573

Opinion of the Court.

The bases for inference advanced by petitioners might logically lead to a conclusion that Utah intended to submit the interpretation of its tax statutes to federal trial courts where the controversies arise under federal law. On the other hand, it may be cogently argued that the practice of treating the federal courts as courts of competent jurisdiction under § 80-11-11 before the addition of the State as a possible defendant resulted from the fact that consent was not necessary for suits against counties and municipalities. It could be urged that grants of jurisdiction to courts of competent jurisdiction by federal legislation for the benefit of litigants other than the United States are not persuasive as to the intent of a State to consent to suits in federal courts. We are informed that Utah employs explicit language to indicate, in other litigation, its consent to suits in federal courts. It is to be noted that the cases under consideration illustrate the disadvantage of deducing from equivocal language a State's consent to suit in the federal courts on causes of action arising under state tax statutes. The disadvantage referred to is that, if the merits were to be passed upon, the initial interpretation of the meaning and application of a state statute would have to be made by a federal court without a previous authoritative interpretation of the statute by the highest court of the State. See Spector Motor Co. v. McLaughlin, 323 U. S. 101, 103-105.

7

We conclude that the Utah statutes fall short of the clear declaration by a State of its consent to be sued in

6

• Lincoln County v. Luning, 133 U. S. 529; Chicot County v. Sherwood, 148 U. S. 529. See Hopkins v. Clemson College, 221 U. S. 636. 7 Compare Minnesota v. United States, 305 U. S. 382, 389.

8 Utah Code Anno. 1943, 104-3-27:

"Upon the conditions herein prescribed the consent of the state of Utah is given to be named a party in any suit which is now pending or which may hereafter be brought in any court of this state or of the United States for the recovery of any property real or personal . . ."

FRANKFURTER, J., dissenting.

327 U.S.

the federal courts which we think is required before federal courts should undertake adjudication of the claims of taxpayers against a State.

Affirmed.

The CHIEF JUSTICE and MR. JUSTICE JACKSON took no part in the consideration or decision of this case.

MR. JUSTICE FRANKFURTER dissenting, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BURTON concur.

Even while the Civil War was raging Lincoln deemed it important to ask Congress to authorize the Court of Claims to render judgments against the Government. He did so on the score of public morality. "It is," wrote Lincoln in his First Annual Message, "as much the duty of Government to render prompt justice against itself in favor of citizens as it is to administer the same between private individuals. The investigation and adjudication of claims in their nature belong to the judicial department." 7 Richardson, Messages and Papers of the Presidents, 3245, 3252. Both the United States and the States are immune from suit unless they agree to be sued. Though this immunity from suit without consent is embodied in the Constitution, it is an anachronistic survival of monarchical privilege, and runs counter to democratic notions of the moral responsibility of the State.

Not so long ago this Court acted on the realization that "the present climate of opinion . . . has brought governmental immunity from suit into disfavor." Keifer & Keifer v. R. F. C., 306 U. S. 381, 391. Today the Court treats governmental immunity from suit as though it were a principle of justice which must be safeguarded even to the point of giving a State's authorization to be sued the most strained construction, whereby a federal court sitting in Utah is made to appear not a "court of competent jurisdiction." Thus, while during the last seventy-five years governmental immunity from suit, as a doctrine without

573

FRANKFURTER, J., dissenting.

moral validity, has been progressively contracted, the Court now takes a backward step by enhancing a discredited doctrine through artificial construction.

In doing so the Court also disregards the historic relationship between the federal and the State courts. It treats a federal court sitting in a State as though it were the court of an alien power. The fact is that throughout our history the courts of a State and the federal courts sitting in that State were deemed to be "courts of a common country." Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S. 211, 222. As a result, federal rights were enforced in State courts and a federal court sitting in a State was deemed to be "a court of that State," even as to a litigation like that of a condemnation proceeding which would appear to be peculiarly confined to a State court. Madisonville Traction Co. v. St. Bernard Mining Co., 196 U. S. 239, 255-56; Ex parte Schollenberger, 96 U. S. 369, 377; Neirbo Co. v. Bethlehem Corp., 308 U. S. 165, 171.

A State may of course limit its consent to suit in its own courts. It may do so by explicit language or by implication through procedural requirements and restrictions which could not be satisfied by a federal court sitting in the State. Such were the grounds of the recent decisions in Great Northern Life Insurance Co. v. Read, 322 U. S. 47, and Ford Motor Co. v. Department of Treasury, 323 U. S. 459. These decisions, as the Court concedes, relied on procedural requirements of the respective statutes of Oklahoma and Indiana which the federal courts in these States could not meet. Therefore, those statutes impliedly granted the State's consent to be sued only in the State courts, for only these could meet the State's procedural requirements.

Utah made no restriction on the right to sue. The statute giving consent to suit merely requires the court in which suit may be brought to be a "court of competent jurisdiction." That the District Court for the District of

691100°-47- -41

Utah is otherwise a "court of competent jurisdiction" is not gainsaid. How could the State include the United States District Court in its consent to be sued in a "court of competent jurisdiction" short of stating explicitly that a "court of competent jurisdiction" shall include the federal courts? The opinion does not say that nothing short of such specific authorization to sue in the federal court gives the State's consent to be sued there. But if such a formal requirement be the meaning of the present decision, it runs counter to a long course of adjudication and pays undue obeisance to a doctrine, that of governmental immunity from suit, which, whatever claims it may have, does not have the support of any principle of justice.

AMERICAN FEDERATION OF LABOR ET AL. v. WATSON, ATTORNEY GENERAL, ET AL.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA.

No. 448. Argued February 8, 1946. Decided March 25, 1946. 1. Section 24 (8) of the Judicial Code, granting federal district courts jurisdiction of all "suits and proceedings arising under any law regulating commerce," applies to a suit seeking to protect rights asserted under the National Labor Relations Act. P. 589.

2. Section 266 of the Judicial Code, providing that only a three-judge court may issue an interlocutory injunction suspending or restraining "the enforcement, operation, or execution of any statute of a State," applies to a suit in a federal court to enjoin the enforcement of a provision of a state constitution. P. 591.

(a) The policy underlying § 266 admits no distinction between state action to enforce a constitutional provision and state action to enforce an act of the legislature. P. 592.

(b) The word "statute" in § 266 is a compendious summary of various enactments, by whatever method they may be adopted, to which a State gives her sanction and is at least sufficiently inclusive to embrace constitutional provisions. P. 592.

3. Where a state attorney general has construed a provision of the state constitution as outlawing all closed-shop agreements with

labor unions, has ordered law enforcement agencies to enforce it by criminal prosecution of labor unions, their officers and agents, and of employers having closed-shop agreements, and has threatened and actually instituted quo warranto proceedings to cancel franchises of corporations having and observing closed-shop agreements with labor unions, the situation involves a threat of "irreparable injury which is clear and imminent," so as to justify a federal court of equity in interfering with the enforcement of the state law, notwithstanding § 267 of the Judicial Code forbidding the maintenance of suits in equity in the federal courts "in any case where a plain, adequate, and complete remedy may be had at law." P. 593.

(a) The disruption in collective bargaining which would be occasioned by holding closed-shop agreements illegal would be so serious as to make it futile to attempt to measure the loss in money damages and any remedy at law in the federal courts would be inadequate. P. 594.

(b) The announcement of the state attorney general of a policy to prosecute criminally all violators of the law involved and the actual institution of quo warranto proceedings against several corporations having closed-shop agreements make the threat real and imminent. P. 594.

(c) The allegation that there is an imminent threat to an entire system of collective bargaining which, if carried through, will have such repercussions on the relationship between capital and labor as to cause irreparable damage states a cause of action in equity. P. 595.

4. However, in such a situation, the federal district court should not pass on the merits of the controversy until the state constitutional provision has been authoritatively construed by the state courts. Pp. 595-599.

(a) If it is construed so as to eliminate any conflict with the National Labor Relations Act, one of the constitutional questions alleged to exist in this case will disappear. P. 598.

(b) If it is construed as doing no more than to grant an individual working man a cause of action if he is denied employment unless he joins a union or to make closed-shop agreements unenforceable between the parties, no case or controversy raising the due process question would be presented by this suit, in which no individual working man is asserting rights against unions or employers and no union is seeking to enforce a closed-shop agreement against an employer. P. 598.