[323 U.S. 459, 460] Mr. Merle H. Miller, of Indianapolis, Ind., for petitioner.
Messrs. John J. McShane and Winslow Van Horne, both of Indianapolis, Ind., for appellees.
Mr. Justice REED delivered the opinion of the Court.
This writ brings here for review an action by petitioner, a non- resident foreign manufacturing corporation, against the respondents, the department of treasury of the State of Indiana and M. Clifford Townsend, Joseph M. Robertson and Frank G. Thompson, the Governor, Treasurer and Auditor, respectively, of the State of Indiana, who 'together' constituted the board of the department of treasury. 1 Petitioner seeks a refund of gross income taxes paid to the department and measured by sales claimed by the state to have occurred in Indiana. 2 Jurisdiction of the United States District Court is founded on allegations of the violation of Article I, Section 8, the Commerce Clause, and [323 U.S. 459, 461] the Fourteenth Amendment of the Constitution. The state statutory procedure for obtaining a refund which petitioner followed is set forth in Section 64-2614(a) of the Indiana statutes. 3
The District Court denied recovery. The Circuit Court of Appeals affirmed. 4 Certiorari was granted5 on peti- [323 U.S. 459, 462] tioner's assertion of error in that the Circuit Court of Appeals decided an important question of local law probably in conflict with an applicable decision of the Supreme Court of Indiana. Department of Treasury v. International Harvester Co., 221 Ind. 416, 47 N.E.2d 150. As we conclude that petitioner's action could not be maintained in the federal court, we do not decide the merits of the issue.
Petitioner's right to maintain this action in a federal court depends first, upon whether the action is against the State of Indiana or against an individual. Secondly, if the action is against the state, whether the state has consented to be sued in the federal courts. Recently these questions were discussed in Great Northern Life Insurance Co. v. Read, 322 U.S. 47 , 64 S.Ct. 873.
In that case this Court held that as the suit was against a state official as such, through proceedings which were authorized by statute to compel him to carry out with state funds the state's agreement to reimburse moneys illegally exacted under color of the tax power, the suit was one against the state. We said that such a suit was clearly distinguishable from actions against a tax collector to recover a personal judgment for money wrongfully collected under color of state law. 322 U.S. 47, 50 , 51 S., 64 S.Ct. 873, 874, 875. Where relief is sought under general law from wrongful acts of state officials, the sovereign's immunity under the Eleventh Amendment does not extend to wrongful individual action, and the citizen is allowed a remedy against the wrongdoer personally. Atchison, T. & S.F. Ry. Co. v. O'Connor, 223 U.S. 280 , 32 S.Ct. 216, Ann.Cas.1913C, 1050; cf. Matthews v. Rodgers, 284 U.S. 521, 528 , 52 S.Ct. 217, 220. Where, however, an action is authorized by statute against a state officer in his official capacity and constituting an action against the state, the Eleventh Amendment operates to bar suit except in so far as the statute waives state immunity from suit. Smith v. [323 U.S. 459, 463] Reeves, 178 U.S. 436 , 20 S.Ct. 919; Great Northern Life Insurance Co. v. Read, 322 U.S. 47 , 64 S.Ct. 873.
We are of the opinion that petitioner's suit in the instant case against the department and the individuals as the board constitutes an action against the State of Indiana. A state statute prescribed the procedure for obtaining refund of taxes illegally exacted, providing that a taxpayer first file a timely application for a refund with the state department of treasury. 6 Upon denial of such claim, the taxpayer is authorized to recover the illegal exaction in an action against the 'department.' Judgment obtained in such action is to be satisfied by payment 'out of any funds in the state treasury.' 7 This section clearly provides for a action against the state, as opposed to one against the collecting official individually. No state court decision has been called to our attention which would indicate that a different interpretation of this statute has been adopted by state courts.
Petitioner's suit in the federal District Court is based on 64-2614( a) of the Indiana statutes and therefore constitutes an action against the state, not against the collecting official as an individual. Petitioner brought its action in strict accord with 64-2614(a). The action is against the state's department of treasury. The complaint carefully details compliance with the provisions of 64-2614(a) which require a timely application for refund to the department as a prerequisite to a court action authorized in the section. It is true the petitioner in the present proceeding joined the Governor, Treasurer and Auditor of the state as defendants, who 'together constitute the Board of Department of Treasury of the State of Indiana.' But, they were joined as the collective repre- [323 U.S. 459, 464] sentatives of the state, not as individuals against whom a personal judgment is sought. The petitioner did not assert any claim to a personal judgment against these individuals for the contested tax payments. The petitioner's claim is for a 'refund,' not for the imposition of personal liability on individual defendants for sums illegally exacted. We have previously held that the nature of a suit as one against the state is to be determined by the essential nature and effect of the proceeding. Ex parte Ayers, 123 U.S. 443, 490 , 499 S., 8 S.Ct. 164, 174, 175; Ex parte State of New York, 256 U.S. 490, 500 , 41 S.Ct. 588, 590; Worcester County Trust Co. v. Riley, 302 U.S. 292, 296 , 298 S., 58 S.Ct. 185, 186, 187. And when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants. Smith v. Reeves, supra; Great Northern Life Insurance Co. v. Read, supra. We are of the opinion, therefore, that the present proceedings was brought in reliance on 64-2614(a) and is a suit against the state.
It remains to be considered whether the State of Indiana has consented to this action against it in the federal court.
The Eleventh Amendment provides that: 'The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.' This express constitutional limitation denies to the federal courts authority to entertain a suit brought by private parties against a state without its consent. Hans v. State of Louisiana, 134 U.S. 1, 10 , 10 S.Ct. 504, 505; Ex parte State of New York, 256 U.S. 490, 497 , 41 S.Ct. 588, 589; State of Missouri v. Fiske, 290 U.S. 18, 25 , 54 S.Ct. 18, 20; United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512 , 60 S.Ct. 653, 656; Great Northern Life Insurance Co. v. Read, supra; State v. Mutual Life Ins. Co., 175 Ind. 59, 71, 93 S.E. 213, 42 L.R.A.,N.S., 256; Hogston [323 U.S. 459, 465] v. Bell, 185 Ind. 536, 548, 112 N.E. 883. While the state's immunity from suit may be waived, Clark v. Barnard, 108 U.S. 436, 447 , 2 S.Ct. 878; Gunter v. Atlantic Coast Line, 200 U.S. 273 , 26 S.Ct. 252; State of Missouri v. Fiske, 290 U.S. 18, 24 , 54 S.Ct. 18, there is nothing to indicate authorization of such waiver by Indiana in the present proceeding.
Section 64-2614(a) authorizes 'action or suit against the department in any court of competent jurisdiction; and the circuit or superior court of the county in which the taxpayer resides or is located shall have original jurisdiction of action to recover any amount improperly collected.' In the Read case we construed a similar provision of an Oklahoma tax refund statute as a waiver of state immunity from suit in state courts only. 322 U.S. 47, 54 , 64 S.Ct. 873, 876, 877. As was said in that case. 'When a state authorizes a suit against itself to do justice to taxpayers who deem themselves injured by any exaction, it is not consonant with our dual system for the Federal courts to be astute to read the consent to embrace Federal as well as state courts. ... when we are dealing with the sovereign exemption from judicial interference in the vital field of financial administration a clear declaration of the state's intention to submit its fiscal problems to other courts than those of its own creation must be found.' Cf. United States v. Shaw, 309 U.S. 495, 501 , 60 S.Ct. 659, 661. Section 64-2614, does not contain any clear indication that the state intended to consent to suit in federal courts. 8 The provision in [323 U.S. 459, 466] this section which vests original jurisdiction of suits for refund in the 'circuit or superior court of the county in which the taxpayer resides or is located' indicates that the state legislature contemplated suit in the state courts. 9 Moreover, this interpretation of 64-2614(a) to authorize suits only in state courts accords with the state legislative policy. Indiana has adopted a liberal policy toward general contract claimants but confines their suits against the state to state courts.