signed for any specific use pertaining to the functions of the national government, may be condemned and appropriated for streets, highways, or other public purposes; and this implies some sort of judicial proceedings to ascertain and foreclose the interest of the United States.74 And since, in the administration of government, many claims accrue to individuals against the United States which ought, in justice and fairness, to be submitted to the examination of a judicial tribunal and enforced if found to be valid and legal, the gov ernment has established a court for this purpose, called the "Court of Claims." Various acts of congress have referred claims to the arbitrament of this tribunal or specified the classes of actions which may be brought in it. It may give judgment against the United States if it finds the legal right to be with the claimant. But there is no way of enforcing its judgments, since no constraint can be put upon the United States. In practice, however, congress, sooner or later, always appropriates money to pay such judgments.

As a plaintiff, the United States may institute and maintain a suit either in one of its own courts, or in the courts of a state, or in those of a foreign nation, according to the nature of the cause of action and the circumstances which determine the selection of a forum.75 It brings many suits in the inferior federal courts, not only criminal actions against individuals, but suits to recover property, taxes, penalties, and the like. The United States may sue one of the states, and the proper forum for such a proceeding is the supreme court, which has original jurisdiction of it.76 But in all other cases the government may choose its own forum, unless restricted by an act of congress.

STATES AS PARTIES.

90. Since the adoption of the eleventh amendment, a state of the Union cannot be sued by any private person. But one state may sue another state, and a state, as plain

74 U. S. v. Chicago, 7 How. 185; Union Pac. Ry. Co. v. Burlington & M. R. R. Co., 3 Fed. 106; Northern Pac. R. Co. v. St. Paul, M. & M. Ry. Co., Id. 702. Queen of Portugal v. Glyn, 7

75 U. S. v. Wagner, L. R. 2 Ch. App. 582; Clark & F. 466.

76 U. S. v. North Carolina, 136 U. S. 211, 10 Sup. Ct. 920; U. S. v. Texas, 143 U. S. 621, 12 Sup. Ct. 488.

tiff, may institute proceedings against an individual, and in these cases the supreme court of the United States has original jurisdiction.

States as Defendants.

In the case of Chisholm v. Georgia," it was ruled that, under the language of the constitution and of the judiciary act of 1789, a state of the Union was liable to be sued in the federal courts, against its will, by a citizen of another state or an alien. This decision occasioned so much surprise, excitement, and apprehension, that at the first meeting of congress after its promulgation the eleventh amendment was proposed, and was in due course adopted. amendment actually reversed the decision of the supreme court. It 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." Long after the date of the amendment, the question was raised whether a state could be sued in a federal court by one of its own citizens, upon a suggestion that the case was one arising under the constitution or laws of the United States. It was ingeniously argued that, under the language of the constitution, a case so arising is within the federal jurisdiction without any regard to the character of the parties; that a state is not exempted under this clause; and that the eleventh amendment does not deny the jurisdiction of the federal courts in cases where a state is sued by one of its own citizens. But the court refused to accede to the reasoning, and held that the suit would not lie.78 At the present time, therefore, the rule is that a state cannot be sued by any private person, whether it be one of its own citizens, or a citizen of another state, or an alien." But there are still certain cases in which a state may be made a defendant

77 2 Dall. 419.

78 Hans v. Louisiana, 134 U. S. 1, 10 Sup. Ct. 504.

79 It is now entirely customary for a state to make provision for the maintenance of suits against it by private persons in its own courts. But an act of the legislature authorizing a party to sue the state does not authorize the issuance of a writ of fieri facias, commanding the seizure and sale of property of the state to satisfy the judgment rendered in such suit. The only effect of such a judgment is to effect a settlement of disputed questions of fact

without its consent. It may be sued by the United States,80 by another state, and probably also by a foreign prince or government. To bring a case within the eleventh amendment, it is not necessary that the state should be formally or nominally a party to the suit; it is enough if the state, though not made a party to the record, is the real party in interest.81 But this amendment does not operate to prevent counties in a state from being sued in the federal courts.82 And "the immunity from suit belonging to a state, which is respected and protected by the constitution within the limits of the judicial power of the United States, is a personal privilege, which it may waive at pleasure; so that in a suit, otherwise well brought, in which a state had sufficient interest to entitle it to become a party defendant, its appearance in a court of the United States would be a voluntary submission to its jurisdiction; while, of course, those courts are always open to it as a suitor in controversies between it and citizens of other states." 83

Questions frequently arise as to the effect of the eleventh amendment, in actions against state officers, wherein it is alleged that a law of the state has assumed to violate the obligation of its contracts. The rule is thus settled: If the suit is brought against the officers of the state as representing the state's action or liability, or demands affirmative official action on the part of the defendants to secure the performance of an obligation which belongs to the state in its political capacity, the effect is to make the state itself a real party, against which the judgment will so operate as to compel it to perform its contracts, and the suit is not maintainable. But if the suit is brought against defendants who, claiming to act as officers of the state, and under the color of an unconstitutional statute, commit acts of wrong and injury to the rights and property of the plaintiff acquired under a contract with the state, and thus make themselves trespassers and personally liable, in that case, whether the suit is brought to recover money or property, or for

and law involved, morally binding on the state, but possessing no executory force. Carter v. State, 42 La. Ann. 927, 8 South. 836.

so U. S. v. North Carolina, 136 U. S. 211, 10 Sup. Ct. 920.

$1 Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. 903, 962.

82 Lincoln Co. v. Luning, 133 U. S. 529, 10 Sup. Ct. 363.

83 Clark v. Barnard, 108 U. S. 436, 2 Sup. Ct. 878.

BL.CONST.L.-10

damages, or for injunction or mandamus, it is not, within the meaning of the eleventh amendment, an action against the state.84 A suit against railroad commissioners of a state, to restrain enforcement of their rates and regulations, as unjust and unreasonable, the state having no direct pecuniary interest therein, is not a suit against the state within the meaning of the amendment.85 And so, where a statute of a state exempts certain property from taxation, a suit brought against state and county officers, to restrain them from assessing such property, is not in name or effect a suit against the state, but is maintainable in the federal courts.se And the fact that a state is a stockholder in a private corporation does not deprive the courts of jurisdiction of suits against such corporation.8 The eleventh amendment, it is held, does not restrict or take away the appellate jurisdiction of the supreme court in cases where a controversy arises under the constitution or laws of the United States, although a state may be a party to such controversy. And a writ of error will lie in such cases, although a state, having commenced the suit in its own courts, will thus become a defendant in error in the appellate court.8

Suits Between States.

88

87

The reason for giving the supreme court original jurisdiction of controversies between two or more states was partly the consideration that such a jurisdiction was necessary to maintain the peace

84 Pennoyer v. McConnaughy, 140 U. S. 1, 11 Sup. Ct. 699; In re Ayers, 123 U. S. 443, 8 Sup. Ct. 164; Hagood v. Southern, 117 U. S. 52, 6 Sup. Ct. 608; Osborn v. Bank of U. S., 9 Wheat. 738; Antoni v. Greenhow, 107 U. S. 769, 2 Sup. Ct. 91; Davis v. Gray, 16 Wall. 203; Board of Liquidation v. MeComb, 92 U. S. 531; Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. 903. 962; Louisiana v. Jumel, 107 U. S. 711, 2 Sup. Ct. 128; Cunningham v. Macon & B. R. Co., 109 D. S. 446, 3 Sup. Ct. 292, 609; U. S. v. Lee, 106 U. S. 196, 1 Sup. Ct. 240.

85 Reagan v. Trust Co., 154 U. S. 388, 14 Sup. Ct. 1047. And see Piek v. Railway Co., 6 Biss. 177, Fed. Cas. No. 11,138; Clyde v. Railroad Co., 57 Fed. 436.

86 In re Tyler, 149 U. S. 164, 13 Sup. Ct. 785; Secor v. Singleton, 35 Fed. 376; Sanford v. Gregg, 58 Fed. 620.

87 Bank of U. S. v. Planters' Bank, 9 Wheat. 904; President, etc., of Bank of Kentucky v. Wister, 2 Pet. 318; Darrington v. Bank, 13 How. 12.

88 Cohens v. Virginia, 6 Wheat. 264.

1

ful and harmonious relations of the states in the Union, and partly in order to secure the dignity of the states themselves, which might justly have been deemed compromised if the settlement of their disputes had been intrusted to any other or inferior authority. fore the constitution there was no court in which one state could sue another. In fact, while history furnishes some few illustrations of a central authority invested with power to hear controversies between quasi-independent powers, and to arbitrate between them, there is no exact historical parallel for this provision of the constitution, which erects the supreme federal tribunal not merely into an arbitrator but a judge between states, invested with full jurisdiction and with power to command obedience to its decisions. That court "can not only hear and determine all controversies between different states, of which it is given original jurisdiction, but can also bring them before it by process, as it can bring the humblest citizen, and declare its judgment, which it has usually been able to enforce." 89 But in order to call into exercise this jurisdiction of the supreme court, it is necessary that states, as such, should be actually parties in interest in the controversy, and not merely nominal parties. Very few cases between states have been brought in the supreme court, except in regard to the settlement of disputed boundaries. "At the time of the adoption of the constitution, there existed controversies between eleven states in respect to boundaries, which had continued from the first settlement of the colonies. The necessity for the creation of some tribunal for the settlement of these and like controversies that might arise, under the new government to be formed, must, therefore, have been perceived by the framers of the constitution; and consequently, among the controversies to which the judicial power of the United States was extended by the constitution, we find those between two or more states. And that a controversy between two or more states, in respect to boundary, is one to which, under the constitution, such judicial power extends, is no longer an open question in this court." 1

89 Miller, Const. p. 330.

90 Fowler v. Lindsey, 3 Dall. 411; New Hampshire v. Louisiana, 108 U. S. 76, 2 Sup. Ct. 176.

91 See Rhode Island v. Massachusetts, 12 Pet. 657; New Jersey v. New York, 5 Pet. 284; Missouri v. Iowa, 7 How. 660; Florida v. Georgia, 17 How.