Most of the cases involving the Eleventh Amendment and those creating the greatest difficulties are suits brought against State officials. Such suits are governed by the same rules and principles as pertain to the immunity of the United States itself from suits,[18] with the result that the rules of governmental immunity from suit generally are grounded on decisions arising under both article III and the Eleventh Amendment without distinction as to whether a suit is against the United States or a State.[19] The line is not always easy to draw, nor are the cases always strictly consistent. They do yield, however, to the formulation of certain general rules. Thus, suits brought against State officials acting either in excess of their statutory authority[20] or in pursuance of an unconstitutional statute[21] are suits against the officer in his individual capacity and therefore are not prohibited by the Eleventh Amendment; and suits against an officer for the commission of a common law tort alleged to be justified by a statute or administrative order of the State belong to the same category.[22] On the other hand, suits against the officers of a State involving what is conceded to be State property or suits asking for relief which clearly call for the exercise of official authority cannot be sustained.[23]
Thus mandamus proceedings which seek "affirmative official action" on the part of State officials as "the performance of an obligation which belongs to the State in its political capacity"[24] are uniformly regarded as suits against the State. This rule is well illustrated by Louisiana ex rel. Elliott v. Jumel[25] where a holder of Louisiana State bonds sought to compel the State treasurer to apply a sinking fund that had been created under an earlier constitution for the payment of the bonds to such purpose after a new constitution had abolished this provision for retiring the bonds. The proceeding was held to be a suit against the State because: "The relief asked will require the officers against whom the process is issued to act contrary to the positive orders of the supreme political power of the State, whose creatures they are, and to which they are ultimately responsible in law for what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared that it shall not be done."[26] However, mandamus proceedings to compel a State official to perform a plain or ministerial duty which admits of no discretion are not suits against the State since the official is regarded as acting in his individual capacity in failing to act according to law.[27]
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 unconstitutional statute or action in excess of statutory authority are more readily obtainable. They constitute in fact the single largest class 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 unconstitutional statute and held that whereas an injunction would not lie to restrain a State official from enforcing an act alleged to be unconstitutional in pursuance of the general duties of his office, it would lie to restrain him from performing special duties vested in him by an unconstitutional statute.[30] The leading cases assertive 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 unconstitutional 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 unconstitutionality. 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