porations and what are known as quasi-corporations-townships, counties, school districts, etc.-according to which suits in tort, except when permitted by express statute, may not be brought against the latter, inasmuch as they are considered agents of the central government for greater convenience in administration, and share the immunity from liability for tort which is enjoyed by the state.1

§ 69. Principle of State Immunity from Pecuniary Liability.

3

It has been observed that on principle the central government in English and American law is immune from liability, except in the limited measure defined by statute. This principle of non-liability has been explained on various grounds-based on history, fiction, convenience, and expediency. The best-known of these grounds are that the King can do no wrong, which declaration was applied to the sovereign and state; 2 that the King cannot issue a writ to himself; that there is an inconsistency in the idea of supreme executive power and subjection to suit; that a state or nation would suffer an indignity in being compelled to submit to a judgment and execution; that it would embarrass the state in the performance of its duties, to subject it to suit at the will of individuals, and to submit the control of its instruments and means of carrying on the government, and its money and other property, to judicial tribunals; that states should not be coerced to pay debts which for various reasons they might not be willing or conveniently able to pay.7

4

6

5

In view of this limited jurisdiction of courts over suits against the state, and the wide liability of officers with the resulting frequency

1

1 Dillon, op. cit., IV, § 1638 et seq.; Burdick, op. cit., 106; Goodnow, Comparative administrative law, II, 152.

* Goodnow, op. cit., II, 154; Bonnard, op. cit., 31, 75 et seq.

3 U. S. v. Lee, 106 U. S. 196, 206.

4 * Gray, J., in Briggs v. Light Boats, 11 Allen, 157 quoted in U. S. v. Lee, 106 U. S.

206.

John Marshall in the Virginia Convention, 3 Elliott's Debates, quoted in Hans v. Louisiana, 134 U. S. 1; also Matthews, J., In re Ayers, 123 U. S. 443.

U. S. v. Lee, 106 U. S. 196, 206.

7 Marshall, C. J., in Cohens v. Virginia, 6 Wheat. 264, 406, thus suggests the reason for the adoption of the eleventh amendment. See W. Trickett in 41 Amer. L. Rev., 364-365.

of suit against officers as organs of state activity, it becomes important to determine when a suit against an officer is in reality a suit against the state, and within its protective immunity. In Great Britain those who actually are agents and instruments of the Crown in its governmental activities are shielded by the Crown from liability. The distribution of governmental functions in England among incorporated local administrative boards and government departments, such as health boards, commissioners of works, dock and bridge trustees, etc., enables an injured individual to have recourse against the corporation in cases where he would have no action against the Crown. A distinction seems, nevertheless, to be drawn between these incorporated bodies in fulfilling public functions as a substitute for private enterprise and as a branch of general governmental administration. For the wrongful acts of its employees in the former capacity, the corporation is liable, but not in the latter case.1

In the United States it has often been difficult to distinguish a suit against an officer from a suit against the state in the name of an officer. The general rule now is that where the adverse interest is in the state, against whom alone relief is asked and judgment will effectively operate, the action is against the state, and, under the prohibition of the eleventh amendment, not within the jurisdiction of the federal courts.2 The narrow view expressed in Osborn v. The Bank,3 that a state is not sued unless a party to the record has been definitely rejected. However, it is clear that the mere fact of being a state officer acting to benefit the state should not be enough to shield all

1 The English cases and principles of law are discussed in an admirable article on "Liability for acts of public servants", by W. Harrison Moore in 23 Law Quar. Rev. (1907), 12-27. See also article by same author, Misfeasance and non-feasance in the liability of public authorities, 30 Law Quar. Rev. (1914), 276-291, 415-432; Bonnard, op. cit., 54 et seq. See particularly the following cases: Mersey Docks Trustees v. Gibbs, L. R. 1 H. L. 93; Gilbert v. Corporation of Trinity House (1886), 17 Q. B. D. 795; Gibraltar Sanitary Commissioners v. Orfila, 15 App. Ca. 400; Kinloch v. Sec'y of State for India (1880), 15 Ch. Div. 1; Bainbridge v. Postmaster-General (1906), 1 K. B. 178.

2 In re Ayers (1887), 123 U. S. 443; Fitts v. McGhee (1899), 172 U. S. 516; Hopkins v. Clemson College (1910), 221 U. S. 636. See the tests for distinguishing a suit against an officer from one against the state in Poindexter v. Greenhow (1884), 114 U. S. 270.

Osborn v. U. S. Bank (1824), 9 Wheat. 738 per Marshall, C. J.

1

illegal acts under a doctrine of immunity from suit. The exact limits of the doctrine cannot be stated in any broad principle, but may be expressed by a number of narrow rules, applicable to special classes of cases. For example, an action against a state officer, whose object is to compel a specific performance of the state's contract, is a suit against the state. In property cases, a suit against an officer to obtain possession of property in which the state has title and possession,2 or to compel him to pay money out of the state treasury, or to prevent the state from using its own property is a suit against the state. In general, the performance of ministerial duties by a public officer may be enforced by mandamus, and this is not regarded as a suit against the state. Officers who are clothed with some duty in regard to the enforcement of an unconstitutional statute may be enjoined, and the suit will be regarded as one against the state only where the officer acts as a representative of the state without any connection with the enforcement of the statute.5

3

4

1 Hagood v. Southern (1886), 117 U. S. 52; North Carolina v. Temple (1890), 134 U. S. 22; Louisiana ». Jumel (1882), 107 U. S. 711; In re Ayers (1887), 123 U. S. 443. 2 Cunningham v. Macon, etc. (1883), 109 U. S. 446; Christian v. N. C. Railroad (1890), 133 U. S. 233. In the Cunningham case, Justice Miller classified at length the cases in which a suit against an officer was held to be a suit against the state. 'Louisiana v. Jumel (1882), 107 U. S. 711; Smith v. Reeves (1899), 178 U. S.

436.

4 Belknap v. Schild (1895), 161 U. S. 10.

Ex parte Young (1907), 209 U. S. 123, 154; Smyth v. Ames (1898), 169 U. S. 466; Prout v. Starr (1903), 188 U. S. 537; Gunter v. Southern, 200 U. S. 543, 559; Mississippi v. Illinois, 203 U. S. 335, 340; cf. Fitts v. McGhee, 172 U. S. 516; Reagan v. Trust Co., 154 U. S. 362. A valuable note as to when public officers are subject to suit although they assume to be acting for a state or the United States is appended to the report of the case of Sanders v. Saxton (New York, Oct. 1905), in 108 Amer. State Rep. 826, 830–844.

Valuable discussions, more or less exhaustive, of the cases and the distinctions between suits against states and officers are contained in a book by Singewald, Karl. The doctrine of non-suability of the state in the United States, Baltimore, 1910, and in the following articles: The eleventh amendment and the non-suability of the state, by A. F. Wintersteen, 30 Amer. Law Reg. (1891), 1-15; Suability of states by individuals in the courts of the United States, by Jacob Trieber, 41 Amer. Law Rev. (1907), 845–869; Suits against states by individuals in the federal courts, by William Trickett, 41 Amer. Law Rev. (1907), 364–383; The eleventh amendment, by Herbert S. Hadley, 66 Cent. Law Jour. (1908), 71-76. See also note in 7 Columbia Law Rev. (1907), 609-611.

§ 70. Limited Right of Action Granted by Statute.

In connection with the pecuniary liability of the state, we have already adverted to the limitation of responsibility in Anglo-American law. Beginning with the maxim that the King can do no wrong, which was received in the United States as applying to the state, a limited right of action has been gradually extended covering specific cases. The most important limitation of the right to sue the Crown or state is the principle that no action sounding in tort may be brought. This non-responsibility for tort has been explained on the ground that the state acts only through officers and that the tortious act of the officer is not the act of the government, which can neither commit nor authorize a wrong. This antiquated plea of ultra vires and other reasons for an immunity of the state from liability for tort have long been abandoned by the legislation, courts and jurists of Europe, and might well, with consequent enhancement of justice, be abandoned in Anglo-American law.

In England, the individual addresses himself to the grace of the King by suing out a Petition of Right which, when granted, opens the right to suit against the Crown as against any ordinary defendant. By statute, however, the right is also given to sue various Government Departments directly. In an opinion very similar to that of the French Tribunal of Conflicts in the Blanco case in 1873 it was said by Lord Cottenham in Monckton v. A-G. (1850), 2 Mac. & G. 402, 412: "The proceeding by petition of right exists only for the purpose of reconciling the dignity of the Crown and the rights of the subject, and to protect the latter against any injury arising from the acts of the former." The practice of suit by petition of right extends back to Edward III, and perhaps to Magna Charta, but its present use is regulated by the Petitions of Right Act 1860, 23 and 24 Vict., c. 34.2 Originally confined to suits for the recovery of specific prop

1 Robertson, Geo. S., The law and practice of civil proceedings by and against the Crown, London, 1908, Book I.

...

2 For the history of the Petition of Right see Anstey, T. Chisholme, Letter to the Right Hon. The Lord Cottenham . . as to the law and practice of petition of right, London, 1845; Clode, Walter, The law and practice of petition of right, London, 1887, p. 6 et seq. See also W. Harrison Moore, The Crown as a corporation, 20 Law Quar. Rev. (1904), 351–362.

erty, it may now be defined as the process by which recovery is made from the Crown of property of any kind, including money, to which the suppliant is legally or equitably entitled, except in cases where this process is ousted by some statutory mode of recovery.1 The petition lies where land, goods or money have found their way into the possession of the Crown, and restitution is asked, or, in lieu thereof, compensation in money; or where the claim arises out of contract or for goods supplied to a branch of the government.2 The petition must rest on a recognized basis of legal or equitable relief, and must not be addressed to the mercy or good nature of the Sovereign. If the petition is granted, by the endorsement upon it of the fiat: "Soit droit fait aux parties," the action proceeds in the regular courts having jurisdiction of a similar action between subject and subject. The petition has been held to lie for the recovery of lands, of incorporeal hereditaments, e. g., rent, of chattels real, of specific chattels or their value, of money claims in general not founded on tort, of liquidated sums due under contracts, of payment for services rendered, of unliquidated damages for breach of contract, of duties overpaid, of compensation under special statutes and other cases. Where the petition presents a case of mixed contract and tort, the fiat is usually granted to secure a decision whether the claim is really founded in contract or in tort or is severable. The petition will not lie where the claim is not founded in law or equity (as this term is understood in its technical sense in English law), nor where the claim sounds in tort, nor where it is brought for infringement of a patent, for pensions to military, naval or civil officers of the Crown, nor for the distribution of an award received by the Crown from a foreign government for the benefit of its subjects. In this last re1 Robertson, op. cit., 331. See definition of "relief" under § 16 of the Petition of Right Act, 1860.

Feather v. The Queen (1865), 6 B. & S. 257, 294.

5

The practice is fully discussed in the works of Robertson and Clode, supra. 'This has been altered by § 29 of the Patent and Designs Act, 1907, 7 Ed. VII, 29, by which the Crown is made liable as is a subject for patent infringements. The development in the United States has been the same; up to 1910, the United States was not suable for patent infringement.

'The cases in support of this classification are noted in Robertson, op. cit., 330 et seq., and in Clode, op. cit.