The Constitution of the United States of America: Analysis and Interpretation Part 171

Early Limitation on Injunction Proceedings

In spite of a dictum by Justice Bradley in the McComb Case that the writs of mandamus and injunction are somewhat correlative to each other in suits against State officials for illegal actions,[28] injunctions against State officials to restrain the enforcement of an unconst.i.tutional statute or action in excess of statutory authority are more readily obtainable. They const.i.tute in fact the single largest cla.s.s of cases involving the issue of State immunity. Until Reagan _v._ Farmers' Loan and Trust Company[29] the Court maintained a distinction between the duty imposed upon an official by the general laws of the State and the duty imposed by a specific unconst.i.tutional statute and held that whereas an injunction would not lie to restrain a State official from enforcing an act alleged to be unconst.i.tutional in pursuance of the general duties of his office, it would lie to restrain him from performing special duties vested in him by an unconst.i.tutional statute.[30] The leading cases a.s.sertive of this distinction are Ex parte Ayers and Fitts _v._ McGhee, decided respectively in 1887 and 1899.[31]

Injunction Proceedings Today: Ex parte Young

However, the distinction between injunction suits to restrain an official from pursuing his general duties under the law and those to restrain the performance of special duties under an unconst.i.tutional statute had been largely lost even before Fitts _v._ McGhee, in Reagan _v._ Farmers' Loan and Trust Company[32] and Smyth _v._ Ames,[33] where injunctions issued by the lower federal courts to restrain the enforcement of railroad rate regulations were sustained even though the officials against whom the suits were brought were acting under general law. What remained of the distinction as a limitation upon suits against State officials was dispelled by Ex parte Young,[34] which not only sustained an injunction restraining State officials from exercising their discretionary duties but also upheld the authority of the lower court to enjoin the enforcement of the statute prior to a determination of its unconst.i.tutionality. While Ex parte Ayers and Fitts _v._ McGhee[35] were not overruled, the inevitable effect of the Young Case was to abrogate the rule that a suit in equity against a State official to enjoin discretionary action is a suit against the State, and to convert the injunction into a device to test the validity of State legislation in the federal courts prior to its interpretation in the State courts and prior to any opportunity for State officials to put the act into operation.[36]

But the earlier rule still crops up at times. Thus as recently as 1937, Ex parte Ayers[37] was applied to the interpretation of the Federal Interpleader Act,[38] so as to prevent taxpayers from enjoining tax officials from collecting death taxes arising from the competing claims of two States as being the last domicile of a decedent.[39] On the other hand, the Eleventh Amendment was held not to be infringed by joinder of a State court judge and receiver in an interpleader proceeding in which the State had no interest and neither the judge nor the receiver was enjoined by the final decree.[40]

Tort Actions Against State Officials

In tort actions against State officials the rule of United States _v._ Lee[41] has been substantially incorporated into the Eleventh Amendment.

In Tindal _v._ Wesley[42] the Lee Case was held to permit a suit by claimants to real property in South Carolina which they had purchased from the State sinking fund commission but which had been retaken by the State because the purchaser insisted on paying for the property with revenue bond scrip issued by the State. In other cases the Court had held that the immunity of a State from suit does not extend to actions against State officials for damages arising out of willful and negligent disregard of State laws.[43]

Suits to Recover Taxes

Recent decisions, however, have rendered suits against State officials to recover taxes increasingly difficult to maintain. Although the Court long ago held that the sovereign immunity of the State prevented a suit to recover money in the general treasury,[44] it also held that a suit would lie against a revenue officer to recover tax moneys illegally collected and still in his possession.[45] Beginning, however, with Great Northern Life Insurance Co. _v._ Read[46] in 1944 the Court has held that this kind of suit cannot be maintained unless the State expressly consents to suits in the federal courts. In this case the State statute provided for the payment of taxes under protest and for suits afterwards against State tax collection officials for the recovery of taxes illegally collected. The act also provided for the segregation by the collector of taxes paid under protest. The Read Case has been followed in two more recent cases[47] involving a similar state of facts, with the result that the rule once permitting such suits to recover taxes from a segregated fund has been distinguished away.

Consent of State to be Sued

Although _dicta_ in some cases suggested that once a State consented generally to be sued in a court of competent jurisdiction,[48] suits could be maintained against it in the federal courts, later decisions involving statutory provisions for the payment of taxes under protest followed by a suit in a court of competent jurisdiction to recover do not authorize suits in the federal courts. These rulings are based on the a.s.sumption that when the court is dealing "with the sovereign exemption from judicial interference in the vital field of financial administration a clear declaration of the State's intention to submit its fiscal problems to other courts than those of its own creation must be found."[49] Long before these decisions it had been settled that a State could confine to its own courts suits against it to recover taxes.[50] Thus the questions involved in the cases laying down the above rule concerned only the lack of an express consent to suit in the federal courts.

Waiver of Immunity

The immunity of a State from suit is a privilege which it may waive at pleasure by voluntary submission to suit,[51] as distinguished from appearing in a similar suit to defend its officials,[52] and by general law specifically consenting to suit in the federal courts. Such consent must be clear and specific and consent to suit in its own courts does not imply a waiver of immunity in the federal courts.[53] It follows, therefore, that in consenting to be sued, the States, like the National Government, may attach such conditions to suit as they deem fit.

Notes

[1] 2 Dall. 419 (1793).

[2] Justice Frankfurter dissenting in Larson _v._ Domestic & Foreign Corp., 337 U.S. 682, 708 (1949).

[3] 6 Wheat. 264, 411-412 (1821).

[4] 9 Wheat. 738 (1824).

[5] Ibid. 850-858.

[6] 1 Pet. 110 (1828).

[7] Ex parte Ayers, 123 U.S. 443, 487 (1887).

[8] Osborn _v._ Bank of the United States, 9 Wheat. at 858, 859, 868.

[9] Lincoln County _v._ Luning, 133 U.S. 529 (1890).

[10] Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911).

_See also_ Bank of the United States _v._ Planters' Bank of Georgia, 9 Wheat. 904 (1824), where a State bank was held liable to suit although the State owned a portion of its stock, and Briscoe _v._ Bank of Kentucky, 11 Pet. 257 (1837), and Bank of Kentucky _v._ Wister, 2 Pet.

318 (1829), where the State bank was held liable to suit even though the State owned all of the stock. Compare, however, Murray _v._ Wilson Distilling Co., 213 U.S. 151 (1909), which held that a State in engaging in the retail liquor business does not surrender its immunity to suit for transaction of a nongovernmental nature. Here the State conducted the business directly rather than through the medium of a corporation.

[11] Hans _v._ Louisiana, 134 U.S. 1 (1890); Fitts _v._ McGhee, 172 U.S.

516, 524 (1899); Duhne _v._ New Jersey, 251 U.S. 311, 313 (1920); Ex parte New York, 256 U.S. 490 (1921).

[12] Monaco _v._ Mississippi, 292 U.S. 313, 329 (1934).

[13] Smith _v._ Reeves, 178 U.S. 436 (1900).

[14] New Hamps.h.i.+re _v._ Louisiana, 108 U.S. 76 (1883). However, this rule does not preclude a suit by a State to collect debts which have been a.s.signed to it and the proceeds of which will remain with it. South Dakota _v._ North Carolina, 192 U.S. 286 (1904)

[15] 134 U.S. 1, 11 (1890).

[16] 292 U.S. 313, 328-332 (1934).

[17] For the liability of the States to suit by the United States _see_ the discussion of the right of the United States to sue under article III, -- 2, _supra_, pp. 584-585.

[18] Tindal _v._ Wesley, 167 U.S. 204, 213 (1897). This case applied the rule of United States _v._ Lee, 106 U.S. 196 (1882), to suits against States.

[19] _See_ for example Larson _v._ Domestic & Foreign Corp., 337 U.S.

682 (1949), where both the majority and dissenting opinions utilize both types of cases in a suit against a federal official.

[20] Pennoyer _v._ McConnaughy, 140 U.S. 1 (1891); Scully _v._ Bird, 209 U.S. 481 (1908); Atchison, Topeka & S.F.R. Co. _v._ O'Connor, 223 U.S.

280 (1912); Greene _v._ Louisville & I.R. Co., 244 U.S. 499 (1917); Louisville & Nashville R. Co. _v._ Greene, 244 U.S. 522 (1917).

[21] Osborn _v._ Bank of the United States, 9 Wheat. 728 (1824); Board of Liquidation _v._ McComb, 92 U.S. 531 (1876); Poindexter _v._ Greenhow, 114 U.S. 270 (1885); Pennoyer _v._ McConnaughy, 140 U.S. 1 (1891); Reagan _v._ Farmers' Loan & Trust Co., 154 U.S. 362 (1894); Smyth _v._ Ames, 169 U.S. 466 (1898); Ex parte Young, 209 U.S. 123 (1908); Truax _v._ Raich, 239 U.S. 33 (1915); Public Service Co. _v._ Corboy, 250 U.S. 153 (1919); Sterling _v._ Constantin, 287 U.S. 378 (1932); Davis _v._ Gray, 16 Wall. 203 (1873); Tomlinson _v._ Branch, 15 Wall. 460 (1873); Litchfield _v._ Webster Co., 101 U.S. 773 (1880); Allen _v._ Baltimore & O.R. Co., 114 U.S. 311 (1885); Gunter _v._ Atlantic C.L.R. Co., 200 U.S. 273 (1906); Prout _v._ Starr, 188 U.S. 537 (1903); Scott _v._ Donald, 165 U.S. 58; _also_ 165 U.S. 107 (1897).

[22] South Carolina _v._ Wesley, 155 U.S. 542 (1895); Tindal _v._ Wesley, 167 U.S. 204 (1897); Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911). In this last case the Court held that a suit would lie against the State Agricultural College, and relief could be granted to the extent that it would not affect the property rights of the State.

These cases involve such matters as the seizure and distraint of property, wrongs done by government corporations, etc.

[23] _See_ for example Governor of Georgia _v._ Madrazo, 1 Pet. 110 (1828); Cunningham _v._ Macon and Brunswick R. Co., 109 U.S. 446 (1883); Louisiana ex rel. Elliott _v._ Jumel, 107 U.S. 711 (1883); Hagood _v._ Southern, 117 U.S. 52 (1886); Chandler _v._ Dix, 194 U.S. 590 (1904); Murray _v._ Wilson Distilling Co., 213 U.S. 151 (1909); Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911); Lankford _v._ Platte Iron Works, 235 U.S. 461 (1915); Carolina Gla.s.s Co. _v._ South Carolina, 240 U.S. 305 (1916); Kennecott Copper Corp. _v._ State Tax Commission, 327 U.S. 573 (1946).

[24] Hagood _v._ Southern, 117 U.S. 52, 70 (1886). _See also_ Pennoyer _v._ McConnaughy, 140 U.S. 1, 10 (1891) where Justice Lamar also emphasizes the operation of the judgment against the State itself.

[25] 107 U.S. 711, 721 (1883). _See also_ Christian _v._ Atlantic & N.C.R. Co., 133 U.S. 233 (1890).

[26] Louisiana ex rel. Elliott _v._ Jumel, 107 U.S. 711, 721 (1883).

[27] Board of Liquidation _v._ McComb, 92 U.S. 531, 541 (1876). This was a case involving an injunction, but Justice Bradley regarded mandamus and injunction as correlative to each other in cases where the official unlawfully commits or omits an act. _See also_ Rolston _v._ Missouri Fund Commissioners, 120 U.S. 390, 411 (1887), where it is held that an injunction would lie to restrain the sale of a railroad on the ground that a suit to compel a State official to do what the law requires of him is not a suit against the State. _See also_ Houston _v._ Ormes, 252 U.S. 469 (1920).

[28] Board of Liquidation _v._ McComb, 92 U.S. 531, 541 (1876).

[29] 154 U.S. 362 (1894).