Larson v. Domestic & Foreign Commerce Corporation/Opinion of the Court

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United States Supreme Court

337 U.S. 682

Larson  v.  Domestic & Foreign Commerce Corporation

 Argued: Nov. 12, 1948. --- Decided: June 27, 1949

This suit was brought in the United States District Court for the District of Columbia by the Domestic & Foreign Commerce Corporation against Robert M. Littlejohn, the then head of the War Assets Administration. [1] The complaint alleged that the Administration had sold certain surplus coal to the plaintiff; that the Administrator refused to deliver the coal but, on the contrary, had entered into a new contract to sell it to others. The prayer was for an injunction prohibiting the Administrator from selling or delivering the coal to any one other than the plaintiff and for a declaration that the sale to the plaintiff was valid and the sale to the second purchaser invalid.

A temporary restraining order was issued ex parte. At the subsequent hearing on the issuance of a preliminary injunction, the defendant moved to dismiss the complaint on the ground, among others, that the court did not have jurisdiction because the suit was one against the United States. The motion was granted. The Court of Appeals reversed, holding that the jurisdictional capacity of the court depended on whether or not title to the coal had passed. [2] Since this was also one of the questions on the merits, it remanded the case for trial. We granted certiorari, 333 U.S. 872, 68 S.Ct. 903, 92 L.Ed. 1149. [3]

The controversy on the merits concerns the interpretation to be given to the contract of sale. The War Assets Administration construed the contract as requiring the plaintiff to deposit funds to pay for the coal in advance and, when an unsatisfactory letter of credit was offered in place of a deposit, it considered that the contract was breached. The respondent, on the other hand, construed the contract as requiring payment only on delivery of the documents covering the coal shipment. In its view, it was not obliged to deposit any funds in advance of shipment and, therefore, had not breached the contract by failing to do so.

A second question, related to but different from the question of breach, was whether legal title to the coal had passed to the responden when the contract was made. If the contract required the deposit of funds then, of course, title could not pass until the contract terms were complied with. If, on the other hand, the contract required payment only on the delivery of documents, a question remained as to whether title nevertheless passed at the time the contract was made.

Since these questions were not decided by the courts below we do not pass on them here. They are important only insofar as they illuminate the basis on which it was claimed that the district court had jurisdiction over the suit. It was not alleged that the contract for the sale of the coal was a contract with the officer personally. [4] The basis of the action, on the contrary, was that a contract had been entered into with the United States. Nor was it claimed that the Administrator had any personal interest in this coal or, indeed, that he himself had taken any wrongful action. The complaint was directed against him because of his official function as chief of the War Assets Administration. [5] It asked for an injunction against him in that capacity, and against 'his agents, assistants, deputies and employees and all persons acting or assuming to act under their direction.' The relief sought was, in short, relief against the Administration for wrongs allegedly committed by subordinate officials in that Administration. The question presented to the courts below was whether such an injunction was barred by the sovereign's immunity from suit.

Before answering that question it is perhaps advisable to state clearly what is and what is not involved. There is not involved any question of the immunization of Government officers against responsibility for their wrongful actions. If those actions are such as to create a personal liability, whether sounding in tort or in contract, the fact that the officer is an instrumentality of the sovereign does not, of course, forbid a court from taking jurisdiction over a suit against him. Sloan Shipyards Corp. v. Emergency Fleet Corp., 1922, 258 U.S. 549, 567, 42 S.Ct. 386, 388, 66 L.Ed. 762. As was said in Brady v. Roosevelt S.S.C.o., 1943, 317 U.S. 575, 580, 63 S.Ct. 425, 428, 87 L.Ed. 471, the principle that an agent is liable for his own torts 'is an ancient one and applies even to certain acts of public officers or public instrumentalities.' But the existence of a right to sue the officer is not the issue in this case. The issue here is whether this particular suit is not also, in effect, a suit against the sovereign. If it is, it must fail, whether or not the officer might otherwise be suable.

If the denomination of the party defendant by the plaintiff were the sole test of whether a suit was against the officer individually or against his principal, the sovereign, our task would be easy. Our decision then would be that the United States is not being sued here because it is not named as a party. This would be simple and would not leave room for controversy. But controversy there has been, in this field above all others, because it has long been established that the crucial question is whether the relief sought in a suit nominally addressed to the officer is relief against the sovereign. [6] In a suit against the officer to recover damages for the agent's personal actions that question is easily answered. The judgment sought will not require action by the sovereign or disturb the sovereign's property. There is, therefore, no jurisdictional difficulty. [7] The question becomes difficul and the area of controversy is entered when the suit is not one for damages but for specific relief: i.e., the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer's actions. In each such case the question is directly posed as to whether, by obtaining relief against the officer, relief will not, in effect, be obtained against the sovereign. For the sovereign can act only through agents and, when the agents' actions are restrained, the sovereign itself may, through him, be restrained. As indicated, this question does not arise because of any distinction between law and equity. It arises whenever suit is brought against an officer of the sovereign in which the relief sought from him is not compensation for an alleged wrong but, rather, the prevention or discontinuance, in rem, of the wrong. In each such case the compulsion, which the court is asked to impose, may be compulsion against the sovereign, although nominally directed against the individual officer. If it is, then the suit is barred, not because it is a suit against an officer of the Government, but because it is, in substance, a suit against the Government over which the court, in the absence of consent, has no jurisdiction.

The relief sought in this case was not the payment of damages by the individual defendant. [8] To the contrary, it was asked that the court order the War Assets Administrator, his agents, assistants, deputies and employees and all persons acting under their direction, not to sell the coal involved and not to deliver it to anyone other than the respondent. [9] The district court held that this was relief against the sovereign and therefore dismissed the suit. We agree.

There may be, of course, suits for specific relief against officers of the sovereign which are not suits against the sovereign. If the officer purports to act as an individual and not as an official, a suit directed against that action is not a suit against the sovereign. If the War Assets Administrator had completed a sale of his personal home, he presumably could be enjoined from later conveying it to a third person On a similar theory, where the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief. It is important to note that in such cases the relief can be granted, without impleading the sovereign, only because of the officer's lack of delegated power. A claim of error in the exercise of that power is therefore not sufficient. And, since the jurisdiction of the court to hear the case may depend, as we have recently recognized, [10] upon the decision which it ultimately reaches on the merits, it is necessary that the plaintiff set out in his complaint the statutory limitation on which he relies.

A second type of case is that in which the statute or order conferring power upon the officer to take action in the sovereign's name is claimed to be unconstitutional. Actions for habeas corpus against a warden and injunctions against the threatened enforcement of unconstitutional statutes are familiar examples of this type. Here, too, the conduct against which specific relief is sought is beyond the officer's powers and is, therefore, not the conduct of the sovereign. The only difference is that in this case the power has been conferred in form but the grant is lacking in substance because of its constitutional invalidity.

These two types have frequently been recognized by this Court as the only ones in which a restraint may be obtained against the conduct of Government officials. The rule was stated by Mr. Justice Hughes in Philadelphia Co. v. Stimson, 1912, 223 U.S. 605, 620, 32 S.Ct. 340, 344, 56 L.Ed. 570, where he said: '* * * in case of an injury threatened by his illegal action, the officer cannot claim immunity from injunction process. The principle has frequently been applied with respect to state officers seeking to enforce unconstitutional enactments. (Citing cases.) And it is equally applicable to a Federal officer acting in excess of his authority or under an authority not validly conferred.' [11]

It is not contended by the respondent that the present case falls within either of these categories. There was no claim made that the Administrator and his agents, etc., were acting unconstitutionally or pursuant to an unconstitutional grant of power. Nor was there any allegation of a limitation on the Administrator's delegated power to refuse shipment in cases in which he believed the United States was not obliged to deliver. There was, it is true, an allegation that the Administrator was acting 'illegally,' and that the refusal to deliver was 'unauthorized.' But these allegations were not based and did not purport to be based upon any lack of delegated power. [12] Nor could they be, since the Administrator was empowered by the sovereign to administer a general sales program encompassing the negotiation of contracts, the shipment of goods and the receipt of payment. A normal concomitant of such powers, as a matter of general agency law, is the power to refuse delivery when, in the agent's view, delivery is not called for under a contract and the power to sell goods which the agent believes are still his principal's to sell.

The respondent's contention, which the Court of Appeals sustained, was that there exists a third category of cases in which the action of a Government official may be restrained or directed. If, says the respondent, an officer of the Government wrongly takes or holds specific property to which the plaintiff has title then his taking or holding is a tort, and 'illegal' as a matter of general law, whether or not it be within his delegated powers. He may therefore be sued individually to prevent the 'illegal' taking or to recover the property 'illegally' held.

If this is an adequate theory on which to rest the conclusion that the relief asked is not relief against the sovereign, then the respondent's complaint made out a sufficient basis for jurisdiction. The complaint alleged that the respondent's contract with the United States was an immediate contract of sale under which title to the coal had passed. The coal was thus alleged to be the respondent's coal, not the United States' coal. Retention of it by the Administrator after demand was claimed to be a conversion; sale to a third party would aggravate the conversion. Since these actions were tortious they were 'illegal' in the respondent's sense and hence were contended to be individual actions, not properly taken on behalf of the United States, which could be enjoined without making the United States a party.

We believe the theory to be erroneous. It confuses the doctrine of sovereign immunity with the requirement that a plaintiff state a cause of action. It is a prerequisite to the maintenance of any action for specific relief that the plaintiff claim an invasion of his legal rights, either past or threatened. He must, therefore, allege conduct which is 'illegal' in the sense that the respondent suggests. If he does not, he has not stated a cause of ction. This is true whether the conduct complained of is sovereign or individual. In a suit against an agency of the sovereign, as in any other suit, it is therefore necessary that the plaintiff claim an invasion of his recognized legal rights. If he does not do so, the suit must fail even if he alleges that the agent acted beyond statutory authority [13] or unconstitutionally. [14] But, in a suit against an agency of the sovereign, it is not sufficient that he make such a claim. Since the sovereign may not be sued, it must also appear that the action to be restrained or directed is not action of the sovereign. The mere allegation that the officer, acting officially, wrongfully holds property to which the plaintiff has title does not meet that requirement. True, it establishes a wrong to the plaintiff. But it does not establish that the officer, in committing that wrong, is not exercising the powers delegated to him by the sovereign. If he is exercising such powers the action is the sovereign's and a suit to enjoin it may not be brought unless the sovereign has consented.

It is argued, however, that the commission of a tort cannot be authorized by the sovereign. Therefore, the argument goes, the allegation that a Government officer has acted or is threatening to act tortiously toward the plaintiff is sufficient to support the claim that he has acted beyond his delegated powers. It is on this contention that the respondent's position fundamentally rests, since it is admitted that, if the action to be prevented or compelled is authorized by the sovereign, the demand for it must fail as a demand against the sovereign. It has been said, in a very special sense, that, as a matter of agency law, a principal may never lawfully authorize the commission of a tort by his agent. But that statement, in its usual context, is only a way of saying that an agent's liability for torts committed by him cannot be avoided by pleading the direction or authorization of his principal. [15] The agent is himself liable whether or not he has been authorized or even directed to commit the tort. This, of course, does not mean that the principal is not liable nor that the tortious action may not be regarded as the action of the principal. It does not mean, therefore, that the agent's action, because tortious, is, for that reason alone, ultra vires his authority. An argument to that effect was at one time advanced in connection with corporate agents, in an effort to avoid corporate liability for torts, but was decisively rejected. [16]

There is, therefore, nothing in the law of agency which lends support to the contention that an officer's tortious action is ipso facto beyond his delegated powers. Nor, do we think, is there anything in the doctrine of sovereign immunity which requires us to adopt such a view as regards Government agencies. If, of course, it is assumed that the basis of the doctrine of sovereign immunity is the thesis that the king can do no wrong then it may be also assumed that if the king's agent does wrong that action cannot be the action of the king. It is on some such argument that the position of the respondent rests. It is argued that an officer given the power to make decisions is only given the power to make correct decisions. If his decisions are not correct, then his action based on those decisions is beyond his authority and not the action of the sovereign. There is no warrant for such a contention in cases in which the decision made by the officer does not relate to the terms of his statutory authority. Certainly the jurisdiction of a court to decide a case does not disappear if its decision on the merits is wrong. And we have heretofore rejected the argument that official action is invalid if based on an incorrect decision as to law or fact, if the officer making the decision was empowered to do so. Adams v. Nagle, 1938, 303 U.S. 532, 542, 58 S.Ct. 687, 692, 82 L.Ed. 999. We therefore reject the contention here. We hold that if the actions of an officer do not conflict with the terms of his valid statutory authority, then they are the actions of the sovereign, whether or not they are tortious under general law, if they would be regarded as the actions of a private principal under the normal rules of agency. A Government officer is not thereby necessarily immunized from liability, if his action is such that a liability would be imposed by the general law of torts. But the action itself cannot be enjoined or directed, since it is also the action of the sovereign.

United States v. Lee, 1882, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171, is said to have established the rule for which the respondent contends. It did not. It represents, rather, a specific application of the constitutional exception to the doctrine of sovereign immunity. The suit there was against federal officers to recover land held by them, within the scope of their authority, as a United States military station and cemetery. The question at issue was the validity of a tax sale under which the United States, at least in the view of the officers, had obtained title to the property. The plaintiff alleged that the sale was invalid and that title to the land was in him. The Court held that if he was right the defendants' possession of the land was illegal and a suit against them was not a suit against the sovereign. Prima facie, this holding woud appear to support the contention of the plaintiff. Examination of the Lee case, however, indicates that the basis of the decision was the assumed lack of the defendants' constitutional authority to hold the land against the plaintiff. The Court said (106 U.S. at page 219, 1 S.Ct. at page 260):

'It is not pretended, as the case now stands, that the president had any lawful authority to (take the land), or that the legislative body could give him any such authority except upon payment of just compensation. The defense stands here solely upon the absolute immunity from judicial inquiry of every one who asserts authority from the executive branch of the government, however clear it may be made that the executive possessed no such power. Not only that no such power is given, but that it is absolutely prohibited, both to the executive and the legislative, to deprive any one of life, liberty, or property without due process of law, or to take private property without just compensation.

'Shall it be said * * * that the courts cannot give a remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession?'

The Court thus assumed that if title had been in the plaintiff the taking of the property by the defendants would be a taking without just compensation and, therefore, an unconstitutional action. [17] On that assumption, and only on that assumption, the defendants' possession of the property was an unconstitutional use of their power and was, therefore, not validly authorized by the sovereign. For that reason, a suit for specific relief, to obtain the property, was not a suit against the sovereign and could be maintained against the defendants as individuals.

The Lee case, therefore, offers no support to the contention that a claim of title to property held by an officer of the sovereign is, of itself, sufficient to demonstrate that the officer holding the property is not validly empowered by the sovereign to do so. Only where there is a claim that the holding constitutes an unconstitutional taking of property without just compensation does the Lee case require that conclusion. [18] The cases which followed Lee's do not require a different result. There are a great number of such cases and, as this Court has itself remarked, it is not 'an easy matter to reconcile all the decisions of the Court in this class of cases.' [19] With only one possible exception, however, specific relief in connection with property held or injured by officers of the sovereign acting in the name of the sovereign has been granted only where there was a claim that the taking of the property or the injury to it was not the action of the sovereign because unconstitutional [20] or beyond the officer's statutory powers. [21] Certainly, the Court has repeatedly stated these to be the cases in which such relief could be granted. [22] A contrary doctrine was stated in Goltra v. Weeks, 1926, 271 U.S. 536, 46 S.Ct. 613, 70 L.Ed. 1074. In that case the United States had leased barges to the plaintiff under a contract which gave it a right to repossess under certain conditions. Believing that those conditions existed, officers of the Government attempted to repossess the barges. The Court held that a suit to enjoin them from doing so was not a suit against the United States. The Court said that the taking of the barges was alleged to be a trespass and hence 'illegal.' Therefore, the actions of the officers were personal actions, not the actions of the United States and injunction against them would not be injunction against the United States. 271 U.S. at page 544, 46 S.Ct. at page 616, 70 L.Ed. 1074. For this conclusion the Court relied entirely upon the opinion of Mr. Justice Hughes in Philadelphia Co. v. Stimson, 1912, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570. The reliance was misplaced since the opinion in that case clearly and specifically rested on the claim that there was a lack of statutory power to act, not simply on a claim of tortious injury to the plaintiff. [23]

Opposed to the rationale of the Goltra opinion is the decision, by Mr. Justice Holmes, in Goldberg v. Daniels, 1913, 231 U.S. 218, 34 S.Ct. 84, 58 L.Ed. 191. There, as here, the question concerned the effect of a claimed sale of Government surplus property. The plaintiff submitted a sealed bid for a surplus war vessel, accompanied in that case by a certified heck as payment in advance. When the bids were opened his was the highest. The Secretary of the Navy, however, determined not to accept the bid and refused to deliver the vessel. The plaintiff brought mandamus. He alleged that the sale was complete when the bids were opened and that the ownership of the vessel was therefore in him, and he asked that the Secretary be compelled to deliver it. The lower courts examined the details of the transaction and concluded that the sale was not complete until the Secretary announced his acceptance of the bid. On appeal here, it was expressly held that it was not necessary to decide whether the lower courts were correct. The suit must fail as one against the United States, the Court said, whether or not the sale was complete. In so holding the Court said, in effect, that the question of title was immaterial to the court's jurisdiction. Wrongful the Secretary's conduct might be, but a suit to relieve the wrong by obtaining the vessel would interfere with thesovereign behind its back and hence must fail. [24]

Both cases are pressed upon us. The petitioner argues, and correctly, that the result in the Goldberg case calls for a similar result in this case-a dismissal of the suit for want of jurisdiction. The respondent argues, with equal correctness, that the theory of the Goltra opinion-that an allegation that the actions of Government officers are wrongful under general law is sufficient to show that they are 'unauthorized'-calls for an affirmance of the decision below. Since we must therefore resolve the conflict in doctrine [25] we adhere to the rule applied in the Goldberg case and to the principle which has been frequently repeated by this Court, both before and after the Goltra case: the action of an officer of the sovereign (be it holding, taking or otherwise legally affecting the plaintiff's property) can be regarded as so 'illegal' as to permit a suit for a specific relief against the officer as an individual only if it is not within the officer's statutory powers or, if within those powers, only if the powers, or their exercise in the particular case, are constitutionally void. [26]

The application of this principle to the present case is clear. The very basis of the respondent's action is that the Administrator was an officer of the Government, validly appointed to administer its sales program and therefore authorized to enter, through his subordinates, into a binding contract concerning the sale of the Government's coal. There is no allegation of any statutory limitation on his powers as a sales agent. In the absence of such a limitation he, like any other sales agent, had the power and the duty to construe such contracts and to refuse delivery in cases in which he believed that the contract terms had not been complied with. His action in so doing in this case was, therefore, within his authority even if, for purposes of decision here, we assume that his construction was wrong and that title to the coal had, in fact, passed to the respondent under the contract. There is no claim that his constituted an unconstitutional taking. [27] It was, therefore, inescapably the action of the United States and the effort to enjoin it must fail as an effort to enjoin the United States.

It is argued that the principle of sovereign immunity is an archaic hangover not consonan with modern morality and that it should therefore be limited wherever possible. There may be substance in such a viewpoint as applied to suits for damages. The Congress has increasingly permitted such suits to be maintained against the sovereign and we should give hospitable scope to that trend. [28] But the reasoning is not applicable to suits for specific relief. For, it is one thing to provide a method by which a citizen may be compensated for a wrong done to him by the Government. It is a far different matter to permit a court to exercise its compulsive powers to restrain the Government from acting, or to compel it to act. There are the strongest reasons of public policy for the rule that such relief cannot be had against the sovereign. The Government as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right. As was early recognized, 'the interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief. * * *' [29]

There are limits, of course. Under our constitutional system, certain rights are protected against governmental action and, if such rights are infringed by the actions of officers of the Government, it is proper that the courts have the power to grant relief against those actions. But in the absence of a claim of constitutional limitation, the necessity of permitting the Government to carry out its functions unhampered by direct judicial intervention outweights the possible disadvantage to the citizen in being relegated to the recovery of money damages after the event.

It is argued that a sales agency such as the War Assets Administration, is not the type of agency which requires the protection from direct judicial interference which the doctrine of sovereign immunity confers. We do not doubt that there may be some activities of the Government which do not require such protection. There are others in which the necessity of immunity is apparent. But it is not for this Court to examine the necessity in each case. That is a function of the Congress. The Congress has, in many cases, entrusted the business of the Government to agencies which may contract in their own names and which are subject to suit in their own names. In other cases it has permitted suits for damages, but, significantly, not for specific relief, in the Court of Claims. The differentiations as to remedy which the Congress has erected would be rendered nugatory if the basis on which they rest-the assumed immunity of the sovereign from suit in the absence of consent-were undermined by an unwarranted extension of the Lee doctrine.

The cause is reversed with directions that the complaint be dismissed.

It is so ordered.

Reversed with directions.

Mr. Justice DOUGLAS.

I think that the principles announced by the Court are the ones which should govern the selling of government property. Less strict applications of those principles would cause intolerable interference with public administration. To make the right to sue the officer turn on whether by the law of sales title had passed to the buyer would clog this governmental function with intolerable burdens. So I have joined the Court's opinion.


^1  Littlejohn resigned on November 28, 1947. On April 19, 1948, we granted the Government's motion to substitute his successor, Jess Larson, as petitioner here.

^2  Domestic & Foreign Commerce Corp. v. Littlejohn, 1947, 83 U.S.App.D.C. 13, 165 F.2d 235.

^3  The judgment of the Court of Appeals was not a final one, but we considered it appropriate for review here since, in our view, the jurisdictional issue was 'fundamental to the further conduct of the case.' See Land v. Dollar, 1947, 330 U.S. 731, 734, 67 S.Ct. 1009, 1010, 91 L.Ed. 1209.

^4  Cf. Sloan Shipyards v. United States Fleet Corp., 1922, 258 U.S. 549, 42 S.Ct. 386, 66 L.Ed. 762, where the question was whether a corporate agency of the United States could be sued where it, not the United States, was the contractor.

^5  For this reason, there obviously was no objection to the substitution in this Court of the present Administrator for his predecessor, although all the actions complained of in the complaint were taken during the predecessor's administration.

^6  In re Ayers, 1887, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216. As was said in State of Minnesota v. Hitchcock, 1902, 185 U.S. 373, 387, 22 S.Ct. 650, 656, 46 L.Ed. 954: '* * * whether a suit is one against a state is to be determined, not by the fact of the party named as defendant on the record, but by the result of the judgment or decree which may be entered * * *.'

^7  There are, of course, limitations on the right to recover damages from public officers. See Gibson v. Reynolds, 8 Cir., 1949, 172 F.2d 95; Glass v. Ickes, 1940, 73 App.D.C. 3, 117 F.2d 273, 132 A.L.R. 1328; Harper, Torts (1933) § 298. These limitations are matters of substantive law, applicable in suits indubitably addressed to the officer, not the sovereign. They are not necessarily coincidental with the limitations on the court's jurisdiction to hear a suit directed against the sovereign. See Jennings, Tort Liability of Administrative Officers, 21 Minn.L.Rev. 263 (1937), and note the differing treatment accorded the claim for compensation and the claim for specific relief in Belknap v. Schild, 1896, 161 U.S. 10, 27, 16 S.Ct. 443, 449, 40 L.Ed. 599.

^8  Whether such relief is obtainable from any Government officer on the basis of the facts set out in the complaint is, as stated, not the question here. But it may seriously be doubted whether damages could, in any event, be recovered from Jess Larson, the present War Assets Administrator or from his predecessor, Robert M. Littejohn. The complaint did not charge them with any personal wrongdoing nor even with knowledge of the alleged wrongdoing of their subordinates. Cf. Robertson v. Sichel, 1888, 127 U.S. 507, 515-516, 8 S.Ct. 1286, 1290, 32 L.Ed. 203. Since the complaint did not ask for damages but for specific relief the Administrator, in his official capacity, was of course, a proper party. Cf. Williams v. Fanning, 1947, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95.

^9  The complaint also asked for declaratory relief even more clearly directed at the sovereign. It was asked that the court declare that 'the sale of this coal * * * is still valid and in effect.' The Administrator, an agent for a disclosed principal, was not a party to the contract of sale. See 2 Restatement, Agency (1933) § 320. The request f r an adjudication of the validity of the sale was thus, even in form, a request for an adjudication against the sovereign. Such a declaration of the rights of the respondent vis-a -vis the United States would clearly have been beyond the court's jurisdiction. See Stanley v. Schwalby, 1896, 162 U.S. 255, 16 S.Ct. 754, 40 L.Ed. 960. We do not rest our conclusion here on the request for such a declaration, since the district court could have granted only the injunctive relief requested.

^10  Land v. Dollar, 1947, 330 U.S. 731, 739, 67 S.Ct. 1009, 1013, 91 L.Ed. 1209. Since jurisdiction in this type of case does rest on the decision on the merits there can be no question that dismissal of a suit in which 'the alleged claim under the Constitution or federal statutes clearly appears to be * * * made solely for the purpose of obtaining jurisdiction or * * * is wholly insubstantial and frivolous' would be dismissal for lack of jurisdiction. See Bell v. Hood, 1946, 327 U.S. 678, 682-683, 66 S.Ct. 773, 776, 90 L.Ed. 939.

^11  Of course, a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property. North Carolina v. Temple, 1890, 134 U.S. 22, 10 S.Ct. 509, 33 L.Ed. 849.

^12  This case must, therefore, be clearly distinguished from cases like Noble v. Union River Logging R. Co., 1893, 147 U.S. 165, 13 S.Ct. 271, 37 L.Ed. 123. In that case, it was held that the officer being sued lacked power to refuse delivery because, under the statutory scheme, his predecessor's determination that the plaintiff was entitled to delivery was binding. A similar case would be presented here if the statute expressly provided that the Administrator's interpretations of contracts should be binding and irrevocable and if a later, or subordinate, official refused to follow a prior, binding interpretation. In such a case the issue would not be the correctness or incorrectness of the later decision under general law but simply the power of the official, under the statute, to make a decision at all. Cf. Ickes v. Fox, 1937, 300 U.S. 82, 57 S.Ct. 412, 81 L.Ed. 525.

^13  Perkins v. Lukens Steel Co., 1940, 310 U.S. 113, 125, 60 S.Ct. 869, 875, 84 L.Ed. 1108.

^14  Tennessee Electric Power Co. v. T.V.A., 1939, 306 U.S. 118, 137-139, 59 S.Ct. 366, 369, 370, 83 L.Ed. 543; Mine Safety Co. v. Forrestal, 1945, 326 U.S. 371, 66 S.Ct. 219, 90 L.Ed. 140.

^15  Thus the Court said in Hopkins v. Clemson College, 1911, 221 U.S. 636, 643, 31 S.Ct. 654, 656, 55 L.Ed. 890, 35 L.R.A.,N.S., 243, '* * * neither a state nor an individual can confer upon an agent authority to commit a tort, so as to excuse the perpetrator.' (Emphasis added.) See also 2 Mechem, Agency (2d Ed., 1914) 1077.

^16  See Philadelphia, Wilmington & Baltimore R. Co. v. Quigley, 1859, 21 How. 202, 209-210, 16 L.Ed. 73; 10 Fletcher, Cyclopedia Corporations, 1931, § 4877. The contention of the respondent in the present case is remarkably similar to that made, as regards corporate agents, in Chestnut Hill & Spring House Turnpike Co. v. Rutter, Pa.1818, 4 Serg. & R. 6, 8 Am.Dec. 675. The argument is reported as follows, id. at page 9 of 4 Serg. & R.: 'Now, a corporation never was and never can be authorized by law to commit a tort; they can invest no one with power for that purpose. If, therefore, an agent constituted for a legal purpose, inflict an injury, the corporation is no more answerable, than it would be for an act of that agent, done without any authority whatever derived from it, because being unauthorised to commit a wrong, it is out of the scope of its corporate powers.'

The argumen was rejected by the Court. See also Thayer v. Boston, Mass., 1836, 19 Pick. 511, 515, 31 Am.Dec. 157.

^17  The Lee case was decided in 1882. At that time there celarly was no remedy available by which he could have obtained compensation for the taking of his land. Whether compensation could be obtained today in such a case is, of course, not the issue here.

^18  For this reason the availability of a remedy in the Court of Claims may, in some cases, be relevant to the question of sovereign immunity. Where the action against which specific relief is sought is a taking, or holding, of the plaintiffs' property, the availability of a suit for compensation against the sovereign will defeat a contention that the action is unconstitutional as a violation of the Fifth Amendment. Compare Hurley v. Kincaid, 1932, 285 U.S. 95, 52 S.Ct. 267, 76 L.Ed. 637.

^19  Cunningha v. Macon & Brunswick R. Co., 1883, 109 U.S. 446, 451, 3 S.Ct. 292, 296, 609, 27 L.Ed. 992. The ensuing years have not made the task less difficult. See Brooks v. Dewar, 1941, 313 U.S. 354, 359, 61 S.Ct. 979, 981, 85 L.Ed. 1399; Land v. Dollar, 1947, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209.

^20  Thus, in Tindal v. Wesley, 1897, 167 U.S. 204, 222, 17 S.Ct. 770, 777, 42 L.Ed. 137, the Court stated that a suit to recover the Court stated that a suit to recover possession of property owned by the plaintiff and withheld by officers of a State was analogous to a suit to enjoin the officers from enforcing an unconstitutional statute. Any other view, the Court said, would lead to the result 'that if a state, by its officers * * * should seize for public use the property of a citizen, without making or securing just compensation for him, and thus violate the constitutional provision declaring that no state shall deprive any person of property without due process of law * * * the citizen is remediless so long as the state, by its agents, chooses to hold his property * * *.'

And in Scranton v. Wheeler, 1900, 179 U.S. 141, 152-153, 21 S.Ct. 48, 52, 53, 45 L.Ed. 126, the Court said that the state court

'was under a duty to inquire whether the defendant had or could have any authority in law to do what he had done; and the suit was not to be deemed one against the United States because in the consideration of that question it would become necessary to ascertain whether the defendant could constitutionally acquire from the United States authority to obstruct the plaintiff's access * * * without making or securing compensation to him. * * *

'The vital question, therefore, is * * * whether the prohibition in the Constitution of the United States, of the taking of private property for public use without just compensation, has any application to the case * * *.'

^21  See, e.g., Payne v. Central Pacific R. Co., 1921, 255 U.S. 228, 238, 41 S.Ct. 314, 317, 65 L.Ed. 598, where the Court said that specific relief could be had because the Government officers had 'departed from a plain official duty,' 'through a mistaken conception of their authority,' and Santa Fe Pac. R. Co. v. Fall, 1922, 259 U.S. 197, 199, 42 S.Ct. 466, 467, 66 L.Ed. 896, where the contention was 'that the Secretary went beyond the powers conferred upon him by the statute.' The cases are myriad and it is unnecessary to review them here.

^22  Poindexter v. Greenhow, 1884, 114 U.S. 270, 288, 5 S.Ct. 903, 912, 962, 29 L.Ed. 185, 207; Philadelphia Co. v. Stimson, supra, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570. Although stated in reference to a suit for damages, the rule of the Lee line of cases was thus summed up by Mr. Justice Hughes, in Yearsley v. W. A. Ross Constr. Co., 1940, 309 U.S. 18, 21, 60 S.Ct. 413, 414, 84 L.Ed. 554: 'Where an agent or officer of the Government purporting to act on its behalf has been held to be liable for his conduct causing injury to another, the ground of liability has been found to be either that he exceeded his authority or that it was not validly conferred.' (Emphasis added.)

^23  The Court in the Stimson case said, 223 U.S. at page 622, 32 S.Ct. at page 345, 56 L.Ed. 570: 'While the complainant's title lay at the foundation of the suit, and it would be necessary for the complainant to prove it, if denied, still, if its title to the land under water were established or admitted to be as alleged, the question would remain whether the defendant, in imposing restrictions upon the use of the property, was acting by virtue of authority validly conferred by a general act of Congress. This was the principal question which the complainant sought to have determined.'

^24  The reasoning of the Goltra case is also contradicted by the conclusion reached by the Court in the converse case-where a suit is brought againstthe United States, in which it is claimed that the tortious actions of public officers, within the scope of their delegated powers, are the actions of the United States and give rise to a cause of action against it for breach of an implied contract. Portsmouth Co. v. United States, 1922, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287, demonstrates that such suits cannot be defeated by arguing that the officers' actions, because tortious, are outside of their authority and hence not actions of the United States. Cf. Hooe v. United States, 1910, 218 U.S. 322, 31 S.Ct. 85, 54 L.Ed. 1055 (specific limitation on the agent's authority). See also United States v. Causby, 1946, 328 U.S. 256, 267, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206.

^25  Whether the actual decision in the Goltra case, on the basis of the facts there presented, was correct or not is not relevant to the disposition of the present case, and we express no opinion on that question. Goltra, unlike Goldberg, does not present a parallel to the facts in the case at bar. The action complained of there was a seizure with a strong hand which was claimed to be unconstitutional, as an arbitrary taking of property without due process of law. Indeed, the District Court took jurisdiction on the theory that the case before it, like the Lee case, was a case of unconstitutional action. There is no such claim in the present case.

^26  In addition to Goltra v. Weeks, supra, three other cases are argued to be inconsistent with this principle: Sloan Shipyards v. United States Fleet Corp., 1922, 258 U.S. 549, 42 S.Ct. 386, 66 L.Ed. 762; Land v. Dollar, 1947, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209, and Ickes v. Fox, 1937, 300 U.S. 82, 57 S. t. 412, 81 L.Ed. 525.

The Sloan Shipyards case is entirely inapposite. The suit there was against a corporate agency of the United States which had not acted in the name of the United States but in its own corporate name and right. The Court held only that the fact of agency did not immunize the agent from liability on its own contracts.

In Land v. Dollar, where the plaintiffs alleged that they were entitled to stock held by the Maritime Commission because the stock was received by the Commission only as a pledge, it was contended that any other kind of acquisition would constitute a violation of § 207 of the Merchant Marine Act, 46 U.S.C.A. § 1117, which allegedly gave the Commission authority to acquire stock only as collateral. The complaint therefore alleged that the members of the Commission 'acted in excess of their authority as public officers.' 330 U.S. at page 738, 67 S.Ct. at page 1013, 91 L.Ed. 1209.

The ground for decision in Ickes v. Fox is not altogether clear. The argument was made in that case that the Secretary of the Interior had no statutory power to overrule a determination of the rights of the plaintiffs made by his predecessor in office. 300 U.S. at page 86, 57 S.Ct. at pages 413, 417, 81 L.Ed. 525. The tortious injury to the plaintiffs was also argued, in reliance on Goltra v. Weeks, as a basis for avoiding the sovereign's immunity. The Court appears to have relied on both grounds without indicating which was controlling. It said: 'The suits * * * are brought to enjoin the Secretary of the Interior from enforcing an order, the wrongful effect of which will be to deprive respondents of vested property rights not only acquired under Congressional acts, state laws and government contracts, but settled and determined by his predecessors in office' (emphasis added). In support of the conclusion that the suit could be maintained, the Court relied first on Noble v. Union Logging R. Co., 1893, 147 U.S. 165, 13 S.Ct. 271, 37 L.Ed. 123, a decision resting entirely on the officer's lack of statutory power to overrule the decision of his predecessor.

^27  There could not be since the respondent admittedly has a remedy, in a suit for breach of contract, in the Court of Claims. Such a suit, indeed, would be based on the theory that the action of the Administrator in refusing to deliver was the action of the United States and thus created a cause of action against it for breach of contract. Only if the Administrator's action was within his authority could such a suit be maintained. Hooe v. United States, 1910, 218 U.S. 322, 31 S.Ct. 85, 54 L.Ed. 1055. It has never been suggested that a suit in the Court of Claims for breach of an express contract could be defeated because the action of the officer in breaching it constituted a tort and was therefore 'unauthorized.'

^28  See Brooks v. United States, 1949, 337 U.S. 49, 69 S.Ct. 918.

^29  Decatur v. Paulding, 1840, 14 Pet. 497, 516, 10 L.Ed. 559.

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