Kennecott Copper Corporation v. State Tax Commission Silver King Coalition Mines Company/Dissent Frankfurter

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, 59 S.Ct. 516, 519, 83 L.Ed. 784. 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 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, 36 S.Ct. 595, 598, 60 L.Ed. 961, L.R.A.1917A, 86, Ann.Cas.1916E, 505. 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, 256, 25 S.Ct. 251, 257, 258, 49 L.Ed. 462; Ex parte Schollenberger, 96 U.S. 369, 377, 24 L.Ed. 853; Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 171, 60 S.Ct. 153, 156, 84 L.Ed. 167, 128 A.L.R. 1437.

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, 64 S.Ct. 873, 88 L.Ed. 1121, and Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 65 S.Ct. 347. 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 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.