Magna Carta, and Other Addresses

by William D. Guthrie

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.