Argued December 13 and 14, 1920. Decided

June 1, 1921.

The Queen City is exempt under rules of comity.

Moitez v. South Carolina, Bee, 422,

ON PETITION for a Writ of Prohibi- Fed. Cas. No. 9,697; L'Invincible, 1

The facts are stated in the opinion. Mr. Edward G. Griffin argued the cause, and, with Mr. Charles D. Newton, Attorney General of New York, filed a brief for petitioners:

tion and/or a Writ of Mandamus | Wheat. 238, 4 L. ed. 80; The Exchange to prevent a court, of admiralty from asv. M'Faddon, 7 Cranch, 116, 3 L. ed. suming jurisdiction over a state officer. 287; Long v. The Tampico, 16 Fed. 491; Rule for Writ of Prohibition made ab- Tucker v. Alexandroff, 183 U. S. 424, solute. 46 L. ed. 264, 22 Sup. Ct. Rep. 195; The Parlement Belge, L. R. 5 Prob. Div. 197, 42 L. T. N. S. 273, 28 Week. Rep. 642, 4 Asp. Mar. L. Cas. 234; The Siren, 7 Wall. 152, 19 L. ed. 129; The Public Bath No. 13, 61 Fed. 693; Workman v. New York City, 179 U. S. 552, 45 L. ed. 314, 21 Sup. Ct. Rep. 212; The John McCraken, 145 Fed. 705; The Protector, 20 Fed. 207; The F. C. Latrobe, 28 Fed. 377; The Fidelity, 9 Ben. 333, 16 Blatchf. 569, Fed. Cas. Nos. 4,757, 4,758; The Seneca, 8 Ben. 509, Fed. Cas. No. 12,668; Rogers v. Rajendro Dutt, 13 Moore, P. C. C. 209, 15 Eng. Reprint, 78, 3 L. T. N. S. 160, 9 Week. Rep. 149; The Inflexible, Swabey, Adm. 32; The Swallow, Swabey, Adm. 30.

The judicial power established by the Constitution did not comprehend cases at that time unknown to the law or forbidden by the law; consequently the right of a citizen to sue his own state is not to be implied even under the very general terms conferring admiralty and maritime jurisdiction upon the Federal

courts.

Gibbons v. Ogden, 9 Wheat. 1, 187, 6 L. ed. 23, 68; Foster, Const. §8 41; 17 Fed. 188, note; Beers v. Arkansas, 20 How. 527, 15 L. ed. 991; United States v. Lee, 106 U. S. 196, 27 L. ed. 171, 1 Sup. Ct. Rep. 240; Hans v. Louisiana, 134 U. S. 1, 33 L. ed. 842, 10 Sup. Ct. Rep. 504; Duhne v. New Jersey, 251 U. S. 311, 64 L. ed. 280, 40 Sup. Ct. Rep. 154; Illinois C. R. Co. v. Adams, 180 U. S. 28, 38, 45 L. ed. 410, 413, 21 Sup. Ct. Rep. 251; Bell v. Mississippi, 177 U. S. 693, 44 L. ed. 945, 20 Sup. Ct. Rep. 1031; Ex parte Madrazzo, 7 Pet. 627, 8 L. ed. 808; Sundry African Slaves v. Madrazo, 1 Pet. 110, 7 L. ed. 73; 3 Story, Const. § 1683.

The Koerber and Charlotte causes are suits against the state of New York.

Re Ayers, 123 U. S. 443, 31 L. ed. 216, 8 Sup. Ct. Rep. 164; Walsh v. Preston, 109 U. S. 297, 27 L. ed. 940, 3 Sup. Ct. Rep. 169, 245; Hagood v. Southern, 117 U. S. 52, 29 L. ed. 805, 6 Sup. Ct. Rep. 608; Christian v. Atlantic & N. C. R. Co. 133 U. S. 233, 33 L. ed. 589, 10 Sup. Ct. Rep. 260; North Carolina v. Temple, 134 U. S. 22, 33 L. ed. 849, 10 Sup. Ct. Rep. 509; Pennoyer v. McConnaughy, 140 U. S. 1, 35 L. ed. 363, 11 Sup. Ct. Rep. 699; Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Smith v. Reeves, 178 U. S. 436, 44 L. ed. 1140, 20 Sup. Ct. Rep. 919; Murray v. Wilson Distilling Co. 213 U. S. 151, 53 L. ed. 742, 29 Sup. Ct. Rep. 458; Lankford v. Platte Iron Works Co. 235 U. S. 461, 59 L. ed. 316, 35 Sup. Ct. Rep. 173.

Mr. Ellis H. Gidley argued the cause and filed a brief for respondent:

This court has not granted writs of prohibition when petitioner possessed another remedy.

Ke Cooper, 143 U. S. 472, 36 L. ed. 232, 12 Sup. Ct. Rep. 453; Ex parte Gordon, 104 U. S. 515, 26 L. ed. 814; Re New York & P. R. S. S. Co. 155 U. S. 523, 39 L. ed. 246, 15 Sup. Ct. Rep. 183; Morrison v. District Ct. 147 U. S. 14, 26, 37 L. ed. 60, 65, 13 Sup. Ct. Rep. 246; United States v. Jahn, 155 U. S. 109, 115, 39 L. ed. 87, 90, 15 Sup. Ct. Rep. 39; Re Fassett, 142 U. S. 479, 484, 35 L. ed. 1086, 1088, 12 Sup. Ct. Rep. 295; Moran v. Sturges, 154 U. S. 256, 286, 38 L. ed. 981, 991, 14 Sup. Ct. Rep. 1019; Ex parte Detroit River Ferry Co. 104 Ú. S. 519, 26 L. ed. 815; Ex parte Hagar, 104 U. S. 520, 26 L. ed. 816; Re Rice, 155 U. S. 396, 39 L. ed. 198, 15 Sup. Ct. Rep. 149; Re Huguley Mfg. Co. 184 U. S. 297, 46 L. ed. 549, 22 Sup. Ct. Rep. 455; Alexander v. Crollott, 199 U. S. 580, 50 L. ed. 317, 26 Sup. Ct. Rep. 161; Re Oklahoma, 220 U. S. 191, 208, 209, 55 L. ed. 431, 435, 31 Sup. Ct. Rep. 426.

This court has not granted writs of mandamus where petitioner had other remedy.

Re Oklahoma, 220 U. S. 191, 209, 55 L. ed. 431, 435, 31 Sup. Ct. Rep. 426; Ex parte Harding, 219 U. S. 363, 369, 55 L. ed. 252, 254, 37 L.R.A. (N.S.) 392, 31 Sup. Ct. Rep. 324; Morrison v. District

The prerequisite in admiralty to the right to resort to a libel in personam is the existence of a cause of action, mari-York, bailee of a certain coal barge, to time in its nature.

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.

name of Fix Brothers, of Buffalo, New the district court the matter has been York, and released from arrest on argued. the filing of satisfactory stipulations. The record shows that the charters Claimants filed answers to the several had expired according to their terms, libels, and at the same time filed peti- and the tugs were in possession of the tions under Admiralty Rule 59 (new claimants, neither the state nor Walsh Rule 56), setting up in each case that, having any claim upon or interest in at the time of the respective disasters and damage complained of, the tugs were under charter by claimants to Edward S. Walsh, superintendent of public works of the state of New York, who had entered into such charter parties under authority reposed in him by an act of the legislature of the state of New York, being chapter 264 of the Laws of 1919, and had the tugs under his operation, control, and management; that if decrees should be ordered in the respective causes against the tugs, the claimants, because of their ownership of the vessels, would be called upon for payment, and thus would be mulcted in damages for the disasters, to which they were total strangers; and that, by reason of these facts, Edward S. Walsh, superintendent of public works of the state of New York, ought to be proceeded against in the same suits for such damages, in accordance with the rule. The district court, pursuant to the prayer of these petitions, caused monitions to be issued in all [496] three cases against Edward S. Walsh, superintendent of public works, citing him to appear and answer, and in case he could not be found, that "the goods and chattels of the state of New York, used and controlled by him," should be attached. The monitions were served upon Walsh within the jurisdiction of the court.

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. 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 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, chap. 231, 36 [497] Stat. at L. 1087, 1156, Comp. Stat. §§ 968, 1211, 4 Fed. Stat. Ánno. 2d ed. p. 815, 5 Fed. Stat. Anno. 2d ed. p. 717). And the fact that the objection to the jurisdiction of the court below might be raised by an appeal from the final decree is not, in all cases, a valid objection to the issuance of a prohibition at the outset, where a court of admiralty assumes to take cognizance of matters over which it has no lawful jurisdiction. Re Cooper, 143 U. S. 472, 495, 36 L. ed. 232, 239, 12 Sup. Ct. Rep. 453.

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 11th 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, 15 L. ed. 991, 992; Memphis & C. R. Co. v. Tennessee, 101 U. S. 337, 339, 25 L. ed. 960, 961; Hans v. Louisiana, 134 U. S. 1, 1017, 33 L. ed. 842, 845-848, 10 Sup. Ct. Rep. 504; North Carolina v. Temple, 134 U. S. 22, 30, 33 L. ed. 849, 852, 10 Sup. Ct. Rep. 509; Fitts v. McGhee, 172 U. S. 516, 524, 43 L. ed. 535, 539, 19 Sup. Ct. Rep. 269; Palmer v. Ohio, 248 U. S. 32, 34, 63 L. ed. 108, 109, 39 Sup. Ct.

Rep. 16; Duhne v. New Jersey, 251 U., cause the thing was not in possession of S. 311, 313, 64 L. ed. 280, 281, 40 Sup. the district court. Subsequently, in Ex Ct. Rep. 154. parte Madrazzo, 7 Pet. 627, 632, 8 L. ed. Nor is the admiralty and maritime 808, 810, an application was made to jurisdiction exempt from the operation this court to entertain a suit in admiralof the rule. It is true the Amendment ty against the state of Georgia, and it speaks only of suits in law or equity; was held that, as there was no property but this is because, as was pointed out in the custody of the court of admiraity in Hans v. Louisiana, 134 U. S. 1, 10- or brought within its jurisdiction and in 17, 33 L. ed. 842, 845-848, 10 Sup. Ct. the possession of any private person, Rep. 504, the Amendment was the out- [499] the case was not one for the exercome of a purpose to set aside the effect cise of the admiralty jurisdiction; and of the decision of this court in Chisholm that, being a mere personal suit against v. Georgia, 2 Dall. 419, 1 L. ed. 440, a state, to recover proceeds in its which happened to be a suit at law, possession, it could not be entertained, brought against the state by a citizen of since "no private person has a right another state, the decision turning upon to commence an original suit in this the construction of that clause of § 2 of court against a state." Atkins v. Fibre art. 3 of the Constitution, establishing Disintegrating Co. 18 Wall. 272, 300, the judicial power in cases in law and 21 L. ed. 841, 843, et seq.; and Re equity between a state [498] and citi- Louisville Underwriters, 134 U. S. 488, zens of another state; from which it 33 L. ed. 991, 10 Sup. Ct. Rep. naturally came to pass that the language 587, are aside from the point, since of the Amendment was particularly they relate merely to a question of phrased so as to reverse the construction statutory construction: whether the adopted in that case. In Hans v. Louisiana, supra (p. 15), the court demonstrated the impropriety of construing the Amendment so as to leave it open for citizens to sue their own state in the Federal courts; and it seems to us equally clear that it cannot with propriety be construed to leave open a suit against a state in the admiralty jurisdiction by individuals, whether its own citizens or not.

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 thej 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, Fed. Cas. No. 14,647; 3 Am. 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 Sundry African Slaves v. Madrazo, 1 Pet. 110, 124, 7 L. ed. 73, 79, the question whether the 11th Amendment extended to proceedings in admiralty was alluded to, but found unnecessary to be decided, because, if it did not, the case was one 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, be

provision of § 11 of the Judiciary Act of September 24, 1789 (1 Stat. at L. 79, chap. 20; re-enacted in § 739 of the Revised Statutes, and in § 1 of Act of March 3, 1875, chap. 137, 18 Stat. at L. 470, Comp. Stat. § 1033), to the effect that no civil suit should be brought against a person by original process in any district other than that of which he was an inhabitant, or in which he should be found, applied to suits in personam in admiralty, so as to prevent the court from acquiring jurisdiction over a corporation through attachment of its goods or property in a district other than that of its residence (in the former case), or by service of process upon its appointed agent (in the latter).

Much reliance is placed upon Workman v. New York, 179 U. S. 552, 45 L. ed. 314, 21 Sup. Ct. Rep. 212. But that dealt with a question of the substantive law of admiralty, not the power to exercise jurisdiction over the person of de fendant; 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 [500] for the commission of a maritime tort, upon the theory relied upon."

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. Bank of United States, 9 Wheat. 738, 846, 850, 857, 6 L. ed. 204, 229, 231, 232) 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, 27 L. ed. 448, 450, 454, 2 Sup. Ct. Rep. 128; Hagood v. Southern, 117 U. S. 52, 67, 29 L. ed. 895, 810, 6 Sup. Ct. Rep. 608 et seq.; Re Ayers, 123 U. S. 443, 487-492, 31 L.. ed. 216, 223225, 8 Sup. Ct. Rep. 164; Pennoyer v. McConnaughy, 140 U. S. 1, 10, 35 L. ed. 363, 365, 11 Sup. Ct. Rep. 699 et seq.; Smith v. Reeves, 178 U. S. 436, 438-440, 44 L. ed. 1140, 1142, 1143, 20 Sup. Ct. Rep. 919; Murray v. Wilson Distilling Co. 213 U. S. 151, 168-170, 53 L. ed. 742, 750, 751, 29 Sup. Ct. Rep. 458; Lankford v. Platte Iron Works Co. 235 U. S. 461, 469, 59 L. ed. 316, 318, 35 Sup. Ct. Rep.

173.

to perform its contracts, but extends to such as will require it to make pecuniary satisfaction for any liability. Smith v. Reeves, 178 U. S. 436, 439, 44 L. ed. 1140, 1142, 20 Sup. Ct. Rep. 919.

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 chapter 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

Thus examined, the decided cases have fallen into two principal classes, | 15 and ending at latest December 15, mentioned in Pennoyer v. MeConnaughy, 140 U. S. 1, 10, 35 L. ed. 363, 365, 11 Sup. Ct. Rep. 699: "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 11th 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 [501] the state specifically

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 § 46 [502] of the Canal Law (Consol. Laws 1909, p. 269), which provides that the commissioners of the canal fund may allow claims for moneys paid by the superintendent of public works or other person or officer employed in the care, management, superintendence, and repair of the canals, for a judgment recovered against them or any of them in any action instituted for an act done pursuant to the provisions of the Canal Law. In either case