Chapter LXXVII: Section 4: The United States shall guarantee to every State in (10)

Today it is apparent that the Tenth Amendment does not shield the States nor their political subdivisions from the impact of the authority affirmatively granted to the Federal Government. It was cited to no avail in Case _v._ Bowles,[38] where a State officer was enjoined from selling timber on school lands at a price in excess of the maximum prescribed by the Office of Price Administration. When California violated the Federal Safety Appliance Act in the operation of the State Belt Railroad as a common carrier in interstate commerce it was held liable for the statutory penalty.[39] At the suit of the Attorney General of the United States, the Sanitary District of Chicago was enjoined from diverting water from Lake Michigan in excess of a specified rate. On behalf of a unanimous court, Justice Holmes wrote: "This is not a controversy among equals. The United States is asserting its sovereign power to regulate commerce and to control the navigable waters within its jurisdiction. * * * There is no question that this power is superior to that of the States to provide for the welfare or necessities of their inhabitants."[40] Some years earlier, in a suit brought by Kansas to prevent Colorado from using the waters of the Arkansas River for irrigation, the Attorney General of the United States had unsuccessfully advanced the claim that the Federal Government had an inherent legislative authority to deal with the matter. In a petition to intervene in the suit he had taken the position, as summarized by the Supreme Court, that "the National Government * * * has the right to make such legislative provision as in its judgment is needful for the reclamation of all these arid lands and for that purpose to appropriate the accessible waters. * * * All legislative power must be vested in either the state or the National Government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that State; consequently all powers which are national in their scope must be found vested in the Congress of the United States."[41] The petition to intervene was dismissed on the ground that the authority claimed for the Federal Government was incompatible with the Tenth Amendment; but this could hardly happen today.[42] Under its superior power of eminent domain, the United States may condemn land owned by a State even where the taking will interfere with the State's own project for water development and conservation.[43] The rights reserved to the States are not invaded by a statute which requires a reduction in the amount of a federal grant-in-aid of the construction of highways upon failure of a State to remove from office a member of the State Highway Commission found to have violated federal law by participating in a political campaign.[44]

Federal legislation frequently has been challenged as an unconstitutional interference with the prerogative of the States to control the entities they create, but the attack has been successful only once, in Hopkins Federal Savings and Loan Association _v._ Cleary.[45] There an act of Congress authorizing the conversion of State building and loan associations without State consent was found to contravene the Tenth Amendment. Thirty years earlier, in Northern Securities Co. _v._ United States,[46] a closely divided Court had ruled that this amendment was no barrier to the application of the Sherman Antitrust Act to prevent one corporation from restraining commerce by means of stock ownership in two competing corporations. It announced the general proposition that: "No State can, by merely creating a corporation, or in any other mode, project its authority into other States, and across the continent, so as to prevent Congress from exerting the power it possesses under the Constitution over interstate and international commerce, or so as to exempt its corporation engaged in interstate commerce from obedience to any rule lawfully established by Congress for such commerce. It cannot be said that any State may give a corporation, created under its laws, authority to restrain interstate or international commerce against the will of the nation as lawfully expressed by Congress. Every corporation created by a State is necessarily subject to the supreme law of the land."[47] Even a charter contract between a State and an intrastate railroad, limiting the rates of the latter, is no barrier to enforcement of an order of the Interstate Commerce Commission requiring an increase in local rates to remove a discrimination against interstate commerce.[48] An order of the Federal Power Commission prescribing the methods of keeping the accounts of an electric company was sustained over the objection that it violated the reserved right of the States under the Tenth Amendment.[49] A similar objection to the levy of a special surtax on any corporation formed or availed of to prevent the imposition of a surtax upon its shareholders was rejected, since the taxing statute did not limit in any way the power of the corporations to declare or withhold dividends as permitted by State law.[50] Likewise, the Court held that the failure to allow a credit against the undistributed profits tax for earnings which could not be distributed under State law did not infringe the reserved power of the State over its corporate offspring.[51]

Notes

[1] United States _v._ Sprague, 282 U.S. 716, 733 (1931).

[2] II Annals of Congress 1897 (1791).

[3] 4 Wheat. 316 (1819).

[4] Ibid. 372.

[5] Ibid. 406.

[6] 11 Wall. 113 (1871).

[7] Ibid. 124.

[8] Graves _v._ O'Keefe, 306 U.S. 466 (1939).

[9] 326 U.S. 572 (1946).

[10] Ibid. 589.

[11] Ibid. 584.

[12] Ibid. 595.

[13] United States _v._ Dewitt, 9 Wall. 41 (1870).

[14] Ibid. 44.

[15] 207 U.S. 463 (1908). _See also_ Keller _v._ United States, 213 U.S. 138 (1909).

[16] 247 U.S. 251 (1918).

[17] 312 U.S. 100, 116, 117 (1941).

[18] Bailey _v._ Drexel Furniture Co., 259 U.S. 20, 36, 38 (1922).

[19] Hill _v._ Wallace, 259 U.S. 44 (1922). _See also_ Trusler _v._ Crooks, 269 U.S. 475 (1926).

[20] Carter _v._ Carter Coal Co., 298 U.S. 238 (1936).

[21] United States _v._ Butler, 297 U.S. 1 (1936).

[22] 295 U.S. 495 (1935).

[23] Ibid. 529.

[24] Steward Machine Co. _v._ Davis, 301 U.S. 548 (1937); Helvering _v._ Davis, 301 U.S. 619 (1937).

[25] National Labor Relations Board _v._ Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

[26] 312 U.S. 100 (1941). _See also_ United States _v._ Carolene Products Co., 304 U.S. 144, 147 (1938); Case _v._ Bowles, 327 U.S. 92, 101 (1946).

[27] 312 U.S. 100, 114, 123, 124 (1941). _See also_ Fernandez _v._ Wiener, 326 U.S. 340, 362 (1945).

[28] 251 U.S. 146 (1919).

[29] Ibid. 156.

[30] Champion _v._ Ames, 188 U.S. 321 (1903).

[31] Hoke _v._ United States, 227 U.S. 308 (1913).

[32] Brooks _v._ United States, 267 U.S. 432 (1925).

[33] Thornton _v._ United States, 271 U.S. 414 (1926).

[34] United States _v._ Ferger, 250 U.S. 199 (1919).

[35] Kentucky Whip & Collar Co. _v._ Illinois C.R. Co., 299 U.S. 334 (1937).

[36] Everhard's Breweries _v._ Day, 265 U.S. 545 (1924).

[37] 296 U.S. 287 (1935). The Civil Rights Act of 1875, which made it a crime for one person to deprive another of equal accommodations at inns, theaters or public conveyances was found to exceed the powers conferred on Congress by the Thirteenth and Fourteenth Amendments, and hence to be an unlawful invasion of the powers reserved to the States by the Tenth--Civil Rights Cases, 109 U.S. 3, 15 (1883).

[38] 327 U.S. 92, 102 (1946).

[39] United States _v._ California, 297 U.S. 175 (1936).

[40] Sanitary District of Chicago _v._ United States, 266 U.S. 405, 425, 426 (1925).

[41] Kansas _v._ Colorado, 206 U.S. 46, 87, 89 (1907).

[42] _See_ United States _v._ Appalachian Electric Power Co., 311 U.S. 377 (1940).

[43] Oklahoma _v._ Atkinson Co., 313 U.S. 508, 534 (1941).

[44] Oklahoma _v._ United States Civil Service Commission, 330 U.S. 127, 142-144 (1947).

[45] 296 U.S. 315 (1935).

[46] 193 U.S. 197 (1904).

[47] Ibid. 345, 346.

[48] New York _v._ United States, 257 U.S. 591 (1922).

[49] Northwestern Electric Co. _v._ Federal Power Commission, 321 U.S. 119 (1944). _See also_ Federal Power Commission _v._ East Ohio Gas Company, 338 U.S. 404 (1950).

[50] Helvering _v._ National Grocery Co., 304 U.S. 282 (1938).

[51] Helvering _v._ Northwest Steel Mills, 311 U.S. 46 (1940).

AMENDMENT 11

SUITS AGAINST STATES

Page Purpose and early interpretation 929 Expansion of state immunity 930 Suits against state officials: two categories 930 Mandamus proceedings 932 Early limitation on injunction proceedings 932 Injunction proceedings today: Ex parte Young 933 Tort action against state officials 934 Suits to recover taxes 935 Consent of State to be sued 935 Waiver of immunity 936

SUITS AGAINST STATES

Amendment 11

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.

Purpose and Early Interpretation

The action of the Supreme Court in accepting jurisdiction of a suit against a State by a citizen of another State in 1793, in Chisholm _v._ Georgia[1] provoked such angry reactions in Georgia and such anxieties in other States that at the first meeting of Congress after this decision what became the Eleventh Amendment was proposed by an overwhelming vote and ratified with "vehement speed."[2] The earliest decisions interpretative of the amendment were three by Chief Justice Marshall. In Cohens _v._ Virginia,[3] speaking for the Court, he held that the prosecution of a writ of error to review a judgment of a State court, alleged to be in violation of the Constitution or laws of the United States, "does not commence or prosecute a suit against the State," but continues one commenced by the State. The contrary holding would have virtually repealed the 25th Section of the Judiciary Act of 1789 (_see_ p. 554), and brought something like anarchy in its wake. In Osborn _v._ Bank of the United States,[4] decided three years later, the Court laid down two rules, one of which has survived and the other of which was soon abandoned. The latter was the holding that a suit is not one against a State unless the State is a party to the record.[5] This rule the Court was forced to repudiate seven years later in Governor of Georgia _v._ Madrazo,[6] in which it was conceded that the suit had been brought against the governor solely in his official capacity and with the design of forcing him to exercise his official powers. It is now a well-settled rule that in determining whether a suit is prosecuted against a State "the Court will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit."[7] The other, more successful rule was that a State official possesses no official capacity when acting illegally and hence can derive no protection from an unconstitutional statute of a State.[8]

Expansion of State Immunity

Subsequent cases giving the amendment a restrictive effect are those holding that counties and municipalities are suable in the federal courts;[9] and that government corporations of the State are not immune when suable under the law which created them.[10] Meantime other cases have expanded the prohibitions of the amendment to include suits brought against a State by its own citizens,[11] by a foreign state,[12] by a federally chartered corporation,[13] or by a State as an agent of its citizens to collect debts owed them by another State.[14] These rulings are based on the premise expressed in Hans _v._ Louisiana[15] that the amendment "actually reversed the decision" in Chisholm _v._ Georgia and, as Chief Justice Hughes indicated in Monaco _v._ Mississippi,[16] had the effect of prohibiting any suit against a State without its consent except when brought by the United States[17] or another State.

Suits Against State Officials: Two Categories

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]

Mandamus Proceedings

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

In tort actions against State officials the rule of United States _v._ Lee[41] has been substantially incorporated into the Eleventh Amendment. In Tindal _v._ Wesley[42] the Lee Case was held to permit a suit by claimants to real property in South Carolina which they had purchased from the State sinking fund commission but which had been retaken by the State because the purchaser insisted on paying for the property with revenue bond scrip issued by the State. In other cases the Court had held that the immunity of a State from suit does not extend to actions against State officials for damages arising out of willful and negligent disregard of State laws.[43]

Suits to Recover Taxes

Recent decisions, however, have rendered suits against State officials to recover taxes increasingly difficult to maintain. Although the Court long ago held that the sovereign immunity of the State prevented a suit to recover money in the general treasury,[44] it also held that a suit would lie against a revenue officer to recover tax moneys illegally collected and still in his possession.[45] Beginning, however, with Great Northern Life Insurance Co. _v._ Read[46] in 1944 the Court has held that this kind of suit cannot be maintained unless the State expressly consents to suits in the federal courts. In this case the State statute provided for the payment of taxes under protest and for suits afterwards against State tax collection officials for the recovery of taxes illegally collected. The act also provided for the segregation by the collector of taxes paid under protest. The Read Case has been followed in two more recent cases[47] involving a similar state of facts, with the result that the rule once permitting such suits to recover taxes from a segregated fund has been distinguished away.

Consent of State to be Sued

Although _dicta_ in some cases suggested that once a State consented generally to be sued in a court of competent jurisdiction,[48] suits could be maintained against it in the federal courts, later decisions involving statutory provisions for the payment of taxes under protest followed by a suit in a court of competent jurisdiction to recover do not authorize suits in the federal courts. These rulings are based on the assumption that when the court is dealing "with the sovereign exemption from judicial interference in the vital field of financial administration a clear declaration of the State's intention to submit its fiscal problems to other courts than those of its own creation must be found."[49] Long before these decisions it had been settled that a State could confine to its own courts suits against it to recover taxes.[50] Thus the questions involved in the cases laying down the above rule concerned only the lack of an express consent to suit in the federal courts.

Waiver of Immunity

The immunity of a State from suit is a privilege which it may waive at pleasure by voluntary submission to suit,[51] as distinguished from appearing in a similar suit to defend its officials,[52] and by general law specifically consenting to suit in the federal courts. Such consent must be clear and specific and consent to suit in its own courts does not imply a waiver of immunity in the federal courts.[53] It follows, therefore, that in consenting to be sued, the States, like the National Government, may attach such conditions to suit as they deem fit.

Notes

[1] 2 Dall. 419 (1793).

[2] Justice Frankfurter dissenting in Larson _v._ Domestic & Foreign Corp., 337 U.S. 682, 708 (1949).

[3] 6 Wheat. 264, 411-412 (1821).

[4] 9 Wheat. 738 (1824).

[5] Ibid. 850-858.

[6] 1 Pet. 110 (1828).

[7] Ex parte Ayers, 123 U.S. 443, 487 (1887).

[8] Osborn _v._ Bank of the United States, 9 Wheat. at 858, 859, 868.

[9] Lincoln County _v._ Luning, 133 U.S. 529 (1890).

[10] Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911). _See also_ Bank of the United States _v._ Planters' Bank of Georgia, 9 Wheat. 904 (1824), where a State bank was held liable to suit although the State owned a portion of its stock, and Briscoe _v._ Bank of Kentucky, 11 Pet. 257 (1837), and Bank of Kentucky _v._ Wister, 2 Pet. 318 (1829), where the State bank was held liable to suit even though the State owned all of the stock. Compare, however, Murray _v._ Wilson Distilling Co., 213 U.S. 151 (1909), which held that a State in engaging in the retail liquor business does not surrender its immunity to suit for transaction of a nongovernmental nature. Here the State conducted the business directly rather than through the medium of a corporation.

[11] Hans _v._ Louisiana, 134 U.S. 1 (1890); Fitts _v._ McGhee, 172 U.S. 516, 524 (1899); Duhne _v._ New Jersey, 251 U.S. 311, 313 (1920); Ex parte New York, 256 U.S. 490 (1921).

[12] Monaco _v._ Mississippi, 292 U.S. 313, 329 (1934).

[13] Smith _v._ Reeves, 178 U.S. 436 (1900).

[14] New Hampshire _v._ Louisiana, 108 U.S. 76 (1883). However, this rule does not preclude a suit by a State to collect debts which have been assigned to it and the proceeds of which will remain with it. South Dakota _v._ North Carolina, 192 U.S. 286 (1904)

[15] 134 U.S. 1, 11 (1890).

[16] 292 U.S. 313, 328-332 (1934).

[17] For the liability of the States to suit by the United States _see_ the discussion of the right of the United States to sue under article III, Sec. 2, _supra_, pp. 584-585.

[18] Tindal _v._ Wesley, 167 U.S. 204, 213 (1897). This case applied the rule of United States _v._ Lee, 106 U.S. 196 (1882), to suits against States.

[19] _See_ for example Larson _v._ Domestic & Foreign Corp., 337 U.S. 682 (1949), where both the majority and dissenting opinions utilize both types of cases in a suit against a federal official.

[20] Pennoyer _v._ McConnaughy, 140 U.S. 1 (1891); Scully _v._ Bird, 209 U.S. 481 (1908); Atchison, Topeka & S.F.R. Co. _v._ O'Connor, 223 U.S. 280 (1912); Greene _v._ Louisville & I.R. Co., 244 U.S. 499 (1917); Louisville & Nashville R. Co. _v._ Greene, 244 U.S. 522 (1917).

[21] Osborn _v._ Bank of the United States, 9 Wheat. 728 (1824); Board of Liquidation _v._ McComb, 92 U.S. 531 (1876); Poindexter _v._ Greenhow, 114 U.S. 270 (1885); Pennoyer _v._ McConnaughy, 140 U.S. 1 (1891); Reagan _v._ Farmers' Loan & Trust Co., 154 U.S. 362 (1894); Smyth _v._ Ames, 169 U.S. 466 (1898); Ex parte Young, 209 U.S. 123 (1908); Truax _v._ Raich, 239 U.S. 33 (1915); Public Service Co. _v._ Corboy, 250 U.S. 153 (1919); Sterling _v._ Constantin, 287 U.S. 378 (1932); Davis _v._ Gray, 16 Wall. 203 (1873); Tomlinson _v._ Branch, 15 Wall. 460 (1873); Litchfield _v._ Webster Co., 101 U.S. 773 (1880); Allen _v._ Baltimore & O.R. Co., 114 U.S. 311 (1885); Gunter _v._ Atlantic C.L.R. Co., 200 U.S. 273 (1906); Prout _v._ Starr, 188 U.S. 537 (1903); Scott _v._ Donald, 165 U.S. 58; _also_ 165 U.S. 107 (1897).

[22] South Carolina _v._ Wesley, 155 U.S. 542 (1895); Tindal _v._ Wesley, 167 U.S. 204 (1897); Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911). In this last case the Court held that a suit would lie against the State Agricultural College, and relief could be granted to the extent that it would not affect the property rights of the State. These cases involve such matters as the seizure and distraint of property, wrongs done by government corporations, etc.

[23] _See_ for example Governor of Georgia _v._ Madrazo, 1 Pet. 110 (1828); Cunningham _v._ Macon and Brunswick R. Co., 109 U.S. 446 (1883); Louisiana ex rel. Elliott _v._ Jumel, 107 U.S. 711 (1883); Hagood _v._ Southern, 117 U.S. 52 (1886); Chandler _v._ Dix, 194 U.S. 590 (1904); Murray _v._ Wilson Distilling Co., 213 U.S. 151 (1909); Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911); Lankford _v._ Platte Iron Works, 235 U.S. 461 (1915); Carolina Glass Co. _v._ South Carolina, 240 U.S. 305 (1916); Kennecott Copper Corp. _v._ State Tax Commission, 327 U.S. 573 (1946).

[24] Hagood _v._ Southern, 117 U.S. 52, 70 (1886). _See also_ Pennoyer _v._ McConnaughy, 140 U.S. 1, 10 (1891) where Justice Lamar also emphasizes the operation of the judgment against the State itself.

[25] 107 U.S. 711, 721 (1883). _See also_ Christian _v._ Atlantic & N.C.R. Co., 133 U.S. 233 (1890).

[26] Louisiana ex rel. Elliott _v._ Jumel, 107 U.S. 711, 721 (1883).

[27] Board of Liquidation _v._ McComb, 92 U.S. 531, 541 (1876). This was a case involving an injunction, but Justice Bradley regarded mandamus and injunction as correlative to each other in cases where the official unlawfully commits or omits an act. _See also_ Rolston _v._ Missouri Fund Commissioners, 120 U.S. 390, 411 (1887), where it is held that an injunction would lie to restrain the sale of a railroad on the ground that a suit to compel a State official to do what the law requires of him is not a suit against the State. _See also_ Houston _v._ Ormes, 252 U.S. 469 (1920).

[28] Board of Liquidation _v._ McComb, 92 U.S. 531, 541 (1876).

[29] 154 U.S. 362 (1894).

[30] Poindexter _v._ Greenhow, 114 U.S. 270 (1885); Allen _v._ Baltimore & O.R. Co., 114 U.S. 311 (1885); Pennoyer _v._ McConnaughy, 140 U.S. 1 (1891); In re Tyler, 149 U.S. 164 (1893). As stated by Justice Harlan in Fitts _v._ McGhee, 172 U.S. 516, 529-530 (1899), "There is a wide difference between a suit against individuals, holding official positions under a State, to prevent them, under the sanction of an unconstitutional statute, from committing by some positive act a wrong or trespass, and a suit against officers of a State merely to test the constitutionality of a state statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the State." _See also_ North Carolina _v._ Temple, 134 U.S. 22 (1890).

[31] _See_ 123 U.S. 443; and 172 U.S. 516.

[32] 154 U.S. 362 (1894).

[33] 169 U.S. 466 (1898).

[34] 209 U.S. 123 (1908).

[35] 123 U.S. 443 (1887); 172 U.S. 516 (1899).

[36] For cases following Ex parte Young, _see_ Home Telephone & Telegraph Co. _v._ Los Angeles, 227 U.S. 278 (1913); Truax _v._ Raich, 239 U.S. 33 (1915); Cavanaugh _v._ Looney, 248 U.S. 453 (1919); Terrace _v._ Thompson, 263 U.S. 197 (1923); Hygrade Provision Co. _v._ Sherman, 266 U.S. 497 (1925); Massachusetts State Grange _v._ Benton, 272 U.S. 525 (1926); Hawks _v._ Hamill, 288 U.S. 52 (1933). These last cases, however, emphasize "manifest oppression" as a prerequisite to issuance of such injunctions. _See also_ Fenner _v._ Boykin, 271 U.S. 240 (1926), where an injunction to restrain the enforcement of a State law penalizing gambling contracts was denied. The rule of Ex parte Young applies equally to the governor of a State in the enforcement of an unconstitutional statute. Continental Baking Co. _v._ Woodring, 286 U.S. 352 (1932); Sterling _v._ Constantin, 287 U.S. 378 (1932). Joseph D. Block, "Suit Against Government Officers and the Sovereign Immunity Doctrine," 59 Harv. L. Rev. 1060, 1078 (1946), points out that Ex parte Young is enunciating the doctrine that an official proceeding unconstitutionally is "stripped of his official ... character" has given impetus to the fiction that the suit must be against the officer as an individual to be permissible under the Eleventh Amendment. Two recent cases in which Ex parte Young was followed are Alabama Comm'n _v._ Southern R. Co., 341 U.S. 341, 344 (1951); and Georgia R. _v._ Redwine, 342 U.S. 299, 304-305 (1952).

[37] 123 U.S. 443 (1887). _See also_ Larson _v._ Domestic and Foreign Corp., 337 U.S. 682, 687-688 (1949).

[38] 49 Stat. 1096 (1936).

[39] Worcester County Trust Co. _v._ Riley, 302 U.S. 292 (1937); _see also_ Old Colony Trust Co. _v._ Seattle, 271 U.S. 426 (1926).

[40] Treinies _v._ Sunshine Mining Co., 308 U.S. 66 (1939). _See also_ Missouri _v._ Fiske, 290 U.S. 18 (1933).

[41] 106 U.S. 196 (1882).

[42] 167 U.S. 204 (1897).

[43] Johnson _v._ Lankford, 245 U.S. 541 (1918); Martin _v._ Lankford, 245 U.S. 547 (1918).

[44] Smith _v._ Reeves, 178 U.S. 436 (1900).

[45] Atchison, Topeka & S.F.R. Co. _v._ O'Connor, 223 U.S. 280 (1912).

[46] 322 U.S. 47 (1944).

[47] Ford Motor Co. _v._ Dept. of Treasury of Indiana, 323 U.S. 459 (1945); Kennecott Copper Corp. _v._ State Tax Commission, 327 U.S. 573 (1946).

[48] Lincoln County _v._ Luning, 133 U.S. 529 (1890); Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911).

[49] Great Northern Ins. Co. _v._ Read, 322 U.S. 47, 54 (1944); Ford Motor Co. _v._ Dept. of Treasury of Indiana, 323 U.S. 459 (1945); Kennecott Copper Corp. _v._ State Tax Commission, 327 U.S. 573 (1946).

[50] Smith _v._ Reeves, 178 U.S. 436 (1900). _See also_ Murray _v._ Wilson Distilling Co., 213 U.S. 151 (1909); Chandler _v._ Dix, 194 U.S. 590 (1904).

[51] Clark _v._ Barnard, 108 U.S. 436, 447 (1883); Ashton _v._ Cameron County Water Improvement Dist., 298 U.S. 513, 531 (1936).

[52] Farish _v._ State Banking Board, 235 U.S. 498 (1915); Missouri _v._ Fiske, 290 U.S. 18 (1933).

[53] Murray _v._ Wilson Distilling Co., 213 U.S. 151, 172 (1909), citing Smith _v._ Reeves, 178 U.S. 436 (1900); Chandler _v._ Dix, 194 U.S. 590 (1904). _See also_ Graves _v._ Texas Co., 298 U.S. 393, 403-404 (1936).

AMENDMENT 12

ELECTION OF PRESIDENT

Page Purpose and operation of the amendment 942 Electors as free agents 942

ELECTION OF PRESIDENT

Amendment 12

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March[1] next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.[2]--The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Purpose and Operation of the Amendment

This amendment, which supersedes clause 3 of section 1 of article II, of the original Constitution, was inserted on account of the tie between Jefferson and Burr in the election of 1800. The difference between the procedure which it defines and that which was laid down in the original Constitution is in the provision it makes for a separate designation by the Electors of their choices for President and Vice President, respectively. The final sentence of clause 1, above, has been in turn superseded today by Amendment XX. In consequence of the disputed election of 1876, Congress, by an act passed in 1887, has laid down the rule that if the vote of a State is not certified by the governor under the seal thereof, it shall not be counted unless both Houses of Congress are favorable.[3] It should be noted that no provision is made by this Amendment for the situation which would result from a failure to choose either a President or Vice President, an inadequacy which Amendment XX undertakes to cure.

Electors as Free Agents

Acting under the authority of state law, the Democratic Committee of Alabama adopted a rule requiring that a party candidate for the office of Presidential Elector take a pledge to support the nominees of the party's National Convention for President and Vice President and that the party's officers refuse to certify as a candidate for such office any person who, otherwise qualified, refused to take such a pledge. One Blair did so refuse and was upheld, in mandamus proceedings, by the State Supreme Court, which ordered the Chairman of the State Democratic Executive Committee to certify him to the Secretary of State as a candidate for the office of Presidential Elector in the Democratic Primary to be held on May 6, 1952. The Supreme Court at Washington granted certiorari and reversed this holding.[4] The constitutional issue arose out of the Alabama Court's findings that the required pledge was incompatible with the Twelfth Amendment, which contemplated that Electors, once appointed, should be absolutely free to vote for any person who was constitutionally eligible to the office of President or Vice President.[5] This position the Supreme Court combatted as follows: "It is true that the Amendment says the electors shall vote by ballot. But it is also true that the Amendment does not prohibit an elector's announcing his choice beforehand, pledging himself. The suggestion that in the early elections candidates for electors--contemporaries of the Founders--would have hesitated, because of constitutional limitations, to pledge themselves to support party nominees in the event of their selection as electors is impossible to accept. History teaches that the electors were expected to support the party nominees. Experts in the history of government recognize the longstanding practice. Indeed, more than twenty states do not print the names of the candidates for electors on the general election ballot. Instead, in one form or another, they allow a vote for the presidential candidate of the national conventions to be counted as a vote for his party's nominees for the electoral college. This long-continued practical interpretation of the constitutional propriety of an implied or oral pledge of his ballot by a candidate for elector as to his vote in the electoral college weighs heavily in considering the constitutionality of a pledge, such as the one here required, in the primary. However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, Sec. 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional. A candidacy in the primary is a voluntary act of the applicant. He is not barred, discriminatorily, from participating but must comply with the rules of the party. Surely one may voluntarily assume obligations to vote for a certain candidate. The state offers him opportunity to become a candidate for elector on his own terms, although he must file his declaration before the primary. Ala. Code, Tit. 17, Sec. 145. Even though the victory of an independent candidate for elector in Alabama cannot be anticipated, the state does offer the opportunity for the development of other strong political organizations where the need is felt for them by a sizable block of voters. Such parties may leave their electors to their own choice. We conclude that the Twelfth Amendment does not bar a political party from requiring the pledge to support the nominees of the National Convention. Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge."[6] Justice Jackson conceding that "as an institution the Electoral College suffered atrophy almost indistinguishable from _rigor mortis_," nevertheless dissented on the following ground: "It may be admitted that this law does no more than to make a legal obligation of what has been a voluntary general practice. If custom were sufficient authority for amendment of the Constitution by Court decree, the decision in this matter would be warranted. Usage may sometimes impart changed content to constitutional generalities, such as 'due process of law,' 'equal protection,' or 'commerce among the states.' But I do not think powers or discretions granted to federal officials by the Federal Constitution can be forfeited by the Court for disuse. A political practice which has its origin in custom must rely upon custom for its sanctions."[7]

Notes

[1] By the Twentieth Amendment, adopted in 1933, the term of the President is to begin on the 20th of January.

[2] Under the Twentieth Amendment, Sec. 3, in case a President is not chosen before the time for beginning of his term, the Vice President-elect shall act as President, until a President shall have qualified.

[3] 3 U.S.C.A. Sec. 17.

[4] Ray _v._ Blair, 343 U.S. 214 (1952).

[5] Ibid. 218-219.

[6] Ibid. 228-231.

[7] Ibid. 232-233.

AMENDMENT 13

SLAVERY AND INVOLUNTARY SERVITUDE

Page Origin and purpose of the amendment 949 Peonage 950 Discriminations and legal compulsions less than servitude 951 Enforcement 953

SLAVERY AND INVOLUNTARY SERVITUDE

Amendment 13

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.