Larson v. Domestic & Foreign Commerce Corporation/Dissent Frankfurter
Mr. Justice FRANKFURTER, with whom Mr. Justice BURTON concurs, dissenting.

Case-by-case adjudication gives to the judicial process the impact of actuality and thereby saves it from the hazards of generalizations insufficiently nourished by experience. There is, however, an attendant weakness to a system that purports to pass merely on what are deemed to be the particular circumstances of a case. Consciously or unconsciously the p onouncements in an opinion too often exceed the justification of the circumstances on which they re based, or, contrariwise, judicial preoccupation with the claims of the immediate leads to a succession of ad hoc determinations making for eventual confusion and conflict. There comes a time when the general considerations underlying each specific situation must be exposed in order to bring the too unruly instances into more fruitful harmony. The case before us presents one of those problems for the rational solution of which it becomes necessary, as a matter of judicial self-respect, to take soundings in order to know where we are and whither we are going.

The case before us is this.

The Government had some surplus coal at an Army camp in Texas. On March 11, 1947, the War Assets Administration, through the Regional Office in Dallas, Texas, invited a bid from the plaintiff, respondent here, for purchase of the coal. The Dallas office expressed thus its approval of the bid submitted by the plaintiff: '* * * your terms of placing $17,500 with the First National Bank, Dallas, Texas, for payment upon presentation of our invoices to said bank are accepted.' Thereupon the plaintiff arranged for resale of the coal and its shipment abroad. On April 1, 1947, the Dallas office wired the plaintiff that unless the sum of $17,500 was deposited in the First National Bank in Dallas by noon April 4, 'the sale will be cancelled and other disposition made.' Though claiming that this demand was in the teeth of the contract, the plaintiff arranged for an irrevocable letter of credit payable through the First National Bank of Dallas to the War Assets Administration. The Dallas office now insisted that unless cash was deposited 'the sale of 10,000 tons of coal * * * will be cancelled ten days from this date.' That office disregarded further endeavors by the plaintiff to adjust the matter, and on April 16 it informed the plaintiff that the contract was canceled. Having learned that the coal was to be sold to another concern, the plaintiff, asserting ownership in the coal and the threat of irreparable damage, brought this suit in the District Court of the United States for the District of Columbia to restrain the War Assets Administrator and those under his control from transferring the coal to any other person than the plaintiff. 

After issuing a temporary restraining order the District Court on May 6, 1947, dismissed the suit with this oral observation: 'I am satisfi d that this suit is in effect a suit for specific performance and the United States is a necessary party, and this Court is without jurisdiction.' The Court of Appeals took a different view: 'Appellant, * * * did not seek the curt's aid to interfere in the use of official discretion by the appellee. Such discretion was exercised at the time the contract with appellant was entered into. If that contract served to vest title immediately in appellant then it follows that the ruling in Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570, is controlling here. * * * Clearly, then, it was incumbent upon the lower court in determining its jurisdictional capacity to decide the ultimate question of whether or not a contract of sale had been consummated between appellant and appellee.' 165 F.2d 235, 237.

The conflict between the District Court and the Court of Appeals on these facts reflects fairly enough the seeming disharmony of the numerous opinions in which this Court has dealt with the claim of immunity of government from unconsented suit. As to the States, legal irresponsibility was written into the Constitution by the Eleventh Amendment; as to the United States, it is derived by implication. Principality of Monaco v. Mississippi, 292 U.S. 313, 321, 54 S.Ct. 745, 747, 78 L.Ed. 1282; see Block, Suits Against Government Officers and the Sovereign Immunity Doctrine, 59 Harv.L.Rev., 1060, 1064-1065 (1946). The sources of the immunity are formally different but they present the same legal issues.

The subject is not free from casuistry. This is doubtless due to the fact that a steady change of opinion has gradually undermined unquestioned acceptance of the sovereign's freedom from ordinary legal responsibility. The vehement speed with which the Eleventh Amendment displaced the decision in Chisholm v. Georgia, 1793, 2 Dall. 419, 1 L.Ed. 440, proves how deeply rooted that doctrine was in the early days of the Republic. See State of New Hampshire v. Louisiana, 108 U.S. 76, 86-88, 2 S.Ct. 176, 179-181, 27 L.Ed. 656. In the course of a century or more a steadily expanding conception of public morality regarding 'governmental responsibility' has led to a 'generous policy of consent for suits against the government' to compensate for the negligence of its agents as well as to secure obedience to its contracts. Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 396, 59 S.Ct. 516, 521, 83 L.Ed. 784; see also Borchard's bibliography in 20 A.B.A.J. 747, and the materials in Judge Mack's opinion in the Pesaro, D.C., 277 F. 473, reversed, 271 U.S. 562, 46 S.Ct. 611, 70 L.Ed. 1088.

The course of decisions concerning sovereign immunity is a good illustration of the conflicting considerations that often struggle for mastery in the judicial process, at least implicitly. In varying degrees, at different times, the momentum of the historic doctrine is arrested or deflected by an unexpressed feeling that governmental immunity runs counter to prevailing notions of reason and justice. Legal concepts are then found available to give effect to this feeling, and one of its results is the multitude of decisions in which this Court has refused to permit an agent of the government to claim that he is pro tanto the government and therefore sheltered by its immunity. Multitudinous as are these cases and the seeming inconsistencies among them, analysis reveals certain common considerations. The cases in which claim was made that a suit against one who holds public office is in fact a suit against the government fall into well defined categories. See the Appendix, post, 337 U.S. 729 to 732, 69 S.Ct. 1481 to 1483. Though our opinions have not always been consciously directed toward this classification, it is supported not only by what was actually decided but also by much that is expressly said.

(1) Cases in which the plaintiff seeks an interest in property which concededly, even under the allegation of the comp aint, belongs to the government, or calls for an assertion of what is unquestionably official authority. 

(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) 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 authorty or some other sovereign command for the commission of a common-law tort. 

1. The series of cases which come within the first category began with Governor of Georgia v. Madrazo, 1828, 1 Pet. 110, 7 L.Ed. 73. 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, 6 L.Ed. 204, to the effect that the Eleventh Amendment is 'limited to those suits in which a State is a party on the record.' Id. 9 Wheat. at page 857, 6 L.Ed. 204. Such a formal test could not long survive experience, and it was explicitly laid to rest in Re Ayers, 123 U.S. 443, 487, et seq., 8 S.Ct. 164, 173, 31 L.Ed. 216.

The crucial question in this class of cases is when does a suit against one holding official 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, 7 L.Ed. 73. But the answer is not 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, 59 S.Ct. 884, 83 L.Ed. 1320.

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, 5 S.Ct. 925, 29 L.Ed. 200; Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 14 S.Ct. 1047, 38 L.Ed. 1014; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A., N.S., 932, 14 Ann.Cas. 764; Rickert Rice Mills Co. v. Fontenot, 297 U.S. 110, 56 S.Ct. 374, 80 L.Ed. 513. So also recovery may be 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, 5 S.Ct. 903, 29 L.Ed. 185. 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, 28 S.Ct. 441, 450, 52 L.Ed. 714, 13 L.R.A., N.S., 932, 14 Ann.Cas. 764.

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., State of North Carolina v. Temple, 134 U.S. 22, 10 S.Ct. 509, 33 L.Ed. 849; Christian v. Atlantic & N.C.R. Co., 133 U.S. 233, 10 S.Ct. 260, 33 L.Ed. 589; New York Guaranty & Indemnity Co. v. Steele, 134 U.S. 230, 10 S.Ct. 511, 33 L.Ed. 891. 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 to sue a tax collector as an individual even though the individual sued had the duty, under the statute, to collect the tax. State of North Carolina v. Temple, 134 U.S. 22, 10 S.Ct. 509, 33 L.Ed. 849. 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, 3 S.Ct. 292, 609, 27 L.Ed. 992; Christian v. Atlantic & N.C.R. Co., 133 U.S. 233, 10 S.Ct. 260, 33 L.Ed. 589; see Land v. Dollar, 330 U.S. 731, 737-738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209. 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, 16 S.Ct. 443, 40 L.Ed. 599; Hopkins v. Clemson Agricultural College, 221 U.S. 636, 31 S.Ct. 654, 55 L.Ed. 890, 35 L.R.A.,N.S., 243. 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, 31 S.Ct. 654, 659, 55 L.Ed. 890, 35 L.R.A.,N.S., 243; see International Postal Supply Co. v. Bruce, 194 U.S. 601, 605-606, 24 S.Ct. 820, 821, 48 L.Ed. 1134.

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, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209. This is a way of saying that a court cannot entertain an action, when the sovereign has not consente  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 quod 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 to entertain suit against one who happens to hold a public office. For example, in Board of Liquidation v. McComb, 92 U.S. 531, 23 L.Ed. 623, a bondholder was permitted to enjoin an issue of bonds which would have reduced the value of his holdings because the issue was authorized by a statute which offended the impairment-of-obligation clause. And see Allen v. Baltimore & O.R. Co., 114 U.S. 311, 5 S.Ct. 925, 29 L.Ed. 200; Atchison, T. & S.F.R. Co. v. O'Connor, 223 U.S. 280, 32 S.Ct. 216, 56 L.Ed. 436, Ann.Cas.1913C, 1050. And suits have lain to obtain public lands where the decree involved no discretion on the part of the individual whom the decree bound. Santa Fe Pac. R. Co. v. Fall, 259 U.S. 197, 42 S.Ct. 466, 66 L.Ed. 896; Noble v. Union River Logging R. Co., 147 U.S. 165, 13 S.Ct. 271, 37 L.Ed. 123; Payne v. Central Pac. R. Co., 255 U.S. 228, 41 S.Ct. 314, 65 L.Ed. 598.

The matter boils down to this. The federal courts are not barred from adjudicating a claim against a governmental agent who invokes statutory authority for his action if the constitutional power to give him such a claim of immunity is itself challenged. Sovereign immunity may, however, become relevant because the relief prayed for also entails interference with governmental property or brings the operation of governmental machinery into play. The Government then becomes an indispensable party and without its consent cannot be implicated. See Mr. Justice Brandeis in Morrison v. Work, 266 U.S. 481, 486-487, 45 S.Ct. 149, 151, 152, 69 L.Ed. 394.

It should also be noted that a cause of action which would, for one reason or another fail, if brought against a private agent, is not saved because it is brought against one holding public office purporting to act under an unconstitutional statute. The action may fail because there is no 'case' or 'controversy,'  or because the plaintiff has not suffered invasion of a legally protected interest,  or because the foundation for equitable relief is wanting,  or because the particular defendant has committed no wrong.  Such situations present no problem of sovereign immunity, but language pertaining to sovereign immunity sometimes creeps into opinions disposing of them.

3. Recovery has been sustained where, although the official acts under a valid statute, he actually exceeded the authority with which the statute had invested him. An action then lies against the agent because 'he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense, he must show that his authority was sufficient in law to protect him.' Pennoyer v. McConnaughy, 140 U.S. 1, 14, 11 S.Ct. 699, 703, 35 L.Ed. 363; Scully v. Bird, 209 U.S. 481, 28 S.Ct. 597, 52 L.Ed. 899; Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570. Here also the traditional criteria for judicial action are prerequisite; see, e.g., State of Louisiana v. McAdoo, 234 U.S. 627, 34 S.Ct. 938, 58 L.Ed. 1506, if they are not satisfied the question of sovereign immunity does not emerge. And if the relief necessarily implicates a resort to State funds the State becomes an indispensable party and without its consent the suit must fail. See State of Louisiana v. McAdoo, supra; Lankford v. Platte Iron Works, 235 U.S. 461, 35 S.Ct. 173, 59 L.Ed. 316.

4. The fourth category of cases brings us to the controversy immediately before the Court and demands detailed analysis. These are the cases, it will be recalled, in which an official seeks to screen himself behind the sovereign in a suit against him based on the commission of a common-law tort. See Appendix, Part II, C, post, 69 S.Ct. 1483. A plaintiff's right 'under general law to recover possession of specific property wrongfully withheld' may be enforced against an official and he cannot plead the sovereign's immunity against the court's power to afford a remedy. Land v. Dollar, 330 U.S. 731, 736, 67 S.Ct. 1009, 1011, 91 L.Ed. 1209; Belknap v. Schild, 161 U.S. 10, 18-20, 16 S.Ct. 443, 445, 446, 40 L.Ed. 599; Hopkins v. Clemson Agricultural College, 221 U.S. 636, 643, 31 S.Ct. 654, 656, 55 L.Ed. 890, 35 L.R.A.,N.S., 243.

The starting point of this line of cases is, United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171. Familiar as that case is, its controlling facts bear rehearsal. The Arlington estate of General Robert E. Lee was seized for nonpayment of taxes. These taxes had in fact been tendered by a friend, but the official had interpreted his authority as permitting payment of the taxes only by the record owner. After seizure, the United States established a fort and cemetery on the land. The plaintiff, in whom title to the Arlington estate vested if its seizure could not be justified, brought an action of ejectment against the governmental custodians of the estate. After the overruling of a suggestion by the Attorney General of the United States that the Circuit Court was without jurisdiction because the property was in possession of the United States, the action was sustained against the defendants since they could not justify their possession by proof of a valid title in the Government. This Court affirmed, holding that the lower court was competent to decide the issues between the parties without the need of impleading the Government whose consent was withheld.

While there was some talk in the Lee opinion, as well as in some of the cases which followed that decision, about taking property without compensation, the basis of the action was that the defendants were ordinary tortfeasors, not immunized for their wrongful invasion of the plaintiff's property by the fact that they claimed to have acted on behalf of the Government.  This group of cases is quite different from those in which the plaintiff claimed that the defendant, purporting to act in an official capacity, exceeded the authority which a statute conferred upon him, or that the statute under which he justified his action exceeded the power of the legislature to confer such authority. In this class of cases the governmental agent had valid statutory authority but he determined erroneously the condition which had to exist before he could exercise it. The basis of action in this class of cases is the defendant's personal responsibility for the commission of a tort, which makes it irrelevant that by waiving the case against the governmental agent the plaintiff might choose to sue the Government as for a contract. A detailed consideration of four recent cases should leave no doubt regarding the settled course and decision in conformity with this principle.

(a) In Sloan Shipyards Corp. v. United States Fleet Corp., 258 U.S. 549, 42 S.Ct. 386, 66 L.Ed. 762, the controversy arose in connection with a contract between Sloan Shipyards and the Fleet Corporation, a Government corporation. A proviso in the contract authorized the United States to take over the plant and complete the contract on Sloan Shipyards' failure to perform. Under a statute the United States could also condemn the land and the business, if that were deemed necessary for the successful conduct of the war. That would bring into play a right to compensation enforceable in the Court of Claims. The Fleet Corporation seized the plaint, but it was not made manifest that the seizure of the plant was an exercise of the Government's power of condemnation. Sloan Shipyards brought suit for the return of the property. The lower courts treated this as a suit for compensation, pursuable as such against the Government, in the Court of Claims. This Court, speaking through Mr. Justice Holmes, reversed, took the bill on its face as one based on the wrongful acts of the Fleet Corporation and as such entertainable regardless of the fact that the conduct of the Fleet Corporation might also give rise to a claim for compensation against the Government. 

This decision, which had thorough consideration here, would have to be overruled if the theory now proposed for this class of cases is to be accepted. The crux of the Court's opinion leaves no room for doubt: 'The plaintiffs are not suing the United States but the Fleet Corporation, and if its act was unlawful, even if they might have sued the United States, they are not cut off from a remedy against the agent that did the wrongful act. In general the United States cannot be sued for a tort, but its immunity does not extend to those that acted in its name. It is not impossible that the Fleet Corporation purported to act under the contract giving it the right to take possession in certain events, but that the plaintiffs can show that the events have not occurred.' 258 U.S. 549, 567-568, 42 S.Ct. 386, 388, 66 L.Ed. 762.

(b) So, too, Goltra v. Weeks, 271 U.S. 536, 46 S.Ct. 613, 70 L.Ed. 1074, would have to go by the board if the theory now proposed were accepted. The Government had leased its barges for operation by the plaintiff. Following a seizure of some of the barges and a threat to seize the rest for alleged failure to comply with the lease terms, the plaintiff brought a bill against the Secretary of War and the Chief of Engineers to enjoin the threatened seizure and to secure restoration of the barges already seized. This Court found that it was error for the Court of Appeals to hold that the United States was a necessary party and to have dismissed the bill for that reason. The governing principle was thus formulated by Mr. Chief Justice Taft: 'The bill was suitably framed to secure the relief from an alleged conspiracy of the defendants without lawful right to take away from the plaintiff the boats of which by lease or charter he alleged that he had acquired the lawful possession and enjoyment for a term of five years. He was seeking equitable aid to avoid a threatened trespass upon that property by persons who were government officers. If it was a trespass, then the officers of the government should be restrained whether they professed to be acting for the government or not. Neither they nor the government which they represent could trespass upon the property of another, and it is well settled that they may be stayed in their unlawful proceeding by a court of competent jurisdiction, even though the United States for whom they may profess to act is not a party and can not be made one. By reason of their illegality, their acts or threatened acts are personal and derive no official justification from their doing them in asserted agency for the government.' 271 U.S. 536, 544, 46 S.Ct. 613, 616, 70 L.Ed. 1074.

(c) This line of cases, beginning with United States v. Lee, supra, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171, was again followed in Ickes v. Fox, 300 U.S. 82, 57 S.Ct. 412, 81 L.Ed. 525. There a bill was sustained against the defendant, the Secretary of the Interior, based on the claim that compliance by the plaintiff with the terms of an agreement made with a predecessor Secretary of the Interior rendered the Secretary's action a trespass and as such enjoinable, though the action was justified as a governmental prerogative. In reaching this result, the Court specifically referred to the principles formulated in Goltra v. Weeks, above quoted.

(d) Only the other day this Court decided Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209. There is was ruled that a claim by the plaintiff for the recovery of the possession of property physically controlled by members of the United States Maritime Commission but alleged to have been wrongfully withheld was not inherently a suit against the Government and gave jurisdiction to the court 'to determine its jurisdiction by proceeding to a decision on the merits'-that is to determine whether the plaintiffs' claim that withholding of the pledged property was, under the circumstances, tortious and therefore subject to relief against the agents as individuals. 330 U.S. at page 739, 67 S.Ct. at page 1013, 91 L.Ed. 1209. The Court once more applied the principle of United States v. Lee, supra, reinforced by reference to the cases that apply the Lee doctrine, including Sloan Shipyards Corp. v. United States Fleet Corp., supra, Goltra v. Weeks, supra, and Ickes v. Fox, supra. It also pointed out that the fact that there existed a remedy in the Court of Claims against the Government was irrelevant. 330 U.S. at page 738, 67 S.Ct. at page 1012, 91 L.Ed. 1209.

In each of these cases this Court sanctioned a suit against an officer of the Government merely because the officer misconceived the facts, or misapplied the legal principles, on which rested the plaintiff's right 'under general law to recover possession of specific property wrongfully withheld.' Land v. Dollar, supra, 330 U.S. at page 736, 67 S.Ct. at page 1011, 91 L.Ed. 1209. Under such circumstances an officer acquires no immunity even though he committed a tort while attempting to discharge what would be his duty if he were correct on his assumption as to the ownership of the property or as to the right to its possession under the legal instruments governing the transaction. See Holmes, J., in Miller v. Horton, 152 Mass. 540, 26 N.E. 100, 10 L.R.A. 116, 23 Am.St.Rep. 850; Belknap v. Schild, 161 U.S. 10, 18-19, 16 S.Ct. 443, 445, 446, 40 L.Ed. 599; Hopkins v. Clemson Agricultural College, 221 U.S. 636, 643-645, 31 S.Ct. 654, 656, 657, 55 L.Ed. 890, 35 L.R.A.,N.S., 243; Sloan Shipyards Corp. v. United States Fleet Corp., 258 U.S. 549, 567, 42 S.Ct. 386, 388, 66 L.Ed. 762. In this class of cases the officer can escape liability only if 'special remedies have been provided by statute that displace those th t otherwise would be at the plaintiff's command.' Sloan Shipyards Corp. v. United States Fleet Corp., supra, 258 U.S. at page 567, 42 S.Ct. at page 388, 66 L.Ed. 762. When there is such a special remedy the suit against the officer is barred not because he enjoys the immunity of the sovereign but because the sovereign can constitutionally change the traditional rules of liability for the tort of the agent by providing a fair substitute. Crozier v. Fried Krupp Aktiengesselschaft, 224 U.S. 290, 32 S.Ct. 488 56 L.Ed. 771; Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 48 S.Ct. 194, 72 L.Ed. 303. But the general statute permitting suit in the Court of Claims in certain instances against the Government is not a statute that provides that remedies otherwise at the plaintiff's command are to be displaced.  A holding that the availability of an action for monetary damages in the Court of Claims against the United States prevents a suit at law, or, if the necessary requisites for equity jurisdiction are present, in equity, against the governmental agent, would be as novel as it is indefensible in the light of the settled course of decisions. Indeed, this argument is not novel; it has been explicitly negatived in at least two cases. See Sloan Shipyards Corp. v. United States Fleet Corp., 258 U.S. 549, 567, 568, 42 S.Ct. 386, 388, 66 L.Ed. 762; Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209.

'Sovereign immunity' carries an august sound. But very recently we recognized that the doctrine is in 'disfavor.' Federal Housing Administration v. Burr, 309 U.S. 242, 245, 60 S.Ct. 488, 490, 84 L.Ed. 724.  It ought not to be extended by discrediting a long line of decisions. No considerations of policy warrant the overruling of United States v. Lee, supra, and th  cases which have applied it in giving a remedy for wrongdoing without harm to any public interest that deserves protection. To overrule the Lee case would at least have the merit of candor. To attempt to explain it on the ground that the Government itself was not suable for the wrongdoing at the time of the Lee decision is to invent a new theory to explain away a decision which has held its ground for nearly seventy years.

This liability for torts committed by defendants even though they conceive themselves to be acting as officials and for the public good, rests ultimately on the conviction that the policy behind the immunity of the sovereign from suit without its consent does not call for disregard of a citizen's right to pursue an agent of the government for a wrongful invasion of a recognized legal right unless the legislature deems it appropriate to displace the right of suing the individual defendant with the right to sue the Government. The fact that the governmental agent cannot claim the immunity of the sovereign of course does not apell liability, under all circumstances, for the discharge of what he conceived to be his duty. See, e.g., Seavey v. Preble, 64 Me. 120; Fields v. Stokley, 99 Pa. 306, 44 Am.Rep. 109; the conflicting considerations are presented in Miller v. Horton, 152 Mass. 540, 26 N.E. 100, 10 L.R.A. 116, 23 Am.St.Rep. 850. Similarly, equitable considerations bearing on the propriety of granting the extraordinary remedy of an injunction may here come into play as is true whenever a private claim cuts across the public interest.  But these are matters wholly beside the issue of sovereign immunity.

Of course where the United States is the owner in possession of property a court cannot interfere without the Government's consent. But if it is to be denied that a court cannot decide the question, when properly presented, whether property held by an official belongs to the plaintiff, Goltra v. Weeks, Sloan Shipyards Corp. v. United States, Ickes v. Fox, Land v. Dollar, and the other cases cited in Part II, C of the Appendix, post, 337 U.S. 732, 69 S.Ct. p. 1483, must be overruled.

Only the other day we said: 'Where the right to possession or enjoyment of property under general law is in issue, and the defendants claim as officers or agents of the sovereign, the rule of United States v. Lee, supra, has been repeatedly approved. * * * In U ited States v. Lee, supra, record title of the land was in the United States and its officers were in possession. The force of the decree in that case was to grant possession to the private claimant. Though the judgment was not res judicata against the United States, * * * it settled as between the parties the controversy over possession. Precisely the same will be true here, if we assume the allegations of the complaint are proved.' Land v. Dollar, supra, 330 U.S. at page 737, 67 S.Ct. at page 1012, 91 L.Ed. 1209.

When a pleading raises a substantial claim that the defendant is wrongfully withholding from the plaintiff property belonging to him, the defendant has not heretofore been permitted to shield himself behind the immunity of the sovereign. Only after the preliminary question of ownership is decided against the plaintiff does the claim of sovereign immunity come into play. Only then can it be said that the decree will affect property of the sovereign.

The Court tries to explain away Land v. Dollar, supra, by suggesting that it was a case where the officers acted in excess of their authority although the opinion in that case makes clear that even if the officers had authority there still remained the issue whether the shares of stock were sold or pledged to the United States. If the latter, to hold after satisfaction of the pledge would be tortious, and the stock could be recovered in the suit against the defendants. The Court seeks to avoid the decision in Ickes v. Fox, supra, by saying that the ground of decision is not made clear. But not even these most dubious arguments can explain away Goltra v. Weeks, 271 U.S. 536, 46 S.Ct. 613, 70 L.Ed. 1074. Accordingly, the Court impliedly overrules that decision. No reason of policy is vouchsafed for overruling a decision that carries the authority that the Goltra case does. It was based on a long series of prior cases, it was decided by a unanimous Court and delivered by a Chief Justice who brought to the Court from his Presidential experience a partiality toward freedom for executive action, as evinced by his opinion in the contemporaneous case of Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160. The Goltra case has since been frequently, and always approvingly, cited, most recently in Land v. Dollar, supra, as an application of the Lee doctrine. See also Ickes v. Fox, 300 U.S. 82, 97, 57 S.Ct. 412, 417, 81 L.Ed. 525. The Goltra case is now thrown into the discard because it did not cite Goldberg v. Daniels, 231 U.S. 218, 34 S.Ct. 84, 58 L.Ed. 191. That earlier case is deemed in conflict with the later Goltra decision and therefore the later case, so we are told, must yield to the earlier case. One would suppose that the failure of a fulldress opinion in a later case, which was thoroughly argued and not hastily decided, to cite an earlier opinion would not be attributed either to the Court's unawareness of the earlier opinion or its silent overruling of it. That the Court could not have been unaware of the decision in the Goldberg case is incontestably proved by the fact that it was referred to in the briefs in the Goltra case. That there was not obvious inconsistency between the two decisions is indicated by the fact that Mr. Justice Holmes, who wrote the Goldberg opinion joined in the Goltra opinion. It is too much to assume that there was concerted silence about the Goldberg decision by the Court in Goltra.

A more obvious explanation lies on the surface. Goldberg was not cited in Goltra for the conclusive reason that Goldberg had nothing to do with Goltra. In the Goldberg case the Court, on the basis of the pleadings before it, was dealing with a suit where 'the United States is the owner, in possession of the vessel.' 231 U.S. 218, 221-222, 34 S.Ct. 84, 58 L.Ed. 191. Accordingly, the suit was not for a tortious withholding of the plaintiff's property and the Government's immunity barred suit. In Goltra, on the contrary, the claim was for the delivery of property allegedl belonging to the plaintiff and tortiously in possession of the individual defendants, and the Court held that the plaintiff is entitled to establish such a claim as he can, 'even though the United States for whom they (the defendants) may profess to act is not a party and can not be made one.' 271 U.S. at page 544, 46 S.Ct. at page 616, 70 L.Ed. 1074. That is this case.

As is true of the present case, the right of control over property may depend on compliance with the terms of a contract. The fact of compliance may rest, certainly in the first instance, in the judgment of a particular official. But that would not authorize him to rescind a valid contract if there had been full compliance. Of course, even that power may be conferred by agreement or by statute. But in the absence of such an agreement, or such a provision in a statute, a plaintiff may have redress against a defendant who has wrongfully rescinded a valid contract fully performed if a property right of the plaintiff is thereby tortiously affected. He may also have his day in court if he denies the right of an official to determine definitively want of compliance, when the issue of compliance is decisive of the defendant's alleged wrongdoing. A these are precisely the issues tendered by this complaint. It is no answer at this stage of the case, to say that it was in fact within the agent's authority to do what he did. If a valid statute gives him power to withhold property which belongs to another, or if he has the power to revest title in the Government after a valid contract has vested it in another then of course he is free from liability. But these are matters that go to the merits. The very purpose of this suit is to determine whether what the governmental agent did here was within his power. To decide whether the 'authority is rightfully assumed is the exercise of jurisdiction, and must lead to the decision of the merits of the question.' United States v. Lee, 106 U.S. 196, 219, 1 S.Ct. 240, 259, 27 L.Ed. 171. The issues outlined above are issues which may be contested against a defendant, even though he hold office. Noble v. Union River Logging R. Co., 147 U.S. 165, 13 S.Ct. 271, 37 L.Ed. 123; Payne v. Central Pacific R. Co., 255 U.S. 228, 41 S.Ct. 314, 65 L.Ed. 598; Santa Fe Pacific R. Co. v. Fall, 259 U.S. 197, 42 S.Ct. 466, 66 L.Ed. 896; Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209.

The District Court therefore had jurisdiction over the controversy because only after a consideration of the merits of the respondent's claim could it be determined whether the decree would affect Government property. Since that court has jurisdiction it can also determine whether a cause of action was stated and whether there are any considerations which would cause a court of equity not to grant the relief requested.

I would affirm the judgment of the Court of Appeals.

Appendix.

Cases since Osborn v. Bank of the United States, 1824, 9 Wheat. 738, 6 L.Ed. 204, concerning suits against governmental agents in which defense of sovereign immunity was raised.

I. Cases in which jurisdiction was found wanting.

A. Plaintiff sought interest in property which concededly belonged to the Government, or demanded relief calling for an assertion of what was unquestionably official authority.

Governor of Georgia v. Madrazo, 1828, 1 Pet. 110, 7 L.Ed. 73; State of Louisiana v. Jumel, 107 U.S. 711, 2 S.Ct. 128, 27 L.Ed. 448; Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446, 3 S.Ct. 292, 27 L.Ed. 992; Hagood v. Southern R. Co., 117 U.S. 52, 6 S.Ct. 608, 29 L.Ed. 805; Christian v. Atlantic & N.C.R. Co., 133 U.S. 233, 10 S.Ct. 260, 33 L.Ed. 589; State v. North Carolina v. Temple, 134 U.S. 22, 10 S.Ct. 509, 33 L.Ed. 849; New York Guaranty & Indemnity Co. v. Steele, 134 U.S. 230, 10 S.Ct. 511, 33 L.Ed. 891; Belknap v. Schild, 161 U.S. 10, 16 S.Ct. 443, 40 L.Ed. 599; State of Oregon v. Hitchcock, 202 U.S. 60, 26 S.Ct. 568, 50 L.Ed. 935; State of Louisiana v. Garfield, 211 U.S. 70,  9 S.Ct. 31, 53 L.Ed. 92; Murray v. Wilson, 213 U.S. 151, 29 S.Ct. 458, 53 L.Ed. 742; Hopkins v. Clemson Agricultural College, 221 U.S. 636, 31 S.Ct. 654, 55 L.Ed. 890, 35 L.R.A., N.S., 243; Goldberg v. Daniels, 231 U.S. 218, 34 S.Ct. 84, 58 L.Ed. 191; State of Louisiana v. McAdoo, 234 U.S. 627, 34 S.Ct. 938, 58 L.Ed. 1506; Lankford v. Platte Iron Works, 235 U.S. 461, 35 S.Ct. 173, 59 L.Ed. 316; Wells v. Roper, 246 U.S. 335, 38 S.Ct. 317, 62 L.Ed. 755; Morrison v. Work, 266 U.S. 481, 45 S.Ct. 149, 69 L.Ed. 394; State of Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235.

B. Decisions couched in terms of sovereign immunity or later so interpreted but which actually turned on other considerations.

1. No legally protected interest of the plaintiff was affected.

State of Louisiana v. McAdoo, 234 U.S. 627, 34 S.Ct. 938, 58 L.Ed. 1506; Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543.

2. The particular defendant was unrelated to the plaintiff's claim because he was not threatening plaintiff's interest.

In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216; Fitts v. McGhee, 172 U.S. 516, 19 S.Ct. 269, 43 L.Ed. 535; Worchester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268; Mine Safety Appliance Co. v. Forrestal, 326 U.S. 371, 66 S.Ct. 219, 90 L.Ed. 140 (alternative reason).

3. Nature of the adjudication required presence of the sovereign as a necessary party.

Christian v. Atlantic & North Carolina R. Co., 133 U.S. 233, 10 S.Ct. 260, 33 L.Ed. 589; Stanley v. Schwalby, 162 U.S. 255, 16 S.Ct. 754, 40 L.Ed. 960; State of New Mexico v. Lane, 243 U.S. 52, 37 S.Ct. 348, 61 L.Ed. 588.

4. Case dismissed for want of ordinary requirements of equity jurisdiction.

Hawks v. Hamill, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 610; Morrison v. Work, 266 U.S. 481, 45 S.Ct. 149, 69 L.Ed. 394 (alternative ground).

C. Cases in which legislation specifically provided that only the sovereign itself could be sued for action authorized by statute.

Crozier v. Fried Krupp Aktiengesell-schaft, 224 U.S. 290, 32 S.Ct. 488, 56 L.Ed. 771; Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 48 S.Ct. 194, 72 L.Ed. 303.

D. Cases in which the plaintiff pursued a statutory procedure indicating consent to suit against the sovereign and is therefore bound by its limitations.

Smith v. Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1140; Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121; Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389; Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862.

II. Cases in which jurisdiction was entertained.

A. Cases in which an official justified his action under an unconstitutional statute.

Osborn v. Bank of the United States, 1824, 9 Wheat, 738, 6 L.Ed. 204; Board of Liquidation v. McComb, 92 U.S. 531, 23 L.Ed. 623; Poindexter v. Greenhow, 114 U.S. 270, 5 S.Ct. 903, 29 L.Ed. 185; White v. Greenhow, 114 U.S. 307, 5 S.Ct. 923, 29 L.Ed. 199; Chaffin v. Taylor, 114 U.S. 309, 5 S.Ct. 924, 29 L.Ed. 198; Allen v. Baltimore & O.R. Co., 114 U.S. 311, 5 S.Ct. 925, 29 L.Ed. 200; Pennoyer v. McConnaughy, 140 U.S. 1, 11 S.Ct. 699, 35 L.Ed. 363; Ex parte Tyler, 149 U.S. 164, 13 S.Ct. 785, 37 L.Ed. 689; Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 14 S.Ct. 1047, 38 L.Ed. 1014; Scott v. Donald, 165 U.S. 58, 17 S.Ct. 265, 41 L.Ed. 632; Scott v. Donald, 165 U.S. 107, 17 S.Ct. 262, 41 L.Ed. 648; Smyth v. Ames, 169 U.S. 466, 18 S.Ct. 418, 42 L.Ed. 819; Prout v. Starr, 188 U.S. 537, 23 S.Ct. 398, 47 L.Ed. 584; Mississippi R. Co. v. Illinois C.R. Co., 203 U.S. 335, 27 S.Ct. 90, 51 L.Ed. 209; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A., N.S., 932, 14 Ann.Cas. 764; General Oil Co. v. Crain, 209 U.S. 211, 28 S.Ct. 475, 52 L.Ed. 754; Ludwig v. Western Union Telegraph Co., 216 U.S. 146, 30 S.Ct. 280, 54 L.Ed. 423; Western Unio  Telegraph Co. v. Andrews, 216 U.S. 165, 30 S.Ct. 286, 54 L.Ed. 430; Herndon v. Chicago, R.I. & Pac. R. Co., 218 U.S. 135, 30 S.Ct. 633, 54 L.Ed. 970; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, L.R.A.1916D, 545, Ann.Cas.1917B, 283; Tanner v. Little, 240 U.S. 369, 36 S.Ct. 379, 60 L.Ed. 691; Greene v. Louisville & I.R. Co., 244 U.S. 499, 37 S.Ct. 673, 61 L.Ed. 1280, Ann.Cas.1917E, 88; Public Service Co. v. Corboy, 250 U.S. 153, 39 S.Ct. 440, 63 L.Ed. 905; Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375; Rickert Rice Mills Co. v. Fontenot, 297 U.S. 110, 56 S.Ct. 374, 80 L.Ed. 513.

B. Cases in which an officer exceeded his statutory authority.

Rolston v. Missouri Fund Commissioners, 120 U.S. 390, 7 S.Ct. 599, 30 L.Ed. 721; Scully v. Bird, 209 U.S. 481, 28 S.Ct. 597, 52 L.Ed. 899; Atchison, T. & S.F.R. Co. v. O'Connor, 223 U.S. 280, 32 S.Ct. 216, 56 L.Ed. 436, Ann.Cas.1913C, 1050; Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570; Waite v. Macy, 246 U.S. 606, 38 S.Ct. 395, 62 L.Ed. 892; Payne v. Central Pac R. Co., 255 U.S. 228, 41 S.Ct. 314, 65 L.Ed. 595; Santa Fe Fac. R. Co. v. Fall, 259 U.S. 197, 42 S.Ct. 466, 66 L.Ed. 896; Work v. State of Louisiana, 269 U.S. 250, 46 S.Ct. 92, 70 L.Ed. 259.

C. Cases in which an officer sought shelter behind statutory authority or some other sovereign command for the commission of a common-law tort.

1. Cases in which an officer was not relieved S.Ct. 418, 259; Scranton v. Wheeler, was acting for the sovereign.

Stanley v. Schwalby, 147 U.S. 508, 13 S.Ct. 418, 37 L.Ed. 259; Scranton v. Wheeler, 179 U.S. 141, 21 S.Ct. 48, 45 L.Ed. 126; Sloan Shipyards Corp. v. United States Fleet Corp., 258 U.S. 549, 42 S.Ct. 386, 66 L.Ed. 762; Goltra v. Weeks, 271 U.S. 536, 46 S.Ct. 613, 70 L.Ed. 1074; Ickes v. Fox, 300 U.S. 82, 57 S.Ct. 412, 81 L.Ed. 525; Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209.

2. Cases in which an officer was held liable for a common-law tort, but the opinion made reference to a situation involving an unconstitutional taking.

United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171; Noble v. Union River Logging R. Co., 147 U.S. 165, 13 S.Ct. 271, 37 L.Ed. 123; State of South Carolina v. Wesley, 155 U.S. 542, 15 S.Ct. 230, 39 L.Ed. 254; Tindal v. Wesley, 167 U.S. 204, 17 S.Ct. 770, 42 L.Ed. 137; Hopkins v. Clemson Agricultural College, 221 U.S. 636, 31 S.Ct. 654, 55 L.Ed. 890, 35 L.R.A., N.S., 243. 

Notes