Opinion of the Court. 322 U.S. Section 8 says the aggrieved party, "notwithstanding" the right granted by § 4, may begin a suit in admiralty by libel and seizure. Our question is whether the Act contemplates or permits consensual elimination of the procedure thus saved by the Act and contractual confinement of the aggrieved party's resort to a court to a petition for an order to arbitrate under § 4. We think the answer must be in the negative. Congress may have thought it wise not to raise doubts under the admiralty clause of the Constitution. It may have thought that in many causes in admiralty if the aggrieved party could not seize the ship of his opponent, an arbitral award would be wholly unenforceable as the vessel might seldom or never again be within the jurisdiction of our courts. But, whatever its reasons, Congress plainly and emphatically declared that although the parties had agreed to arbitrate, the traditional admiralty procedure with its concomitant security should be available to the aggrieved party without in any way lessening his obligation to arbitrate his grievance rather than litigate the merits in court. It is enough that Congress has so declared. We think a party can not stipulate away such a jurisdiction which the legislation declares open as heretofore. The judgment is Affirmed. Counsel for Parties. GREAT NORTHERN LIFE INSURANCE CO. v. READ, INSURANCE COMMISSIONER. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. No. 235. Argued January 31, 1944.-Decided April 24, 1944. 1. On review by certiorari of a judgment of the Circuit Court of Appeals, the respondent may urge in support of the judgment a contention which was sustained by the District Court. P. 49. 2. A foreign insurance company brought suit in the federal district court of Oklahoma against the Insurance Commissioner of Oklahoma, to recover payments made to him pursuant to a state statute which levied a tax of four per cent on premiums received by foreign insurance companies in the State. Section 12665, Oklahoma Statutes of 1931, prescribed a judicial procedure for recovery of money wrongfully collected as taxes. Held: (1) The suit was a suit against the State, and not maintainable without its consent. Eleventh Amendment; Smith v. Reeves, 178 U. S. 436. P. 53. (2) The State had consented to its being sued only in its own courts, and the suit was therefore not maintainable in the federal court. P. 55. 3. A State may limit to its own courts suits against it to recover taxes; and its intent in respect of such suits to submit to the jurisdiction of courts other than those of its own creation must clearly appear. P. 54. 4. Smyth v. Ames, 169 U. S. 466; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362; and Gunter v. Atlantic Coast Line, 200 U. S. 273, distinguished. P. 55. 136 F. 2d 44, vacated. CERTIORARI, 320 U. S. 726, to review the affirmance of a judgment dismissing on the merits a suit to recover sums alleged to have been illegally exacted as taxes. Messrs. Charles R. Holton and John A. Johnson, with whom Mr. Herbert R. Tews was on the brief, for petitioner. Opinion of the Court. 322 U.S. Mr. Fred Hansen, First Assistant Attorney General of Oklahoma, with whom Mr. Randell S. Cobb, Attorney General, was on the brief, for respondent. Mr. John H. Miley filed a brief, as amicus curiae, in support of petitioner. MR. JUSTICE REED delivered the opinion of the Court. This writ brings here for review the action of petitioner, a foreign insurance company, to recover taxes paid to respondent, the Insurance Commissioner of Oklahoma, which were levied by § 10478, Oklahoma Statutes 1931, as amended by Chapter 1 (a), Title 36, Session Laws of Oklahoma 1941. This was an annual four per cent tax on premiums received by foreign insurance companies in Oklahoma, and it, together with certain specified fees, was in lieu of all other taxes and fees in Oklahoma. Petitioner paid the tax under protest and, alleging diversity of citizenship, 28 U. S. C. § 41, brought suit against the Insurance Commissioner in the District Court of the United States. The procedure for recovery is laid down by § 12665, Oklahoma Statutes 1931.1 1"12665. Payment Under Protest Where Relief by Appeal Not Provided-Action to Recover. "In all cases where the illegality of the tax is alleged to arise by reason of some action from which the laws provide no appeal, the aggrieved person shall pay the full amount of the taxes at the time and in the manner provided by law, and shall give notice to the officer collecting the taxes showing the grounds of complaint and that suit will be brought against the officer for recovery of them. It shall be the duty of such collecting officer to hold such taxes separate and apart from all other taxes collected by him, for a period of thirty days and if within such time summons shall be served upon such officer in a suit for recovery of such taxes, the officer shall further hold such taxes until the final determination of such suit. All such suits shall be brought in the court having jurisdiction thereof, and they shall have precedence therein; if, upon final determination of any such suit, the court shall determine that the taxes were illegally collected, as not 47 Opinion of the Court. The percentage of premiums due was increased from two to four per cent by the amendment of 1941, effective April 25th of that year. The District Court refused recovery. The Circuit Court of Appeals affirmed. Great Northern Life Insurance Co. v. Read, 136 F. 2d 44. Certiorari was granted on petitioner's assertion of error in requiring it to pay a tax allegedly discriminatory under the Fourteenth Amendment as compared with the taxation of domestic insurance companies, and also unconstitutional as levied after the company's admission to the state and on premiums collected during the business year for which a license was already in force. A conflict in principle was suggested with Hanover Fire Insurance Co. v. Harding, 272 U. S. 494. We granted certiorari, 320 U. S. 726, and asked discussion of the right of petitioner to maintain its suit in a federal court. As we conclude that this suit could not be maintained in the federal court, we do not reach the merits of the issue as to the validity of the tax. The right of petitioner to maintain this suit in a federal court depends, first, upon whether the action is against an individual or against the State of Oklahoma. Secondly, if the action is determined to be against the state, the question arises as to whether or not the state has consented to suit against itself in the federal court. Respondent challenged the right of petitioner to seek relief in the District Court by the defense in its answer that the complaint fails to state a claim upon which relief can be granted. R. C. P. 12 (b) and (e). This challenge, being due the state, county or subdivision of the county, the court shall render judgment showing the correct and legal amount of taxes due by such person, and shall issue such order in accordance with the court's findings, and if such order shows that the taxes so paid are in excess of the legal and correct amount due, the collecting officer shall pay to such person the excess and shall take his receipt therefor." 2 There is here no want of jurisdiction of the parties or subject matter. We are not passing upon a certification of an issue as to juris Opinion of the Court. 322 U.S. on the ground that the state had not consented to be sued, was sustained by the District Court. The contention is available here to sustain the judgment on appeal. LeTulle v. Scofield, 308 U. S. 415. In Smith v. Reeves, 178 U. S. 436, an action was instituted in the federal trial court by railroad receivers against the defendant "as Treasurer of the State of California" to recover taxes assessed against and paid by the railroad. The proceeding was brought under § 3669 of the California Political Code, as amended by California Statutes (1891) 442, which authorized a suit against the State Treasurer for the recovery of taxes which were illegally exacted. The defendant could demand trial of the action in the Superior Court of the County of Sacramento, California. If the final judgment was against the Treasurer, the Comptroller of the state was directed to draw his warrant on state funds for its satisfaction. As the suit was against a state official as such, through proceedings which were authorized by statute, to compel him to carry out with the state's funds the state's agreement to reimburse moneys illegally exacted under color of the tax power, this Court held, p. 439, it was a suit against the state. The state would be required to pay. The case therefore is plainly distinguishable from those to recover personally from a tax collector money wrongfully exacted by him under color of state law, Atchison, T. & S. F. Ry. Co. v. O'Connor, 223 U. S. 280; cf. Matthews v. Rodgers, 284 U. S. 521, 528; to recover under general law possession of specific property likewise wrongfully obtained or held, Tindal v. Wesley, 167 U. S. 204, 221; Virginia Coupon diction such as arose under the Act of March 3, 1891, §5, 26 Stat. 827, in Illinois Central R. Co. v. Adams, 180 U. S. 28, 37. If this is a suit against the state, a failure to show the state's consent to be sued in the face of this answer would be fatal. Cf. Berryessa Cattle Co. v. Sunset Pacific Oil Co., 87 F. 2d 972, 974. 3 Pennoyer v. McConnaughy, 140 U. S. 1, 10. Compare Louisiana v. Jumel, 107 U. S. 711, 726. |