The Constitution of the United States of America: Analysis and Interpretation Part 116

[399] 317 U.S. 219, 259.

[400] 21 Wall. 558 (1875).

[401] Ibid. 572.

[402] Ibid. 574-575.

[403] The "Lottawanna," 21 Wall. 558, 577.

[404] In re Garnett, 141 U.S. 1, 12 (1891).

[405] Ibid. 14.

[406] 244 U.S. 205, 215 (1917), citing Butler _v._ Boston & Savannah S.S. Co., 130 U.S. 527 (1889), and In re Garnett, 141 U.S. 1 (1891).

[407] 253 U.S. 149, 160 (1920).

[408] 328 U.S. 1, 5 (1946), citing O'Donnell _v._ Great Lakes Dredge & Dock Co., 318 U.S. 36, 40 (1943), and the cases cited therein.

[409] Davis _v._ Department of Labor, 317 U.S. 249 (1942).

[410] 2 Commentaries (2d ed., Boston, 1851), -- 1674.

[411] Dugan _v._ United States, 3 Wheat. 172 (1818).

[412] United States _v._ San Jacinto Tin Co., 125 U.S. 273 (1888); United States _v._ Beebe, 127 U.S. 338 (1888); United States _v._ American Bell Tel. Co., 128 U.S. 315 (1888).

[413] United States _v._ San Jacinto Tin Co., 125 U.S. 273 (1888).

[414] 28 U.S.C.A. ---- 1331-1332. The original jurisdiction of the Supreme Court does not extend to suits brought by the United States against persons or corporations alone. _See also_ Revised Statutes, ---- 565, 629.

United States _v._ West Virginia, 295 U.S. 463 (1935).

[415] 136 U.S. 211 (1890).

[416] United States _v._ Texas, 143 U.S. 621 (1892).

[417] Ibid. 642-646. This suit, it may be noted, was specifically authorized by the act of Congress of May 2, 1890, providing for a temporary government for the Oklahoma territory to determine the ownership of Greer County. 26 Stat. 81, 92, -- 25.

[418] United States _v._ Minnesota, 270 U.S. 181 (1926). For an earlier suit against a State by the United States, _see_ United States _v._ Michigan, 190 U.S. 379 (1903).

[419] 295 U.S. 463, 471-475 (1935).

[420] United States _v._ Utah, 283 U.S. 64 (1931).

[421] United States _v._ California, 332 U.S. 19 (1947).

[422] United States _v._ Louisiana, 339 U.S. 699 (1950); United States _v._ Texas, 339 U.S. 707 (1950).

[423] 2 Dall. 419, 478 (1793).

[424] 6 Wheat. 264, 412 (1821).

[425] 8 Pet. 436, 444 (1834).

[426] United States _v._ McLemore, 4 How. 286 (1846); Hill _v._ United States, 9 How. 386, 389 (1850); DeGroot _v._ United States, 5 Wall. 419, 431 (1867); United States _v._ Eckford, 6 Wall. 484, 488 (1868); The Siren, 7 Wall. 152, 154 (1869); Nichols _v._ United States, 7 Wall. 122, 126 (1869); The Davis, 10 Wall. 15, 20 (1870); Carr _v._ United States, 98 U.S. 433, 437-439 (1879). "It is also clear that the Federal Government, in the absence of its consent, is not liable in tort for the negligence of its agents or employees. Gibbons _v._ United States, 8 Wall. 269, 275 (1869); Peabody _v._ United States, 231 U.S. 530, 539 (1913); Keokuk & Hamilton Bridge Co. _v._ United States, 260 U.S. 125, 127 (1922). The reason for such immunity as stated by Mr. Justice Holmes in Kawananakoa _v._ Polyblank, 205 U.S. 349, 353 (1907), is because 'there can be no legal right as against the authority that makes the law on which the right depends.' _See also_ The Western Maid, 257 U.S. 419, 433 (1922). As the Housing Act does not purport to authorize suits against the United States as such, the question is whether the Authority--which is clearly an agency of the United States--partakes of this sovereign immunity. The answer must be sought in the intention of the Congress. Sloan Shipyards case, 258 U.S. 549, 570 (1922); Federal Land Bank _v._ Priddy, 295 U.S. 229, 231 (1935). This involves a consideration of the extent to which other Government-owned corporations have been held liable for their wrongful acts." 39 Op. Atty. Gen. 559, 562 (1938).

[427] 106 U.S. 196 (1882).

[428] Lonergan _v._ United States, 303 U.S. 33 (1938).

[429] United States _v._ N.Y. Rayon Importing Co., 329 U.S. 654 (1947).

[430] United States _v._ Shaw, 309 U.S. 495 (1940). Here it was said that the reasons for sovereign immunity "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," ibid. 500-501. The Court went on to hold that when the United States took possession of the a.s.sets of Fleet Corporation and a.s.sumed its obligations, it did not waive its immunity from suit in a State court on a counterclaim based on the Corporation's breach of contract, ibid. 505. Any consent to be sued will not be held to embrace action in the federal courts unless the language giving consent is clear. Great Northern Life Ins. Co. _v._ Read, 322 U.S. 47 (1944).

[431] Minnesota _v._ United States, 305 U.S. 382 (1939). The United States was held here to be an indispensable party defendant in a condemnation proceeding brought by a State to acquire a right of way over lands owned by the United States and held in trust for Indian allottees.

[432] Brady _v._ Roosevelt S.S. Co., 317 U.S. 575 (1943).

[433] United States _v._ Lee, 106 U.S. 196, 207-208 (1882). The principle of sovereign immunity was further disparaged in a brief essay by Justice Miller on the subject of the rule of law, as follows: "Under our system the _people_ * * * are sovereign. Their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of a monarch. The citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. When he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right." Ibid. 208-209.

[434] 204 U.S. 331 (1907).

[435] Louisiana _v._ McAdoo, 234 U.S. 627, 628 (1914).

[436] 162 U.S. 255 (1896). At page 271 Justice Gray endeavors to distinguish between this and the Lee Case. It was Justice Gray who spoke for the dissenters in the Lee Case.

[437] Land _v._ Dollar, 330 U.S. 731, 737 (1947). Justice Douglas cites for this proposition Cunningham _v._ Macon & B.R. Co., 109 U.S. 446, 452 (1883); Tindal _v._ Wesley, 167 U.S. 204 (1897); Smith _v._ Reeves, 178 U.S. 436, 439 (1900); Scranton _v._ Wheeler, 179 U.S. 141, 152, 153 (1900); Philadelphia Co. _v._ Stimson, 223 U.S. 605, 619, 620 (1912); Goltra _v._ Weeks, 271 U.S. 536 (1926). This last case actually extended the rule of the Lee Case and was virtually overruled in Larson _v._ Domestic & Foreign Corp., 337 U.S. 682 (1949).

[438] Oregon _v._ Hitchc.o.c.k, 202 U.S. 60 (1906); Louisiana _v._ Garfield, 211 U.S. 70 (1908); New Mexico _v._ Lane, 243 U.S. 52 (1917); Wells _v._ Roper, 246 U.S. 335 (1918); Morrison _v._ Work, 266 U.S. 481 (1925); Minnesota _v._ United States, 305 U.S. 382 (1939); Mine Safety Appliances Co. _v._ Forrestal, 326 U.S. 371 (1945). _See also_ Minnesota _v._ Hitchc.o.c.k, 185 U.S. 373 (1902). For a review of the cases dealing with sovereign immunity _see_ Joseph D. Block, Suits Against Government Officers and the Sovereign Immunity Doctrine, 59 Harv. L. Rev. 1060 (1946).

[439] Cunningham _v._ Macon & B.R. Co., 109 U.S. 446, 451 (1883), quoted by Chief Justice Vinson in the opinion of the Court in Larson _v._ Domestic & Foreign Corp., 337 U.S. 682, 698 (1949).

[440] Larson _v._ Domestic & Foreign Corp., _supra_, 708. Justice Frankfurter's dissent also contains a useful cla.s.sification of immunity cases and an appendix listing them.

[441] 330 U.S. 731, 735 (1947). The italics are added.

[442] 337 U.S. 682 (1949).

[443] Ibid. 689-697.

[444] Ibid. 701-702. This rule was applied in United States ex rel.

Goldberg _v._ Daniels, 231 U.S. 218 (1914), which also involved a sale of government surplus property. After the Secretary of the Navy rejected the highest bid, plaintiff sought mandamus to compel delivery. The suit was held to be against the United States. _See also_ Perkins, Secretary of Labor _v._ Lukens Steel Co., 310 U.S. 113 (1940), which held that prospective bidders for contracts derive no enforceable rights against a federal official for an alleged misinterpretation of his government's authority on the ground that an agent is answerable only to his princ.i.p.al for misconstruction of instructions, given for the sole benefit of the princ.i.p.al. In the Larson Case the Court not only refused to follow Goltra _v._ Weeks, 271 U.S. 536 (1926), but in effect overruled it. The Goltra Case involved an attempt of the Government to repossess barges which it had leased under a contract reserving the right to repossess in certain circ.u.mstances. A suit to enjoin repossession was held not to be a suit against the United States on the ground that the actions were personal and in the nature of a trespa.s.s.

[445] 337 U.S. 682, 703-704. Justice Frankfurter, dissenting, would have applied the rule of the Lee Case.

[446] Larson _v._ Domestic & Foreign Corp., 337 U.S. 682, 709-710 (1949).

[447] Oregon _v._ Hitchc.o.c.k, 202 U.S. 60 (1906); Louisiana _v._ McAdoo, 224 U.S. 627 (1914); Wells _v._ Roper, 246 U.S. 335 (1918). _See also_ Belknap _v._ Schild, 161 U.S. 10 (1896); and International Postal Supply Co. _v._ Bruce, 194 U.S. 601 (1904).