duties. In the very case in hand, Justice Brewer recognized that such a case as Ferguson v. Ross,1 in which suit to recover a penalty was brought, as provided by law, in the name of a State shore inspector, was a suit by the State. His distinction is that in a suit to recover a penalty, the judgment inures to the benefit of the State, whereas in a suit to enforce an order, the State has no pecuniary interest, but only the shippers. The idea that the penalty recovered is the interest that sustains a prosecution by the state becomes absurd when the penalty is not money, but imprisonment. The only proper question in the case in hand was whether the suit was a form of action by the State; and that was concluded by the decision of the State courts. The supreme court was led into this error by the fact that the apparent parties were the same as they would have been in a suit against the commissioners to restrain the enforcement of an order, and that such a suit would not be a suit against the State.

Actions that are not suits against the state.

It was early settled that the fact that the state is a stockholder, even the sole stockholder, in a corporation, does not relieve the corporation from suit. The corporation is a personality of private law, distinct from its stockholders.

It is equally well settled that, when the state brings suit, the defendant may carry the case up by appeal or on writ of error. Such proceeding is but a continuation of the case, and does not convert it into a suit against the state.3

More important, as affecting the immunity from suit, is the doctrine that, when the state comes into court to enforce a right, its recovery is subject to the rights of others in the subject matter of the suit. Thus, in United States v. Wilder, an action of trover for property of the United States was barred by the right of defendant to retain it for a lien for general average. The principle has its widest scope in

138 Fed. 161.

Bank of U. S. v. Planters' Bank of Ga., 9 Wheat. 904.

See the great case of Cohens v. Va., 6 Wheat. 264.

3 Sumner 308.

cases in admiralty, where, when the res is brought within the jurisdiction of the court, all claims are presentable. In "The Siren," the vessel, on libel by the United States, had been condemned as prize of war, and the proceeds deposited with the assistant treasurer of the United States, subject to the order of the court. It was held that the funds were liable to a claim for a lien against the vessel growing out of a collision while being brought into port for condemnation.2

The same principle applies to the right of set-off and counterclaim by defendants to suits brought by the state. The extent of this right varies, of course, with the rules governing the procedure of the court. The right of set-off is statutory; and the state may limit the right of set-off against itself to cases in which certain conditions have been complied with, as, for instance, that the claim shall have been previously presented and allowed. The general principle is that the right of set-off or counter-claim against the state extends to any claim, legal or equitable, that operates by way of direct defense to the suit; but does not warrant a separate claim, or a demand for original and independent relief, since that would be in effect a suit against the state." It is well settled that a judgment cannot be entered against the state for a balance on a set-off." Nor can a judgment be entered against the state for costs."

In United States v. McLemore, it was held that, although a circuit court of the United States, sitting as a court of law, may direct credits to be given on a judgment in favor of the United States, and consequently may examine the grounds on which such an entry is claimed, and may direct

17 Wall. 152.

66

2 See also 'The St. Jago de Cuba," 9 Wheat. 409; and "The Davis," 10 Wall. 15.

U. S. v. Eckford's Extrs., 6 Wall. 484.

U. S. v. McDaniel, 7 Pet. 1; U. S. v. Ringgold, 8 Pet. 150; Gratiot v. U. S., 15 Pet. 336.

Pres. & Direc. etc. v. Ark., 20 How. 530.

Reeside v. Walker, 11 How. 272; U. S. v. Eckford's Extrs.

7 U. S. v. McLemore, 4 How. 286 (cases cited).

84 How. 286.

the execution to be stayed until such an investigation shall be made, it cannot entertain a bill on its equity side to enjoin the United States from proceeding upon such judgment, since that is a suit against the United States. In Hill v. United States,1 the doctrine is reaffirmed that execution upon a judgment in favor of the United States may not be enjoined. In Bouldin v. State, on the contrary, it was held that such a suit to restrain execution, upon the ground that the bond on which the judgment was obtained was executed without consideration, is not a suit against the State, but simply setting up a defense that might have been availed of in the original suit.3

19 How. 386.

221 Ark. 84.

In the United States, it is agreed, consent to suit against the state can be given only by the legislature; the executive_does_not possess the prerogative of the crown in this respect. U. S. v. Lee, 106 U. S. 196; Stanley v. Schwalby, 162 U. S. 255; Case v. Terrell, II Wall. 199; Carr v. U. S., 98 U. S. 433.

In case of consent, the state has full control over the proceedings. De Groot v. U. S., 5 Wall. 419; Beers v. Arkansas, 20 How. 527. Possible exception as to the substantive law-see U. S. v. Klein, 13 Wall. 128.

PART II.

SUITS AGAINST PUBLIC OFFICERS.

CHAPTER I.

THE PRINCIPLE OF LIABILITY IN TORT.

The first part of this study has dealt with the doctrine of non-suability of the state, and the extent to which it applies to the States of the United States. In the last chapter, has been set out the scope of the doctrine-what forms of action are suits against the state, and what proceedings, though affording judicial remedy against the state, are not within the prohibition. In this second part, will be considered suits against public officers, in relation to the immunity of the state from suit.

It was early settled in English law that, although the crown may not be sued for torts done by public officers, the actors themselves may be held liable, and that it is no defense to set up an unlawful authority from the crown. An act of parliament is, of course, always lawful authority. But where a statute may be held unconstitutional, as in the United States, it furnishes no better defense than the unlawful order of a higher executive officer.

The lack of valid defense in an unlawful authority from the crown has been rested upon the maxim that "the king can do no wrong." To authorize a wrong, it is said, is to do a wrong; hence, in the eye of the law, the alleged authority cannot exist. This maxim must mean one of two things. First, that whatever the king does is right; with the necessary corollary that whatever the king authorizes is right. Practically, this was, no doubt, for a time in large measure true; and the king's servants acting as judges made no pretense of exercising jurisdiction over the king's servants

acting for him in other ways. But the doctrine of absolution was soon definitely negatived. Second, that no wrong will be imputed to the king. In this view, it is a senseless fiction. A more rational explanation is that, although the king may do wrong, he is protected by his immunity from suit. If he does wrong through an agent, the agent is liable, although the king is not.

The state, of course, can act only through agents. The agent, in committing a tort, may be regarded either as not acting for the state, in which view the agent alone would be liable, or as acting, although unlawfully, for the state, in which view both principal and agent would be liable, although the principal would be protected by the immunity of the state from suit. In either view, the liability of the agent results from the fact that his act is in itself unlawful, and does not rest upon lawful state authority. Such authority cannot exist if forbidden by a higher authority. Thus, a statute cannot afford lawful authority if contrary to the constitution.