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Argued December 13 and 14, 1920. Decided The Queen City is exempt under rules June 1, 1921.

of comity.

Moitez v. South Carolina, Bee, 422, ON N PETITION for a Writ of Prohibi- Fed. Cas. No. 9,697; L'Invincible, 1

tion and/or a Writ of Mandamus Wheat. 238, 4 L. ed. 80; The Exchange to prevent a court, of admiralty from as- V. M'Faddon, 7 Cranch, 116, 3 L. ed. suming jurisdiction over a state officer. 287; Lo The Tampico, 16 Fed. 491; Rule for Writ of Prohibition made ab- Tucker v. Alexandroff, 183 U. S. 424, solute.

46 L. ed. 264, 22 Sup. Ct. Rep. 195; The The facts are stated in the opinion. Parlement Belge, L. R. 5 Prob. Div. 197,

Mr. Edward G. Griffin argued the 42 L. T. N. S. 273, 28 Week. Rep. 642, cause, and, with Mr. Charles D. Newton, 4 Asp. Mar. L. Cas. 234; The Siren, 7 Attorney General of New York, filed a Wall. 152, 19 L. ed. 129; The Public brief for petitioners:

Bath No. 13, 61 Fed. 693; Workman v. The judicial power established by the New York City, 179 U. S. 552, 45 L. Constitution did not comprehend cases ed. 314, 21 Sup. Ct. Rep. 212; The John at that time unknown to the law or for- McCraken, 145 Fed. 705; The Protector, bidden by the law; consequently the 20 Fed. 207; The F. C. Latrobe, 28 Fed. right of a citizen to sue his own state 377; The Fidelity, 9 Ben. 333, 16 Blatchf. is not to be implied even under the very 569, Fed. Cas. Nos. 4,757, 4,758; The general terms conferring admiralty and Seneca, 8 Ben. 509, Fed. Cas. No. 12,668; maritime jurisdiction upon the Federal Rogers v. Rajendro Dutt, 13 Moore, P. courts.

C. C. 209, 15 Eng. Reprint, 78, 3 L. T. Gibbons v. Ogden, 9 Wheat. 1, 187, 6 N. S. 160, 9 Week. Rep. 149; The InL. ed. 23, 68; Foster, Const. 3' 41; 17 flexible, Swabey, Adm. 32; The Swallow, Fed. 188, note; Beers v. Arkansas, 20 Swabey, Adm. 30. How. 527, 15 L. ed. 991; United States v. Mr. Ellis H. Gidley argued the cause Lee, 106 U. S. 196, 27 L. ed. 171, 1 Sup. and filed a brief for respondent: Ct. Rep. 240; Hans v. Louisiana, 134 This court has not granted writs of U. S. 1, 33 L. ed. 842, 10 Sup. Ct. Rep. prohibition when petitioner possessed 504; Duhne v. New Jersey, 251 U. S. another remedy. 311, 64 L. ed. 280, 40 Sup. Ct. Rep. 154; Re Cooper, 143 U. S. 472, 36 L. ed. Illinois C. R. Co. v. Adams, 180 U. S. 232, 12 Sup. Ct. Rep. 453; Ex parte 28, 38, 45 L. ed. 410, 413, 21 Sup. Ct. Gordon, 104 U. S. 515, 26 L. ed. 814; Rep. 251; Bell v. Mississippi, 177 U. S. Re New York & P. R. S. S. Co. 155 U. 693, 44 L. ed: 945, 20 Sup. Ct. Rep. 1031; S. 523, 39 L. ed. 246, 15 Sup. Ct. Rep. Ex parte Madrazzo, 7 Pet. 627, 8 L. ed. 183; Morrison v. District Ct. 147 U. S. 808; Sundry African Slaves v. Madrazo, 14, 26, 37 L. ed. 60, 65, 13 Sup. Ct. 1 Pet. 110, 7 L. ed. 73; 3 Story, Const. Rep. 246; United States v. Jahn, 155 U. § 1683.

S. 109, 115, 39 L. ed. 87, 90, 15 Sup. Ct. The Koerber and Charlotte causes are Rep. 39; Re Fassett, 142 U. S. 479, 484, suits against the state of New York. 35 L. ed. 1086, 1088, 12 Sup. Ct. Rep.

Re Ayers, 123 U. S. 443, 31 L. ed. 216, 295; Moran v. Sturges, 154 U. S. 256, 8 Sup. Ct. Rep. 164; Walsh v. Preston, 286, 38 L. ed. 981, 991, 14 Sup. Ct. Rep. 109 Ū. S. 297, 27 L. ed. 940, 3 Sup. Ct. 1019; Ex parte Detroit River Ferry Co. Rep. 169, 245; Hagood v. Southern, 117 | 104 Ú. s. 519, 26 L. ed. 815; Ex parte U. S. 52, 29 L. ed. 805, 6 Sup. Ct. Rep. Hagar, 104 U. S. 520, 26 L. ed. 816; 608; Christian v. Atlantic & N. C. R. Re Rice, 155 U. S. 396, 39 L. ed. 198, 15 Co. 133 U. S. 233, 33 L. ed. 589, 10 Sup. Sup. Ct. Rep. 149; Re Huguley Mfg. Co. Ct. Rep. 260; North Carolina v. Temple, 184 U. S. 297, 46 L. ed. 549, 22 Sup. Ct. 134 U. S. 22, 33 L. ed. 849, 10 Sup. Rep. 455; Alexander v. Crollott, 199 U. Ct. Rep. 509; Pennoyer v. McConnaughy, s. 580, 50 L. ed. 317, 26 Sup. Ct. Rep. 140 U. S. 1, 35 L. ed. 363, 11 Sup. Ct. 161; Re Oklahoma, 220 U. S. 191, 208, Rep. 699; Reagan v. Farmers' Loan & 209, 55 L. ed. 431, 435, 31 Sup. Ct. Rep. T. Co. 154 U, S. 362, 38 L. ed. 1014, 4 | 426. Inters. Com. Rep. 560, 14 Sup. Ct. Rep. This court has not granted writs of 1047; Smith v. Reeves, 178 U. S. 436, 44 mandamus where petitioner had other L. ed. 1140, 20 Sup. Ct. Rep. 919; Mur- remedy. ray v. Wilson Distilling Co. 213 U. S. Re Oklahoma, 220 U. S. 191, 209, 55 151, 53 L. ed. 742, 29 Sup. Ct. Rep. 458; L. ed. 431, 435, 31 Sup. Ct. Rep. 426; Lankford v. Platte Iron Works Co. 235 Ex parte Harding, 219 U. S. 363, 369, 55 U. S. 461, 59 L. ed. 316, 35 Sup. Ct. Rep. L. ed. 252, 254, 37 L.R.A.(N.S.) 392, 31 173.

Sup. Ct. Rep. 324; Morrison v. District

reasons

Ct. 147 U. S. 14, 26, 37 L. ed. 60, 65, er a monition can be served upon the 13 Sup. Ct. Rep. 246; Ex parte Des libellee, or an attachment made of any Moines R. Co. 103 U. S. 794, 796, 26 personal property or credits of his. L. ed. 461, 462; Ex parte Baltimore & Re Louisville Underwriters, 134 U. S. 0. R. Co. 108 U. S. 566, 27 L. ed. 812, 488, 490, 33 L. ed. 991, 993, 10 Sup. Ct. 2 Sup. Ct. Rep. 876; Re Pennsylvania Rep. 587. Co. 137 U. S. 451, 453, 34 L. ed. 738, The assumption of the attorney gen740, 11 Sup. Ct. Rep. 141; Re Rice, 155 eral that these proceedings are suits U. S. 396, 403, 39 L. ed. 198, 201, 15 against the state of New York is a quesSup. Ct. Rep. 149; Ex parte Union S. tion which belongs to the merits rather B. Co. 178 U. S. 317, 319, 44 L. ed. 1084, than to the jurisdiction. 1085, 20 Sup. Ct. Rep. 944; Re Atlantic Scully v. Bird, 209 U. S. 481, 52 L. ed. City R. Co. 164 U. S. 633, 631, 41 L. ed. 899, 28 Sup. Ct. Rep. 597. 579, 580, 17 Sup. Ct. Rep. 208; Re Hugu- The

which have induced ley Mfg. Co. 184 U. S. 297, 301, 46 L. courts of admiralty to grant immunity ed. 549, 551, 22 Sup. Ct. Rep. 455; from process have no application here. American Constr. Co. v. Jacksonville, T. The Siren, 7 Wall. 153, 19 L. ed. 130; & K. W. R. Co. 148 U. S. 372, 379, 37 | The Davis, 10 Wall. 15, 19 L. ed. 875; L. ed. 486, 489, 13 Sup. Ct. Rep. 758; Workman v. New York, 179 U. S. 552, Re Pollitz, 206 U. S. 323, 331, 51 L. ed. 573, 45 L. ed. 314, 325, 21 Sup. Ct. Rep. 1081, 1083, 27 Sup. Ct. Rep. 729; United 212; The Exchange v. M'Faddon, 7 States v. Jahn, 155 U. S. 109, 115, 39 Cranch, 116, 3 L. ed. 287; The Maipo, L. ed. 87, 90, 15 Sup. Ct. Rep. 39; Ex 252 Fed. 627; The Roseric, 254 Fed. 154; parte Morgan, 114 U. S. 174, 29 L, ed. The Pampa, 245 Fed. 137. 135, 5 Sup. Ct. Rep. 825; Ex parte The state of New York may not im-' Brown, 116 U. S. 401, 29 L. ed. 676, 6 pose its local law upon the admiralty Sup. Ct. Rep. 587.

jurisdiction. Questions of jurisdiction here should Workman v. New York, 179 U. S. 552, not be raised by exceptions to the libel 557, 45 L. ed. 314, 319, 21 Sup. Ct. Rep. or plea on the merits.

212; Southern P. Co. v. Jensen, 244 U. Scully v. Bird, 209 U. S. 481, 52 L. S. 205, 215, 61 L. ed. 1086, 1098, L.R.A. ed. 899, 28 Sup. Ct. Rep. 597; Illinois 1918C, 451, 37 Sup. Ct. Rep. 524, Ann. C. R. Co. v. Adams, 180 U. S. 28, 45 Cas. 1917E, 900, 14 N. C. C. A. 596; L. ed. 410, 21 Sup. Ct. Rep. 251; Osborn The Lottawanna (Rodd v. Heartt) 21. v. Bank of United States, 9 Wheat. 738, Wall. 558, 22 L. ed. 654; Union Fish Co. 856, 6 L. ed. 204, 230.

v. Erickson, 248 U. S. 308, 63 L. ed. 261, The suggestions filed by the attorney 39 Sup. Ct. Rep. 112. general of New York are not competent evidence.

Mr. Justice Pitney delivered the opinLong v. The Tampico, 16 Fed. 491; 1 ion of the court: Tucker v. Alexandroff, 183 U. S. 424, Three separate libels in rem were filed 441, 46 L. ed. 264, 271, 22 Sup. Ct. Rep. | in the United States district court for 195; Hall, International Law, 6th ed. the western district of New [495] p. 161; South Carolina v. Wesley, 155 York: two against the steam tug U. S. 542, 39 L. ed. 254, 15 Sup. Ct. Charlotte, her engines, boilers, maRep. 230.

chinery, etc., by one Dolloff and one These are not, under any considera- Wagner, respectively, both residents tion, actions at law or in equity falling and presumably citizens of the state within the purview of the language of of New York, to severally recover for the 11th Amendment.

damages alleged to have been caused 3 Story, Const. § 1683; United States to certain canal boats owned by them v. Bright, Brightly, N. P. 19, note, Fed. while navigated upon the Erie canal Cas. No. 14,647; Atkins v. Fiber Dis- in tow of the Charlotte; the other intergrating Co. 18 Wall. 272, 21 L. ed. against the steam tug Henry Koer841.

ber, Jr., her boilers, engines, tackle, The prerequisite in admiralty to the etc., by Murray Transportation Comright to resort to a libel in personam is pany, a corporation of the state of New the existence of a cause of action, mari-York, bailee of a certain coal barge, to time in its nature.

recover damages alleged to have been Workman v. New York, 179 U. S. 552, received by the barge while navigated 45 L. ed. 314, 21 Sup. Ct. Rep. 212. upon the Erie canal in tow of the

A libel in personam may be main- Koerber. In each case the tug was. tained for any cause within the juris claimed by Frank F. Fix and Charles diction of an admiralty court, wherey. I Fix, partners in business under the

name of Fix Brothers, of Buffalo, New the district court the matter has been York, and released from arrest on argued. the filing of satisfactory stipulations. The record shows that the charters Claimants filed answers to the several had expired according to their terms, libels, and at the same time filed peti- and the tugs were in possession of the tions under Admiralty Rule 59 (new claimants, neither the state nor Walsh Rule 56), setting up in each case that, having any claim upon or interest in at the time of the respective disasters them. At no time has any res belonging and damage complained of, the tugs to the state or to Walsh, or in which were under charter by claimants to Ed- they claim any interest, been attached ward S. Walsh, superintendent of pub- or brought under the jurisdiction of the lic works of the state of New York, who district court. Nor is any relief asked had entered into such charter parties against Mr. Walsh individually; the under authority reposed in him by an proceedings against him being strictly act of the legislature of the state of in his capacity as a public officer. New York, being chapter 264 of the The power to issue writs of prohibiLaws of 1919, and had the tugs under tion to the district courts when proceedhis operation, control, and management; ing as courts of admiralty and maritime that if decrees should be ordered in the jurisdiction is specifically conferred uprespective causes against the tugs, the on this court by $ 234, Judicial Code claimants, because of their ownership (Act of March 3, 1911, chap. 231, 36 of the vessels, would be called upon for [497] Stat. at L. 1087, 1156, Comp. payment, and thus would be mulcted in Stat. SS 968, 1211, 4 Fed. Stat. Anno. 20 damages for the disasters, to which ed. p. 815, 5 Fed. Stat. Anno. 2d ed. p. they were total strangers; and that, by 717). And the fact that the objection reason of these facts, Edward S. Walsh, to the jurisdiction of the court below superintendent of public works of the might be raised by an appeal from the state of New York, ought to be proceed-final decree is not, in all cases, a valid ed against in the same suits for such objection to the issuance of a prohibition damages, in accordance with the rule. at the outset, where a court of admiralty The district court, pursuant to the pray- assumes to take cognizance of matters er of these petitions, caused monitions over which it has no lawful jurisdiction. to be issued in all (496] three cases Re Cooper, 143 U. S. 472, 495, 36 L. ed. against Edward S. Walsh, superintendent 232, 239, 12 Sup. Ct. Rep. 453. of public works, citing him to appear That a state may not be sued without and answer, and in case he could not be its consent is a fundamental rule of found, that "the goods and chattels of jurisprudence, having so important a the state of New York, used and con- bearing upon the construction of the trolled by him," should be attached. Constitution of the United States that The monitions were served upon Walsh it has become established by repeated within the jurisdiction of the court. decisions of this court that the entire

The attorney general of the state ap- judicial power granted by the Constitupeared in all three cases specially in be- tion does not embrace authority to en. half of the state and the people there- tertain a suit brought by private parties of, and of Walsh, and tilei a suggestion against a state, without consent given; that the court was without jurisdiction not one brought by citizens of another to proceed against Walsh as superin- state, or by citizens or subjects of a tendent of public works for the reason foreign state, because of the 11th that, as appeared upon the face of the Amendment; and not even one brought proceedings, they were suits against the by its own citizens, because of the state of New York in which the state fundamental rule of which the Amendhad not consented to be sued. The dis-ment is but an exemplification. Beers v. trict court denied motions to dismiss the Arkansas, 20 How. 527, 529, 15 L. ed. monitions (The Henry Koerber, Jr., 268 991, 992; Memphis & C. R. Co. v. TenFed. 561), whereupon the attorney gen-nessee, 101 U. S. 337, 339, 25 L. ed. 960, eral, on behalf of the state and the peo- 961; Hans v. Louisiana, 134 U. S. 1, 10ple thereof, and of Walsh, as superin- 17, 33 L. ed. 842, 815-848, 10 Sup. Ct. tendent and individually, under leave Rep. 504; North Carolina v. Temple, 134 granted, filed in this court a petition for U. S. 22, 30, 33 L. ed. 849, 852, 10 Sup. writs of prohibition and mandamus. Ct. Rep. 509; Fitts v. McGhee, 172 U. An order to show cause was issued, to S. 516, 524, 43 L. ed. 535, 539, 19 Sur. which the district judge made a return, Ct. Rep. 269; Palmer v. Ohio, 248 U. S. and upon this and the proceedings in 32, 34, 63 L. ed. 108, 109, 39 Sup. Ct. Rep. 16; Duhne v. New Jersey, 251 U., cause the thing was not in possession of S. 311, 313, 64 L. ed. 280, 281, 40 Sup. the district court. Subsequently, in Es Ct. Rep. 154.

parte Madrazzo, 7 Pet. 627, 632, 8 L. ed. Nor is the admiralty and maritime 808, 810, an application was made to jurisdiction exempt from the operation this court to entertain a suit in admiralof the rule. It is true the Amendment ty against the state of Georgia, and it speaks only of suits in law or equity; was held that, as there was no property but this is because, as was pointed out in the custody of the court of admiraity in Hans v. Louisiana, 134 U. S. 1, 10- or brought within its jurisdiction and in 17, 33 L. ed. 842, 845-818, 10 Sup. Ct. the possession of any private person, Rep. 504, the Amendment was the out- [499] the case was not one for the exer- : come of a purpose to set aside the effect cise of the admiralty jurisdiction; and of the decision of this court in Chisholm that, being a mere personal suit against v. Georgia, 2 Dall. 419, 1 L. ed. 440, a state, to recover proceeds in its which happened to be a suit at law, possession, it could not be entertained, brought against the state by a citizen of since “no private person has a right another state, the decision turning upon to commence an original suit in this the construction of that clause of § 2 of court against a state.” Atkins v. Fibre art. 3 of the Constitution, establishing Disintegrating Co. 18 Wall. 272, 300, the judicial power in cases in law and 21 L. ed. 841, 843, et seq.; and Re equity between a state (498] and citi- Louisville Underwriters, 134 V. S. 488, zens of another state; from which it 33 L. ed. 991, 10 Sup. Ct. Rep. naturally came to pass that the language 587, are aside from the point, since of the Amendment was particularly they relate merely to a question of phrased so as to reverse the construction statutory construction : whether the adopted in that case. In Hans v. Louisi- provision of § 11 of the Judiciary 'Act ana, supra (p. 15), the court demon- of September 24, 1789 (1 Stat. at L. 79, strated the impropriety of construing chap. 20; re-enacted in § 739 of the Rethe Amendment so as to leave it open for vised Statutės, and in § 1 of Act of citizens to sue their own state in the March 3, 1875, chap. 137, 18 Stat. at L. Federal courts; and it seems to us equal. 470, Comp. Stat. § 1033), to the effect ly clear that it cannot with propriety that no civil suit should be brought be construed to leave open a suit against against a person by original process in a state in the admiralty jurisdiction by any district other than that of which he individuals, whether its own citizens or was an inhabitant, or in which he should not.

be found, applied to suits in personam Among the authorities to which we in admiralty, so as to prevent the court are referred is Mr. Justice Story, who, from acquiring jurisdiction over a corin his Commentaries on the Constitution poration through attachment of its (1st ed. § 1683; 5th ed. § 1689), stated goods or property in a district other that it had been doubted whether the than that of its residence (in the former Amendment extended to cases of admi- case), or by service of process upon its ralty and maritime jurisdiction where appointed agent (in the latter). the proceeding was in rem, and not in Much reliance is placed upon Workpersonam; and whose doubt was sup- man v. New York, 179 U. S. 552, 45 L. ported by a declaration proceeding from ed. 314, 21 Sup. Ct. Rep. 212. But that Mr. Justice Washington at the circuit. dealt with a question of the substantive United States v. Bright (1809) Brightly, law of admiralty, not the power to exerN. P. 19, 25, note, Fed. Cas. No. 14,647; cise jurisdiction over the person of de3 Am. L. J. 197, 225. But the doubt fendant; and, in the opinion, the court

based upon considerations that was careful to distinguish between the were set aside in the reasoning adopted immunity from jurisdiction attributable by this court in Hans v. Louisiana. In to a sovereign upon grounds of policy, Sundry African Slaves v. Madrazo, 1 and immunity from liability in a parPet. 110, 124, 7 L. ed. 73, 79, the ques- ticular case. Thus (p. 566): "The contion whether the 11th Amendment ex- tention is, although the corporation had tended to proceedings in admiralty was general capacity to stand in judgment, alluded to, but found unnecessary to be and was therefore subject to the process decided, because, if it did not, the case of a court of admiralty, nevertheless the was one for the original jurisdiction of admiralty court would afford no redress this court, and not of the district court against the city for the tort complained in which it was brought; and it was of, because under the local law,” held, further, that the decree could not etc. "But the maritime law affords be sustained as a proceeding in rem, be- I no justification for this contention, and

was

no example is found in such law, where to perform its contracts, but extends to one who is subject to suit and amenable such as will require it to make pecuniary to process is allowed to escape liability satisfaction for any liability. Smith v. (500] for the commission of a maritime Reeves, 178 U. S. 436, 439, 44 L. ed. tort, upon the theory relied upon." 1140, 1142, 20 Sup. Ct. Rep. 919.

We repeat, the immunity of a state As has been shown, the proceedings from suit in personam in the admiralty, against which prohibition is here asked brought by a private person without its have no element of a proceeding in rem, consent, is clear.

and are in the nature of an action in As to what is to be deemed a suit personam against Mr. Walsh, not indiagainst a state, the early suggestion vidually, but in his capacity as superinthat the inhibition might be confined to tendent of public works of the state of those in which the state was a party to New York. The office is established and the record (Osborn v. Bank of United its duties prescribed by the Constitution States, 9 Wheat. 738, 846, 850, 857, 6 of the state; art. 5, § 3. He is "charged L. ed. 204, 229, 231, 232) has long since with the execution of all laws relating been abandoned, and it is now estab-to the repair and navigation of the calished that the question is to be deter-nals, and also of those relating to the mined not by the mere names of the construction and improvement of the titular parties, but by the essential na canals," with exceptions not material. ture and effect of the proceeding, as it By chapter 264 of the Laws of 1919, efappears from the entire record. Louis- fective May 3, the superintendent is iana v. Jumel, 107 U. S. 711, 719, 720, authorized to provide such facilities as, 723, 727, 728, 27 L. ed. 448, 450, 454, 2 in his judgment, may be necessary for Sup. Ct. Rep. 128; Hagood v. Southern, the towing of boats on the canals of the 117 U. S. 52, 67, 29 L. ed. 895, 810, 6 state, the towing service to be furnished Sup. Ct. Rep. 608 et seq.; Re Ayers, 123 under such rules and regulations as he U. S. 443, 487-492, 31 L.. ed. 216, 223- shall adopt; and for that service he is 225, 8 Sup. Ct. Rep. 164; Pennoyer v. authorized to impose and collect such McConnaughy, 140 U. S. 1, 10, 35 L. ed. fees as, in his judgment, may seem fair 363, 365, 11 Sup. Ct. Rep. 699 et seq.; and reasonable; the moneys so collected Smith v. Reeves, 178 U. S. 436, 438–440, to be deposited by him in the state 44 L. ed. 1140, 1142, 1143, 20 Sup. Ct. treasury. For the carrying into effect Rep. 919; Murray v. Wilson Distilling of this act the sum of $200,000 was apCo. 213 U. S. 151, 168–170, 53 L. ed. 742, propriated. Under these provisions of 750, 751, 29 Sup. Ct. Rep. 458; Lankford law Mr. Walsh, as superintendent of v. Platte Iron Works Co. 235' U. S. 461, public works, chartered the tugs Henry 469, 59 L. ed. 316, 318, 35 Sup. Ct. Rep. Koerber, Jr., and Charlotte, in the name 173.

and behalf of the people of the state of Thus examined, the decided New York, for periods beginning May have fallen into two principal classes, | 15 and ending at latest December 15, mentioned in Pennoyer v. MeConnaughy, 1919; and it was under these charters 140 U. S. 1, 10, 35 L. ed. 363, 365, ii that they were being operated when the Sup. Ct. Rep. 699: “The first class is disasters occurred upon which the libels where the suit is brought against the of- are founded and the petitions under ficers of the state, as representing the Rule 59 are based. The decrees sought state's action and liability, thus making would affect Mr. Walsh in his official it, though not a party to the record, the capacity, and not otherwise. They real party against which the judgment might be satisfied out of any property of will so operate as to compel it to specif- the state of New York in his hands as ically perform its contracts [citing superintendent of public works, or made cases]. The other class is where a suit a basis for charges upon the treasury of is brought against defendants who, the state, under $ 46 [502] of the Canal claiming to act as officers of the state, Law (Consol. Laws 1909, p. 269), which and under the color of an unconstitu- provides that the commissioners of the tional statute, commit acts of wrong and canal fund may allow claims for moneys injury to the rights and property of the paid by the superintendent of public plaintiff, acquired under a contract with works or other person or officer emthe state. Such suit

is not, ployed in the care, management, superwithin the meaning of the 11th Amend- intendence, and repair of the canals, ment, an action against the state." Th for a judgment recovered against them first class, in just reason, is not confined or any of them in any action instituted to cases where the suit will operate so for an act done pursuant to the provias to compel [501] the state specifically 'sions of the Canal Law. In either case

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