Of the important questions of constitutional law now before the
country, none more vitally affects the peace and harmony of our dual
system of government than that of the power of a federal court to
enjoin a state officer from enforcing the provisions of a state statute
which is in conflict with the Constitution of the United States.
This question usually arises in connection with the eleventh article
of amendment, which provides that "the judicial power of the United
States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by citizens
of another state, or by citizens or subjects of any foreign state."
Serious controversies regarding the issuance of injunctions by federal
courts against state officers have arisen in New York, North Carolina,
Alabama, Missouri, Kansas, Minnesota, and other states. A convention
of attorneys-general from a number of states, held at St. Louis in
September and October, 1907, adopted a memorial to the President and
Congress praying that the jurisdiction of the circuit courts of the
United States might be curtailed in respect of suits brought to
restrain state officers from enforcing state laws or the orders of
state administrative boards. The President in his annual message to
Congress called the matter to the attention of that body, and stated
that discontent was often expressed with the use of the process
of injunction by the courts where state laws were concerned. The
assembling of Congress was marked by the introduction of numerous bills
to curtail the power of the federal courts to issue injunctions and by
the offering of several joint resolutions to amend the Constitution
of the United States, which had the same object. The question will,
perhaps, figure prominently in the next presidential campaign. It may,
therefore, be appropriate to review at this time the history of the
eleventh article of amendment to the Constitution of the United States
in order to see what light that history throws upon the purpose of its
framers. Did they intend, in prohibiting suits by an individual against
a state, to deny to the courts of the United States the power to enjoin
a state officer from enforcing a state statute in conflict with the
Constitution of the United States?
In 1787 and 1788, when the adoption of the Constitution was under
consideration by the people of the United States, conflicting views
were entertained as to the suability of a state by an individual for
the recovery of claims against it. Hamilton, Madison and Marshall
expressed the opinion that a state would not be suable by an
individual under the Constitution as drafted. A number of prominent
men, conspicuous among whom were Edmund Pendleton, Patrick Henry and
George Mason, were of opinion that the language of the judicial clause
conferred jurisdiction to entertain and determine such a suit. Some
urged this as an objection to the Constitution. Others, including
James Wilson of Pennsylvania and Edmund Randolph of Virginia, two of
the most distinguished lawyers and publicists of the day and members
of the Constitutional Convention, contended not only that jurisdiction
was conferred but that it was wise and necessary that such jurisdiction
should exist. Wilson urged that "when a citizen has a controversy
with another state, there ought to be a tribunal where both parties
may stand on a just and equal footing," and Randolph argued that the
jurisdiction would tend "to render valid and effective existing claims,
and secure that justice, ultimately, which is to be found in every
regular government." The Constitution of the United States was adopted
as submitted with the understanding that amendments would be promptly
proposed. The First Congress submitted twelve amendments, ten of which
were adopted, but the suability of a state was not mentioned in any of
them.
The question was presented for judicial decision in 1792 in an action
brought by Chisholm, a citizen of the state of South Carolina, against
the state of Georgia in the Supreme Court of the United States under
its original jurisdiction.[24] The action was in assumpsit to recover
a debt. The court then consisted of Chief Justice Jay and Justices
Cushing, Wilson, Blair, Johnson and Iredell. On February 18, 1793,
the court held, Mr. Justice Iredell alone dissenting, that under the
Constitution as originally adopted a state could be sued in that court
by a citizen of another state in an action of assumpsit to enforce
the payment of a contract debt. This decision, which was followed by
the commencement of the suit of Vassal _vs._ Massachusetts, created
irritation and alarm among the states, and particularly among those
which were heavily burdened with debt. The anti-Federalist prints were
loud in invectives against the decision, which was termed a violation
of the sovereignty of the states, and it was declared that the people
were "called upon to draw their swords against this invasion of their
rights." It has been said, though with some exaggeration, that "the
states fairly rose in rebellion against the decision." Four states
formally protested. Although Georgia had been the first state to
invoke the original jurisdiction of the Supreme Court, it nevertheless
refused to appear in the Chisholm suit, and filed a remonstrance and
protestation against the exercise of jurisdiction. After the decision,
it openly defied the authority of the national judiciary. Indeed, it
is stated by McMaster, Cooley and other writers that the legislature
of Georgia at once passed a law subjecting to death without benefit
of clergy any officer who should attempt to serve a process in any
suit against the state, but no record of any such statute can be
found. Probably, as some one has suggested, the supposed law was a
bill which passed only the lower branch of the legislature. At all
events, the legislatures of Virginia, Massachusetts and Connecticut
instructed their senators and representatives to secure the adoption of
an amendment to the Constitution which should prevent suits against a
state by an individual.
On February 20, 1793, two days after the opinions in Chisholm _vs._
Georgia were delivered, a resolution was offered in the United States
Senate proposing an amendment of the Constitution in the following
terms: "The judicial power of the United States shall not extend to
any suits in law or equity, commenced or prosecuted against one of the
United States by citizens of another state or by citizens or subjects
of any foreign state."
The proposed amendment was debated to some extent in the Second
Congress, but it was not passed. In the Third Congress, on January
2, 1794, Caleb Strong, one of the senators from Massachusetts, moved
the adoption of a resolution which changed the form of the proposed
amendment so as to read as follows: "The judicial power of the United
States shall not _be construed to_ extend to any suit in law or equity,
commenced or prosecuted against one of the United States by citizens of
another state, or by citizens or subjects of any foreign state."
The amendment was finally accepted in this form on March 4, 1794, and
was at once submitted to the legislatures of the several states for
ratification, but up to March, 1797, there were still eight states
which had not acted upon it, probably because the political clamor
had subsided, and there was no longer any demand for amendment. In
fact, Congress had to request the President to communicate with the
outstanding states upon the subject. Finally, in a message from
President Adams to Congress dated January 8, 1798, the proposed
amendment was declared to have been ratified by three-fourths of the
states, and it thereupon became the eleventh article of amendment to
the Constitution of the United States. New Jersey and Pennsylvania had
refused to ratify it, while South Carolina and Tennessee had taken no
action.
The unusual and peculiar wording of the amendment first attracts
attention. Instead of declaring how the Constitution shall read
in the future, it declares how it shall "not be construed." This
phraseology was used for political reasons and as a concession to the
susceptibilities of the advocates of state rights. Extremists wanted a
declaration that would not only overrule the recent construction of the
Constitution by the Supreme Court and deny that such a power had ever
existed, but would also oust all jurisdiction in pending as well as in
future cases. The amendment, therefore, does not purport to amend or
alter the Constitution, but to maintain it unchanged, while controlling
its scope and effect by authoritatively declaring how it shall not be
construed.
Speaking of the language of the amendment, Chief Justice Marshall said
in the case of Cohens _vs._ Virginia: "It is a part of our history,
that, at the adoption of the Constitution, all the states were greatly
indebted; and the apprehension that these debts might be prosecuted in
the federal courts formed a very serious objection to that instrument.
Suits were instituted, and the court maintained its jurisdiction.
The alarm was general; and, to quiet the apprehensions that were so
extensively entertained, this amendment was proposed in Congress,
and adopted by the state legislatures. That its motive was not to
maintain the sovereignty of a state from the degradation supposed to
attend a compulsory appearance before the tribunal of the nation, may
be inferred from the terms of the amendment. It does not comprehend
controversies between two or more states, or between a state and a
foreign state. The jurisdiction of the court still extends to these
cases: and in these a state may still be sued. We must ascribe the
amendment, then, to some other cause than the dignity of a state. There
is no difficulty in finding this cause. Those who were inhibited from
commencing a suit against a state, or from prosecuting one which might
be commenced before the adoption of the amendment, were persons who
might probably be its creditors. There was not much reason to fear that
foreign or sister states would be creditors to any considerable amount,
and there was reason to retain the jurisdiction of the court in those
cases, because it might be essential to the preservation of peace. The
amendment, therefore, extended to suits commenced or prosecuted by
individuals, but not to those brought by states.
"The first impression made on the mind by this amendment is, that
it was intended for those cases, and for those only, in which some
demand against a state is made by an individual in the courts of the
Union. If we consider the causes to which it is to be traced, we are
conducted to the same conclusion. A general interest might well be felt
in leaving to a state the full power of consulting its convenience in
the adjustment of its debts or of other claims upon it; but no interest
could be felt in so changing the relations between the whole and its
parts, as to strip the government of the means of protecting, by the
instrumentality of its courts, the Constitution and laws from active
violation."[25]
It will also be observed that the amendment does not refer to suits
against a state by one of its own citizens. This was undoubtedly
because the Constitution did not extend the judicial power of the
United States, when dependent upon the character of the parties,
to controversies between a state and its own citizens, but only to
controversies between a state and citizens of another state or citizens
or subjects of foreign states. The distinction between jurisdiction
dependent upon the nature or subject matter of the controversy
irrespective of the character of the parties, such as cases arising
under the Constitution, laws and treaties of the United States, and
jurisdiction dependent upon the character of the parties irrespective
of the nature or subject matter of the controversy, had probably not
then been as clearly recognized as was subsequently done by Chief
Justice Marshall. The failure of the eleventh amendment to mention
suits against a state by its own citizens gave rise nearly one hundred
years later to the contention that a state could be sued in a circuit
court of the United States by one of its own citizens in a case arising
under the Constitution. This was urged at the October term, 1889, in
Hans _vs._ Louisiana and North Carolina _vs._ Temple,[26] but the court
overruled the contention and held that a state could not be sued by
an individual in a United States court even in a case arising under
the Constitution. Mr. Justice Bradley delivered the opinion of the
court. He criticized the reasoning of the majority in Chisholm _vs._
Georgia, and upheld the dissenting opinion of Mr. Justice Iredell to
the effect that, under the Constitution as originally adopted, no suit
could be maintained against a state by an individual to enforce its
debts except by its consent. Mr. Justice Harlan, however, while he
concurred in holding that a suit directly against a state by one of its
own citizens to enforce a debt was not within the judicial power of
the United States, criticized the comments made by Mr. Justice Bradley
upon the decision in Chisholm _vs._ Georgia as not necessary to the
determination of the case, and expressed the opinion that the prior
decision was based upon a sound interpretation of the Constitution as
that instrument was then worded.
It has been stated in opinions of the Supreme Court that a state
can be sued in a court of the United States by an individual if it
waives its immunity and consents to be sued. But it is difficult to
perceive how the consent or waiver of a state can, in any case and
under any circumstances, confer upon the federal courts jurisdiction
of a suit against it by a citizen of another state or a citizen or
subject of a foreign state in the face of the imperative mandate of
the amendment that "the judicial power of the United States shall _not
be construed to extend_ to" any such suit. It is true that the court
in the case of Clark _vs._ Barnard said that the immunity of a state
from suit in a federal court was a personal privilege which it might
waive at pleasure and that its appearance as a party defendant in a
court of the United States would be a voluntary submission to its
jurisdiction,[27] but in that case the state intervened as an actor
and its intervention was such that it could be treated substantially
as a plaintiff and the jurisdiction sustained on the ground that a
state may sue an individual in a federal court. Although in the more
recent case of Gunter _vs._ Atlantic Coast Line,[28] Mr. Justice White,
delivering the opinion of the court, declared it to be an elementary
proposition that a state could waive its immunity, it will be observed
that in that case the suit was in fact against an officer of the
state of South Carolina, and that the state itself was not a party to
the record. It seems to me, with all deference, that the court has
not yet squarely passed upon the point, nor, so far as I know, has it
ever questioned the fundamental principle that a federal court cannot
exercise jurisdiction in any case to which the judicial power of the
United States, as delegated and defined in the Constitution, does not
extend. An entirely different question is presented when we consider
whether an officer of a state can consent or be authorized to consent
to be sued in a federal court; in other words, whether he can waive the
defense that the state is a necessary party to the suit. It does not
follow that, because a state cannot be sued, it may not authorize its
agent to defend on the merits without pleading the absence of the state
as the real party in interest, and the denial of jurisdiction over the
state as principal does not necessarily imply a denial of jurisdiction
over the officer when doing or attempting to do an illegal act as its
agent or representative. So, also, a different question is presented
under the later amendments, which may be held to have qualified the
eleventh amendment in authorizing Congress to enforce their provisions
by appropriate legislation. As to that point I am not now prepared to
express an opinion.
In construing the eleventh amendment for the purpose of ascertaining
its true intent and meaning, as indeed in construing most of the
provisions of the Constitution and its contemporaneous amendments,
reference to the history and to the common law of England is generally
the safest guide as to what was understood and intended at the time.
In that history will be found the true sources of our institutions,
for these are essentially and predominantly English. The legal and
political institutions of England were constantly in the minds of the
framers and of the people. The common law had long been regarded with
affection and reverence as the birthright of Americans and the guardian
at once of their private rights and their public liberties. Indeed,
the Continental Congress, assembled in October, 1774, had declared the
colonies entitled as of right to the common law.
The theory of the immunity of a state or of the United States from
suit by an individual without its consent is frequently asserted to
be analogous to the monarchical principle as to the immunity of the
king from suit without his consent commonly expressed in the maxim
that "the king can do no wrong." The idea seems to have been that in
England it would be considered an invasion of the sovereignty of the
crown and derogatory to its dignity to subject the king to a suit by
an individual except with his consent, to be granted or refused in his
arbitrary discretion. It is very doubtful whether any such idea finds
support in the common law or history of England, or in the traditional
usage and experience of that country to any such extent as is often
insisted upon.
On the contrary, it had long been regarded in England as settled law
that the subject was entitled to an effective legal remedy for any
invasion of his legal rights by the king or the government. He had a
right to sue the king for the restitution of property or money or for
the recovery of damages for breach of contract, and to sue officers
of the crown for any tortious acts. The practice established for
centuries had been to present to the king a petition praying leave to
sue him, and the custom had been for the king as of course to endorse
on the petition his fiat that right be done. Thereafter the action
proceeded as any other action between subject and subject. This right
was conceded to aliens as well as to subjects. Although the leave to
sue was nominally or theoretically granted as a matter of grace and not
upon compulsion, it was in fact the constitutional duty of the king to
grant it, and it was seldom denied. Under the common law, the subject
was entitled as a matter of right--as one of the immemorial liberties
of Englishmen--to inform his king of the nature of any grievance, and
thereupon, in the language of Blackstone, "as the law presumes that
to know of any injury and to redress it are inseparable in the royal
breast, it then issues, as of course, in the king's own name, his
orders to his judges to do justice to the party aggrieved."
The nature of the proceeding under a petition of right has been passed
upon by the Supreme Court of the United States in several cases, and
its decisions clearly show that the remedy is not to be regarded as
a mere matter of grace, but as a right to sue and obtain redress in
the class of cases to which it applies. Thus, Chief Justice Marshall,
delivering the opinion of the court in Marbury _vs._ Madison at the
February term, 1803, said: "In Great Britain the king himself is sued
in the respectful form of a petition, and he never fails to comply with
the judgment of his court."[29] In United States _vs._ O'Keefe the
court at the December term, 1870, examined the nature of the remedy
in construing the act of Congress of July 27, 1868, now section 1068
of the United States Revised Statutes. Mr. Justice Davis, speaking
for the court, said: "This valuable privilege, secured to the subject
in the time of Edward the First, is now crystallized in the common
law of England. As the prayer of the petition is grantable _ex debito
justitiae_, it is called a petition of right, and is a judicial
proceeding, to be tried like suits between subject and subject.... It
is of no consequence that, theoretically speaking, the permission of
the crown is necessary to the filing of the petition, because it is the
duty of the king to grant it, and the right of the subject to demand
it. And we find that it is never refused, except in very extraordinary
cases, and this proves nothing against the existence of the right....
If the mode of proceeding to enforce it be formal and ceremonious,
it is nevertheless a practical and efficient remedy for the invasion
by the sovereign power of individual rights."[30] And in the later
case of Carlisle _vs._ United States the court held that, under the
proceeding known as the petition of right, the government of Great
Britain accorded "the right to prosecute claims against such government
in its courts" not only to subjects but to aliens.[31] Later still in
the famous case of United States _vs._ Lee, which was an action at law
to recover the property known as the Arlington National Cemetery from
the possession of officers of the United States government, Mr. Justice
Miller, delivering the opinion of the court, said: "It is believed that
the petition of right, as it has been practised and observed in the
administration of justice in England, has been as efficient in securing
the rights of suitors against the crown in all cases appropriate to
judicial proceedings, as that which the law affords to the subjects of
the king in legal controversies among themselves."[32]
The remedy under the petition of right has continued unimpaired to the
present time. The procedure is now regulated by the statute 23 and 24
Victoria, ch. 34, passed July 3, 1860. The statute provides that the
king by means of this proceeding may be sued at law or in equity as
the particular case may require, and that the remedy afforded "shall
comprehend every species of relief claimed or prayed for in any such
petition of right, whether a restitution of any incorporeal right, or
a return of lands or chattels, or a payment of money or damages, or
otherwise." In granting or refusing the petition, the king acts under
the advice of the home secretary, and the latter is responsible to
parliament in case he shall arbitrarily or wrongfully advise a refusal.
The petition of right, however, is available only in cases in which it
is sought to obtain restitution of lands or goods, or, if restitution
cannot be given, compensation in money, or where the claim arises out
of a contract, as for goods supplied to the crown or to the public
service. It does not extend to cases of tort. If the king personally
should commit or threaten to commit a tort, such, for example, as a
trespass, he could not be proceeded against in either a civil or a
criminal court; the ordinary law courts have no means of restraining or
punishing him personally or affording redress against him for any wrong
done by him personally. Not only does the maxim that "the king can do
no wrong" prevent any ordinary court from granting relief against the
king himself, but the courts have no jurisdiction against him in cases
of tort.
Nevertheless, this ancient and fundamental maxim never meant that the
king was above the law or could violate the law with impunity, nor was
it ever understood in any such sense as that everything done by the
king was to be regarded as just and lawful. On the contrary, it was
fearlessly proclaimed in the days of Bracton that the king was below
the law and bound to obey it, and in his coronation oath he swears to
observe and respect it.
But whatever might have been the personal immunity of the king, it
had been settled at common law long prior to the adoption of the
Constitution of the United States that immunity from suit did not
extend to any officer or servant of the crown. The very exemption
of the king from responsibility before the courts in cases of tort
conclusively established the personal responsibility of some officer or
servant of the crown, and the direction or authority of the king did
not constitute any warrant or defense for a wrongful and illegal act
done by any officer or servant. As the Supreme Court said in the case
of Langford _vs._ United States: "The English maxim does not declare
that the government, or those who administer it, can do no wrong; for
it is a part of the principle itself that wrong may be done by the
governing power, for which the ministry, for the time being, is held
responsible."[33]
The boast of Englishmen for centuries had been that no officer of the
government was above the ordinary law. In his interesting lectures at
Oxford as a successor of Blackstone in the Vinerian professorship,
Professor Dicey says: "In England the idea of legal equality, or of the
universal subjection of all classes, to one law administered by the
ordinary courts, has been pushed to its utmost limit. With us every
official, from the prime minister down to a constable or a collector
of taxes, is under the same responsibility for every act done without
legal justification as any other citizen. The reports abound with
cases in which officials have been brought before the courts, and
made, in their personal capacity, liable to punishment, or to the
payment of damages, for acts done in their official character but in
excess of their lawful authority. A colonial governor, a secretary of
state, a military officer, and all subordinates, though carrying out
the commands of their official superiors, are as responsible for any
act which the law does not authorize as is any private and unofficial
person."[34] And Anson in his "Law and Custom of the Constitution"
points out that the English Constitution "has never recognized any
distinction between those citizens who are and those who are not
officers of the state in respect of the law which governs their conduct
or the jurisdiction which deals with them." In the famous case of
Entick _vs._ Carrington (1765), a secretary of state sought immunity
as an officer of the crown from a suit for damages by pleading reasons
of state for an unlawful act, but Lord Chief Justice Camden declared
that "with respect to the argument of state necessity or a distinction
that has been aimed at between state offences and others, the common
law does not understand that kind of reasoning, nor do our books take
notice of any such distinctions."[35] And one hundred years later,
in the case of Feather _vs._ The Queen, Lord Chief Justice Cockburn
declared that "no authority is needed to establish that a servant of
the crown is responsible in law for a tortious act done to a fellow
subject, though done by the authority of the crown, a position which
appears to us to rest on principles which are too well settled to
admit of question, and which are alike essential to uphold the dignity
of the crown on the one hand, and the rights and liberties of the
subject on the other."[36]
Moreover, the rule of _respondeat superior_ does not apply to the
king. The conclusive legal presumption is that the king can do no
legal wrong, and this leads to the further conclusive presumption
that, in the eye of the law, he cannot authorize or direct a wrong.
Every executive officer of the crown is, therefore, treated as if he
were a principal, and as such is held personally responsible whenever
any legal right of the subject has been invaded by him, although he
may have acted under the direct order of the king, by his command
and even in his presence. The civil irresponsibility of the king for
tortious acts could not have been maintained with any show of justice
if the officers and agents of the crown had not been held personally
responsible for any illegal acts committed by them, and if the king had
not been compelled to act through responsible agents. From the earliest
times it has been deemed essential that the king should always act
through an officer or servant, in order that there might be some one
upon whom responsibility could be fastened. Lord Coke declares in his
"Institutes" that "the king, being a body politique, cannot command
but by matter of record." Custom and statute early required that all
executive acts to which the sovereign was of necessity a party should
be done in certain forms and authenticated by the signature or seal
of some officer. The intervention of an officer was always necessary.
In fact, some minister or officer of the crown can be held fully
responsible for any illegal act. Anson states that "there is hardly
anything which the sovereign can do without the intervention of written
forms, and nothing for which a minister is not responsible."
Although the cases in England against officers of the crown were
generally at law, there can be no reasonable doubt that the Court of
Chancery, at the time when our Constitution was adopted, had full
power, by means of the writ of injunction, to restrain an officer of
the crown from violating the law where the remedy at law in a suit for
damages or for possession of property, real or personal, would have
been wholly inadequate and ineffective. The great state trial, known as
the case of the Bankers,[37] in which Lord Somers was overruled by the
House of Lords, left no doubt as to the principle and the jurisdiction
of the courts in suits against crown officers. As Professor Goodnow
has shown in his work on "Comparative Administrative Law," the English
courts had long been accustomed in one way or another to control
servants of the crown and executive officers of the government and to
compel them to obey the law. All the great writs, which were at first
prerogative writs, had been originally issued to control administrative
or judicial officers. Such was the original function of mandamus,
habeas corpus, quo warranto, prohibition. Injunctions, it is true, seem
rarely to have been made use of in England as a means of preventing
administrative action, and only a few cases can be found where they
were so used, but, on settled principles, any administrative or
executive officer threatening to do an illegal act which would injure
the individual in his property rights was amenable to the jurisdiction
of courts of equity in controversies requiring their intervention.
It is also true that no cases are to be found in England where
officers have been held responsible in damages for enforcing an act
of parliament or have been restrained from carrying its provisions
into effect, but this, of course, is the result of the legislative
sovereignty of parliament and of the fact that there are no
constitutional limitations imposed upon it. Nevertheless, the same
principles which make government officers in England subject to
the ordinary law and the ordinary courts for any illegal act done
or threatened would clearly authorize the issuance of injunctions
restraining the enforcement of an unconstitutional statute if there
were any constitutional limitations upon the legislative power of
the English parliament. Thus, for example, a colonial statute, or a
municipal or administrative rule, by-law, or ordinance in conflict with
an act of parliament would be illegal and void, and, within settled
principles, its enforcement could be restrained if other grounds of
equity jurisdiction existed.
In the light of the long-settled and well-known rules of the common
law, establishing the distinction between suits against the king
under the petition of right and suits against officers of the crown
for violating the legal rights of individuals, it is most significant
and persuasive, if not convincing, that the framers of the eleventh
amendment confined its language to suits directly against a state,
and did not attempt to prohibit suits against officers of a state
when acting as its representatives. They could hardly have intended
that such a principle as that "the king can do no wrong" should
have any place in our system of government to the prejudice of the
constitutional rights of individuals. We have no king to whom it can
be applied. They surely did not intend to afford less protection and
less redress against the invasion of the rights of citizens by those
in power than was afforded in monarchical England to the subjects of
the king. They could not have been ignorant of the famous cases which
had established the legal responsibility of all officers of the English
government and their subordination to the jurisdiction of the ordinary
courts of justice. They must have contemplated that state statutes
might be passed in conflict with the Constitution of the United States,
and that these statutes would necessarily have to be enforced or
attempts made to enforce them by state officers. And they must have
appreciated that if state officers, as agents of their respective
states, were granted immunity from suit in a court of the United
States because they were acting for and on behalf of their states, the
Constitution could in many respects be rendered wholly ineffective and
nugatory.
The failure to prohibit suits against officers of a state must,
therefore, have been intentional. Indeed, it is highly improbable that
any one at the time conceived that the language adopted was broad
enough to prohibit suits against officers of a state. On the contrary,
it is proper to assume that the framers of the eleventh amendment did
not intend to permit an officer of a state, while acting under the
color or excuse of an unconstitutional state statute, to invade or
deny any right guaranteed by the Constitution of the United States,
or that such a state officer should be immune from suit in a court of
the United States merely because he was acting in a representative
capacity as an agent of the state. The courts of the United States were
specially charged with the preservation of the Constitution, so far,
indeed, as it can be preserved by judicial authority. The "Federalist"
shows how clearly it was contemplated that the federal courts were to
have power to overrule state statutes in manifest contravention of the
Constitution. If state officers were withdrawn from the jurisdiction
of the national courts, their oath to support the Constitution of the
United States might become a mere empty ceremony of no enforceable
obligation or sanction. If officers of a state could not be sued in
equity in a federal court in an action to enjoin the enforcement
of unconstitutional state statutes, many of the provisions of the
Constitution, of equal authority with the eleventh amendment, might
not be effectually enforceable except by the grace of the states.
The prohibitions against the states, which existed when the eleventh
amendment was adopted, such as that no state shall emit bills of
credit, or make anything but gold and silver coin a tender in payment
of debts, or pass any bill of attainder, or any ex post facto law,
or any law impairing the obligation of contracts, or lay imposts or
duties on imports or exports, might to a great extent be nullified
and rendered practically ineffective, if officers of a state could
not be sued in a federal court. Indeed, the thirteenth, fourteenth
and fifteenth amendments would be deprived of a great part of their
intended effect if state officers enforcing unconstitutional state laws
and clothed with the power of the state could not be sued and enjoined
in a federal court.
As each of these subsequent amendments, however, provides that
"Congress shall have power to enforce this article by appropriate
legislation," it has been suggested that this provision may be
construed as limiting the prohibition of the eleventh amendment
and as empowering Congress to confer on the courts of the United
States jurisdiction of suits against states or state officers as an
appropriate means of enforcing the later amendments. Mr. Justice
Shiras referred to this view in the case of Prout _vs._ Starr and
said: "Much less can the eleventh amendment be successfully pleaded
as an invincible barrier to judicial inquiry whether the salutary
provisions of the fourteenth amendment have been disregarded by state
enactments."[38]
The courts of the United States and of the several states have
generally adopted and applied the English common law as to the
amenability of executive and administrative officers to the
jurisdiction of the ordinary courts and their personal responsibility
for any illegal acts done by them or under their direction. There
is no longer any question but that the eleventh amendment does not
shield state officers from suits at law in a court of the United
States to recover damages for any invasion of private rights under
the color of an unconstitutional statute, or to recover possession of
real property in the custody of such officers. The rule is axiomatic
that no officer in this country is so high that he is above the
Constitution of the United States, and that no officer of the law,
state or national, may violate it under the color or excuse of a
statute, national or state, in conflict with its provisions. The fact
that an officer has acted on behalf of a state under the direction or
authority of an unconstitutional statute, or under the orders of a
superior, constitutes no defense to an action at law for restitution
or for damages for any invasion of individual rights any more than the
command of the king or the prime minister would constitute a defense
in England. The alleged law is treated as a nullity and as absolutely
void for all purposes, except perhaps as negativing the existence of
malice or bad faith or criminal intent. But it confers no warrant or
authority and affords no defense or protection.
The fundamental reasoning upon which these conclusions are based is
that the state, the abstract political entity, can speak and act
only by valid laws, that an unconstitutional statute cannot be its
legal act, that it cannot, legally speaking, authorize any act in
conflict with the Constitution, that no officer of a state, not even
the governor, can have any legal duty or legal executive function to
disregard or violate the Constitution, and that whatever wrong is
attempted in its name is to be conclusively imputed to its officer, who
cannot plead his representative capacity. The distinction between the
government of a state and the state itself is elucidated by Mr. Justice
Matthews in the leading case of Poindexter _vs._ Greenhow.[39]
Most difficult, however, are questions which arise in connection
with suits in equity to restrain state officers from enforcing state
statutes alleged to be unconstitutional. The plainest principles of
justice would seem in many cases to require a preventive remedy, for
it might be of vital importance that an officer be restrained from
doing an unlawful act to the irreparable injury of the individual.
Manifestly, it would be unfair and unjust to tell the latter that
he must wait until his rights have been violated or his property
confiscated or destroyed. This point was first presented to the
Supreme Court in 1824 in the leading case of Osborn _vs._ Bank of
the United States.[40] It was then declared, in one of Chief Justice
Marshall's famous opinions, that, notwithstanding the eleventh
amendment, a circuit court of the United States had jurisdiction in
equity to restrain a state officer from executing or enforcing an
unconstitutional state statute when to execute it would violate rights
and privileges of a complainant guaranteed by the Constitution of the
United States, and would work irreparable damage and injury to him, for
which no plain, adequate and complete remedy could be had at law.
The general doctrine of the Osborn case has never been departed from,
and it has sustained innumerable suits which have protected property
rights from the enforcement of state statutes in conflict with the
Constitution of the United States. It is no exaggeration to say that
this doctrine, more than any other, has rendered the Constitution
an effective shield against oppressive, tyrannical and confiscatory
legislation, and compelled the states to obey the supreme law of the
Constitution. The reasoning of Chief Justice Marshall is very logical
and lucid, and it is most convincing. If, as was then conceded to be
indisputable, the privilege or immunity of the state as principal was
not communicated to the officer as agent, and if an action at law would
lie against the officer in which full compensation ought to be made
for a legal injury resulting from any unlawful act done in pursuance
of an unconstitutional and void statute, there existed no reason why
the preventive power of a court of equity should not equally apply to
such an officer or why it should not restrain him from the commission
of a wrong which it would punish him for committing. "If," continues
the Chief Justice, "the party before the court would be responsible for
the whole injury, why may he not be restrained from its commission, if
no other party can be brought before the court?" It was pointed out
that the very fact that the state could not be sued was a reason for
permitting the suit to proceed in its absence against the officer or
agent. We have here another example of how, in the evolution of legal
principles, the same causes produce the same results. As in England
the fact that the king could not be sued in the ordinary courts for a
wrong led to the rule that his immunity or irresponsibility was not to
be extended to his servants or agents and that the latter were to be
held personally liable for whatever they did under the king's orders
in violation of the legal rights of an individual, so with us the fact
that a state could not be sued in a federal court led to the rule that
its immunity or irresponsibility was not to be extended to its officers
and that they were suable as responsible principals, even when acting
under a state statute and as the agents or representatives of the state.
Chief Justice Marshall also said in the Osborn case that it might "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. Consequently the eleventh amendment, which restrains the
jurisdiction granted by the Constitution over suits against states,
is, of necessity, limited to those suits in which a state is a party
on the record. The amendment has its full effect, if the Constitution
be construed as it would have been construed had the jurisdiction of
the court never been extended to suits brought against a state, by the
citizens of another state, or by aliens. The state not being a party
on the record, and the court having jurisdiction over 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
reasoning was reaffirmed by the Supreme Court as late as 1872 in the
case of Davis _vs._ Gray,[41] which was a suit against the governor of
the state of Texas. But in later cases it has been repudiated, and the
court has declared that "it must be regarded as a settled doctrine of
this court, established by its recent decisions, 'that the question
whether a suit is within the prohibition of the eleventh amendment is
not always to be determined by reference to the nominal parties on the
record.'"[42]
It may, nevertheless, be now interesting and valuable to re-examine
the doctrine enunciated by Chief Justice Marshall and to inquire
whether, after all, it does not embody the true and sound rule which
should govern this question, particularly in view of the fact that
the decisions which have departed from his reasoning have failed to
indicate any definite criterion to guide us in determining when a suit
against a state officer is and when it is not to be deemed a suit
against the state within the true meaning of the eleventh amendment.
The question must be considered as if the jurisdiction of the federal
courts had never been extended to suits by an individual against a
state. The controlling inquiry in a suit against a state officer ought
logically to be whether the relief or remedy sought can properly be
granted in the absence of the state as a party defendant; in other
words, whether the state is or is not a necessary and indispensable
party; and this inquiry should be determined by the result or burden
of the judgment which may be entered. If, for example, the suit is
to enjoin the enforcement of an unconstitutional statute regulating
rates or imposing taxes, it must be presumed that the state has not
authorized the wrong, that it can have no legal concern or interest in
a void enactment of its legislature, and that it cannot be heard to
assert any right to have its officers violate the Constitution of the
United States for its benefit. If, on the other hand, the relief or
remedy sought will affect the property rights or funds of the state,
or compel it to pay its debts, or require the specific performance of
a contract by the state, or the doing or omitting to do any act by the
state itself, the court must needs hold that it is a necessary and
indispensable party, and that, as it cannot be sued in a federal court
for want of jurisdiction over it, the suit must be dismissed. This
dismissal, however, would not be for want of jurisdiction or judicial
power over the individual state officer as defendant, nor because the
suit was against the state--for the state was not a party and its
presence was sought to be dispensed with--but because the state was an
indispensable party defendant and the suit could not proceed in its
absence. The result of recurring to this view would be to simplify the
consideration of many cases and reconcile much conflicting reasoning.
We should then have a definite and logical criterion to guide us in
cases against state officers. If the court found that the state was not
a necessary and indispensable party, the issue in such cases would be
narrowed to the inquiry whether the relief should be granted against
the officer within established principles of equity, jurisprudence and
procedure.
There remains the question as to enjoining criminal prosecutions.
Should the jurisdiction of a court of equity be ousted simply because
the state has authorized its officers to enforce unconstitutional
regulations affecting property rights by a criminal instead of a
civil action? The Supreme Court has held that, notwithstanding the
general principle that a court of equity has no jurisdiction of a
bill to stay criminal proceedings, it may nevertheless enjoin a state
officer from instituting such proceedings where property rights
are about to be invaded and destroyed through the instrumentality
of an unconstitutional statute providing for its enforcement by
criminal proceedings. The nature of an essentially civil question or
controversy, such as one between shippers or passengers on the one
side and a railroad company on the other as to the reasonableness of
rates, cannot be changed by legislative fiat. The exercise of such a
jurisdiction to restrain criminal proceedings has been found necessary
in many recent cases where a defense on a criminal trial before a jury
would afford no fair or adequate protection to those whose property
rights were affected. The litigation, for example, under a bill in
equity to restrain the enforcement of an unconstitutional criminal
statute regulating rates presents a controversy of a civil nature with
the officer and not with the state, and the only question is, whether
a court of equity should intervene, or should leave those against
whom criminal proceedings are threatened to their defense by demurrer
to the indictment or trial on the merits. The latter will always be
done when a defense at law will afford reasonably fair and adequate
protection. But when a defense at law will not afford due protection
and irreparable injury to property is threatened, there exists no
reason why a court of equity should not intervene in such a case and
grant protection and relief.
It may seem to many doubtful whether the two leading cases which are
now attracting so much attention, namely, In re Ayers[43] and Fitts
_vs._ McGhee,[44] necessarily presented any question under the
eleventh amendment, and whether they should not have been disposed
of solely upon the ground that a court of equity ought not to have
enjoined the threatened suits or prosecutions. Probably neither of
the suits in equity discussed in these two cases would have been
maintainable under the general principles of equity jurisprudence even
if the state had been suable in a court of the United States, for no
irreparable injury was threatened and the opportunity of defense at law
seemed to afford reasonable protection.
The question of the right to sue a state officer to restrain the
enforcement of an unconstitutional statute regulating the rates and
charges of railroad companies is now pending in some of its aspects
before the Supreme Court in important cases involving statutes of
Minnesota and North Carolina. These cases have been fully and ably
argued and are under advisement, and they may lead to a reconsideration
of some of the reasoning in the prior cases. A comprehensive decision
may, therefore, shortly be delivered which will remove some of the
reasons for the existing misunderstanding and conflict between the
states and the federal courts.[45]
The time at our disposal renders it impossible to consider the many
noteworthy and interesting cases which have arisen under the eleventh
amendment and which frequently carry us into the realm of public
law and statesmanship. The leading decisions are, of course, in the
Supreme Court, but many instructive opinions will be found in the lower
federal courts. The constant increase of governmental functions and
of interference with individual liberty and action is certain to be a
fruitful source of litigation in the future and will call for frequent
consideration of the scope of the eleventh amendment.
In discussing the subject of suits to restrain the enforcement of
state statutes alleged to be unconstitutional, we should not overlook
or pass unnoticed the attempts made in recent enactments regulating
rates and charges to coerce or intimidate railroad and other public
service corporations into immediate obedience and abandonment of
their constitutional right to appeal to the courts, by imposing upon
them enormous and unreasonable fines and penalties, or by threatening
them with the forfeiture of the protection of the government. Heavy
fines or penalties are attached to violations of the law; and, as
the transactions of these corporations are generally very numerous,
disobedience of a statute, if only in good faith for the purpose
of testing its validity, would in a few days involve the risk of
bankruptcy. The avowed or ill-concealed purpose of these fines and
penalties and of the resort to the criminal law is to prevent any
interference by courts of equity. The idea, advanced in many quarters
and under many disguises, seems to be that corporations shall be
outlawed unless they consent to abandon their right to appeal to
the courts for protection against unconstitutional statutes and void
and oppressive enactments. This unfair spirit is widespread. For
example, while the Federal Employers' Liability Act, recently declared
unconstitutional by the Supreme Court of the United States, was under
advisement by that court, President Roosevelt in his Jamestown speech
criticized the railroad companies for having contested the validity of
the statute and suggested that "the law should be such that it will be
impossible for the railroads successfully to fight it without thereby
forfeiting all right to the protection of the federal government under
any circumstances."
The courts have repeatedly pointed out that the owners of property
devoted to a public use are entitled to a fair and adequate judicial
investigation if they contend that the rates or charges prescribed by a
legislature are unreasonable and confiscatory. This is but recognizing
that the owners of railroads and other property are entitled to a
day in court, just as the humblest person is entitled to his day in
court when his constitutional and vested property rights are invaded
by the government. If the private property of the individual is to
be taken for a public use, it would, of course, be obviously unfair
and unjust to permit the legislature to say conclusively what should
be paid to him, and deny him any adequate opportunity in the courts
to review the legislative fiat. The same principle applies to public
service corporations. They are entitled to appeal to the courts to
pass upon the validity of any legislation which attempts to compel
them to render services at a rate fixed by the legislature if they
contend that such rate is unreasonably low and confiscatory; and,
pending the judicial investigation, they ought not to incur the risk
of accumulating and ruinous penalties. The New York Public Service
Commissions Act of last year recognizes this in principle. But, instead
of granting a fair hearing or providing for any judicial proceeding
in which the reasonableness of the statutory rates may be promptly
investigated, the constant effort seems to be to render resort to the
courts so dangerous that property owners will abandon their right
to a day in court rather than take the risks involved in allowing
penalties to accrue and accumulate, which might subject their property
to confiscation. Thus, in the recent New York gas statute, declared
unconstitutional by the United States circuit court, no judicial
investigation was afforded and the penalties imposed were at the
rate of $1,000 for each overcharge or violation of the law. As the
Consolidated Gas Company alone had upwards of 390,000 customers, an
overcharge on only one month's bills, pending an attempt to test the
law in good faith, would involve the fabulous total of $390,000,000 in
penalties, or nearly five times the value of the whole property of the
company. In fact, if the New York statute, at least in this respect,
is not nullified by the Supreme Court on the pending appeal,[46] the
Consolidated Gas Company may be absolutely ruined for having asserted
its legal right to a fair judicial investigation before being compelled
to accept what it insisted and what the court has so far held was a
confiscatory and unreasonable rate; that is to say, for daring to
insist upon a fair judicial hearing before being condemned. The Kansas
statute regulating stockyards, which was declared unconstitutional by
the Supreme Court,[47] imposed penalties which might have aggregated
$15,000,000 in one day, or nearly twice the value of all the property
of the stockyards company. The recent railroad statute in North
Carolina imposes fines which would amount to $2,500,000 per day, and
in a few days would bankrupt the railroad companies. The Minnesota
railroad statute imposes penalties which in one month might aggregate
several hundred million dollars.
Speaking of these penalties, United States Circuit Judge Lochren justly
said: "There is no question but that such legislation is vicious,
almost a disgrace to the civilization of the age, and a reproach upon
the intelligence and sense of justice of any legislature which could
enact provisions of that kind."
If any such policy of coercion and intimidation can possibly be
enforced by the state or national governments, in any form or under
any subterfuge whatever, we shall no longer be living under a
constitutional government with effective guaranties of individual
rights and liberties. If Congress or a state legislature can compel
any class of persons to submit to an unconstitutional statute by
imposing ruinous fines and penalties, or other provisions intended
to operate _in terrorem_, or by threatening to deprive that class of
the protection of the government, then the constitutional limitations
imposed by the people can be readily circumvented and nullified,
and our supposed rights and liberties will exist only in the grace
or self-restraint of legislatures. One class is selected to-day,
but another class will be selected to-morrow, depending only on the
interest or prejudice or temptation or caprice of the temporary
majority. Such an exercise of arbitrary and irresponsible power is in
utter conflict with the whole theory of our institutions and in utter
disregard and defiance of those fundamental and immutable principles of
justice under which alone free governments can exist. As Chief Justice
Marshall said in the great case of Marbury _vs._ Madison--and the court
was then facing a hostile executive, a hostile Congress and a hostile
public opinion--"The very essence of civil liberty certainly consists
in the right of every individual to claim the protection of the laws
whenever he receives an injury. One of the first duties of government
is to afford that protection.... The government of the United States
has been emphatically termed a government of laws and not of men. It
will certainly cease to deserve this high appellation if the laws
furnish no remedy for the violation of a vested legal right."[48]
Some of the bills now pending before Congress propose to deprive the
federal courts of the power to issue preliminary injunctions in these
cases. This would be a policy fraught with immeasurable danger to
property interests as well as to personal liberty. It would frequently
amount to a complete denial of justice. The delay of litigation might
readily be attended by ruin. But, undoubtedly, some reform is called
for. There can be no question that preliminary injunctions against the
enforcement of state statutes regulating public service corporations
should never be granted without prior notice to the representatives of
the people, and full opportunity for them to be heard, and then only
upon the clearest showing of threatened irreparable injury pending the
delay of a full hearing on the merits. Such cases ought not only to
be given the earliest possible hearing, but the courts should insist
that both sides proceed with the utmost expedition in the taking of
testimony. A hearing in open court and not before a master would
greatly facilitate this result. The people are entitled to a speedy
determination of the questions involved in order that they may promptly
have the benefit of the statute if it be constitutional, or that they
may at once amend it if it be unconstitutional. There is no reason why
in the majority of cases such a suit should not be ready for final
hearing and actually be heard within sixty days, or why it should
not be finally disposed of in the appellate courts within less than
a year. It should have preference on all calendars. The Expedition
Act of Congress, applicable to cases arising under the Anti-Trust
and Interstate Commerce laws, would furnish a good model for cases
involving the validity of state laws.
The conditions which now confront the people in many states, where
statutes regulating public service corporations are often tied up
for years by litigation, tend to create discontent, impatience
and dissatisfaction with the courts and to engender a desire for
revolutionary change from an intolerable situation. Laws regulating
public utilities are often essential for protection against those who
otherwise would have the power to make a prey of the necessities of the
people, and it is disgraceful that the enforcement of such laws can be
delayed by litigation for years after their enactment. As the delays
in our criminal procedure are crying for remedy, so the delays in this
class of litigation are crying for immediate and effective relief. It
is of paramount importance that the people should be convinced that
they can obtain in the courts, and especially in the federal courts,
a prompt determination of all litigation affecting the validity of
legislation regulating public service corporations which they or their
representatives have deemed necessary for their protection against
extortion or oppression. In most cases, however, it will be found that
the representatives of the state are as much to blame for the delays as
are their adversaries.
But, above all other considerations, stands the necessity for
maintaining the absolute confidence of the people at large in the
wisdom and impartiality of the federal judges, who are so often
called upon to determine the validity of state statutes alleged to
conflict with the Constitution of the United States and in so doing
to administer justice as between the state and the individual--as
between the majority and the minority. It should be a matter of
profound concern to us as lawyers to make all laymen appreciate
that the exercise of this jurisdiction by the federal courts is
necessary for the preservation and perpetuation of the Constitution,
and that it is right and just that every citizen should have the
privilege of appealing to the national courts for the protection of
rights and liberties guaranteed to him by the national Constitution.
Equally important is it that the people should appreciate that in
entertaining suits to restrain the enforcement of state laws alleged
to be unconstitutional, the federal judges are only performing their
duty according to their oath of office, which in the noble language
prescribed in 1789 pledges them "to administer justice without respect
to persons," to "do equal right to the poor and to the rich," and
to "faithfully and impartially discharge and perform" their duty
"agreeably to the Constitution and laws of the United States." An
examination of the cases in which injunctions have been granted against
the enforcement of state laws must satisfy any candid mind that in the
great majority of cases the power has been impartially exercised, with
tact and wise discretion, and that such injunctions have been granted
only when property rights seemed to be threatened with irreparable
injury. It would be too much to expect infallibility in all these
cases. But errors are corrected on appeal.
Assaults upon our judiciary and unwarranted and unjust criticism of
our judges undermine the people's trust in the courts and threaten
the whole structure of our civilization. The United States judges
are justly sensitive to public opinion and distressed by unjust and
ignorant criticism. They know how important it is that they should
retain public confidence. They realize, as their opinions constantly
show, that "next to doing right, the great object in the administration
of public justice should be to give public satisfaction." But they
cannot sacrifice truth to popularity, the Constitution to present
expediency. Those who assail the federal judges should bear in mind
that the founders in their wisdom constituted the judicial power our
bulwark against unadvised, hasty and tyrannical action on the part of
those in power and our shield against "those sudden and strong passions
to which we are exposed," and which, if unchecked and unrestrained,
may lead to ruin. However unpopular and disagreeable the task may be
of setting aside an act of Congress or of a state legislature, however
painful it must be to any just man to become the subject of calumny,
a federal judge has no choice, no discretion, no will of his own, but
must hear and decide according to his conscience every case submitted
to him within the jurisdiction of his court as conferred and imposed
by the Constitution and laws of the United States. Let us always bear
in mind the lofty words of the great Chief Justice in the case of
Aaron Burr, in the decision which excited so much public prejudice and
clamor one hundred years ago, when, speaking of the duty of a judge,
he said: "If he has no choice in the case; if there is no alternative
presented to him but a dereliction of duty, or the opprobrium of those
who are denominated the world, he merits the contempt as well as the
indignation of his country who can hesitate which to embrace."[49]