process, and has paid the statutory fee. On this state of facts the State Tax Commissioner determined that petitioner was subject to the Act of 1935, as amended, and assessed the tax against Spector for the years 1937 to 1940. Whereupon petitioner brought this suit in the United States District Court for the District of Connecticut to free itself from liability for the tax. Alleging appropriate grounds for equitable relief, petitioner claims that the "tax or excise" levied by the Act does not apply to it; and in the alternative that, if it should be deemed within the scope of the statute, the tax offends provisions of the Connecticut Constitution as well as the Commerce and Due Process Clauses of the United States Constitution.

The District Court construed the statute to be a "tax upon the exercise of a franchise to carry on intrastate commerce in the state" and therefore not applicable to petitioner. 47 F. Supp. 671, 675. On appeal the Circuit Court of Appeals for the Second Circuit construed the statute to reach all corporations having activity in Connecticut, whether doing or authorized to do intrastate business or, like the petitioner, engaged exclusively in interstate commerce. It further decided all contentions under the Connecticut [103] Constitution against the petitioner. And so, the court below found itself compelled "to face directly the main issue whether the tax is in fact an unconstitutional burden on interstate commerce." 139 F. 2d 809, 813. The dissenting judge thus phrased the issue: "we have before us in the barest possible form the effort of a state to levy an excise directly upon the privilege of carrying on an activity which is neither derived from the state, nor within its power to forbid." Id. at 822. It was conceded below that if the Connecticut tax was construed to cover petitioner it would run afoul the Commerce Clause, were this Court to adhere to what Judge Learned Hand called "an unbroken line of decisions." On the basis of what it deemed foreshadowing "trends," the majority ventured the prophecy that this Court would change its course, and accordingly sustained the tax. In view of the far-reaching import of such a disposition by the Circuit Court of Appeals we brought the case here. 322 U. S. 720.

Once doubts purely local to the Constitution and laws of Connecticut are resolved against the petitioner there are at stake in this case questions of moment touching the taxing powers of the States and their relation to the overriding national interests embodied in the Commerce Clause. This is so whether the issue be as broad and as bare as the District Court and Judge Learned Hand formulated it, or whether the Connecticut statute carries a more restricted meaning. If Connecticut in fact sought to tax the right to engage in interstate commerce, a long course of constitutional history and "an unbroken line of decisions" would indeed be brought into question. But even if Connecticut seeks merely to levy a tax on the net income of this interstate trucking business for activities attributed to Connecticut, questions under the Commerce Clause still remain if only because of what the court below called "ingenious provisions as to allocation of net income in the case of business carried on partly without the state." 139 F. 2d 809, 812.

[104] We would not be called upon to decide any of these questions of constitutionality, with their varying degrees of difficulty, if, as the District Court held, the statute does not at all apply to one, like peti

tioner, not authorized to do intrastate business. Nor do they emerge until all other local Connecticut issues are decided against the peti tioner. But even if the statute hits aspects of an exclusively interstate business, it is for Connecticut to decide from what aspect of interstate business she seeks an exaction. It is for her to say what is the subject matter which she has sought to tax and what is the calculus of the tax she seeks. Every one of these questions must be answered before we reach the constitutional issues which divided the court below.

Answers to all these questions must precede consideration of the Commerce Clause. To none have we an authoritative answer. Nor can we give one. Only the Supreme Court of Errors of Connecticut can give such an answer. But this tax has not yet been considered or construed by the Connecticut courts. We have no authoritative pronouncements to guide us as to its nature and application. That the answers are not obvious is evidenced by the different conclusions as to the scope of the statute reached by the two lower courts. The Connecticut Supreme Court may disagree with the District Court and agree with the Circuit Court of Appeals as to the applicability of the statute. But this is an assumption and at best "a forecast rather than a determination." Railroad Commission v. Pullman Co., 312 U. S. 496. 499. Equally are we without power to pass definitively on the other claims urged under Articles I and II of the Connecticut Constitution. If any should prevail our constitutional [105] issues would either fall or, in any event, may be formulated in an authoritative way very different from any speculative construction of how the Connecticut courts would view this law and its application. Watson v. Buck, 313 U. S. 387, 401-402.

If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality-here the distribution of the taxing power as between the State and the Nation-unless such adjudication is unavoidable. And so, as questions of federal constitutional power have become more and more intertwined with preliminary doubts about local law, we have insisted that federal courts do not decide ques tions of constitutionality on the basis of preliminary guesses regarding local law. Railroad Commission v. Pullman Co., supra; Chicago v. Fieldcrest Dairies, 316 U. S. 168; In re Central R. Co. of New Jersey, 136 F. 2d 633. See also Burford v. Sun Oil Co., 319 U. S. 315; Mere dith v. Winter Haven, 320 U. S. 228, 235; Green v. Phillips Petroleum Co., 119 F.2d 466; Findley v. Odland, 127 F. 2d 948; United States v. 150.29 Acres of Land, 135 F. 2d 878. Avoidance of such guesswork, by holding the litigation in the federal courts until definite determinations on local law are made by the state courts, merely heeds this time-honored canon of constitutional adjudication.

We think this procedure should be followed in this case. The District Court had jurisdiction to entertain this bill and to give whatever relief is appropriate despite the Johnson Act 2 and Great Lakes Dredge

1 For instance, petitioner claims that no standard for assessment is set up in the statute so that the executive officer is acting in a legislative capacity in violation of Article II: that failure to allow a deduction for rent violates §§ 1 and 12 of Article I. In addition he claims that the tax was assessed under the wrong subsection of the statute § 420c (b) instead of § 420c (a). no district court

་་.

2 Act of August 21, 1937, 50 Stat. 738, 28 U. S. C. § 41 (1). shall have jurisdiction of any suit to enjoin, suspend, or restrain the assessment, levy, or collection of any tax imposed by or pursuant to the laws of any State where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such State."

Co. v. Huffman, [106] 319 U. S. 293, because of the uncertainty surrounding the adequacy of the Connecticut remedy. See Waterbury Savings Bank v. Lawler, 46 Conn. 243; Wilcox v. Town of Madison, 106 Conn. 223, 137 A. 742. But there is no doubt that Connecticut makes available an action for declaratory judgment for the determination of those issues of Connecticut law involved here. Charter Oak Council, Inc. v. Town of New Hartford, 121 Conn. 456, 185 A. 575; Conzelman v. City of Bristol, 122 Conn. 218, 188 A. 659; Walsh v. City of Bridgeport, 2 Conn. Supp. 88.

We therefore vacate the judgment of the Circuit Court of Appeals and remand the cause to the District Court with directions to retain the bill pending the determination of proceedings to be brought with reasonable promptitude in the State court in conformity with this opinion. Mr. JUSTICE DOUGLAS Concurs in the result.

Mr. JUSTICE BLACK dissents.

4. FORD MOTOR CO. v. DEPARTMENT OF TREASURY OF INDIANA ET AL.

(323 U. S. 459. No. 75-Decided January 8, 1945)

1. A suit against the Department of Treasury of the State of Indiana and individuals constituting the "Board of the Department of Treasury," brought pursuant to § 64-2614 of Burns' Indiana Statutes Annotated (1943 Replacement) for a refund of taxes alleged to have been illegally collected, held a suit against the State, in respect of which the State had not consented to the jurisdiction of the federal district court. P. 463.

2. Where a suit is in essence one for the recovery of money from the State, the State is the real party in interest and is entitled to invoke its sovereign immunity from suit, even though individual officials are nominal defendants. P. 464.

3. The Eleventh Amedment denies to the federal courts authority to entertain a suit brought by private parties against a State without the State's consent. P. 464.

4. Interpretation of § 64-2614 as authorizing suits for refunds of taxes only in state courts accords with the legislative policy of the State. P. 466.

[460] 5. The contention that the suit is against the State and in contravention of the Eleventh Amendment is considered by this Court though urged here for the first time in this proceeding. P. 467.

6. Neither the attorney general nor any other administrative or executive officer of the State was authorized by state law to waive the State's immunity in this proceeding. P. 468.

141 F. 2d 24, vacated.

CERTIORARI, 322 U. S. 721, to review the affirmance of a judgment denying recovery in a suit for a refund of state taxes alleged to have been illegally collected.

MR. JUSTICE REED delivered the opinion of the Court.

This writ brings here for review an action by petitioner, a nonresident foreign manufacturing corporation, against the respondents, the department of treasury of the State of Indiana and M. Clifford Townsend, Joseph M. Robertson and Frank G. Thompson, the Governor, Treasurer and Auditor, respectively, of the State of Indiana, who "together" constituted the board of the department of treasury.1

1 We need not consider the present status of the board of the department of treasury as $64-2614, Burns, Indiana Stat. Ann. (1943 Replacement), provides for suit against the "department." See Indiana, Acts, 1933, ch. 4, § 13; Indiana, Acts, 1941, ch. 4 and ch. 13, $82, 8; Tucker v. State, 218 Ind. 614, 35 N. E. 2d 270.

Petitioner seeks a refund of gross income taxes paid to the department and measured by sales claimed by the state to have occurred in Indiana. Jurisdiction of the United States District Court is founded on allegations of the violation of Article I, Section 8, the Commerce Clause, and [461] the Fourteenth Amendment of the Constitution. The state statutory procedure for obtaining a refund which petitioner followed is set forth in § 64-2614 (a) of the Indiana statues.

3

The District Court denied recovery. The Circuit Court of Appeals affirmed. Certiorari was granted 5 on petitioner's [462] assertion of error in that the Circuit Court of Appeals decided an important question of local law probably in conflict with an applicable decision of the Supreme Court of Indiana. Department of Treasury v. International Harvester Co., 221 Ind. 416, 47 N. E. 2d 150. As we conclude that petitioner's action could not be maintained in the federal court, we do not decide the merits of the issue.

Petitioner's right to maintain this action in a federal court depends first, upon whether the action is against the State of Indiana or against an individual. Secondly, if the action is against the state, whether the state has consented to be sued in the federal courts. Recently these questions were discussed in Great Northern Insurance Co. v. Read, 322 U. S. 47.

In that case this Court held that as the suit was against a state official as such, through proceedings which were authorized by statute to compel him to carry out with state funds the state's agreement to reimburse moneys illegally exacted under color of the tax power, the suit was one against the state. We said that such a suit was clearly distinguishable from actions against a tax collector to recover a personal judgment for money wrongfully collected under color of state law. 322 U. S. 47, 50-51. Where relief is sought under general law from wrongful acts of state officials, the sovereign's immunity under the Eleventh Amendment does not extend to wrongful individual action, and the citizen is allowed a remedy against the wrong doer personally. Atchison, T. & S. F. R. Co. v. O'Connor, 223 U. S. 280; cf. Matthews v. Rodgers, 284 U. S. 521, 528. Where, however, an action is authorized by statute against a state officer in his official capacity and constituting an action against the state, the Eleventh

2 Burns, Indiana Stat. Ann. § 64-2602 (1943 Replacement).

3 Section 64-2614 (a) of Burns, Indiana Stat. Ann. (1943 Replacement) provides : "If any person considers that he has paid to the department for any year an amount which is in excess of the amount legally due from him for that year under the terms of this act, he may apply to the department, by verified petition in writing, at any time within three (3) years after the payment for the annual period for which such alleged overpay ment has been made, for a correction of the amount so paid by him to the department, and for a refund of the amount which he claims has been illegally collected and paid. In such petition, he shall set forth the amount which he claims should be refunded, and the reasons for such claim. The department shall promptly consider such petition, and may grant such refund, in whole or in part, or may wholly deny the same. If denied in whole or in part, the petitioner shall be forthwith notified of such action of the department, and of its grounds for such denial. The department may, in its discretion, grant the petitioner a further hearing with respect to such petition. Any person improperly charged with any tax provided for under the terms of this act, and required to pay the same, may recover any amount thus improperly collected, together with interest, in any proper action or suit against the department in any court of competent jurisdiction; and the circuit or superior court of the county in which the taxpayer resides or is located shall have original jurisdiction of action to recover any amount improperly collected: Provided, however, That no court shall entertain such a suit, unless the taxpayer shall show that he has filed a petition for refund with the department, as hereinabove provided, within one (1) year prior to the institution of the action: Provided, further. That no such suit shall be entertained until the expiration of six (6) months from the time of filing such petition for refund with the department, unless in the meantime, the department shall have notified the petitioner, in writing. of the denial of such petition.

4 Ford Motor Co. v. Department of Treasury, 141 F. 2d 24.

5 322 U. S. 721.

Amendment operates to bar suit except in so far as the statute waives state immunity from suit. Smith v. [463] Reeves, 178 U. S. 436; Great Northern Insurance Co. v. Read, 322 U. S. 47.*

We are of the opinion that petitioner's suit in the instant case against the department and the individuals as the board constitutes an action against the State of Indiana. A state statute prescribed the procedure for obtaining refund of taxes illegally exacted, providing that a taxpayer first file a timely application for a refund with the state department of treasury. Upon denial of such claim, the taxpayer is authorized to recover the illegal exaction in an action against the "department." Judgment obtained in such action is to be satisfied by payment "out of any funds in the state treasury.". This section clearly provides for an action against the state, as opposed to one against the collecting official individually. No state court decision has been called to our attention which would indicate that a different interpretation of this statute has been adopted by state courts.

Petitioner's suit in the federal District Court is based on § 64-2614 (a) of the Indiana statutes and therefore constitutes an action against the state, not against the collecting official as an individual. Petitioner brought its action in strict accord with § 64-2614 (a). The action is against the state's department of treasury. The complaint carefully details compliance with the provisions of § 64-2614 (a) which require a timely application for refund to the department as a prerequisite to a court action authorized in the section. It is true the petitioner in the present proceeding joined the Governor, Treasurer and Auditor of the state as defendants, who "together constitute the Board of Department of Treasury of the State of Indiana." But, they were joined as the collective representatives [464] of the state, not as individuals against whom a personal judgment is sought. The petitioner did not assert any claim to a personal judgment against these individuals for the contested tax payments. The petitioner's claim is for a "refund," not for the imposition of personal liability on individual defendants for sums illegally exacted. We have previously held that the nature of a suit as one against the state is to be determined by the essential nature and effect of the proceeding. Ex parte Ayers, 123 U. S. 443, 490-99; Ex parte New York, 256 U. S. 490, 500; Worcester County Trust Co. v. Riley, 302 U. S. 292, 296–98. And when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants. Smith v. Reeves, supra; Great Northern Insurance Co. v. Read, supra. We are of the opinion, therefore, that the present proceeding was brought in reliance on $64-2614(a) and is a suit against the state.

It remains to be considered whether the State of Indiana has consented to this action against it in the federal court.

The Eleventh Amendment provides that: "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." This express constitutional limitation denies to the federal

See note 3 supra, § 64-2614 (a).

Burns. Indiana Stat. Ann. § 64-2614 (b) (1943 Replacement). *Page 384 herein.