The administrator, respondent here, having presented without success the Lumber Company's judgment to the General Accounting Office, sought to set off that judgment against the judgment of the United States. The probate court allowed the claim of the United States and denied the set-off, but its ruling as to the set-off was reversed on appeal to the Michigan Supreme Court. The administrator then petitioned the probate court to grant statutory judgment of the balance due the estate. The court found that the claim of the United States, with interest, amounted to $49,442.41 and the Lumber Company's claim to $73,071.38 and "ordered, adjudged and ascertained" that the United States was indebted to the estate for the difference, $23,628.97, "and that such indebtedness be and the same is hereby allowed as and determined to be a proper claim which is owing to said estate by the United States of America." The probate court's judgment was affirmed on appeal.

On this certiorari we are concerned with the question whether the United States by filing a claim against an estate in a state court subjects itself, in accordance with local statutory practice, to a binding, though not immediately enforceable, ascertainment and allowance by the state court of a cross-claim against itself.

*

*** There is no contention on the part of respondent that the judgment is enforceable against the United States even in the limited sense of statutory direction to report the judgment to Congress as in the Court of Claims Act or the Merchant Marine Act. Execution against property of governmental agencies subjected to such procedure by statute is sometimes allowed, Federal Housing Administration v. Burr, ante, p. 242. The position taken is that the probate court judgment is a "final determination" of the rights of the litigants, howsoever such rights may later become important. We are not here concerned with the manner of collection. Such was the holding of the Supreme Court of Michigan.

* * The order entered was a final determination of the amounts due the estate by the United States on this claim and cross-claim if the probate court had jurisdiction to render the order against the petitioner.

Whether that jurisdiction exists depends upon the effect of the voluntary submission to the Michigan court by the United States of its claim against the estate. As a foundation for the examination of that question we may lay the postulate that without specific statutory consent, no suit may be brought against the United States, Kansas v. United States, 204 U.S. 331; United States v. Thompson, 98 U.S. 486, 489, 490; Buchanan v. Alexander, 4 How. 20. No officer by his action can confer jurisdiction, Stanley v. Schwalby, 162 U.S. 255, 270; Carr v. United States, 98 U.S. 433, 437. Even when suits are author

ized they must be brought only in designated courts, Minnesota v. United States, 305 U.S. 382, 388. The reasons for this immunity are imbedded in our legal philosophy. They partake somewhat of dignity and decorum, somewhat of practical administration, somewhat of the political desirability of an impregnable legal citadel where government as distinct from its functionaries may operate undisturbed by the demands of litigants. A sense of justice has brought a progressive relaxation by legislative enactments of the rigor of the immunity rule. As representative governments attempt to ameliorate inequalities as necessities will permit, prerogatives of the government yield to the needs of the citizen. By the act of March 3, 1797, and its successor legislation, as interpreted by this Court, cross-claims are allowed to the amount of the government's claim, where the government voluntarily sues. Specially designated claims against the United States may be sued upon in the Court of Claims or the district courts under the Tucker Act. Special government activities, set apart as corporations or individual agencies, have been made suable freely. When authority is given, it is liberally construed, Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381; Federal Housing Administration v. Burr, supra. As to these matters no controversy exists.

Respondent contends this immunity extends, however, only to original suits; that when a sovereign voluntarily seeks the aid of the courts for collection of its indebtedness it takes the form of a private suitor and thereby subjects itself to the full jurisdiction of the court. The principle of a single adjudication is stressed, as is the necessity for a complete examination into the cross-claim, despite attendant dislocation of government business by the appearance of important officers at distant points and the production of documents as evidence, to justify the allowance of an offset to the government's claim. It is pointed out that surprise is not involved as no cross-claim may be proven until after submission to and refusal by the government accounting officers. Respondent further insists that his position is supported by The Thekla 266 U.S. 328, and subsequent decisions quoting its language. Emphasis is placed upon the fact that these probate proceedings are in rem or quasi in rem as were the libels in admiralty in The Thekla.

*

The Thekla turns upon a relationship characteristic of claims for collision in admiralty but entirely absent in claims and cross-claims in settlement of estates. The subject matter of a suit for damages in collision is not the vessel libelled but the collision. Libels and crosslibels for collision are one litigation and give rise to one liability. In equal fault, the entire damage is divided. As a consequence when the United States libels the vessel of another for collision damages

and a cross-libel is filed, it is necessary to determine the cross-libel as well as the original libel to reach a conclusion as to liability for the collision. That conclusion must be stated in terms of responsibility for damages. *** There is little indication in the facts or language of The Thekla to indicate an intention to permit generally unlimited cross-claims. Quotations from The Thekla in later opinions of this Court are used to illustrate problems entirely apart from the one under consideration here.

The suggestion that the order of the probate court is in reality not a judgment but only a "judicial ascertainment" of credits does not affect our conclusion. No judgment against the United States is more than that. But such an entry, if within the competence of the court passing the order, would be res judicata of the issue of indebtedness, Williams v. United States, 289 U.S. 553, 564. The suggestion springs from the opinion in United States v. Eckford, 6 Wall. 484, 491. *

In the Eckford case this Court was dealing with the litigation at a more advanced stage than the present litigation has reached. The United States has sued Eckford's executors on his bond in the District Court for the Southern District of New York. They pleaded a setoff, a balance was found in their favor and a judgment entered that the executors were entitled to be paid the amount found. Suit in the Court of Claims was instituted by the executors, the record was proven, over objection, and judgment entered accordingly. Consequently a reversal of the Court of Claims was the only step necessary. This Court did not deal with the New York judgment.

We have considered respondent's further argument that sovereign immunity was waived when the United States took possession of the assets of its agent the Fleet Corporation prior to the institution of this action, and later, but prior to the entry of the probate judgment appealed from, assumed the Corporation's obligations by the act of June 29, 1936. We see nothing in these transactions which indicates an intention to waive the immunity of the United States in the state courts.

NOTES

Reversed.

1. In Kawananakoa v. Polybank, 205 U.S. 349, 353 (1907), Mr. Justice Holmes observed:

"✶✶✶ Some doubts have been expressed as to the source of the immunity of a sovereign power from suit without its own permission, but the answer has been public property since before the days of Hobbes. (Leviathan, c. 26, 2.) A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. 'Car on peut bien recevoir loy d'autruy, mais il est impossible par nature de se donner loy.' Bodin, Republique, 1, c. 8. Ed. 1629, p. 132. Sir John Eliot, De Jure Maiestatis, c. 3. Nemo suo statuto

622161-62

61

ligatur necessitative. Baldus., De Leg. et Const., Digna Vox (2d ed., 1496, fol. 51b. Ed. 1539, fol. 61).”

2. Congress alone decides whether, where and upon what conditions the United States may be sued. See Kansas v. United States, 204 U.S. 331 (1906) (public policy forbids conclusion that a State may sue United States without its consent); Minnesota v. United States, 305 U.S. 282 (1938) (where Congress consents to a suit against the United States in federal courts, action originally brought in a state court and later removed to a federal court is improper); Merritt v. United States, 267 U.S. 338 (1925) (where Congress consents to suit against United States upon contract, express or implied, suit based upon contract implied in law is improper).

Section 4. THE DEFENSE OF SOVEREIGN ACTS

HOROWITZ v. UNITED STATES

267 U.S. 458 (1925)

MR. JUSTICE SANFORD delivered the opinion of the Court. This action was brought by Horowitz, under the Tucker Act (Act of Mar. 3, 1887, 24 Stat. 505, c. 359; Jud. Code, § 145), to recover damages for the alleged breach of a contract relating to the purchase of silk from the Ordnance Department The petition was dismissed, on demurrer, for failure to state a cause of action. 58 Ct. Cls. 189. The petition alleges, in substance, these facts: On December 20, 1919, the claimant, a resident of New York, submitted a bid for certain Habutai silk offered for sale by the New York Ordnance Salvage Board. At that time the "Chief of the Textile Division of New York City," agreed, "on behalf of such Board," that the claimant would be given an apportunity to re-sell the silk before completing the payment of the purchase price, and that the "departments of the Government having jurisdiction in matters of this kind" would ship the silk-which was then in Washington-within a day or two after shipping instructions were given. On December 22 he was notified by the Board that the sale of the silk to him had been "approved"; and he thereupon paid part of the purchase price. On January 30, 1920, he sold the silk to a silk company in New York. On February 16 he paid the balance of the purchase price, and wrote the Board to ship the silk at once, by freight, to the silk company. Two days later he was notified by the Board that it had received the shipping instructions and had ordered the silk to be shipped. Thereafter the price of silk declined greatly in the New York market, until March 4. On that date the "claimant learned . . . that the silk was still in Washington, and had not been shipped because the Government through one of its agencies, the U.S. Railroad Administration, had prior to March 1, 1920, placed an embargo on shipments of silk by freight, and the shipment of Habutai silk for claimant had been held up." Afterwards the Government shipped the silk to the consignee, by express. It arrived in New York "on or about March 12." The consignee then refused to accept delivery on account of the fall in prices. And "by reason of the Government's breach of the contract and agreement in placing an embargo,