Great Northern Life Insurance Company v. Read/Dissent Frankfurter
Mr. Justice FRANKFURTER, with whom the CHIEF JUSTICE and Mr. Justice ROBERTS concur, dissenting.

To avoid the imposition of penalties and other serious hazards, the plaintiff paid money under claim of a tax which Oklahoma, we must assume, had no power to exact. Concededly, he could sue to recover the moneys so paid to the defendant, a tax collector, in a state court in Oklahoma. But to allow the suit to be brought in a federal court sitting in Oklahoma would derogate, this Court now holds, from the sovereignty of Oklahoma. Such a result, I believe, derives from an excessive regard for formalism and from a disregard of the whole trend of legislation, adjudication and legal thought in subjecting the collective responsibility of society to those rules of law which govern as between man and man.

To repeat, this is a simple suit to get back money from a collector who for present purposes had no right to demand it. So far as the federal fiscal system is concerned, this common law remedy has been enforced throughout our history, barring only a brief interruption.  See United States v. Nunnally Investment Co., 316 U.S. 258, 62 S.Ct. 1064, 86 L.Ed. 1455, 140 A.L.R. 792. And if, instead of avoiding the serious consequences of not paying this state tax, the plaintiff had resisted payment and sought an injunction against the tax collector for seeking to enforce the unconstitutional tax, under appropriate circumstances the federal courts would not have been without jurisdiction. See, e.g., Western Union Telegraph Co. v. Trapp, 8 Cir., 186 F. 114; Ward v. Love County Com'rs, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751; Carpenter v. Shaw, 280 U.S. 363, 50 S.Ct. 121, 74 L.Ed. 478. Finally, as I read the opinion of the Court, even a suit of this very nature for the recovery of money paid for a disputed tax will lie against the collector in what is called his individual capacity; that is, a suit against the same person on the same cause of action for the same remedy can be brought, if only differently entitled. In view of the history of such a suit as this and of the incongruous consequences of disallowing it in the form in which it was a case in the federal court in Oklahoma, the claims of sovereignty which are sought to be respected must surely be attenuated and capricious.

The Eleventh Amendment has put state immunity from suit into the Constitution. Therefore, it is not in the power of individuals to bring any State into court-the State's or that of the United States-except with its consent. But consent does not depend on some ritualistic formula. Nor are any words needed to indicate submission to the law of the land. The readiness or reluctance with which courts find such consent has naturally been influenced by prevailing views regarding the moral sanction to be attributed to a State's freedom from suability. Whether this immunity is an absolute survival of the monarchial privilege, or is a manifestation merely of power, or rests on abstract logical grounds, see Kawananakoa v. Polyblank, 205 U.S. 349, 27 S.Ct. 526, 51 L.Ed. 834, it undoubtedly runs counter to modern democratic notions of the moral responsibility of the State. Accordingly, courts reflect a strong legislative momentum in their tendency to extend the legal responsibility of Government and to confirm Maitland's belief, expressed nearly fifty years ago, that 'it is a wholesome sight to see 'the Crown' sued and answering for its torts.' 3 Maitland, Collected Papers, 263. 

Assuming that the proceeding in this case to recover from the individual moneys demanded by him in defiance of the Constitution is a suit against the State, compare Ex parte Young, 209 U.S. 123, 155, 28 S.Ct. 441, 452, 52 L.Ed. 714, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764; Atchison, etc., Ry. Co. v. O'Connor, 223 U.S. 280, 32 S.Ct. 216, 56 L.Ed. 436, Ann.Cas.1913C, 1050, Oklahoma has consented that he be sued. The only question therefore is as to the scope of the consent. Has she confined the right to sue to her own courts and excluded the federal courts within her boundaries? She has not said so. Is such restriction indicated by practical considerations in the administration of state affairs? If it makes any difference to Oklahoma whether this suit against a tax collector is pressed in an Oklahoma state court rather than in a federal court sitting in Oklahoma, the difference has not been revealed. There is here an entire absence of the considerations that led to the decision in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424. There it was deemed desirable, as a matter of discretion, that a federal equity court should step aside and leave a specialized system of state administration to function. Here the suit in a federal court would not supplant a specially adaptable state scheme of administration nor bring into play the expert knowledge of a state court regarding local conditions. The subject matter and the course of the litigation in the federal court would be precisely the same as in the state court. The case would merely be argued in a different building and before a different judge. Language restrictive of suit in a federal court is lacking, and intrinsic policy does not suggest restrictive interpretation to withdraw from a federal court questions of federal constitutional law.

Legislation giving consent to sue is not to be treated in the spirit in which seventeenth century criminal pleading was construed. Only by such overstrained rendering of the Oklahoma Statute does the court finally achieve exclusion of the right of the plaintiff to go to a federal court. To the language of that Statute I now turn. By § 12665, Oklahoma Statutes 1931, the State authorized an action to recover moneys illegally exacted as a tax, in a situation like the present, where the exaction is one 'from which the laws provide no appeal'. The relevant jurisdictional provision is as follows: 'All such suits shall be brought in the court having jurisdiction thereof, and they shall have precedence therein * * *.' The part that the federal courts play in the grant of such jurisdiction by the States is not a new problem. With his customary hard-headedness Chief Justice Waite, for this Court, stated the guiding consideration in ascertaining the relation of the federal court within a State to the judicial process recognized by that State: 'While the Circuit Court may not be technically a court of the Commonwealth, it is a court within it; and that, as we think, is all the legislature intended to provide for.' Ex parte Schollenberger, 96 U.S. 369, 377, 24 L.Ed. 853. This conception of a federal court as a court within the State of its location has ever since dominated our decisions. See, e.g., Madisonville Traction Company v. Mining Company, 196 U.S. 239, 255, 256, 25 S.Ct. 251, 257, 258, 49 L.Ed. 462; Neirbo Co. v. Bethlehem Corp., 308 U.S. 165, 171, 60 S.Ct. 153, 156, 84 L.Ed. 167, 128 A.L.R. 1437. It is a conception which has been acted upon by state legislatures. For jurisdictional purposes federal courts have been assimilated to the courts of the States in which they may sit. When we are dealing with jurisdictional matters, legislation should be interpreted in the light of such professional history. Even if an ambiguity could be squeezed out of a grant of jurisdiction which applies so aptly to a federal court in Oklahoma as to an Oklahoma state court-'suits shall be brought in the court having jurisdiction thereof'-neither logic nor history nor reason counsels an interpretation that attributes to the State hostility against a suit in a federal court on an exclusively federal right as to which the last say in any event belongs to a federal court. 

In the past, even when the jurisdictional grant has been couched in language giving substantial ground for the argument of restriction of jurisdiction to the state court, this Court has not found denial by a State of the right to go to a federal court within that State when it in fact opened the door of its own courts. Thus, in Madisonville Traction Company v. Mining Company, supra, a Kentucky statute required, among other things, appointment of commissioners in a condemnation proceeding by the county court, examination of the report at its first regular term, issuance of orders in conformity with the Kentucky Civil Code of Practice and allowance of appeals from the county courts. And yet this Court held, as a matter of construction, that it was 'not to be implied from the statute in question that the state intended to exclude * * * the Federal courts'. 196 U.S. at page 256, 25 S.Ct. at page 258, 49 L.Ed. 462. The Section now under consideration is only one of several statutory provisions for challenging like tax assessments in courts. In all the other provisions, the jurisdiction is explicitly given only to state courts. See e.g., §§ 12651, 12660, 12661. If in § 12665 Oklahoma has seen fit to allow suits to be brought 'in the court having jurisdiction thereof', which as a matter of federal jurisdictional law certainly includes the federal court in Oklahoma, and has not seen fit to designate the state courts for such jurisdiction, why should this Court interpolate a restriction which the Oklahoma Legislature has omitted? The fact that the Legislature has also provided that such suits 'shall have precedence' is no more embarrassment to federal jurisdiction than to state jurisdiction. That is merely an admonition to courts of the importance of disposing of litigation affecting revenue with all convenient dispatch. Nor is there any other provision of the Statute giving this right of action that remotely requires a procedure to be followed or relief to be given peculiar to state courts or different from established procedure and relief in the federal courts. Only on the assumption that federal courts are alien courts is there anything in § 12665 that is not as suited to a proceeding in a federal court as it is to one in a state court.

The situation thus presented by the Oklahoma lesiglation is very different from that which was here in Chandler v. Dix, 194 U.S. 590, 24 S.Ct. 766, 48 L.Ed. 1129. There a suit was brought against state officials to remove a cloud on title to lands claimed by the State. The relief that was sought and the procedure for pursuing it plainly indicated 'that the legislature had in mind only proceedings in the courts of the state. A copy of the complaint is to be served upon the prosecuting attorney, who is to send a copy therefo within five days to the auditor general, and this is to be in lieu of service of process. It then is left to the discretion of the auditor general to cause the attorney general to represent him, and it is provided that in such suits no costs shall be taxed. These provisions with regard to procedure and costs show that the statute is dealing with a matter supposed to remain under state control. * * * (The) statute does not warrant the beginning of a suit in the Federal court to set aside the title of the state.' 194 U.S. at pages 591, 592, 24 S.Ct. at page 766, 48 L.Ed. 1129. The marked difference between the Michigan Statute and this Oklahoma Statute is further evidenced by the fact that § 12665 gives an action to recover not merely illegal state taxes but also taxes of the 'county or subdivision of the county' that have been illegally collected. But counties or their sub-divisions do not enjoy immunity from suit. Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766; Port of Seattle v. Oregon & W.R.R., 255 U.S. 56, 71, 41 S.Ct. 237, 242, 65 L.Ed. 500. If the other jurisdictional requirements are present, they can be sued in a federal court without the leave of Oklahoma. It is not, I submit, a rational way to construe the Oklahoma Statute, dealing with a particular type of illegal exaction raising the same kind of issue and involving the same procedure, so as to recognize jurisdiction of federal courts over suits against the county and its sub-division but to find a purpose to exclude suits as to illegal state exactions.

I have proceeded on the assumption that the action below was under § 12665, and as such an action against the State. But the suit was not brought under § 12665. It was brought as an ordinary common law action for the recovery of money against an officer acting under an unconstitutional statute. The defendant answered the suit, but did not claim the State's immunity from suit and the court's resulting lack of jurisdiction. What is even more significant is that he did allege lack of jurisdiction on another ground not now relevant. In a word, the defendant did not claim, on behalf of the State, the immunity which this Court now affords him. He did not even make this claim at the pre-trial conference and the claim did not emerge as one of the issues defined by the pre-trial conference under Rule 16. In disposing of the case, the Judge interpreted the action as having been brought under § 12665, although the pleadings gave no warrant for such conclusion, and on such interpretation, he found that the defendant could claim and had not waived Oklahoma's immunity. Evidently, however, the District Court was not content with its own finding of want of 'jurisdiction' for it proceeded to dispose of the constitutional issues on their merits. I think that the claim of the state's immunity was not in the case under Illinois Central Railroad Co. v. Adams, 180 U.S. 28, 21 S.Ct. 251, 45 L.Ed. 410, which held that in a suit nominally against an individual sovereign immunity is a defense that must be raised by appropriate pleading. Doubtless for this reason, the jurisdictional question on which the case is now made to turn was not even discussed by the Circuit Court of Appeals.

That court, I believe, properly passed on the constitutional merits, but since the case here goes off on jurisdiction, I intimate no views upon them. 

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