Statement of the Case.

221 U.S.

other land had been conveyed for college purposes. The State appropriated more than $100,000 per annum, which, with the interest on the securities passing under the residuary clause of Dr. Clemson's will, constituted the main source of income, though the College did receive about $6,500 per annum from tuition, rent, sale of dairy products and the proceeds derived from the electric plant and textile department.

There is copied in the record the act of 1894 to incorporate Clemson College for the purpose of police regulation over the territory within five miles of the college building.

The trial court found that the current expenses were paid out of interest on the donation and from the annual appropriations by the State; that the College had no property which could be sold under execution; that the title to the land on which the dyke was erected was in the State. Referring also to the Act of 1894, conferring municipal powers on Clemson College, the court held that the defendant was a public agent, which could not be sued without the consent of the State; that such consent was not given by the provision of the charter that the trustees "might sue and be sued, plead and be impleaded in their corporate capacity," inasmuch as that related to contracts made for College purposes and did not warrant suits against a public agent for a tort. Holding that the State was an indispensable party, and had not given its consent to be sued, the court dismissed the complaint.

On the appeal the plaintiff in his assignments of error contended that the title to the land was in the State only as trustee; that the college was not a public corporation, but a private educational institution, without governmental powers; that it had not been established or endowed by the State and was not governed by the State or solely by trustees appointed by the State (4 Wheat. 634); that in addition to the equitable ownership of the Fort

Hill place, it owned certain lands in fee simple, which were subject to levy and sale and that the corporation was liable for its own torts.

The twenty-third assignment of error was as follows: "Because the Fourteenth Amendment to the Constitution of the United States provides: 'Nor shall any State deprive any person of life, liberty or property without due process of law.' The allegations of the complaint show that plaintiff has been deprived of his property for all practical purposes as agricultural lands as effectually as if there had been a physical taking thereof; that plaintiff has thus been deprived of his property by the defendant corporation, acting by and through its board of trustees, and this constitutional guarantee has been violated by such action, whether taken pursuant to an act of the legislature or otherwise, and his honor erred in not so holding."

The Supreme Court of the State adopted the opinion of the trial judge, and on the ground that the State was a necessary party and had not consented to be sued, dismissed the bill of complaint. 77 S. Car. 12; 57 S. E. Rep. 551. Thereupon the plaintiff sued out a writ of error to this court:

Mr. Joseph A. McCullough and Mr. R. T. Jaynes for plaintiff in error.

Mr. J. P. Carey for defendant in error.

MR. JUSTICE LAMAR, after making the foregoing statement, delivered the opinion of the court.

The plaintiff sued the Clemson Agricultural College of South Carolina, for damages to his farm, resulting from the College having built a dyke which forced the waters of the Seneca River across his land, whereby the soil had VOL. CCXXI-41

been washed away and the land ruined for agricultural purposes. There was no demurrer, but the defendant filed what was treated as a plea to the jurisdiction in which it averred that it owned no property, and had constructed the dyke as a public agent only, by authority of the State, on land belonging to the State. By stipulation the hearing was confined solely to the question of jurisdiction, and after considering the evidence the complaint was dismissed.

That ruling and the assignments of error thereon raise the question as to whether a public corporation can avail itself of the State's immunity from suit, in a proceeding against it for so managing the land of the State as to damage or take private property without due process of law.

With the exception named in the Constitution, every State has absolute immunity from suit. Without its consent it cannot be sued in any court, by any person, for any cause of action whatever. And, looking through form to substance, the Eleventh Amendment has been held to apply, not only where the State is actually named as a party defendant on the record, but where the proceeding, though nominally against an officer, is really against the State, or is one to which it is an indispensable party. No suit, therefore, can be maintained against a public officer which seeks to compel him to exercise the State's power of taxation; or to pay out its money in his possession on the State's obligations; or to execute a contract, or to do any affirmative act which affects the State's political or property rights. Cunningham v. Macon & Brunswick R. R., 109 U. S. 446; North Carolina v. Temple, 134 U. S. 22; Louisiana v. Steele, 134 U. S. 230; Louisiana v. Jumel, 107 U. S. 711; Pennoyer v. McConnaughy, 140 U. S. 1; In re Ayers, 123 U. S. 443; Hans v. Louisiana, 134 U. S. 1; Harkrader v. Wadley, 172 U. S. 148; Hagood v. Southern, 117 U. S. 52, 70.

But immunity from suit is a high attribute of sover

eignty-a prerogative of the State itself-which cannot be availed of by public agents when sued for their own torts. The Eleventh Amendment was not intended to afford them freedom from liability in any case where, under color of their office, they have injured one of the State's citizens. To grant them such immunity would be to create a privileged class free from liability for wrongs inflicted or injuries threatened. Public agents must be liable to the law, unless they are to be put above the law. For how "can the principles of individual liberty and right be maintained if, when violated, the judicial tribunals are forbidden to visit penalties upon individual defend

ants State.

whenever they interpose the shield of the

The whole frame and scheme of the political institutions of this country, state and Federal, protest" against extending to any agent the sovereign's exemption from legal process. Poindexter v. Greenhow, 114 U. S. 270, 291.

The many claims of immunity from suit have therefore been uniformly denied, where the action was brought for injuries done or threatened by public officers. If they were indeed agents, acting for the State, they-though not exempt from suit-could successfully defend by exhibiting the valid power of attorney or lawful authority under which they acted. Cunningham v. Macon & Brunswick R. R., 109 U. S. 446, 452. But if it appeared that they proceeded under an unconstitutional statute their justification failed and their claim of immunity disappeared on the production of the void statute. Besides, neither a State nor an individual can confer upon an agent authority to commit a tort so as to excuse the perpetrator. In such cases the law of agency has no application-the wrongdoer is treated as a principal and individually liable for the damages inflicted and subject to injunction against the commission of acts causing irreparable injury.

Consequently there have been recoveries in ejectment

where the public agent in possession defended under a void title of the Government. United States v. Lee, 106 U. S. 196; Tindal v. Wesley, 167 U. S. 204. A suit against a bank was sustained even though the State held part of the stock, Bank of U. S. v. Planters' Bank of Georgia, 9 Wheat. 904. A tax collector was enjoined, where, under an unconstitutional law, he was about to sell the property of the taxpayer, Poindexter v. Greenhow, 114 U. S. 270. An attorney general was restrained from suing to recover penalties imposed by an unconstitutional statute, Ex parte Young, 209 U. S. 123. Commissions have been enjoined from enforcing confiscatory rates, Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362; Smyth v. Ames, 169 U. S. 466; Proutt v. Starr, 188 U. S. 537. A state land commissioner was enjoined from proceeding, under an unconstitutional act, to cause irreparable damage to defendant's property rights, Pennoyer v. McConnaughy, 140 U. S. 1. Commissions have been restrained from enforcing a statute which illegally burdened interstate commerce, McNeill v. Southern Ry., 202 U. S. 543; Railway Commission v. Illinois Central R. R., 203 U. S. 335.

All recognize

Other cases might be cited which deny public boards, agents and officers. immunity from suit. But the principle underlying the decisions is the same. that the State, as a sovereign, is not subject to suit; that the State cannot be enjoined; and that the State's officers, when sued, cannot be restrained from enforcing the State's laws or be held liable for the consequences flowing from obedience to the State's command.

But a void act is neither a law nor a command. It is a nullity. It confers no authority. It affords no protection. Whoever seeks to enforce unconstitutional statutes, or to justify under them, or to obtain immunity through them, fails in his defense and in his claim of exemption from suit.

It is said, however, that, in the cases referred to, the of