Dr. JOHN HOPKINS, Plff. in Err., v. CLEMSON AGRICULTURAL COLLEGE OF SOUTH CAROLINA.

The plaintiff sued the Clemson Agricultural College of South Carolina, for damages to his farm, resulting from the college having built a dyke which forced the waters of the Seneca river across his land, whereby the soil had been washed away and the land ruined for agricultural purposes. There was no demurrer, but the defendant filed what was treated as a plea to the jurisdiction, in which it averred that it owned no property, and had constructed the dyke as a public agent only, by authority of the state, on land belonging to the state. By stipulation the hearing was confined solely to the question of jurisdiction, and after considering the evidence, the complaint was dismissed.

That ruling and the assignments of error thereon raise the question as to whether a public corporation can avail itself of the state's immunity from suit, in a proceeding against it for so managing the land of the state as to damage or take private property without due process of law.

With the exception named in the Constitution, every state has absolute immunity from suit. Without its consent it cannot be sued in any court, by any person, for any cause of action whatever. And, looking through form to substance, the 11th Amendment has been held to apply, not only where the state is actually named as a party defendant on the record, but where the proceeding, though nominally against an officer, is really against the state, or is one to which it is an indispensable party. No suit, therefore, can be maintained against a public officer, which seeks to compel him to exercise the state's power of taxation, or to pay out its money in his possession on the state's obligations, or to execute a contract, or to do any affirmative act which affects the state's political or property rights. Cunningham v. Macon & B. R. Co. 109 U. S. 446, 27 L. ed 992, 3 Sup. Ct. Rep. 292, 609; North Carolina v. Temple, 134 U. S. 22, 33 L. ed. 849, 10 Sup. Ct. Rep. 509; Louisiana ex rel. New York Guaranty & I. Co. v. Steele, 134 U. S. 230, 33 L. ed. 891, 10 Sup. Ct. Rep. 511; Louisiana v. Jumel, 107 U. S. 711, 27 L. ed. 448, 2 Sup. Ct. Rep. 128; Pennoyer v. McConnaughy, 140 U. S. 1, 35 L. ed. 363, 11 Sup. Ct. Rep. 699; Re Ayers, 123 U. S. 443, 31 L. ed. 216, 8 Sup. Ct. Rep. 164; Hans v. Louisiana 134, U. S. 1, 33 L. ed. 842, 10 Sup. Ct. Rep. 504; Harkrader v. Wadley, 172 U. S. 148, 43 L. ed. 399, 19 Sup. Ct. Rep. 119; Hagood v. Southern, 117 U. S. 52, 70, 29 L. ed. 805, 811, 6 Sup. Ct. Rep. 608.

But immunity from suit is a high attribute of sovereignty,—a prerogative of the state itself,—which cannot be availed of by public agents when sued for their own torts. The 11th Amendment was not intended to afford them freedom from liability in any case where, under color of their office, they have injured one of the state's citizens. To grant them such immunity would be to create a privileged class, free from liability for wrongs inflicted or injuries thereatened. Public agents must be liable to the law, unless they are to be put above the law. For how 'can these principles of individual liberty and right be maintained if, when violated, the judicial tribunals are forbidden to visit penalties upon individual offenders . . . whenever they interpose the shield of the state? . . . The whole frame and scheme of the political institutions of this country, state and Federal protest' against extending to any agent the sovereign's exemption from legal process. Poindexter v. Greenhow, 114 U. S. 270, 291, 29 L. ed. 185, 193, 5 Sup. Ct. Rep. 903, 962.

The many claims of immunity from suit have therefore been uniformly denied, where the action was brought for injuries done or threatened by public officers. If they were indeed agents, acting for the state, they—though not exempt from suit—could successfully defend by exhibiting the valid power of attorney or lawful authority under which they acted. Cunningham v. Macon & B. R. Co. 109 U. S. 446, 452, 27 L. ed. 992, 994, 3 Sup. Ct. Rep. 292, 609. But if it appeared that they proceeded under an unconstitutional statute, their justification failed, and their claim of immunity disappeared on the production of the void statute. Besides, neither a state nor an individual can confer upon an agent authority to commit a tory so as to excuse the perpetrator. In such cases the law of agency has no application, the wrongdoer is treated as a principal, and individually liable for the damages inflicted, and subject to injunction against the commission of acts causing irreparable injury.

Consequently there have been recoveries in ejectment where the public agent in possession defended under a void title of the government. United States v. Lee, 106 U. S. 196, 27 L. ed. 171, 1 Sup. Ct. Rep. 240; Tindal v. Wesley, 167 U. S. 204, 42 L. ed. 137, 17 Sup. Ct. Rep. 770. A suit against a bank was sustained, even though the state held part of the stock. Bank of United States v. Planters' Bank, 9 Wheat. 904, 6 L. ed. 244. A tax collector was enjoined, where, under an unconstitutional law, he was about to sell the property of the taxpayer. Poindexter v. Greenhow, 114 U. S. 270, 29 L. ed. 185, 5 Sup. Ct. Rep. 903, 962. An attorney general was restrained from suing to recover penalties imposed by an unconstitutional statute. Ex parte Young, 209 U. S. 123, 52 L. ed. 714, 13 L.R.A. (N.S.) 932, 28 Sup. Ct. Rep. 441, 14 A. & E. Ann. Cas. 764. Commissions have been enjoined from enforcing confiscatory rates. Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418; Prout v. Starr, 188 U. S. 537, 47 L. ed. 584, 23 Sup. Ct. Rep. 398. A state land commissioner was enjoined from proceeding, under an unconstitutional act, to cause irreparable damage to defendant's property rights. Pennoyer v. McConnaughy, 140 U. S. 1, 35 L. ed. 363, 11 Sup. Ct. Rep. 699. Commissions have been restrained from enforcing a statute which illegally burdened interstate commerce. McNeill v. Southern R. Co. 202 U. S. 543, 50 L. ed. 1142, 26 Sup. Ct. Rep. 722; Mississippi R. Commission v. Illinois C. R. Co. 203 U. S. 335, 51 L. ed. 209, 27 Sup. Ct. Rep. 90.

Other cases might be cited which deny public boards, agents, and officers immunity from suit. But the principle underlying the decisions is the same. All recognize that the state, as a sovereign, is not subject to suit; that the state cannot be enjoined; and that the state's officers, when sued, cannot be restrained from enforcing the state's laws, or be held liable for the consequences flowing from obedience to the state's command.

But a void act is neither a law nor a command. It is a nullity. It confers no authority. It affords no protection. Whoever seeks to enforce unconstitutional statutes, or to justify under them, or to obtain immunity through them, fails in his defense and in his claim of exemption from suit.

Is is said, however, that, in the cases referred to, the officers were held liable to suit because, in the transaction complained of, the statute being unconstitutional, they could not be treated as agents of the state. And it is argued that these authorities have no application to suits against those public corporations which exist, and can act, in no other capacity than as governmental agencies, or political subdivisions of the state itself. But neither public corporations nor political subdivisions are clothed with that immunity from suit which belongs to the state alone by virtue of its sovereignty. In Lincoln County v. Luning, 133 U. S. 529, 33 L. ed. 766, 10 Sup. Ct. Rep. 363, the court said that 'while the county is territorially a part of the state, yet politically it is also a corporation, created by and with such powers as are given to it by the state. In this respect it is a part of the state only in that remote sense in which any city, town, or other municipal corporation may be said to be a part.' The court there held that the 11th Amendment was limited to those cases in which the state is the real party, or party on the record, but that counties were corporations which might be sued. Dunn v. University of Oregon, 9 Or. 357, 362; Herr v. Central Kentucky Lunatic Asylum, 98 Ky. 463, 28 L.R.A. 394, 53 Am. St. Rep. 414, 30 S. W. 971.

Corporate agents or individual officers of the state stand in no better position than officers of the general government, and as to them it has often been held that 'the exemption of the United States from judicial process does not protect their officers and agents, civil or military, in time of peace, from being personally liable to an action of tort by a private person whose rights of property they have wrongfully invaded or injured, even by authority of the United States.' Belknap v. Schild, 161 U. S. 18, 40 L. ed. 601, 16 Sup. Ct. Rep. 443.

Undoubtedly counties, cities, townships, and similar bodies politic often have a defense which relieves them from responsibility where a private corporation would be liable. But they must at least make that defense. They cannot rely on freedom from accountability as could a state.

in this case there is no question of corporate existence and no claim that building the dyke was ultra vires. Plaintiff was denied a hearing, not no the ground that his complaint did not set out a cause of action, but solely for the reason that, even if the college did destroy his farm, the court had no jurisdiction over a public agent.

If the state had in so many words granted the college authority to take or damage the plaintiff's property for its corporate advantage without compensation, the Constitution would have substituted liability for the attempted exemption. But the state of South Carolina passed no such act, and attempted to grant no such immunity from suit as is claimed by the college. On the contrary, the statute created an entity, a corporation, a juristic person, whose right to hold and use property was coupled with the provision that it might sue and be sued, plead and be impleaded, in its corporate name.

Reference is made, however, to State exrel. Little v. University of Kansas, and the note in 29 L.R.A. 378, where state colleges, prison boards, lunatic asylums, and other public institutions have been held to be agents of the state, not liable to suit unless expressly made so by statute.

But an examination of the cases cited, in any respect similar to this, will show that they involve questions of liability in a suit, rather than immunity from suit. Most of them were actions for torts committed, not by the public corporation itself, but by officers of the law. These public corporations were held free from liability in the suit, on the same ground that municipalities are held not to be responsible for the negligence of policemen, jailers, prison guards, flremen, and other agents performing governmental duties. Workman v. New York, 179 U. S. 556, 45 L. ed. 318, 21 Sup. Ct. Rep. 212. That general rule is of force in South Carolina, as appears from Gibbes v. Beaufort, 20 S. C. 218, cited in the opinion of the court below, where it was said that 'a municipal corporation, instituted for the purpose of assisting the state in the conduct of local civil government, is not liable to be sued in an action of tort for nonfeasance or misfeasance of its officers in regard to their public duties, unless expressly made so liable by statute.' But the plaintiff is not seeking here to hold the college liable for the nonfeasance or misfeasance either of its own officers or officers of the public. This is a suit against the college itself for its own corporate act in building a dyke, whereby the channel had been narrowed, the swift current had been diverted from the usual course across the plaintiff's farm, and, as it is alleged, destroying the banks, washing away the soil, and for all practical purposes as effectually depriving him of his property as if there had been a physical taking Compare Lewis, Em. Dom. 2d ed. § 67; Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. ed. 557; United States v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349; United States v. Welch, 217 U. S. 333, 54 L. ed. 787, 28 L.R.A.(N.S.) 385, 30 Sup. Ct. Rep. 527; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581; Farnham, Waters, § 191; Conniff v. San Francisco, 67 Cal. 45, 50, 7 Pac. 41.

Again, and still treating the question as though involved in the plea to the jurisdiction, that is not an action against the college for a tort committed in the prosecution of any governmental function. The fee was in the state, but the corporation, as equitable owner, was in the possession, use, and enjoyment of the property. For protecting the bottom land, the college, for its own corporate purposes and advantages, constructed the dyke. In so doing it was not acting in any governmental capacity. The embankment was in law similar to one which might have been built for private purposes by the plaintiff on the other side of the river. If he had there constructed a dyke to protect his farm, and in so doing had taken or damaged the land of the college, he could have been sued and held liable. In the same way, and on similar principles of justice and legal liability, the college is responsible to him if, for its own benefit, and for protecting land which the held and used, it built a dyke which resulted in taking or damaging the plaintiff's farm. 2 Dill. Mun. Corp. 4th ed. § 966, p. 1180.

As a part of its plea to the jurisdiction, the college also claimed that 'it never had any interest or title in the land described in the complaint, or in any other property connected with the establishment and maintenance of Clemson Agricultural College of South Carolina, all of it being the property of the state of South Carolina.' And it is argued that the court could take no jurisdiction of a case against a public corporation which, at most, could only result in a judgment unenforceable by levy and sale under execution.

As a matter of fact, the record indicates that besides the state's annual appropriation and the interest on securities held under the residuary clause of Dr. Clemson's will, the college has other sources of income. It appears to own some land in fee simple. The charter authorizes it to receive bequests. So that if the Fort Hill place is not subject to levy and sale, it does not follow that the institution may not now or hereafter own property out of which a judgment in plaintiff's favor could be satisfied. Besides, we have no right to proceed on the theory that if, at the end of the litigation, plaintiff establishes his right to damages, the judgment would not be paid. These suggestions, though made in a plea to the jurisdiction, afford no reason why the college should be granted immunity from suit, when it is claimed that, in violation of the Constitution, it has taken private property for its corporate purposes without compensation.

The plaintiff prayed not only for damages, but that the embankment should be removed. The title to the land and everything annexed to the soil is in the state, subject to the conditions named in the will. The state, therefore, may be a necessary party to any proceeding which seeks to affect the land itself, or to remove any structure thereon which has become a part of the land. If so, and unless it consents to be sued, the court cannot decree the removal of the embankment which forms a part of the state's property. Cunningham v. Macon & B. R. Co. 109 U. S. 446, 27 L. ed. 992, 3 Sup. Ct. Rep. 292, 609. But the prayer for that part of the relief can be stricken out without depriving the court of jurisdiction to hear and determine the question whether Clemson Agricultural College of South Carolina is liable to the plaintiff for its own corporate act in building for its own proprietary and corporate purposes a dyke which it is alleged damaged or took the plaintiff's farm. Columbia Water Power Co. v. Columbia Electric Street R. Light & P. Co. 43 S. C. 155, (1), 167, 169, 20 S. E. 1002. And, if the facts hereafter warrant it, the college may be enjoined against further acts looking to the maintenance or reconstruction of the dyke. The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed.

Mr. Justice Harlan dissents.