Three separate libels in rem were filed in the United States District Court for the Western District of New
The Attorney General of the State appeared in all three cases specially in behalf of the State and the People thereof, and of Walsh, and filed a suggestion that the court was without jurisdiction to proceed against Walsh as Superintendent of Public Works for the reason that, as appeared upon the face of the proceedings, they were suits against the State of New York in which the State had not consented to be sued. The District Court denied motions to dismiss the monitions (The Henry Koerber, Jr., 268 Fed. Rep. 561), whereupon the Attorney General, on behalf of the State and the People thereof, and of Walsh as Superintendent and individually, under leave granted, filed in this court a petition for writs of prohibition and mandamus. An order to show cause was issued, to which the District Judge made a return, and upon this and the proceedings in the District Court the matter has been argued.
The record shows that the charters had expired according to their terms, and the tugs were in possession of the claimants, neither the State nor Walsh having any claim upon or interest in them. At no time has any res belonging to the State or to Walsh, or in which they claim any interest, been attached or brought under the jurisdiction of the District Court. Nor is any relief asked against Mr. Walsh individually; the proceedings against him being strictly in his capacity as a public officer.
The power to issue writs of prohibition to the district courts when proceeding as courts of admiralty and maritime jurisdiction is specifically conferred upon this court by § 234, Judicial Code (Act of March 3, 1911, c. 231, 36
That a State may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given: not one brought by citizens of another State, or by citizens or subjects of a foreign State, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but an exemplification. Beers v. Arkansas, 20 How. 527, 529; Railroad Co. v. Tennessee, 101 U.S. 337, 339; Hans v. Louisiana, 134 U.S. 1, 10-17; North Carolina v. Temple, 134 U.S. 22, 30; Fitts v. McGhee, 172 U.S. 516, 524; Palmer v. Ohio, 248 U.S. 32, 34; Duhne v. New Jersey, 251 U.S. 311, 313.
Nor is the admiralty and maritime jurisdiction exempt from the operation of the rule. It is true the Amendment speaks only of suits in law or equity; but this is because, as was pointed out in Hans v. Louisiana, supra, the Amendment was the outcome of a purpose to set aside the effect of the decision of this court in Chisholm v. Georgia, 2 Dall. 419, which happened to be a suit at law brought against the State by a citizen of another State, the decision turning upon the construction of that clause of § 2 of Art. III of the Constitution establishing the judicial power in cases in law and equity between a State
Among the authorities to which we are referred is Mr. Justice Story, who, in his commentaries on the Constitution (1st ed., § 1683; 5th ed., § 1689), stated that it had been doubted whether the Amendment extended to cases of admiralty and maritime jurisdiction where the proceeding was in rem and not in personam; and whose doubt was supported by a declaration proceeding from Mr. Justice Washington at the circuit, United States v. Bright (1809), Brightly, N.P. 19, 25, Note; 24 Fed. Cas. 1232, 1236, No. 14,647; 3 Hall's L.J. 197, 225. But the doubt was based upon considerations that were set aside in the reasoning adopted by this court in Hans v. Louisiana. In Governor of Georgia v. Madrazo, 1 Pet. 110, 124, the question whether the Eleventh Amendment extended to proceedings in admiralty was alluded to, but found unnecessary to be decided, because, if it did not, the case was for the original jurisdiction of this court and not of the district court in which it was brought; and it was held, further, that the decree could not be sustained as a proceeding in rem, because the thing was not in possession of the district court. Subsequently, in Ex parte Madrazzo, 7 Pet. 627, 632, an application was made to this court to entertain a suit in admiralty against the State of Georgia, and it was held that as there was no property in the custody of the court of admiralty, or brought within its jurisdiction and in the possession of any private person,
Much reliance is placed upon Workman v. New York City, 179 U.S. 552. But that dealt with a question of the substantive law of admiralty, not the power to exercise jurisdiction over the person of defendant; and in the opinion the court was careful to distinguish between the immunity from jurisdiction attributable to a sovereign upon grounds of policy, and immunity from liability in a particular case. Thus (p. 566): "The contention is, although the corporation had general capacity to stand in judgment, and was therefore subject to the process of a court of admiralty, nevertheless the admiralty court would afford no redress against the city for the tort complained of, because under the local law," etc. "But the maritime law affords no justification for this contention, and no example is found in such law, where one who is subject to suit and amenable to process is allowed to escape liability
We repeat, the immunity of a State from suit in personam in the admiralty brought by a private person without its consent, is clear.
As to what is to be deemed a suit against a State, the early suggestion that the inhibition might be confined to those in which the State was a party to the record (Osborn v. United States Bank, 9 Wheat. 738, 846, 850, 857) has long since been abandoned, and it is now established that the question is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record. Louisiana v. Jumel, 107 U.S. 711, 719, 720, 723, 727-728; Hagood v. Southern, 117 U.S. 52, 67, et seq.; In re Ayers, 123 U.S. 443, 487-492; Pennoyer v. McConnaughy, 140 U.S. 1, 10, et seq.; Smith v. Reeves, 178 U.S. 436, 438-440; Murray v. Wilson Distilling Co., 213 U.S. 151, 168-170; Lankford v. Platte Iron Works Co., 235 U.S. 461, 469.
Thus examined, the decided cases have fallen into two principal classes, mentioned in Pennoyer v. McConnaughy, 140 U.S. 1, 10: "The first class is where the suit is brought against the officers of the State, as representing the State's action and liability, thus making it, though not a party to the record, the real party against which the judgment will so operate as to compel it to specifically perform its contracts [citing cases]. The other class is where a suit is brought against defendants who, claiming to act as officers of the State, and under the color of an unconstitutional statute, commit acts of wrong and injury to the rights and property of the plaintiff acquired under a contract with the State. Such suit . . . is not, within the meaning of the Eleventh Amendment, an action against the State." The first class, in just reason, is not confined to cases where the suit will operate so as to compel
As has been shown, the proceedings against which prohibition is here asked have no element of a proceeding in rem, and are in the nature of an action in personam against Mr. Walsh, not individually, but in his capacity as Superintendent of Public Works of the State of New York. The office is established and its duties prescribed by the constitution of the State; Art. 5, § 3. He is "charged with the execution of all laws relating to the repair and navigation of the canals, and also of those relating to the construction and improvement of the canals," with exceptions not material. By c. 264 of the Laws of 1919, effective May 3, the Superintendent is authorized to provide such facilities as in his judgment may be necessary for the towing of boats on the canals of the State, the towing service to be furnished under such rules and regulations as he shall adopt; and for that service he is authorized to impose and collect such fees as in his judgment may seem fair and reasonable; the moneys so collected to be deposited by him in the state treasury. For the carrying into effect of this act the sum of $200,000 was appropriated. Under these provisions of law Mr. Walsh, as Superintendent of Public Works, chartered the tugs Henry Koerber, Jr., and Charlotte, in the name and behalf of the People of the State of New York, for periods beginning May 15 and ending at latest December 15, 1919; and it was under these charters that they were being operated when the disasters occurred upon which the libels are founded and the petitions under Rule 59 are based. The decrees sought would affect Mr. Walsh in his official capacity, and not otherwise. They might be satisfied out of any property of the State of New York in his hands as Superintendent of Public Works, or made a basis for charges upon the treasury of the State under
There is no substance in the contention that this result enables the State of New York to impose its local law upon the admiralty jurisdiction, to the detriment of the characteristic symmetry and uniformity of the rules of maritime law insisted upon in Workman v. New York City, 179 U.S. 552, 557-560; Southern Pacific Co. v. Jensen, 244 U.S. 205, 215; Union Fish Co. v. Erickson, 248 U.S. 308, 313; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160. The symmetry and harmony maintained in those cases consists in the uniform operation and effect of the characteristic principles and rules of the maritime law
The want of authority in the District Court to entertain these proceedings in personam under Rule 59 (now 56) brought by the claimants against Mr. Walsh as Superintendent of Public Works of the State of New York is so clear, and the fact that the proceedings are in essence suits against the State without its consent is so evident, that instead of permitting them to run their slow course to final decree, with inevitably futile result, the writ of prohibition should be issued as prayed. Ex parte Simons, 247 U.S. 231, 239; Ex parte Peterson, 253 U.S. 300, 305.
Rule absolute for a writ of prohibition.