal, by a temporary injunction, and, if the question be finally decided favorably to the contention of the company, a permanent injunction restraining all such actions or proceedings." Now, if enjoining the suits in such a case could be thus regarded as incidental to the action against the officers, there would, of course, as in the Gunter case, be no need of holding such suits to be equiva- lent to a trespass. But it is utterly improper to regard them so in a case like Ex parte Young, where the only relation of the officers to the statute was, as law officers of the State, to bring formal suits in the name of the State. There was no right of action against the officers to test the constitutionality of the statute, as incidental to which suits by the officers with the same object might be enjoined. The only right of action against the officers was to restrain the suits as equivalent to a trespass ; and the only bearing of the question of constitutionality of the statute was with respect to whether the officers had lawful authority for their otherwise wrongful acts. The prohibition in section 720 is, of course, purely statutory ; and whether it properly applied or not does not affect the main principle of the case. Another ground of objection, strongly urged by Justice Harlan, is that to shut out a State from appearing in its own courts, by enjoining all its officers, is contrary to our federal form of government. Justice Peckham admitted: "It is proper to add that the right to enjoin an individual, even though a State official, from commencing suits under Ex Parte Young. 103 circumstances already stated, does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature, nor does it include power to prevent any investigation or action by a grand jury. The latter body is part of the machinery of a criminal court, and an injunction against a State court would be a violation of the whole scheme of our government. If an injunction against an individual is disobeyed, and he com- mences proceedings before a grand jury or in a court, such disobedience is personal only, and the court or jury can proceed without incurring any penalty on that account." Justice Harlan answered: "If an order of the federal court forbidding a State court or its grand jury from attempting to enforce a State enactment would be a violation of the whole scheme of our government, it is difficult to see why an order of that court, forbidding the chief law officer and all the district attorneys of a State to represent it in the courts, in a particular case, and, practically, in that way closing the doors of the State courts against the State, would not also be inconsistent with the whole scheme of our government, and, therefore, beyond the power of the court to make." It may be said, however, that, even if Justice Harlan's argument be fully accepted, limitations growing out of our federal form of government seem to yield before exigencies sufficiently strong.^ From the foregoing exposition, it is plain that Ex parte Young was a very difficult case. The court succeeded in agreeing, however, with only one dissent: and the decision, made upon the fullest consideration, may doubtless be ac- cepted as final. Its immediate efl'ect upon rate regulation will probably be good ; it will check the tendency back to the unsatisfactory method of regulation directly by the legisla- ture, in order to avoid, under the principle of Fitts v. McGhee, the control of the federal courts.^ In its full ' For example, S. C. v. U. S., 199 U. S. 437. 'Another State plan of confining the determination of the legality of rates, in the first instance, to the State courts, by making the fixing of the rates a judicial act, was frustrated in Prentis v. Atl. C. L. R. R. Co., 211 U. S. 210. I04 The Non-Suability of the State. scope, the decision is startling. Whether a new departure in principle or not, the case certainly marks a radical ex- pansion in the practical control of the federal courts over State activities. It enables a federal court to enjoin criminal prosecutions under any State law alleged to be unconstitutional, provided only equitable grounds exist. It has already led to a strong movement to regulate strictly the exercise of this power by the federal courts.^ 1 Congressional Record, 6oth Congress, ist session, p. 133. Presi- dent's message, December 3, 1907. Meeting of attorneys-general of States, September and October, 1907. CHAPTER VII. Federal Question — When Involved in Suits Against State Officers. A right of action against public officers exists, as appears from the foregoing chapters, whenever they threaten acts that violate rights in rem. These acts, otherwise unlawful, are lawful if done under valid authority of the State. Whenever the validity of the authority set up depends upon the constitution of the United States, a federal question is involved. In Ex parte Young, Attorney General, now Governor, Hadley of Missouri, of counsel for petitioner, stated the following dilemma: " If the act sought to be enjoined is not the State's act, the fourteenth amendment is not involved. If the act sought to be enjoined is the State's act, then the eleventh amendment interposes to deny jurisdiction."^ Now, in the first place, it is not necessary, to avoid conflict with the eleventh amendment, to regard the act of the officer as not the act of the State. If the act is wrongful, an action lies against the officer, whether his act is the act of the State or not. Moreover, it is not necessary, to in- volve the fourteenth amendment, that the act of the officer under an unconstitutional statute be regarded as the act of the State. It is true the prohibitions of the fourteenth amendment apply only to State action. But, whether the acts of the officer be regarded as the acts of the State or not, the fourteenth amendment is involved whenever the State authority set up is alleged to be in violation of the amendment. If the act be regarded as not the act of the State if unconstitutional, then the question is whether it is prevented from being the act of the State by the fourteenth amendment. ^ Quoted from an article by Hadley : " The Eleventh Amend- ment " : 66 Cent. Law Jour., 71, 75. 105 io6 The Non-Suability of the State. To involve a question under the fourteenth amendment, then, there must be a State authority set up, alleged to be in violation of the amendment. What constitutes a State authority in this sense? One view might be that State authority is involved whenever action is taken by virtue of official position under the State. On the other hand, it might be held that State authority is in question only when the action has valid authorization so far as State law is concerned. The latter view is not followed throughout, at any rate. For action of officers under a State statute will always be tested under the fourteenth amendment, even if the statute is alleged to violate also the State constitution. In other words, although prohibited by higher State authority, the statute is sufficiently State authority to invoke the test of the fourteenth amendment. This leads to a consideration of Barney v. City of New York.^ In that case, there was no diverse citizenship, so that jurisdiction depended entirely upon the existence of a federal question. A bill was brought in the United States circuit court to enjoin the city of New York, the board of rapid transit commissioners, and certain contractors from proceeding with the construction of a tunnel under Park Avenue, adjacent to the premises of plaintiff, "until the easements appurtenant thereto shall have been acquired ac- cording to law and due compensation made therefor"; it being alleged that the tunnel was being constructed nearer his premises than provided in the plan adopted in com- pliance with the requirements of the State law in case of such a construction. That is, the threatened act was alleged to be illegal under the State law, and at the same time to " deprive of property without due process of law," by taking easements without compensation.- The court upon its own motion dismissed the bill for want of juris- diction. The supreme court affirmed the decision, on the ground that the act, being illegal under State law, was not 2 193 U. S. 430. * The fourteenth amendment applies, of course, to the action of local governments, as well as of other State agencies. Federal Question. 107 State action, so that the fourteenth amendment did not apply. The opinion of the court, by Chief Justice Fuller, is far from convincing. The case mainly relied upon is Virginia V. Rives, ^ in which was denied the right to remove a criminal action to the federal court, under a statute pro- viding for such removal in case of " denial or inability to enforce in the judicial tribunals of a State, rights secured to a defendant by any law providing for the equal civil rights of all persons citizens of the United States," upon the allegation that the officer charged with the selection of jurors would discriminate against negroes in the selection. Now, the officer had no authority under the State law to make such a discrimination; and the supreme court simply held that, under these circumstances, there was not suffi- cient ground to presume that the petitioner could not en- force his rights in the judicial tribunals of the State — that to raise such a presumption, there must be a State statute, which, if enforced, would violate such rights. The court expressly said that the act of congress was not as broad as the fourteenth amendment. A like discrimination, under the same State law, was held, in Ex parte Virginia,- to be sufficiently State action to be punishable under the power to enforce the fourteenth amendment. Justice Strong said: "Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition ; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State."^ The other cases cited by Chief Justice Fuller for the 1 100 U. S. 313. ' 100 U. S. 339. 3 Chief Justice Fuller's explanation of Ex parte Virginia as " a case in which what was regarded as the final judgment of a State court was under consideration," is most astonishing; for it was expressly held in that case that it was not an attempt to punish State judicial action. io8 The Non-Suability of the State. "principle that it is for the State courts to remedy acts of State officers done without the authority of or contrary to State law — " Missouri v. Dockery^ and the Civil Rights Cases — ^ furnish no better support. The Civil Rights cases are not in point at all, no action of State officers being involved. And Missouri v. Dockery was decided expressly on the ground that the acts in question were within State competence without violation of any federal limitation; so that whether they were authorized by State law or not raised no federal question.^ The decision in Barney v. New York may be sustained only upon the view that, where a higher State authority prohibits, no State authority exists to be tested under the fourteenth amendment. But this is certainly contrary to the practice of testing a State statute under the fourteenth amendment, although the statute is also in violation of the State constitution. And it seems more reasonable to hold that, whenever action is taken " by virtue of public position under a State government," it is sufficient to raise the ques- tion whether such action is prohibited by the fourteenth amendment, although it may also be contrary to State law. The case of General Oil Company v. Crain* may best be considered here. A bill was brought in a Tennessee court to enjoin the State oil inspector from collecting inspection fees on oil brought to Memphis from Ohio, already sold for shipment into other States, but car-loads put into tanks in Memphis for subdivision for distribution; it being alleged that the oil was exempt from State control as interstate !• 191 U. S. 165. 2 109 U. S. 3. 8 The act of an officer in the exercise of his authority under a statute is, of course, just as much the act of the State as if specifically directed by statute ; for instance, the fixing of rates by a commission, as in Reagen v. Farmers L. & T. Co. See also Fargo V. Hart, 193 U. S. 490; Gen. Oil Co. v. Crain, 209 U. S. 211. The opinion in La. v. Texas, 176 U. S. i, seems contrary. In Arbuckle v. Blackburn, 191 U. S. 405, no federal question was in- volved, because the act of the officer was simply a finding of fact under a State law admitted to be valid. * 209 U. S. 211. Federal Question. 109 commerce. The State court dismissed the bill for lack of jurisdiction, upon a construction of a State law of 1873, prohibiting suits against the State " or any officer acting by the authority of the State, with a view to reach the State, its treasury, funds, or property." In a previous case, the State court of Tennessee had sustained a suit against officers of the State acting under a statute alleged to be unconstitu- tional, on the ground that, when acting under an uncon- stitutional statute, officers are not acting for the State. In the present case, however, the inspection law was not alleged to be void on its face, but only on the ground that the oil upon which defendant was about to impose in- spection fees was in law affected with interstate commerce. To enter into the inquiry involved in this contention, the court said, it would be necessary first to determine whether the oil in the tanks was in fact and in law a part of inter- state commerce; and this the court had no jurisdiction to do, because of the law of 1873. Now, the State court was clearly wrong; for there was nothing more to prevent an inquiry whether the commerce clause applied to the oil in question upon action of a State officer under a State statute, than upon a statute itself. But the question was, upon writ of error to the supreme court, whether any federal question was involved, the rul- ing of the State court having been entirely upon the ground of lack of jurisdiction under the State law. The court held there was, because the State court had " refused to consider that which might bring the oil under the protection of the constitution of the United States." "It being, then, the right of a party to be protected against a law which violates a constitutional right, whether by its terms or the manner of its enforcement, it is manifest that a decision which denies such protection gives effect to the law, and the decision is reviewable by this court. R. R. Co. v. Alsbrook."^ This is no argument at all, for, manifestly, any dismissal for lack of jurisdiction of a suit for violation of a con- * 146 U. S. 279. no The Non-Suability of the State. stitutional right by a State statute, even if the suit were directly against the State, would give effect to the statute. Railroad Company v. Alsbrook is not in point. In that case the State court ruled upon the federal question. Justice McKenna reviewed the cases in which it had been held that a decision by the State court upon its own jurisdiction is final, and then dismissed them with the remark that " in none of these cases was the same question presented as here," without any real attempt to distinguish them. The only proper ground for the decision would seem to be that a remedy of right existed against the officer for violation of a constitutional right, and that a State statute or decision denying this remedy, even upon the ground of lack of juris- diction, was itself unconstitutional.^ 1 The ruling of the State court was afifirmed on the ground that the inspection tax in question was not unconstitutional. Justice Harlan concurred in. the judgment on the ground that the decision of the State court as to its own jurisdiction was final. Justice Holmes concurred specially. CHAPTER VIII. The Relation of the State to Suits Against its Officers. In suits against public officers directly affecting the state- for instance, where the defense in an action of ejectment against officers depends upon title of the state -the state may, without becoming a party, by formal suggestion by its law officer, bring its rights before the court.^ This special privilege extends even to participation m argument Whether, in such a case, in which the state has not sub- mitted itself to the jurisdiction of the court, it may pros- ecute in its own name a writ of error from a rulmg, has not been squarely decided by the supreme court ;^ although the opinion in South Carolina v. Wesley inclines strongly against the right. The basic problem remains to be considered: i^s a suit against public officers ever a suit against the state?* ^^ In Osborn v. Bank, Chief Justice Marshall said: It may, we think, be laid down as a rule which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named in the record.^ Con- sequently, the eleventh amendment, which restrains the jurisdiction granted by the constitution over suits agamst States is, of necessity, hmited to those suits in which a State is a party on the record. . . . The State not being a party on the record, and the court having jurisdiction over ^U. S. V. Lee, io6 U. S. 196; Stanley v. Schwalby, 162 U. S. 255; Belknap V. Schi'ld, 161 U. S. 10. »R wa" noWLl:7y tfdecide the point in U. S. v. Lee, because the same questions were raised in the bUl of exceptions of the individual defendants. And in S. C. v Wesley, I55 U. S. 542, the exceptions below had not been properly taken "°r ,b!-o"ght up. * Apart of course, from where the state has provided therefor as a form of action against itself. See Part I, p. 40. Ill 112 The Non-Suability of the State. those who are parties on the record, the true question is, not one of jurisdiction, but whether, in the exercise of its jurisdiction, the court ought to make a decree against the defendants — whether they are to be considered as having a real interest, or as being only nominal parties." This was held settled doctrine as late as Davis v. Gray.^ Even in Davis v. Gray, however, two justices, dissenting, held the suit against the officers to be in effect against the State. In Carr v. United States,- Justice Bradley showed strongly his opinion that suits against pubhc officers, like that in United States v. Lee, are suits against the United States. And, in United States v. Lee, the four dissenting justices held the suit to be in effect against the United States. In Louisiana v. Jumel, the suit against officers was held to be against the State. In Cunningham v. Macon and Brunswick Railroad Company, the suit was dismissed be- cause the State was an indispensable party. So that, by the time of Poindexter v. Greenhow,^ the court was in a posi- tion to say, as a matter of course : " It is also true that the question whether a suit is within the prohibition of the eleventh amendment is not always determined by refer- ence to the nominal parties on the record." Since then, it * Justice Harlan, dissenting, in Ex parte Ayers, stood squarely upon it. Justice Matthews said that the language of Chief Justice Marshall " conveys the intimation that, where the defendants, who are sued as officers of the State, have not a real, but merely a nominal interest in the controversy, the State appearing to be the real de- fendant, and therefore an indispensable party, if the jurisdiction does not fail for want of power over the parties, it does fail, as to the norninal defendants, for want of a suitable subject-matter." But Chief Justice Marshall expressly said that "the question is not one of jurisdiction." Justice Matthews sought to support his interpretation by the opinion of Chief Justice Marshall in Ga. v. Madrazo. i Pet. no. But in that case the chief justice merely considered that the suit against the governor as governor might suffice as a suit against the State; as it seems to have been intended, on the theory that the eleventh amendment does not apply to suits in admiralty. Since the suit was brought in this aspect, it could hardly be regarded as against the governor personally. If it could, however, the reason for dismissal was stated by Chief Justice Marshall to be that no case was made out against him. 298 U. s. 433. » 114 U. S. 270. Relation of State to Suits Against Officers. 113 has been " the settled doctrine of the court that the question whether a suit is within the prohibition of the eleventh amendment is not always determined by reference to the nominal parties on the record, as the court will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit."^ Two cases mainly impelled the court to this doctrine that the court will look behind the parties to the record — Cun- ningham V. Macon and Brunswick Railroad Company- and New Hampshire v. Louisiana.^ The Cunningham case was a suit to foreclose a mortgage upon a railroad, to which the State held the legal title under a deed of trust. It was held that the State was an indispensable party to the suit, and, therefore, that the suit could not be maintained. In- dispensable parties are " persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without affecting that interest or leaving the controversy in such a condition that its final disposition may be wholly inconsistent with equity and good conscience."* In other words, a court will not exercise jurisdiction in a case where it cannot do substantial justice without the presence of other parties — that is, where any judgment it might render between the parties to the record would be subject in such manner to the rights of persons not parties that the judgment would not be com- plete. The relation of indispensable party can exist, then, only where the party to the record and the indispensable party both have an interest in the same subject-matter of the suit, so related that one cannot be disposed of properly without the other. Now, manifestly, there is no such rela- tion between the state and its officers. They have no per- sonal interest in the subject-matter of suits against them as officers; the suits are never based on any such interest. Hence the doctrine of indispensable party has no place. ^Justice Lamar, in Pennoyer v. McConnaughy. ^ 109 U. S. 446. " 108 U. S. 76. * See Part I, p. 39. 114 ^^^ Non-Suability of the State. In New Hampshire v. Louisiana, suit was brought by the State of New Hampshire on bonds of Louisiana assigned to it for collection by its citizens, who retained the bene- ficial interest. The court held that the real parties to the suit were the citizens of New Hampshire, and therefore dismissed the suit as against a State by citizens of another State. This is the case always mainly relied upon for the doctrine that the court will look behind the nominal parties to the real parties in interest. The point involved was, however, entirely different from that in a suit against public officers. In New Hampshire v. Louisiana, the State repre- sented its citizens, so that they might be said to be not only the real parties in interest, but the real parties to the suit. In a suit against public officers, on the other hand, there is no pretence that the officers represent the state in the suit; so that it cannot be said that the state is a real party to the suit. The doctrine of nominal party and real party, there- fore, likewise has no place. What may be true is that the only real ground of action in the case is against the state. But the fact that there is no real ground of action against the officers, and that there is a real ground of action against the state, does not make a suit against the officers a suit against the state. Chief Justice Marshall was clearly right in holding that the ques- tion is not whether the suit is against the state, but whether there is a real ground of action against the officers. This is conclusively proved by comparing the two cases of United States V. Lee and Chandler v. Dix. The interest of the state in the subject-matter of the suit was precisely similar in the two cases; the judgment against the officers in neither case, of course, would bind the state: yet in the one case the suit was upheld, because there was a real ground of action against the officers themselves, and in the other dis- missed, because there was no such ground of action. It may have been observed that, throughout this study, the question of whether suits against public officers may be maintained has been determined, not upon the interest of the state, but Relation of State to Suits Against Officers. 1 1 5 upon the question whether there is a real ground of action against the officers. As a mater of fact, ahhough the doctrine that the court will look behind the record to determine whether the state is the real party has been constantly announced, the cases rather harmonize with the other view. Generally, of course, it makes no practical difference whether the decision is put upon the ground that the suit is against the state, or that there is no ground of action against the officers. But sometimes it is material whether the question is one of juris- diction. If the question is whether the suit is against the state, then, clearly, it is one of jurisdiction. In this view, if the case upon the record may be a suit against the state, then it is the duty of the court, even upon its own motion, to inquire into the question of jurisdiction.^ Yet the court certainly has not taken this attitude. In Smyth v. Ames, Justice Harlan, delivering the opinion of the court, said of the objection that the suit was against the State: "This point is, perhaps, covered by the general assignments of error, but it was not discussed at the bar by the representa- tives of the State board. It would, therefore, be sufficient to say that these are cases of which, so far as the plaintiffs are concerned, the circuit court has jurisdiction," on the grounds both of diverse citizenship and of a federal ques- tion. And in Illinois Central R. R. Co. v. Adams,^ it was squarely held that the question was not one of jurisdiction, and that it was error in the court below to decide it upon a motion to dismiss for want of jurisdiction,^ ' Postal Tel. Co. v. Ala., 155 U. S. 482 ; Minn. v. Hitchcock, 185 U. S. 372. The only case in which this has been done, so far as I know, in a suit against public officers, is Lowry v. Thompson, 25 S. C. 416. " 180 U. S. 28. ' Cotting V. Godard, 183 U. S. 79, and Prout v. Starr, 188 U. S. 537, bear out the same view. In Minn. v. Hitchcock, in a suit by a State against the secretary of the interior, the court did inquire into the question of jurisdic- tion upon its own motion. But there it was held that the suit was a form of action against itself provided by the United States; and it was necessary to inquire whether the court had jurisdiction of such a case. Ii6 The Non-Suability of the State. On the other hand, are the cases in which a petition for habeas corpus has been entertained, upon a sentence for contempt for violation of an injunction against public officers.^ In Ex parte Ayers, the petitioner was released on the ground that the court below had no jurisdiction, be- cause the suit was against the State. And Justice Harlan dissented on the ground that the question of jurisdiction was the only one involved, and that was determined by the parties to the record. None of the other questions involved in the main suit, he said, was to be considered, not even "whether an officer ought to be enjoined from merely bringing a suit in behalf of the pubHc, the suit itself not necessarily, or before judgment therein, involving an in- vasion of the property rights of the defendant therein." But the courts have not generally limited the inquiry in such cases to the question of jurisdiction in its strict sense. And where the objection to the suit below is not to the merits of the ground of action as made out, but that no real ground of action is made out against the officers, it would seem sufficient to justify a release, although not strictly a ques- tion of jurisdiction. In Ex parte Young, although the question was stated to be whether the suit below was in violation of the eleventh amendment, the actual basis of discussion through the whole opinion was whether there was a real ground of action against the attorney general. The inquiry was even made, as vital to the case, whether the attorney general had any actual duties in the enforcement of the statute. Surely this was not a question of jurisdic- tion, and could not affect the question whether the suit was against the State. No court of justice, certainly, will suffer an attempt to enforce a right of action against one person in a suit against another. For instance, in a suit for the destruction of property used in infringement of a patent, if it appears that the party sued has no interest, but that the property belongs to another, the court certainly will not proceed, even though 1 Ex parte Ayers and Ex parte Young. Relation of State to Suits Against Officers. 1 17 the party sued make no objection, because to do so would be contrary to the first principles of justice.^ Whether this be regarded as a question of jurisdiction, however, is, after all, comparatively unimportant here. What is essential is that suits against public officers be considered from the right point of view. Whatever error appears in the cases has resulted from taking the interest of the state as a cri- terion.2 The proper inquiry in every case should be not what is the interest of the state, but whether there is a real ground of action against the officers.^ This basis of determination, it is true, is purely legal. In fact, though not in legal theory, the state is bound by deci- sions against its officers such as in United States v. Lee and in Ex parte Young. Practically, the rights of the state are determined in such cases. The doctrine of im- munity of the state from suit might have been given a liberal construction. The eleventh amendment might have been held to exclude any suit that actually directly binds the State. But this construction was conclusively rejected in Osborn v. Bank. If it had been adopted, con- stitutional limitations would have been dead letters. Given Osborn v. Bank, the only logical principle of construction is to follow consistently legal theory, according to which public officers may be sued whenever there is a separate ground of action against them. ^ This, as I understand it, is different from the doctrine of in- dispensable party. That doctrine applies, not where an attempt is made to determine the rights of persons not parties, but where no satisfactory or effective judgment can be rendered between the parties, if those rights remain undetermined. ^As in Louisiana v. Jumel (see above, p. 6g) ; and especially in Belknap v. Schild (see above, p. 50). * Where a real ground of action exists, a suit against public officers as such is never of such a nature that an effective remedy cannot be given between the parties to the record without other parties. VITA. Born in Baltimore, January 26, 1886. Passed through public schools, including Baltimore City College. A.B., Johns Hopkins University, 1907. LL.B., University of Maryland, 1909. Member of the bar of Maryland. Fel- low in political science, Johns Hopkins University, 1909- 1910; Ph.D., 1910. 118 LEJa'i2 THE DOCTRINE OF NON-SUABILITY OF THE STATE IN THE UNITED STATES BY KARL SINGEWALD A DISSERTATION Submitted to the Board of » University Studies of The Johns Hopkins University in conformity with the requirements for the degree of Doctor of Philosophy 1910 8ALTIMORE 1910 1^ 25 f« 82 V^. r^^ *>t. ' .^'-"t., .( .0 '-^ *.,,• ^ t .rv * I \ \^l^/ .^^""^^^ -y^^^/ ^^' ^^ <<&> a'' "^r.^^ ^°-n^^ V