An action cannot be maintained in the federal courts to set
aside tax sales on the ground that the sales are void, where the
property has been bought, and is claimed, by the state without
making the state a party, and where there is no statutory provision
permitting such an action, it cannot be maintained against the
state under the Eleventh Amendment.
A state statute providing for the procedure in, and naming the
officials who are necessary parties to, actions to set aside tax
sales the language whereof clearly indicates that the legislature
contemplated that such actions should only be brought in the courts
of the state, will not be construed as permitting such actions to
be brought in the federal courts.
An action to enjoin the enforcement of tax liens cannot be
maintained against a state official who has retired from
office.
The facts are stated in the opinion of the Court.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This bill is not artificially drawn, but we take it to be
primarily, at least, a bill to remove a cloud upon the plaintiff's
title to certain lands which have been sold for taxes, brought upon
the ground that the tax laws of Michigan, for a series of years
named, were unconstitutional, and deprived the plaintiff of his
property contrary to the Fourteenth Amendment. The circuit court
dismissed the bill on demurrer, and the plaintiff
Page 194 U. S. 591
appealed. The dismissal was so plainly right that it is less
necessary than otherwise it might be to pick out and analyze the
meagre allegations of fact from the much more lengthy suggestions
and arguments of matters of law. It is to be gathered that all of
the lands referred to have been sold, and that in some, if not all,
cases, the state was the purchaser, under the state laws. It does
not appear that the state has sold to any one else, or that, if it
has, the purchaser is a party to the bill. It does appear that the
state claims title and, it would seem, possession of a large part,
if not all, of the lands. It does not appear by sufficient
allegations that any defendant claims either possession or
title.
It is obvious, without going further, that the bill cannot be
maintained. The Auditor General and county treasurer claim no
interest in the land, and have none in the question whether the
state's title is good. The state's title, so far as appears, is the
only one assailed. The state therefore is a necessary party,
Burrill v. Auditor General, 46 Mich. 256, and, as this
suit cannot be maintained against a state, the bill, so far as it
seeks to have tax sales declared void, must be dismissed, whether
it be admitted that Michigan is not represented, or be said that it
is represented by the Auditor General. The plaintiff relies upon
the Public Acts of Michigan, 1899, Act 97, adding ยง 144 to the
general tax law of 1893. That act provides that
"the Auditor General shall be made a party defendant to all
actions or proceedings instituted for the purpose of setting aside
any sale or sales for delinquent taxes on lands held as state tax
lands, or which have been sold as such, or which have been sold at
annual tax sales, or for purpose of setting aside any taxes
returned to him and for which sale has not been made."
But we are of opinion that, if the foregoing words otherwise
would apply to this case, they should not be construed as
expressing a waiver by the state of its constitutional immunity
from suit in a United States court. The provisions indicate that
the legislature had in mind only proceedings in the courts of the
state. A copy of the complaint
Page 194 U. S. 592
is to be served upon the prosecuting attorney, who is to send a
copy thereof within five days to the Auditor General, and this is
to be in lieu of service of process. It then is left to the
discretion of the Auditor General to cause the Attorney General to
represent him, and it is provided that, in such suits, no costs
shall be taxed. These provisions with regard to procedure and costs
show that the statute is dealing with a matter supposed to remain
under state control. Of course, a taxpayer denied rights secured to
him by the Constitution and laws of the United States, and
specially set up by him, could bring the case here by writ of error
from the highest courts of the state. But the statute does not
warrant the beginning of a suit in the federal court to set aside
the title of the state.
Smith v. Reeves, 178 U.
S. 436,
178 U. S.
445.
It is true that the statute deals also with suits for setting
aside taxes for which sales have not been made, and that apart from
the statute, injunctions against officers proceeding
unconstitutionally, under color of their office, are well known.
Pennoyer v. McConnaughy, 140 U. S. 1;
Fargo v. Hart, decided at this term. It is true also that,
while the prayers of the bill are directed mainly to the setting
aside of conveyances supposed to have been made before the filing
of the bill, there is also a prayer that the defendants be enjoined
from levying taxes on the lands, from selling them, or from taking
further proceedings under the said laws. It seems to be the
practice in Michigan to continue to assess lands sold for taxes
while in the hands of the state, for reasons which are easily
understood but do not need to be explained. It is unnecessary to
consider whether an injunction could be granted against this
without disposing of the title alleged by the state, or whether
sufficient foundation is laid for the prayer in the vague
allegations of the bill. It is enough to say that, as the defendant
Dix has retired from office, the bill must be dismissed. It does
not appear upon the record that any amendment was sought to be
made, or that, if one had been offered, it could have been allowed.
Warner Valley Stock Co. v.
Smith, 165
Page 194 U. S. 593
U.S. 28. The case was disposed of properly by the circuit court
on the foregoing grounds. Therefore, the merits cannot be
discussed.
Decree affirmed.