FRANKFURTER, J., dissenting. 337 U.S. the complaint, belongs to the government, or calls for an assertion of what is unquestionably official authority.2 (2) Cases in which action to the legal detriment of a plaintiff is taken by an official justifying his action under an unconstitutional statute.3 (3) Cases in which a plaintiff suffers a legal detriment through action of an officer who has exceeded his statutory authority.' (4) Cases in which an officer seeks shelter behind statutory authority or some other sovereign command for the commission of a common-law tort." 2 E. g., Governor of Georgia v. Madrazo, 1 Pet. 110 (1828); Louisiana v. Jumel, 107 U. S. 711; Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446; Hagood v. Southern, 117 U. S. 52; Christian v. Atlantic & North Carolina R. Co., 133 U. S. 233; North Carolina v. Temple, 134 U. S. 22; New York Guaranty & Indemnity Co. v. Steele, 134 U. S. 230; Belknap v. Schild, 161 U. S. 10; Oregon v. Hitchcock, 202 U. S. 60; Murray v. Wilson Co., 213 U. S. 151; Hopkins v. Clemson Agricultural College, 221 U. S. 636; Louisiana v. McAdoo, 234 U. S. 627; Lankford v. Platte Iron Works, 235 U. S. 461; Wells v. Roper, 246 U. S. 335; Morrison v. Work, 266 U. S. 481; see Land v. Dollar, 330 U. S. 731, 737-738. 3 E. g., Osborn v. Bank of the United States, 9 Wheat. 738 (1824); Board of Liquidation. v. McComb, 92 U. S. 531; Poindexter v. Greenhow, 114 U. S. 270; White v. Greenhow, 114 U. S. 307; Chaffin v. Taylor, 114 U. S. 309; Allen v. Baltimore & O. R. Co., 114 U. S. 311; Pennoyer v. McConnaughy, 140 U. S. 1; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362; Smyth v. Ames, 169 U. S. 466; Mississippi R. Comm'n v. Illinois C. R. Co., 203 U. S. 335; Ex parte Young, 209 U. S. 123; Rickert Rice Mills v. Fontenot, 297 U. S. 110. E. g., Scully v. Bird, 209 U. S. 481; Atchison, T. & S. F. R. Co. v. O'Connor, 223 U. S. 280; Philadelphia Co. v. Stimson, 223 U. S. 605; Waite v. Macy, 246 U. S. 606; Santa Fe Pac. R. Co. v. Fall, 259 U. S. 197; Work v. Louisiana, 269 U. S. 250. 5 E. g., United States v. Lee, 106 U. S. 196; South Carolina v. Wesley, 155 U. S. 542; Tindal v. Wesley, 167 U. S. 204; Hopkins v. Clemson Agricultural College, 221 U. S. 636; Sloan Shipyards Corp. v. United States Fleet Corp., 258 U. S. 549; Goltra v. Weeks, 271 U. S. 536; Ickes v. Fox, 300 U. S. 82; Land v. Dollar, 330 U. S. 731. In 682 FRANKFURTER, J., dissenting. 1. The series of cases which come within the first category began with Governor of Georgia v. Madrazo, 1 Pet. 110 (1828). There a claim was made upon the Governor of Georgia, as Governor, for moneys in the treasury of the State and slaves in its possession. The Court, in an opinion by Chief Justice Marshall, held that the State was actually though not formally the defendant in the suit. This was a departure by Marshall from what he had said a few years earlier in Osborn v. Bank of the United States, 9 Wheat. 738, to the effect that the Eleventh Amendment is "limited to those suits in which a State is a party on the record." Id. at p. 857. Such a formal test could not long survive experience, and it was explicitly laid to rest in In re Ayers, 123 U. S. 443, 487, et seq. The crucial question in this class of cases is: when does a suit against one holding office inevitably involve the exercise of powers that are his as a functionary of government? Marshall's decision in the case of the Governor of Georgia disposed of this question with his sententious characterization of the nature of the claim against the Governor: "The demand made upon him, is not made personally, but officially." Governor of Georgia v. Madrazo, supra, 1 Pet. 110, 123. But the answer is not four cases before the Lee case, suit was permitted against the governmental agent for trespass to property under the claim that it was owned by the government without any discussion that a question of sovereign immunity might be involved. Meigs v. M'Clung's Lessee, 9 Cranch 11 (1815); Wilcox v. Jackson, 13 Pet. 498 (1839); Brown v. Huger, 21 How. 305 (1858); Grisar v. McDowell, 6 Wall, 363. (1867). And where the sovereign immunity argument was raised, it was dismissed with "it certainly can never be alleged, that a mere suggestion of title in a state to property, in possession of an individual, must arrest the proceedings of the court, and prevent their looking into the suggestion, and examining the validity of the title." United States v. Peters, 5 Cranch 115, 139-40 (1809); see also The Davis, 10 Wall. 15 (1869). 337 U.S. FRANKFURTER, J., dissenting. always as manifest as it was in that case, for the Governor was asked to surrender moneys actually in the State's treasury and property in its possession. The fact that a defendant has no personal connection with conduct for which redress is sought is an indication that he is being sued because his position empowers him to carry out the desired relief. On the other hand, the mere fact that his official capacity is ascribed to the agent against whom relief is sought is not conclusive that he is being sued as for his sovereign. See e. g., Perkins v. Elg, 307 U. S. 325. The pervasive manifestations of modern government beget situations in which it is not always obvious whether the demand made upon an individual is, in Marshall's phraseology, "not made personally, but officially." Such an ambiguity as to the meaning of particular circumstances is a commonplace task for the judicial process. The governing principle is clear enough. If a defendant is asked to transfer the possession or title of property which is the Government's, judged by the conventional tests of possession or ownership, or if he is asked to exercise authority with which the State has invested him and the desired action is in fact governmental action so far as an individual is ever pro tanto the impersonal government, such demands are effectively demands upon the sovereign, which require the sovereign's consent as a prerequisite to the grant of judicial remedies. 2. To the second category belong the cases where an official asserts the authority of a statute for his action but the injured plaintiff challenges the constitutionality of the statute. Threatened injury will then be enjoined if the plaintiff otherwise satisfies the requirements for equitable intervention. Allen v. Baltimore & O. R. Co., 114 U. S. 311; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362; Ex parte Young, 209 U. S. 123; Rickert Rice Mills v. Fontenot, 297 U. S. 110. So also recovery may be 682 FRANKFURTER, J., dissenting. had of property in an action against an official when the statute under which the seizure of the property was made is unconstitutional. Poindexter v. Greenhow, 114 U. S. 270. In these cases the suit against one holding office is deemed "a suit against him personally as a wrongdoer and not against the State." Ex parte Young, supra, 209 U. S. 123, 151. These cases likewise apply a principle that is clear. There is an appearance of inconsistency in some of the cases only because opinions also are prey to the frailties of composition. Familiar phrases are not always used with critical precision or with due relevance to the circumstances of a particular case. Specifically, there are instances where the unconstitutionality of a statute was conceded and yet the language of sovereign immunity was invoked to bar suit. See, e. g., North Carolina v. Temple, 134 U. S. 22; Chris'tian v. Atlantic & N. C. R. Co., 133 U. S. 233; New York Guaranty & Indemnity Co. v. Steele, 134 U. S. 230. These cases do not qualify the principle of the cases in category two. Regard for the facts of these cases brings them within the first category because the nature of the relief requested makes them either cases in which Government property would have to be transferred, or cases where the person sued could satisfy the court decree only by acting in an official capacity. The tortfeasor, that is, is not immunized because he happened to hold office, but because the tort cannot be redressed or, if threatened, averted, without bringing into operation governmental machinery. Thus, even though a plaintiff's rights under a bond are unconstitutionally sought to be diminished, he cannot have his bond respected if to do so a court would have to order the levying and collecting of a tax. Only the State can exact taxes, and that sovereign function cannot be enforced without the State's consent by pretending FRANKFURTER, J., dissenting. 337 U.S. to sue a tax collector as an individual even though the individual sued had the duty, under the statute, to collect the tax. North Carolina v. Temple, 134 U. S. 22. Again, if title to property is in the Government, a suit to secure transfer of that property to the plaintiff will not lie against an official sued as an individual even though the State acquired title by way of an unconstitutional statute. Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446; Christian v. Atlantic & N. C. R. Co., 133 U. S. 233; see Land v. Dollar, 330 U. S. 731, 737-738. So, also, if the relief sought by an injured plaintiff would involve, in part at least, destruction of the Government's interest in property, that part of relief cannot be granted even though a tort committed by a governmental agent gave rise to the injury. Belknap v. Schild, 161 U. S. 10; Hopkins v. Clemson Agricultural College, 221 U. S. 636. To the extent that relief can be granted without affecting property rights of a State, not a consenting party to a controversy, an action is not barred. Hopkins v. Clemson Agricultural College, supra, 221 U. S. 636, 649; see International Postal Supply Co. v. Bruce, 194 U. S. 601, 605–606. Since the cases to which reference has just been made usually involve State debts and money in a State treasury, they have served to sponsor the proposition that a suit will not be permitted where the relief sought would "expend itself on the public treasury or domain, or interfere with the public administration." Land v. Dollar, 330 U. S. 731, 738. This is a way of saying that a court cannot entertain an action, when the sovereign has not consented to be sued, if the judgment sought from the court would require an official to do that which he could only do by virtue of the fact that he is an official, that quoad hoc he is the State. But the statement quoted does not mean that the mere fact that a State's revenue is adversely affected, is conclusive of a court's jurisdiction |