47 Opinion of the Court. concerned with administrative review of boards of equalization and provides a complete procedure including review by the district and Supreme Court of Oklahoma, as the case may be, which are given authority to affirm, modify or annul the action of the boards. §§ 2 and 3. Section 6 requires the payment of the taxes which fall due, pending administrative review, and provides for recovery of such taxes in accordance with the ultimate finding on review in language practically identical with that of § 7 (§ 12665) here involved. Furthermore, § 12665 gives directions to the Oklahoma officer as to his obligations, requires the court to give precedence to these cases and directs the kind of judgment to be returned, see note 1, supra, which is quite different in language, if not in effect, from the judgment a federal court would render. It is clear to us that the legislature of Oklahoma was consenting to suit in its own courts only. Chandler v. Dix, 194 U. S. 590. Smith v. Reeves, supra, p. 445, holds that an act of a state is valid which limits to its own courts suits against it to recover taxes. There California's intention to so limit was made manifest by authorizing the state officer to demand trial in the Superior Court of Sacramento County. Atchison, T. & S. F. Ry. Co. v. O'Connor, considered above at p. 53, is not applicable since it was not a suit against the state. Petitioner urges that Smyth v. Ames, 169 U. S. 466, 517, and Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 391, 392, are precedents which lead to a contrary conclusion on this issue of the suability of Oklahoma in the District Court of the United States. The former is clearly inapposite. That case involved proceedings to enjoin enforcement of an allegedly unconstitutional state statute providing for intrastate railroad rates. Since the state act provided a remedy, the state took the position. Opinion of the Court. 322 U.S. that federal equity jurisdiction was ousted. This Court held the federal equity jurisdiction continued to restrain unconstitutional acts by state officers which threatened irreparable damage. pp. 474, 477, 515-19. In the Reagan case, a proceeding for injunction to restrain the members of the Texas Railroad Commission from enforcing rates which were alleged to be unconstitutional was allowed to be maintained in equity in a federal court. This Court said it was maintainable against the defendants both under the general equity jurisdiction of the federal courts and under the provisions of the state statute which allowed review "in a court of competent jurisdiction in Travis County, Texas. . . ." It was thought that the United States Circuit Court, sitting in Travis County, was covered by this language. As it was concluded, however, that this was not a suit against the state, page 392, we do not feel impelled to extend the ruling of the Reagan case on this alternative basis of jurisdiction to a suit, such as this, against a state for recovery of taxes. Gunter v. Atlantic Coast Line, 200 U. S. 273, is also distinguishable. There the Attorney General of South Carolina appeared in a federal court to answer for the state in an injunction suit under the authority of a statute which read as follows: "if the State be interested in the revenue in said action, the county auditor shall, immediately upon the commencement of said action, inform the Auditor of State of its commencement, of the alleged cause thereof, and the Auditor of State shall submit the same to the Attorney General, who shall defend said action for and on behalf of the State." p. 286. This Court construed this to consent to an appearance in the federal court and held its decision res judicata against the state and added at p. 287: 47 FRANKFURTER, J., dissenting. "If there were doubt-which we think there is not-as to the construction which we give to the act of 1868, that doubt is entirely dispelled by a consideration of the contemporaneous interpretation given to the act by the offcials charged with its execution, by the view which this court took as to the real party in interest on the record in the Pegues case, and by the action as well as non-action which followed the decision of that case by the state government in all its departments through a long period of years." The administrative construction by a state of these statutes of consent have influence in determining our conclusions. Cf. Farish v. State Banking Board, 235 U. S. 498, 512; Richardson v. Fajardo Sugar Co., 241 U. S. 44, 47; Missouri v. Fiske, 290 U. S. 18, 24. It may be well to add that the construction given the Oklahoma statute leaves open the road to review in this Court on constitutional grounds after the issues have been passed upon by the state courts. Chandler v. Dix, 194 U. S. 590, 592; Smith v. Reeves, 178 U. S. 436, 445. The judgment of the Circuit Court of Appeals is vacated and the cause is remanded to the District Court with directions to dismiss the complaint for want of jurisdiction. 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 FRANKFURTER, J., dissenting. 322 U.S. 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.1 See United States v. Nunnally Investment Co., 316 U. S. 258. 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, 186 F. 114; Ward v. Love County, 253 U. S. 17; Carpenter v. Shaw, 280 U. S. 363. 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 dis 1 The Swartwout scandal led to the Act of March 3, 1839 (§ 2, 5 Stat. 339, 348), which this Court construed as a withdrawal of the suability of the collector. Cary v. Curtis, 3 How. 236. That decision was rendered on January 21, 1845, and Congress promptly restored the old liability. Act of Feb. 26, 1845, c. XXII, 5 Stat. 727. See Brown, A Dissenting Opinion of Mr. Justice Story (1940) 26 Va. L. Rev. 759. Again, in view of the complicated administrative problems raised by the invalidation of the Agricultural Adjustment Act, Congress devised a special scheme for the recovery of the illegal exactions made under the Act. 49 Stat. 1747, 7 U. S. C. § 644 et seq.; Anniston Mfg. Co. v. Davis, 301 U. S. 337. 47 FRANKFURTER, J., dissenting. allowing 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, 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, 263.2 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; Atchison, T. & S. F. 2 "With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen." Doubtless this statement of Dicey's, Law of the Constitution, 8th ed., at p. 189, 9th ed. at p. 193, was an idealization of actuality. But in the perspective of our time its validity as an ideal has gained and not lost. |