With the exception named in the Constitution, every state has
absolute immunity from suit, and the Eleventh Amendment applies not
only where the state is actually named as a party but where the
suit is really against it, although nominally against one of its
officers.
Immunity from suit is a high attribute of sovereignty and a
prerogative of the state itself which cannot be availed of by
public agents when sued for their own torts.
Neither a state nor an individual can confer upon an agent
authority to commit a tort so as to excuse the perpetrator; in such
a case, the law of agency has no application, and the individual is
liable to suit and injunction.
While the state, as a sovereign, is not subject to suit, cannot
be enjoined, and the state's officers cannot be restrained from
enforcing the state's laws or held liable for consequences of
obedience thereto, a void law is neither a law or command, but a
nullity, conferring no authority and affording no protection or
immunity from suit.
Neither public corporations nor political subdivisions are
clothed with the immunity from suit which belongs to the state
alone, and while they may be relieved from responsibility to a
wider degree than individuals would be, they must make the defense,
and cannot rely on immunity.
In this case,
held that an agricultural college
corporation was not such an agent of the state as to be immune
under the Eleventh Amendment from suit for damages caused by
erection of a dyke and consequent overflow of plaintiff's property;
but also
held that, as the dyke was on property belonging
to the state, the state would be a necessary party to the suit in
order to decree removal, and, in the absence of consent to be sued,
the court had no jurisdiction to decree removal.
Although parties erecting a dyke on property belonging to the
state
Page 221 U. S. 637
may not, under the Eleventh Amendment, be immune from suit, the
state is a necessary party to a suit to remove the dyke, and it is
beyond the jurisdiction of the court to make a decree to that
effect.
Where a suit is for damages caused by erection of a dyke and for
removal of the dyke, the prayer for removal can be stricken out
without depriving the court of jurisdiction to hear and determine
the prayer for damages.
77 S.C. 12 reversed.
In his complaint, the plaintiff alleged that he owned a valuable
body of fertile bottom lands, on he west side of Seneca River, on
which he had raised large crops from the time of purchasing the
farm in 1880 until 1895, when the defendant, by its trustees,
erected and maintained a high embankment on the eastern side of the
river. This dyke was to protect the lands of the college from
overflow, but its construction so narrowed the channel of the river
that it caused the rapid current of the stream in time of high
water to flow across the lands of plaintiff, whereby the natural
bank had been destroyed, the rich soil had been washed away, and
his property practically ruined for agricultural purposes, and
"during the period aforesaid, said injury has been and still is
continuous from day to day and year to year." He prayed for
judgment for $8,000; that the defendant be required to abate and
remove the dyke and restore the condition prevailing prior to its
construction, and for general relief.
The defendant denied all the allegations of the complaint, and
alleged that the college had no title to the land, or any other
property in connection with the establishment and maintenance of
the institution; that the construction of the dyke was authorized
by the state, and had been built by the college, as a public agent,
on land the title and possession of which was in the state. It
therefore prayed that the complaint be dismissed.
By stipulation, the case was heard solely on the question of
jurisdiction. Evidence was introduced showing that,
Page 221 U. S. 638
by his will, probated April 20, 1888, Thomas G. Clemson left
personal property and the "Fort Hill" place, consisting of 814
acres, providing that, whenever the State of South Carolina should
accept the property for the purpose of founding an agricultural
college, his executor should convey it to the state, to be held so
long as it in good faith devoted the property to the purposes of
the donation, such college to be governed by a board of trustees,
which should never be increased to more than thirteen. Seven
trustees named by the testator, and their successors, were to have
the right to fill vacancies in their number, but the legislature
might elect six other trustees.
On November 27, 1889, the state accepted the Clemson bequest,
subject to the terms set forth in the will and enacted that, upon
the transfer of the property to the state by the executor, a
college should be established in connection with the devise, to be
styled the Clemson Agricultural College of South Carolina, to be
situated at Fort Hill, on the plantation so devised, in which
should be taught all branches of study relating to agriculture, the
college to be under the management of a board of thirteen trustees,
composed of the seven nominated by the will, and their successors,
and six members elected by the legislature.
Sec. 4 of the charter provided:
"That the said board of trustees is hereby declared to be a body
politic and corporate, under the name and style of the Clemson
Agricultural College of South Carolina. They shall have a corporate
seal, which they may change at their discretion, and in their
corporate name they may contract for, purchase, and hold property,
for the purpose of this act, and may take any property or money
conveyed by deed, devise, or bequest to said college, and may hold
the same for his use and benefit; Provided that the conditions of
such gift or conveyance shall in no case be inconsistent with the
purposes of this act,
Page 221 U. S. 639
and shall incur no obligation on the part of the state. They
shall securely invest all funds and keep all property which may
come into their possession, and may sell any of the personal
property not subject to trust, and reinvest the same in such way as
they may deem best for the interest of said college. They may sue
and be sued, plead and be impleaded, in their corporate name, and
may do all things necessary to carry out the provisions of this
act, and may make bylaws for this purpose if they deem it
necessary."
By the Act of January 4, 1894, it was declared that fifty
convicts might
be employed by the trustees of Clemson College
in dyking Seneca River, adjoining the college farm, and such other
work as the trustees deem useful, for twelve months.
In April, 1894, a resolution was passed by the board of trustees
concerning the work of "building the dykes necessary to protect the
bottom lands of Clemson College." It does not appear when this work
began or was finished, but various extracts from the minutes or the
trustees, from April, 1894, to July, 1905, were introduced in
evidence from which it appeared that the dyke was constructed
according to plans and specifications approved by the board, under
the direction of engineers selected by the board, and that payments
were made by it on account of work thereon. The embankment was
either wholly or partially washed away, and, in 1903, a resolution
was adopted by the board
"to have a survey made of the dyke for the purpose of submitting
estimates of the work necessary to be done to afford protection to
the bottom lands on the college property, the cost of the estimate
to be based on the recent flood."
Evidence was introduced as to the property owned by the college
and the sources of its income, from which it appeared that a tract
of land, partially paid for by the state, had been conveyed to the
college in fee simple, and
Page 221 U. S. 640
other land had been conveyed for college purposes. The state
appropriated more than $100,000 per annum, which, with the interest
on the securities passing under the residuary clause of Dr.
Clemson's will, constituted the main source of income, though the
college did receive about $6,500 per annum from tuition, rent, sale
of dairy products, and the proceeds derived from the electric plant
and textile department.
There is copied in the record the act of 1894 to incorporate
Clemson College for the purpose of police regulation over the
territory within five miles of the college building.
The trial court found that the current expenses were paid out of
interest on the donation and from the annual appropriations by the
state; that the college had no property which could be sold under
execution, and that title to the land on which the dyke was erected
was in the state. Referring also to the act of 1894, conferring
municipal powers on Clemson College, the court held that the
defendant was a public agent which could not be sued without the
consent of the state; that such consent was not given by the
provision of the charter that the trustees "might sue and be sued,
plead and be impleaded, in their corporate capacity," inasmuch as
that related to contracts made for college purposes, and did not
warrant suits against a public agent for a tort. Holding that the
state was an indispensable party, and had not given its consent to
be sued, the court dismissed the complaint.
On the appeal, the plaintiff, in his assignments of error,
contended that the title to the land was in the state only as
trustee; that the college was not a public corporation, but a
private educational institution, without governmental powers; that
it had not been established or endowed by the state, and was not
governed by the state, or solely by trustees appointed by the state
(
Dartmouth College v.
Woodward, 4 Wheat. 634); that, in addition to the
equitable ownership of the Fort
Page 221 U. S. 641
Hill place, it owned certain lands in fee simple which were
subject to levy and sale, and that the corporation was liable for
its own torts.
The twenty-third assignment of error was as follows:
"Because the Fourteenth Amendment to the Constitution of the
United States provides: 'Nor shall any state deprive any person of
life, liberty, or property without due process of law.' The
allegations of the complaint show that plaintiff has been deprived
of his property for all practical purposes as agricultural lands as
effectually as if there had been a physical taking thereof; that
plaintiff has thus been deprived of his property by the defendant
corporation, acting by and through its board of trustees, and this
constitutional guaranty has been violated by such action, whether
taken pursuant to an act of the legislature of otherwise, and his
Honor erred in not so holding."
The supreme court of the state adopted the opinion of the trial
judge, and, on the ground that the state was a necessary party and
had not consented to be sued, dismissed the bill of complaint. 77
S.C. 12. Thereupon the plaintiff sued out a writ of error to this
Court.
MR. JUSTICE LAMAR, after making the foregoing statement,
delivered the opinion of the Court.
The plaintiff sued the Clemson Agricultural College of South
Carolina, for damages to his farm, resulting from the college
having built a dyke which forced the waters of the Seneca River
across his land, whereby the soil had
Page 221 U. S. 642
been washed away and the land ruined for agricultural purposes.
There was no demurrer, but the defendant filed what was treated as
a plea to the jurisdiction, in which it averred that it owned no
property, and had constructed the dyke as a public agent only, by
authority of the state, on land belonging to the state. By
stipulation, the hearing was confined solely to the question of
jurisdiction, and after considering the evidence, the complaint was
dismissed.
That ruling and the assignments of error thereon raise the
question as to whether a public corporation can avail itself of the
state's immunity from suit in a proceeding against it for so
managing the land of the state as to damage or take private
property without due process of law.
With the exception named in the Constitution, every state has
absolute immunity from suit. Without its consent, it cannot be sued
in any court, by any person, for any cause of action whatever. And,
looking through form to substance, the Eleventh Amendment has been
held to apply not only where the state is actually named as a party
defendant on the record, but where the proceeding, though nominally
against an officer, is really against the state, or is one to which
it is an indispensable party. No suit, therefore, can be maintained
against a public officer which seeks to compel him to exercise the
state's power of taxation, or to pay out its money in his
possession on the state's obligations, or to execute a contract, or
to do any affirmative act which affects the state's political or
property rights.
Cunningham v. Macon & Brunswick R.
Co., 109 U. S. 446;
North Carolina v. Temple, 134 U. S.
22;
Louisiana v. Steele, 134 U.
S. 230;
Louisiana v. Junel, 107 U.
S. 711;
Pennoyer v. McConnaughy, 140 U. S.
1;
In re Ayers, 123 U.
S. 443;
Hans v. Louisiana, 134 U. S.
1;
Harkrader v. Wadley, 172 U.
S. 148;
Hagood v. Southern, 117 U. S.
52.
But immunity from suit is a high attribute of sovereignty --
Page 221 U. S. 643
a prerogative of the state itself -- which cannot be availed of
by public agents when sued for their own torts. The Eleventh
Amendment was not intended to afford them freedom from liability in
any case where, under color of their office, they have injured one
of the state's citizens. To grant them such immunity would be to
create a privileged class, free from liability for wrongs inflicted
or injuries threatened. Public agents must be liable to the law
unless they are to be put above the law. For how
"can these principles of individual liberty and right be
maintained if, when violated, the judicial tribunals are forbidden
to visit penalties upon individual offenders . . . whenever they
interpose the shield of the state? . . . The whole frame and scheme
of the political institutions of this country, state and federal
protest"
against extending to any agent the sovereign's exemption from
legal process.
Poindexter v. Greenhow, 114 U.
S. 270,
114 U. S.
291.
The many claims of immunity from suit have therefore been
uniformly denied where the action was brought for injuries done or
threatened by public officers. If they were indeed agents, acting
for the state, they -- though not exempt from suit -- could
successfully defend by exhibiting the valid power of attorney or
lawful authority under which they acted.
Cunningham v. Macon
& Brunswick R. Co., 109 U. S. 446,
109 U. S. 452.
But if it appeared that they proceeded under an unconstitutional
statute, their justification failed, and their claim of immunity
disappeared on the production of the void statute. Besides, neither
a state nor an individual can confer upon an agent authority to
commit a tort so as to excuse the perpetrator. In such cases, the
law of agency has no application -- the wrongdoer is treated as a
principal, and individually liable for the damages inflicted, and
subject to injunction against the commission of acts causing
irreparable injury.
Consequently there have been recoveries in ejectment
Page 221 U. S. 644
where the public agent in possession defended under a void title
of the government.
United States v. Lee, 106 U.
S. 196;
Tindal v. Wesley, 167 U.
S. 204. A suit against a bank was sustained even though
the state held part of the stock.
Bank of
United States v. Planters' Bank, 9 Wheat. 904. A
tax collector was enjoined, where, under an unconstitutional law,
he was about to sell the property of the taxpayer.
Poindexter
v. Greenhow, 114 U. S. 270. An
attorney general was restrained from suing to recover penalties
imposed by an unconstitutional statute.
Ex Parte Young,
209 U. S. 123.
Commissions have been enjoined from enforcing confiscatory rates.
Reagan v. Farmers' Loan & Trust Co., 154 U.
S. 362;
Smyth v. Ames, 169 U.
S. 466;
Prout v. Starr, 188 U.
S. 537. A state land commissioner was enjoined from
proceeding, under an unconstitutional act, to cause irreparable
damage to defendant's property rights.
Pennoyer v.
McConnaughy, 140 U. S. 1.
Commissions have been restrained from enforcing a statute which
illegally burdened interstate commerce.
McNeill v. Southern
Ry., 202 U. S. 543;
Railway Commission v. Illinois Central R. Co.,
203 U. S. 335.
Other cases might be cited which deny public boards, agents, and
officers immunity from suit. But the principle underlying the
decisions is the same. All recognize that the state, as a
sovereign, is not subject to suit, that the state cannot be
enjoined, and that the state's officers, when sued, cannot be
restrained from enforcing the state's laws or be held liable for
the consequences flowing from obedience to the state's command.
But a void act is neither a law nor a command. It is a nullity.
It confers no authority. It affords no protection. Whoever seeks to
enforce unconstitutional statutes, or to justify under them, or to
obtain immunity through them, fails in his defense and in his claim
of exemption from suit.
Is is said, however, that in the cases referred to, the
officers
Page 221 U. S. 645
were held liable to suit because, in the transaction complained
of, the statute being unconstitutional, they could not be treated
as agents of the state. And it is argued that these authorities
have no application to suits against those public corporations
which exist, and can act, in no other capacity than as governmental
agencies, or political subdivisions of the state itself. But
neither public corporations nor political subdivisions are clothed
with that immunity from suit which belongs to the state alone by
virtue of its sovereignty. In
Lincoln County v. Luning,
133 U. S. 529, the
Court said that,
"while the county is territorially a part of the state, yet
politically it is also a corporation, created by and with such
powers as are given to it by the state. In this respect, it is a
part of the state only in that remote sense in which any city,
town, or other municipal corporation may be said to be a part."
The court there held that the Eleventh Amendment was limited to
those cases in which the state is the real party, or party on the
record, but that counties were corporations which might be sued.
Dunn v. University of Oregon, 9 Or. 357, 362;
Herr v.
Central Kentucky Lunatic Asylum, 98 Ky. 463.
Corporate agents or individual officers of the state stand in no
better position than officers of the general government, and as to
them it has often been held that
"the exemption of the United States from judicial process does
not protect their officers and agents, civil or military, in time
of peace, from being personally liable to an action of tort by a
private person whose rights of property they have wrongfully
invaded or injured, even by authority of the United States."
Belknap v. Schild, 161 U. S.
18.
Undoubtedly counties, cities, townships, and similar bodies
politic often have a defense which relieves them from
responsibility where a private corporation would be liable. But
they must at least make that defense. They
Page 221 U. S. 646
cannot rely on freedom from accountability, as could a
state.
in this case, there is no question of corporate existence and no
claim that building the dyke was
ultra vires. Plaintiff
was denied a hearing not on the ground that his complaint did not
set out a cause of action, but solely for the reason that, even if
the college did destroy his farm, the court had no jurisdiction
over a public agent.
If the state had in so many words granted the college authority
to take or damage the plaintiff's property for its corporate
advantage without compensation, the Constitution would have
substituted liability for the attempted exemption. But the State of
South Carolina passed no such act, and attempted to grant no such
immunity from suit as is claimed by the college. On the contrary,
the statute created an entity, a corporation, a juristic person,
whose right to hold and use property was coupled with the provision
that it might sue and be sued, plead and be impleaded, in its
corporate name.
Reference is made, however, to
Kansas ex Rel. Little v.
University of Kansas, and the note in 29 L.R.A. 378, where
state colleges, prison boards, lunatic asylums, and other public
institutions have been held to be agents of the state, not liable
to suit unless expressly made so by statute.
But an examination of the cases cited, in any respect similar to
this will show that they involve questions of liability in a suit,
rather than immunity from suit. Most of them were actions for torts
committed not by the public corporation itself, but by officers of
the law. These public corporations were held free from liability in
the suit on the same ground that municipalities are held not to be
responsible for the negligence of policemen, jailers, prison
guards, firemen, and other agents performing governmental duties.
Workman v. New York, 179 U. S. 556.
That general rule is of force in South Carolina, as
Page 221 U. S. 647
appears from
Gibbes v. Beaufort, 20 S.C. 218, cited in
the opinion of the court below, where it was said that
"a municipal corporation, instituted for the purpose of
assisting the state in the conduct of local civil government, is
not liable to be sued in an action of tort for nonfeasance or
misfeasance of its officers in regard to their public duties,
unless expressly made so liable by statute."
But the plaintiff is not seeking here to hold the college liable
for the nonfeasance or misfeasance either of its own officers or
officers of the public. This is a suit against the college itself
for its own corporate act in building a dyke, whereby the channel
had been narrowed, the swift current had been diverted from the
usual course across the plaintiff's farm, and, as it is alleged,
destroying the banks, washing away the soil, and for all practical
purposes as effectually depriving him of his property as if there
had been a physical taking.
Compare Lewis on Eminent
Domain, 2d ed., § 67;
Pumpelly v. Green Bay
Co., 13 Wall. 166;
United States v. Lynah,
188 U. S. 445;
United States v. Welch, 217 U. S. 333;
Chicago &c. v. Chicago, 166 U.
S. 226; Farnham on Waters, § 191;
Conniff v.
San Francisco, 67 Cal. 45.
Again, and still treating the question as though involved in the
plea to the jurisdiction, that is not an action against the college
for a tort committed in the prosecution of any governmental
function. The fee was in the state, but the corporation, as
equitable owner, was in the possession, use, and enjoyment of the
property. For protecting the bottom land, the college, for its own
corporate purposes and advantages, constructed the dyke. In so
doing, it was not acting in any governmental capacity. The
embankment was in law similar to one which might have been built
for private purposes by the plaintiff on the other side of the
river. If he had there constructed a dyke to protect his farm, and
in so doing had taken or damaged the land of the college, he could
have been sued
Page 221 U. S. 648
and held liable. In the same way, and on similar principles of
justice and legal liability, the college is responsible to him if,
for its own benefit, and for protecting land which the held and
used, it built a dyke which resulted in taking or damaging the
plaintiff's farm. 2 Dillon, M.Corp. (4th ed.) § 966, p.
1180.
As a part of its plea to the jurisdiction, the college also
claimed that
"it never had any interest or title in the land described in the
complaint, or in any other property connected with the
establishment and maintenance of Clemson Agricultural College of
South Carolina, all of it being the property of the State of South
Carolina."
And it is argued that the court could take no jurisdiction of a
case against a public corporation which at most, could only result
in a judgment unenforceable by levy and sale under execution.
As a matter of fact, the record indicates that, besides the
state's annual appropriation and the interest on securities held
under the residuary clause of Dr. Clemson's will, the college has
other sources of income. It appears to own some land in fee simple.
The charter authorizes it to receive bequests. So that, if the Fort
Hill place is not subject to levy and sale, it does not follow that
the institution may not now or hereafter own property out of which
a judgment in plaintiff's favor could be satisfied. Besides, we
have no right to proceed on the theory that, if at the end of the
litigation, plaintiff establishes his right to damages, the
judgment would not be paid. These suggestions, though made in a
plea to the jurisdiction, afford no reason why the college should
be granted immunity from suit when it is claimed that, in violation
of the Constitution, it has taken private property for its
corporate purposes without compensation.
The plaintiff prayed not only for damages, but that the
embankment should be removed. The title to the land and everything
annexed to the soil is in the state, subject
Page 221 U. S. 649
to the conditions named in the will. The state therefore may be
a necessary party to any proceeding which seeks to affect the land
itself, or to remove any structure thereon which has become a part
of the land. If so, and unless it consents to be sued, the court
cannot decree the removal of the embankment which forms a part of
the state's property.
Cunningham v. Macon & Brunswick R.
Co., 109 U. S. 446. But
the prayer for that part of the relief can be stricken out without
depriving the court of jurisdiction to hear and determine the
question whether Clemson Agricultural College of South Carolina is
liable to the plaintiff for its own corporate act in building for
its own proprietary and corporate purposes a dyke which it is
alleged damaged or took the plaintiff's farm.
Columbia
Waterpower Company v. Electric Co., 43 S.C. 155 (1), 167, 169.
And, if the facts hereafter warrant it, the college may be enjoined
against further acts looking to the maintenance or reconstruction
of the dyke. The judgment is reversed, and the cause remanded for
further proceedings not inconsistent with this opinion.
Reversed.
MR. JUSTICE HARLAN dissents.
