author: Mr. Justice Brennan Mr. Justice White,

text:
    PARDEN et al. v. TERMINAL RAILWAY OF THE ALABAMA STATE DOCKS DEPARTMENT et al.
    No. 157.
    Argued February 26-27, 1964.
    Decided May 18, 1964.

      Al G. Rives argued the cause for petitioners. With him on the briefs was Timothy M. Conway, Jr.

      Willis C. Darby, Jr. argued the cause for respondents. With him on the brief was Richmond M. Flowers, Attorney General of Alabama.
   Mr. Justice Brennan

delivered the opinion of the Court.

The question in this case is whether a State that owns and operates a railroad in interstate commerce may successfully plead sovereign immunity in a federal-court suit brought against the railroad by its employee under the Federal Employers’ Liability Act.

Petitioners, citizens of the State of Alabama, brought suit in the Federal District Court for the Southern District of Alabama against respondent Terminal Railway of the Alabama State Docks Department. They alleged that the Railway was a “common carrier by railroad . . . engaging in commerce between any of the several States” within the terms of the Federal Employers’ Liability Act, 45 U. S. C. §§ 51-60, and sought damages under that Act for personal injuries sustained while employed by the Railway. Respondent State of Alabama, appearing specially, moved to dismiss 'the action on the ground that the Railway was an agency of the State and the State had not waived its sovereign immunity from suit. The District Court granted the motion, and the Court of Appeals for the Fifth Circuit affirmed, 311 F. 2d 727. We granted certiorari, 375 U. S. 810. We reverse.

The Terminal Railway is wholly owned and operated by the State of Alabama through its State Docks Department, and has been since 1927. Consisting of about 50 miles of railroad tracks in the area adjacent to the State Docks at Mobile, it serves those docks and several industries situated in the vicinity, and also operates an interchange railroad with several privately owned railroad companies. It performs services for profit under statutory authority authorizing it to operate “as though it were an ordinary common carrier.” 1940 Code of Alabama (recompiled 1958), Tit. 38, § 17. It conducts substantial operations in interstate commerce. It has contracts and working agreements with the various railroad brotherhoods in accordance with the Railway Labor Act, 45 U. S. C. § 151 et seg.; maintains its equipment in conformity with the Federal Safety Appliance Act, 45 U. S. C. § 1 et seq.; and complies with the reporting and bookkeeping requirements of the Interstate Commerce Commission. It is thus indisputably a common carrier by railroad engaging in interstate commerce.

Petitioners contend that it is consequently subject to this- suit under the Federal Employers’ Liability Act. That statute provides that “every common carrier by railroad while engaging in commerce between any of the several States . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce,” and that “under this chapter an action may be brought in a district court of the United States . . . 45 U. S. C. §§ 51, 56. Respondents rely, as did the lower courts in dismissing the action, on sovereign immunity — the principle that a State may not be sued by an individual without its consent. Although the Eleventh Amendment is not in terms applicable here, since petitioners are citizens of Alabama, this Court has recognized that an unconsenting State is immune from federal-court suits brought by its own citizens as well as by citizens of another State. Hans v. Louisiana, 134 U. S. 1; Duhne v. New Jersey, 251 U. S. 311; Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 51; Fitts v. McGhee, 172 U. S. 516, 524. See also Monaco v. Mississippi, 292 U. S. 313. Nor is the State divested of its immunity “on the mere ground that the case is one arising under the Constitution or laws of the United States.” Hans v. Louisiana, supra, 134 U. S., at 10; see Duhne v. New Jersey, supra, 251 U. S. 311; Smith v. Reeves, 178 U. S. 436, 447-449; Ex parte New York, 256 U. S. 490, 497-498. But the immunity may of course be waived; the State’s freedom from suit without its consent does not protect it from a suit to which it has consented. Clark v. Barnard, 108 U. S. 436, 447; Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 284; Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275. We think Alabama has consented to the present suit.

This case is distinctly unlike Hans v. Louisiana, supra, where the action was a contractual one based on state bond coupons, and the plaintiff sought to invoke the federal-question jurisdiction by alleging an impairment of the obligation of contract. Such a suit on state debt obligations without the State’s consent was precisely the “evil” against which both the Eleventh Amendment and the expanded immunity doctrine of the Hans case were directed. Here, for the first time in this Court, a State’s claim of immunity against suit by an individual meets a suit brought upon a cause of action expressly created by Congress. Two questions are thus presented: (1) Did Congress in enacting the FELA intend to subject a State to suit in these circumstances? (2) Did it have the power to do so, as against the State’s claim of immunity?

We think that Congress, in making the FELA applicable to “every” common carrier by railroad in interstate commerce, meant what it said. That congressional statutes regulating railroads in interstate commerce apply to such railroads whether they are state owned or privately owned is hardly a novel proposition; it has twice been clearly affirmed by this Court. In United States v. California, 297 U. S. 175, the question was whether the federal Safety Appliance Act, 45 U. S. C. §§ 2, 6, applicable by its terms to “any common carrier engaged in interstate commerce by railroad,” applied to California’s state-owned railroad. The Court unanimously held that it did. In rejecting the argument that “the statute is to be deemed inapplicable to state-owned railroads because it does not specifically mention them,” the Court said, in terms equally pertinent here:

“No convincing reason is advanced why interstate commerce and persons and property concerned in it should not receive the protection of the act whenever a state, as well as a privately-owned carrier, brings itself within the sweep of the statute, or why its all-embracing language should not be deemed to afford that protection.” 297 U. S., at 185.

In California v. Taylor, 353 U. S. 553, the question was whether the Railway Labor Act, 45 U. S. C. § 151 et seq., applicable by its terms to “any . . . carrier by railroad, subject to the Interstate Commerce Act,” applied to the same California state railroad. The Court, again unanimous, held that it did. After noting that “federal statutes regulating interstate railroads, or their employees, have consistently been held to apply to publicly owned or operated railroads,” although “none of these statutes referred specifically to public railroads as being within their coverage,” 353 U. S., at 562, the Court stated:

“The fact that Congress chose to phrase the coverage of the Act in all-embracing terms indicates that state railroads were included within it. In fact, the consistent congressional pattern in railway legislation which preceded the Railway Labor Act was to employ all-inclusive language of coverage with no suggestion that state-owned railroads were not included.” 353 U. S., at 564.

As support for this proposition, the Court relied on three decisions involving the precise question presented by the instant case, in all of which it had been held that the FELA did authorize suit against a publicly owned railroad despite a claim of sovereign immunity. Mathewes v. Port Utilities Comm’n, 32 F. 2d 913 (D. C. E. D. S. C. 1929); Higginbotham v. Public Belt R. Comm’n, 192 La. 525, 188 So. 395 (1938); Maurice v. State, 43 Cal. App. 2d 270,110 P. 2d 706 (Cal. Dist. C. A. 1941). Thus we could not read the FELA differently here without undermining the basis of our decision in Taylor.

Nor do we perceive any reason for reading it differently. The language of the FELA is at least as broad and all-embracing as that of the Safety Appliance Act or the Railway Labor Act, and its purpose is no less applicable to state railroads and their employees. If Congress made the judgment that, in view of the dangers of railroad work and the difficulty of recovering for personal injuries under existing rules, railroad workers in interstate commerce should be provided with the right of action created by the FELA, we should not presume to say, in the absence of express provision to the contrary, that it intended to exclude a particular group of such workers from the benefits conferred by the Act. To read a “sovereign immunity exception” into the Act would result, moreover, in a right without a remedy; it would mean that Congress made “every” interstate railroad liable in damages to injured employees but left one class of such employees — those whose employers happen to be state owned — without any effective means of enforcing that liability. We are unwilling to conclude that Congress intended so pointless and frustrating a result. We therefore read the FELA as authorizing suit in a Federal District Court against state-owned as well as privately owned common carriers by railroad in interstate commerce.

Respondents contend that Congress is without power, in view of the immunity doctrine, thus to subject a State to suit. We disagree. Congress enacted the FELA in the exercise of its constitutional power to regulate interstate commerce. Second Employers’ Liability Cases, 223 U. S. 1. While a State’s immunity from suit by a citizen without its consent has been said to be rooted in “the inherent nature of sovereignty/’ Great Northern Life Ins. Co. v. Read, supra, 322 U. S. 47, 51, the States surrendered a portion of their sovereignty when they granted Congress the power to regulate commerce.

“This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution. ... If, as has always been understood, the sovereignty of congress, though limited to specified objects is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States.” Gibbons v. Ogden, 9 Wheat. 1, 196-197.

Thus, as the Court said in United States v. California, supra, 297 U. S., at 184-185, a State’s operation of a railroad in interstate commerce

“must be in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government. The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution. . . . [T]here is no such limitation upon the plenary power to regulate commerce [as there is upon the federal power to tax state instrumentalities]. The state can no more deny the power if its exercise has been authorized by Congress than can an individual.”

By empowering Congress to regulate commerce, then, the States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation. Since imposition of the FELA right of action upon interstate railroads is within the congressional regulatory power, it must follow that application of the Act to such a railroad cannot be precluded by sovereign immunity.

Recognition of the congressional power to render a State suable under the FELA does not mean that the immunity doctrine, as embodied in the Eleventh Amendment with respect to citizens of other States and as extended to the State’s own citizens by the Hans case, is here being overridden. It remains the law that a State may not be sued by an individual without its consent. Our conclusion is simply that Alabama, when it began operation of an interstate railroad .approximately 20 years after enactment of the FELA, necessarily consented to such suit as was authorized by that Act. By adopting and ratifying the Commerce Clause, the States empowered Congress to create such a right of action against interstate railroads; by enacting the FELA in the exercise of this power, Congress conditioned the right to operate a railroad in interstate commerce upon amenability to suit in federal court as provided by the Act; by thereafter operating a railroad in interstate commerce, Alabama must be taken to have accepted that condition and thus to have consented to suit. “[B]y engaging in interstate commerce by rail, [the State] has subjected itself to the commerce power, and is liable for a violation of the . . . Act, as are other carriers . . . United States v. California, supra, 297 U. S., at 185; California v. Taylor, supra, 353 U. S., at 568. We thus agree that

“[T]he state is liable, upon the theory that, by engaging in interstate commerce by rail, it has subjected itself to the commerce power of the federal government.
“It would be a strange situation, indeed, if the state could be held subject to the [Federal Safety Appliance Act] and liable for a violation thereof, and yet could not be sued without its express consent. The state, by engaging in interstate commerce, and thereby subjecting itself to the act, must be held to have waived any right it may have had arising out of the general rule that a sovereign state may not be sued without its consent.” Maurice v. State, supra, 43 Cal. App. 2d, at 275, 277, 110 P. 2d, at 710-711.

Accord, Higginbotham v. Public Belt R. Comm’n, supra, 192 La. 525, 550-551, 188 So. 395, 403; Mathewes v. Port Utilities Comm’n, supra.

Respondents deny that Alabama’s operation of the railroad constituted consent to suit. They argue that it had no such effect under state law, and that the State did not intend to waive its immunity or know that such a waiver would result. Reliance is placed on the Alabama Constitution of 1901, Art. I, Section 14 of which provides that “the State of Alabama shall never be made a defendant in any court of law or equity”; on state cases holding that neither the legislature nor a state officer has the power to waive the State’s immunity; and on cases in this Court to the effect that whether a State has waived its immunity depends upon its intention and is a question of state law only. Chandler v. Dix, 194 U. S. 590; Palmer v. Ohio, 248 U. S. 32; Ford Motor Co. v. Department of Treasury, 323 U. S. 459, 466-470. We think those cases are inap-posite to the present situation, where the waiver is asserted to arise from the State’s commission of an act to which Congress, in the exercise of its constitutional power to regulate commerce, has attached the condition of amenability to suit. More pertinent to such a situation is our decision in Petty v. Tennessee-Missouri Bridge Comm’n, supra. That was a suit against a bi-state authority created with the consent of Congress pursuant to the Compact Clause of the Constitution. We assumed arguendo that the suit must be considered as being against the States themselves, but held nevertheless that by the terms of the compact and of a proviso that Congress had attached in approving it, the States had waived any immunity they might otherwise have had. In reaching this conclusion we rejected arguments, like the one made here, based on the proposition that neither of the States under its own law would have considered the language in the compact to constitute a waiver of its immunity. The question of waiver was, we held, one of federal law. It is true that this holding was based on the inclusion of the language in an interstate compact sanctioned by Congress under the Constitution. But such compacts do not present the only instance in which the question whether a State has waived its immunity is one of federal law. This must be true whenever the waiver is asserted to arise from an act done by the State within the realm of congressional regulation; for the congressional power to condition such an act upon amenability to suit would be meaningless if the State, on the basis of its own law or intention, could conclusively deny the waiver and shake off the condition. The broad principle of the Petty case is thus applicable here: Where a State’s consent to suit is alleged to arise from an act not wholly within its own sphere of authority but within a sphere — whether it be interstate compacts or interstate commerce — subject to the constitutional power of the Federal Government, the question whether the State’s act constitutes the alleged consent is one of federal law. Here, as in Petty, the States by venturing into the congressional realm “assume the conditions that Congress under the Constitution attached.” 359 U. S., at 281-282.

Our conclusion that this suit may be maintained is in accord with the common sense of this Nation’s federalism. A State’s immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court. But when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were ■a private person or corporation. Cf. South Carolina v. United States, 199 U. S. 437, 463; New York v. United States, 326 U. S. 572. It would surprise our citizens, we think, to learn that petitioners, who in terms of the language and purposes of the FELA are on precisely the same footing as other railroad workers, must be denied the benefit of the Act simply because the railroad for which they work happens to be owned and operated by a State rather than a private corporation. It would be even more surprising to learn that the FELA does make the Terminal Railway “liable” to petitioners, but, unfortunately, provides no means by which that liability may be enforced. Moreover, such a result would bear the seeds of a substantial impediment to the efficient working of our federalism. States have entered and are entering numerous forms of activity which, if carried on by a private person or corporation, would be subject to federal regulation. See South Carolina v. United States, supra, 199 U. S., at 454-455. In a significant and increasing number of instances, such regulation takes the form of authorization of lawsuits by private parties. To preclude this form of regulation in all cases of state activity would remove an important weapon from the congressional arsenal with respect to a substantial volume of regulable conduct. Where, as here, Congress by the terms and purposes of its enactment has given no indication that it desires to be thus hindered in the exercise of its constitutional power, we see nothing in the Constitution to obstruct its will.

Reversed.

Mr. Justice White,

with whom Mr. Justice Douglas, Mr. Justice Harlan, and Mr. Justice Stewart join,

dissenting.

I agree that it is within the power of Congress to condition a State’s permit to engage in the interstate transportation business on a waiver of the State’s sovereign immunity from suits arising out of such business. Congress might well determine that allowing regulable conduct such as the operation of a railroad to be undertaken by a body legally immune from liability directly resulting from these operations is so mimical to the purposes of its regulation that the State must be put to the option of either foregoing participation in the conduct or consenting to legal responsibility for injury caused thereby.

However, the decision to impose such conditions is for Congress and not for the courts. The majority today follows the Court’s consistent holdings that an uncon-senting State is constitutionally immune from federal court suits brought by its own citizens as well as by citizens of other States. It should,not be easily inferred that Congress, in legislating pursuant^to one article of the Constitution, intended to effect an automatic and compulsory waiver of rights arising under another. Only when Congress has clearly considered the problem and expressly declared that any State which undertakes given regulable conduct will be deemed thereby to have waived its immunity should courts disallow the invocation of this defense. Particular deference should be accorded that “old and well-known rule that statutes which in general terms divest pre-existing rights or privileges will not be applied to the sovereign without express words to that effect,” United States v. Mine Workers, 330 U. S. 258, 272, where the rights and privileges find their origin in the Constitution. Far from manifesting such an unequivocal determination, the legislative history of the Federal Employers’ Liability Act indicates that Congress did not even consider the possible impact of its legislation upon state immunity from suits. The expressed purpose of the Act was “to change the common-law liability of employers.” Certain specific defenses available to a railroad employer in an employee’s personal injury suit were removed, but sovereign immunity was not one of them. To require Alabama’s immunity defense to yield because of a claimed inconsistency with language of the Act making its provisions applicable to “every common carrier by railroad while engaging in commerce” relegates the States’ constitutional immunity, not even mentioned in the Act, to the level of state statutory or common-law defenses, four of which the statute expressly proscribed. A decent respect for the normally preferred position of constitutional rights dictates that if Congress decides to exercise its power to condition privileges within its control on the forfeiture of constitutional rights its intention to do so should appear with unmistakable clarity.

In previous opinions the Court has indicated that waiver of sovereign immunity will be found only where stated by “the most express language or by such overwhelming implication from the text as would leave no room for any other reasonable construction.” Murray v. Wilson Distilling Co., 213 U. S. 151, 171. See Ford Motor Co. v. Department of Treasury, 323 U. S. 459, 468-470. If the automatic consequence of state operation of a railroad in interstate commerce is to be waiver of sovereign immunity, Congress’ failure to bring home to the State the precise nature of its option makes impossible the “intentional relinquishment or abandonment of a known right or privilege” which must be shown before constitutional rights may be taken to have been waived. Johnson v. Zerbst, 304 U. S. 458, 464; Fay v. Noia, 372 U. S. 391. The majority in effect holds that with regard to sovereign immunity, waiver of a constitutional privilege need be neither knowing nor intelligent.

Preferring to leave the limiting of constitutional defenses to that body empowered to impose such conditions, I respectfully dissent.

      See also Ala. Const, of 1901, amendment 116; 1940 Code of Ala. (recompiled 1958), Tit. 38, §§45 (14), (16).

       The Eleventh Amendment provides:
      “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.”

       Of the other cases cited in which federal-question jurisdiction was asserted, Smith v. Reeves, 178 U. S. 436, and Ex parte New York, 256 U. S. 490, were also commonplace suits in which the federal question did not itself give rise to the alleged cause of action against the State but merely lurked in the background. The former case was a tax-refund suit brought by receivers of a corporation created by Congress, and the latter was an admiralty suit for property damage due to negligence. Duhne v. New Jersey, 251 U. S. 311, was a suit against the State to restrain it from enforcing the Eighteenth Amendment t.o the Federal Constitution, on the ground that the Amendment was invalid.

       See Cohens v. Virginia, 6 Wheat. 264, 406-407; Hans v. Louisiana, 134 U. S. 1, 12-13, 16; The Federalist, No. 81 (Hamilton) (Cooke ed. 1961), at 548-549; Irish and Prothro, The Politics of American Democracy, at 123 (1959), quoted in Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275, 276, n. 1; Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 19 (1963).

       Although the language of the Act itself is clear enough, further indication of the congressional desire to cover all rail carriers that constitutionally could be covered is found in the legislative history, where the House Report states that “This bill relates to common carriers by railroad engaged in interstate . . . commerce .... It is intended in its scope to cover all commerce to which the regulative power of Congress extends.” H. R. Rep. No. 1386, To Accompany H. R. 20310, 60th Cong., 1st Sess. (1908).

       The suit had been brought against the State not by an individual but by the United States, to recover the statutory penalty for violation of the Act.

       The suit was not against the State, but against members of the National Railroad Adjustment Board to compel them to take jurisdiction over the railroad under the Act. The Court left open, 353 U. S., at 568, n. 16, the question whether the Eleventh Amendment would bar an employee of the railroad from enforcing an award by the Board in a suit against the State in a Federal District Court.

       Respondents make an argument based on the provision in 45 U. S. C. § 56 that the jurisdiction of the federal courts under the FELA “shall be concurrent with that of the courts of the several States.” The contention is that since Alabama’s courts would not have taken jurisdiction over this suit, the “concurrent” jurisdiction of the federal courts must be similarly limited. See Hans v. Louisiana, supra, 134 U. S., at 18-19; but see Chisholm v. Georgia, 2 Dall. 419; South Dakota v. North Carolina, 192 U. S. 286, 318. It is clear, however, that Congress did not intend this language to limit the jurisdiction of the federal courts, but merely to provide an alternative forum in the state courts. See O’Donnell v. Elgin, J. & E. R. Co., 193 F. 2d 348, 352-353 (C. A. 7th Cir. 1951), cert. denied, 343 U. S. 956; Trapp v. Baltimore & O. R. Co., 283 F. 655 (D. C. N. D. Ohio 1922); Waltz v. Chesapeake & O. R. Co., 65 F. Supp. 913 (D. C. N. D. Ill. 1946).

       See also The Federalist, No. 81 (Hamilton) (Cooke ed. 1961), at 548, quoted in Hans v. Louisiana, supra, 134 U. S., at 13. Compare Jaffe, note 4, supra, 77 Harv. L. Rev., at 3, 18.

       “[B]y engaging in the railroad business a State cannot withdraw the railroad from the power of the federal government to regulate commerce.” New York v. United States, 326 U. S. 572, 582 (opinion of Frankfurter, J.).

         Respondents argue that Congress could not “directly strip a state of its sovereign immunity from suit by a citizen,” and hence cannot constitutionally impose a condition of amenability to suit upon the State’s right to operate a railroad in interstate commerce. Reliance is placed on such eases as Howard v. Illinois Central R. Co., 207 U. S. 463, 502-503, and Frost & Frost Trucking Co. v. Railroad Comm’n of California, 271 U. S. 583. In Howard, the Court held the first Federal Employers’ Liability Act unconstitutional because it applied to intrastate as well as interstate commerce, rejecting the argument that “the act is constitutional, although it embraces subjects not within the power of Congress to regulate commerce, because one who engages in interstate commerce thereby submits all his business concerns to the regulating power of Congress.” 207 U. S., at 502. In Frost & Frost, the Court held that since a private carrier could not constitutionally be converted against its will into a common carrier by mere legislative command, such a condition could not be attached to the carrier's right to use the highways. Both cases are clearly distinguishable because the condition sought to be imposed was deemed by the Court to fall outside the scope of valid regulation. Thus in Howard the statute’s application to intrastate commerce was described as an attempt by Congress to exercise “power not delegated to it by the Constitution, in other words, . . . the right to legislate concerning matters of purely state concern,” 207 U. S., at 502, and in Frost & Frost the Court stated that “the act, as thus applied, is in no real sense a regulation of the use of the public highways. It is a regulation of the business of those who are engaged in using them.” 271 U. S., at 591. Here, in contrast, Congress does have authority, within its power to regulate commerce, to subject interstate railroads to suit under the BELA; by imposing a condition requiring state-owned interstate railroads to submit to such suit, Congress is not attempting to extend its regulatory power to objects that would not otherwise be subject to it, but rather to prevent objects otherwise subject to the power from being unjustifiably excepted. That Congress could not make a State suable upon all causes of action does not mean that it cannot do so with respect to this particular cause of action, where imposition of such liability is within its power to regulate commerce and where the State, by operating a railroad in interstate commerce, has voluntarily submitted itself to that power.

         Dunn Construction Co. v. State Board of Adjustment, 234 Ala. 372, 376, 175 So. 383, 386 (1937); State Tax Comm’n v. Commercial Realty Co., 236 Ala. 358, 361, 182 So. 31, 35 (1938).

       This proviso was that “nothing herein contained shall be construed to affect, impair, or diminish any right, power, or jurisdiction of . . . any court ... of the United States over or in regard to any navigable waters or any commerce between the States ...” The Court read this as reserving the jurisdiction of the federal courts in suits brought against the bi-state authority under the Jones Act or any other applicable congressional regulation of navigation or commerce. 359 U. S., ht 281. The Court's reliance on this congres-sionally imposed condition in Petty is itself sufficient to refute respondents’ argument here that since Congress has no power to “directly strip a State of its sovereign immunity,” it could not impose such suability as a condition to the State’s operation of a railroad in interstate commerce. See note 11, supra. It was presumably just as true in Petty as it is here that Congress could not directly subject the States to suit in matters falling outside the power granted to Congress by the Constitution. Yet Petty held that Congress could impose such suability as a condition to allowing the States to enter into the compact. Similarly, Congress can do so here as a condition to allowing the State to operate an interstate railroad.

       An employee regulation of respondent Terminal Railway explicitly recognizes that its employees may have causes of action under the FELA, providing as follows:
      “Employees must not make any statement, either oral or written, concerning any accident, claim or suit in which the company is, or may be involved, to any person other than [an] authorized representative of the railway, without permission, [e]xcept in cases arising under the Federal Employers’ Liability Act, otherwise known as 'an act relating to the liability of common carriers by railroad to their employees in certain cases.’ ”
      The exception for cases arising under the FELA is required by 45 U. S. C. § 60. Asked about this regulation, respondents’ counsel said on oral argument that it did not indicate an intention to be subject to the Act, and could not do so in the face of the Alabama Constitution, see p. 194, supra, but had been included inadvertently when the Railway was adopting a number of regulations based upon those used by a private railroad carrier. Nevertheless, the presence of this regulation on the Terminal Railway’s books illustrates, we think, the incongruity of considering this railroad to be immune from a statutory obligation imposed on privately owned railroads that are similar in every material respect.

       H. R. Rep. No. 1386, 60th Cong., 1st Sess., 1 (1908). In debate on the House floor Representative Henry also summarized the Act as having “changed four rules of the common law.” 42 Cong. Rec. 4427.

         Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275; California v. Taylor, 353 U. S. 553, and United States v. California, 297 U. S. 175, are all inapposite. In Petty there was an express waiver, the compact itself expressly declaring that the bi-staté authority could “sue and be sued.” Taylor was not a suit against a State but against the members of the National Railroad Adjustment Board requiring them to take action on the plaintiffs’ claims under the Railway Labor Act. Though the Court held the Act applicable to the State Belt Railroad it expressly disclaimed deciding any sovereign immunity issue. Footnote 16 of that opinion states: “The contention of the State that the Eleventh Amendment to the Constitution of the United States would bar an employee of the Belt Railroad from enforcing an award by the National Railroad Adjustment Board in a suit against the State in a United States District Court under §3, First (p), of the Act is not before us under the facts of this case.” 353 U. S., at 568. And the suit to recover the statutory penalty for violation of the federal Safety Appliance Act in United States v. California was brought by the United States, against whom it has long been recognized there is no state sovereign immunity. United States v. Texas, 143 U. S. 621.


source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice White,

license: Public Domain

text:
    MASSIAH v. UNITED STATES.
    No. 199.
    Argued March 3, 1964.
    Decided May 18, 1964.

      Robert J. Carluccio argued the cause and filed a brief for petitioner.

      Solicitor General Cox argued the cause for the United States. With him on the brief were Assistant Attorney General Miller and Jerome Nelson.

   Mr. Justice Stewart

delivered the opinion of the Court.

The petitioner was indicted for violating the federal narcotics laws. He retained a lawyer, pleaded not guilty, and was released on bail. While he was free on bail a federal agent succeeded by surreptitious means in listening to incriminating statements made by him. Evidence of these statements was introduced against the petitioner at his trial over his objection. He was convicted, and the Court of Appeals affirmed. We granted certiorari to consider whether, under the circumstances here presented, the prosecution’s use at the trial of evidence of the petitioner’s own incriminating statements deprived him of any right secured to him under the Federal Constitution. 374 U. S. 805.

The petitioner, a merchant seaman, was in 1958 a member of the crew of the S. S. Santa Maria. In April of that year federal customs officials in New York received information that he was going to transport a quantity of narcotics aboard that ship from South America to the United States. As a result of this and other information, the agents searched the Santa Maria upon its arrival in New York and found in the afterpeak of the vessel five packages containing about three and a half pounds of cocaine. They also learned of circumstances, not here relevant, tending to connect the petitioner with the cocaine. He was arrested, promptly arraigned, and subsequently indicted for possession of narcotics aboard a United States vessel. In July a superseding indictment was returned, charging the petitioner and a man named Colson with the same substantive offense, and in separate counts charging the petitioner, Colson, and others with having conspired to possess narcotics aboard a United States vessel, and to import, conceal, and facilitate the sale of narcotics. The petitioner, who had retained a lawyer, pleaded not guilty and was released on bail, along with Colson.

A few days later, and quite without the petitioner’s knowledge, Colson decided to cooperate with the government agents in their continuing investigation of the narcotics activities in which the petitioner, Colson, and others had allegedly been engaged. Colson permitted an agent named Murphy to install a Schmidt radio transmitter under the front seat of Colson’s automobile, by means of which Murphy, equipped with an appropriate receiving device, could overhear from some distance away conversations carried on in Colson’s car.

On the evening of November 19, 1959, Colson and the petitioner held a lengthy conversation while sitting in Colson’s automobile, parked on a New York street. By prearrangement with Colson, and totally unbeknown to the petitioner, the agent Murphy sat in a car parked out of sight down the street and listened over the radio to the entire conversation. The petitioner made several incriminating statements during the course of this conversation. At the petitioner’s trial these incriminating statements were brought before the jury through Murphy’s testimony, despite the insistent objection of defense counsel. The jury convicted the petitioner of several related narcotics offenses, and the convictions were affirmed by the Court of Appeals.

The petitioner argues that it was an error of constitutional dimensions to permit the agent Murphy at the trial to testify to the petitioner’s incriminating statements which Murphy had overheard under the circumstances disclosed by this record. This argument is based upon two distinct and independent grounds. First, we are told that Murphy’s use of the radio equipment violated the petitioner’s rights under the Fourth Amendment, and, consequently, that all evidence which Murphy thereby obtained was, under the rule of Weeks v. United States, 232 U. S. 383, inadmissible against the petitioner at the trial. Secondly, it is said that the petitioner’s Fifth and Sixth Amendment rights were violated by the use in evidence against him of incriminating statements which government agents had deliberately elicited from him after he had been indicted and in the absence of his retained counsel. Because of the way we dispose of the case, we do not reach the Fourth Amendment issue.

In Spano v. New York, 360 U. S. 315, this Court reversed a state criminal conviction because a confession had been wrongly admitted into evidence against the defendant at his trial. In that case the defendant had already been indicted for first-degree murder at the time he confessed. The Court held that the defendant’s conviction could not stand under the Fourteenth Amendment. While the Court’s opinion relied upon the totality of the circumstances under which the confession had been obtained, four concurring Justices pointed out that the Constitution required reversal of the conviction upon the sole and specific ground that the confession had been deliberately elicited by the police after the defendant had been indicted, and therefore at a time when he was clearly entitled to a lawyer’s help. It was pointed out that under our system of justice the most elemental concepts of due process of law contemplate that an indictment be followed by a trial, “in an orderly courtroom, presided over by a judge, open to the public, and protected by all the procedural safeguards of the law.” 360 U. S., at 327 (Stewart, J., concurring). It was said that a Constitution which guarantees a defendant the aid of counsel at such a trial could surely vouchsafe no less to an indicted defendant under interrogation by the police in a completely extrajudicial proceeding. Anything less, it was said, might deny a defendant “effective representation by counsel at the only stage when legal aid and advice would help him.” 360 U. S., at 326 (Douglas, J., concurring).

Ever since this Court’s decision in the Spano case, the New York courts have unequivocally followed this constitutional rule. “Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence' of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.” People v. Waterman, 9 N. Y. 2d 561, 565, 175 N. E. 2d 445, 448.

This view no more than reflects a constitutional principle established as long ago as Powell v. Alabama, 287 U. S. 45, where the Court noted that “. . . during perhaps the most critical period of the proceedings . . . that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation [are] vitally important, the defendants . . . [are] as much entitled to such aid [of counsel] during that period as at the trial itself.” Id., at 57. And since the Spano decision the same basic constitutional principle has been broadly reaffirmed by this Court. Hamilton v. Alabama, 368 U. S. 52; White v. Maryland, 373 U. S. 59. See Gideon v. Wainwright, 372 U. S. 335.

Here we deal not with a state court conviction, but with a federal case, where the specific guarantee of the Sixth Amendment directly applies. Johnson v. Zerbst, 304 U. S. 458. We hold that the petitioner was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel. It is true that in the Spano case the defendant was interrogated in a police station, while here the damaging testimony was elicited from the defendant without his knowledge while he was free on bail. But, as Judge Hays pointed out in his dissent in the Court of Appeals, “if such a rule is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse. In this case, Massiah was more seriously imposed upon . . . because he did not even know that he was under interrogation by a government agent.” 307 F. 2d, at 72-73.

The Solicitor General, in his brief and oral argument, has strenuously contended that the federal law enforcement agents had the right, if not indeed the duty, to continue their investigation of the petitioner and his alleged criminal associates even though the petitioner had been indicted. He points out that the Government was continuing its investigation in order to uncover not only the source of narcotics found on the S. S. Santa Maria, but also their intended buyer. He says that the quantity of narcotics involved was such as to suggest that the petitioner was part of a large and well-organized ring, and indeed that the continuing investigation confirmed this suspicion, since it resulted in criminal charges against many defendants. Under these circumstances the Solicitor General concludes that the government agents were completely “justified in making use of Colson's cooperation by having Colson continue his normal associations and by surveilling them.”

We may accept and, at least for present purposes, completely approve all that this argument implies, Fourth Amendment problems to one side. We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted. All that we hold is that the defendant’s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial.

Reversed.

Mr. Justice White,

with whom Mr. Justice Clark and Mr. Justice Harlan join,

dissenting.

The current incidence of serious violations of the law represents not only an appalling waste of the potentially happy and useful lives of those who engage in such conduct but also an overhanging, dangerous threat to those unidentified and innocent people who will be the victims of crime today and tomorrow. This is a festering problem for which no adequate cures have yet been devised. At the very least there is much room for discontent with remedial measures so far undertaken. And admittedly there remains much to be settled concerning the disposition to be made of those who violate the law.

But dissatisfaction with preventive programs aimed at eliminating crime and profound dispute about whether we should punish, deter, rehabilitate or cure cannot excuse concealing one of our most menacing problems until the millennium has arrived. In my view, a civilized society must maintain its capacity to discover transgressions of the law and to identify those who flout it. This much is necessary even to know the scope of the problem, much less to formulate intelligent countermeasures. It will just not do to sweep these disagreeable matters under the rug or to pretend they are not there at all.

It is therefore a rather portentous occasion when a constitutional rule is established barring the use of evidence which is relevant, reliable and highly probative of the issue which the trial court has before it — whether the accused committed the act with which he is charged. Without the evidence, the quest for truth may be seriously impeded and in many cases the trial court, although aware of proof showing defendant’s guilt, must nevertheless release him because the crucial evidence is deemed inadmissible. This result is entirely justified in some circumstances because exclusion serves other policies of overriding importance, as where evidence seized in an illegal search is excluded, not because of the quality of the proof, but to secure meaningful enforcement of the Fourth Amendment. Weeks v. United States, 232 U. S. 383; Mapp v. Ohio, 367 U. S. 643. But this only emphasizes that the soundest of reasons is necessary to warrant the exclusion of evidence otherwise admissible and the creation of another area of privileged testimony. With all due deference, I am not at all convinced that the additional barriers to the pursuit of truth which the Court today erects rest on anything like the solid foundations which decisions of this gravity should require.

The importance of the matter should not be underestimated, for today’s rule promises to have wide application well beyond the facts of this case. The reason given for the result here — the admissions were obtained in the absence of counsel — would seem equally pertinent to statements obtained at any time after the right to counsel attaches, whether there has been an indictment or not; to admissions made prior to arraignment, at least where the defendant has counsel or asks for it; to the fruits of admissions improperly obtained under the new rule; to criminal proceedings in state courts; and to defendants long since convicted upon evidence including such admissions. The new rule will immediately do service in a great many cases.

Whatever the content or scope of the rule may prove to be, I am unable to see how this case presents an unconstitutional interference with Massiah’s right to counsel. Massiah was not prevented from consulting with counsel as often as he wished. No meetings with counsel were disturbed or spied upon. Preparation for trial was in no way obstructed. It is only a sterile syllogism — an unsound one, besides — to say that because Massiah had a right to counsel’s aid before and during the trial, his out-of-court conversations and admissions must be excluded if obtained without counsel’s consent or presence. The right to counsel has never meant as much before, Cicenia v. Lagay, 357 U. S. 504; Crooker v. California, 357 U. S. 433, and its extension in this case requires some further explanation, so far unarticulated by the Court.

Since the new rule would exclude all admissions made to the police, no matter how voluntary and reliable, the requirement of counsel’s presence or approval would seem to rest upon the probability that counsel would foreclose any admissions at all. This is nothing more than a thinly disguised constitutional policy of minimizing or entirely prohibiting the use in evidence of voluntary out-of-court admissions and confessions made by the accused. Carried as far as blind logic may compel some to go, the notion that statements from the mouth of the defendant should not be used in evidence would have a severe and unfortunate impact upon the great bulk of criminal cases.

Viewed in this light, the Court’s newly fashioned exclusionary principle goes far beyond the constitutional privilege against self-incrimination, which neither requires nor suggests the barring of voluntary pretrial admissions. The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself . . . .” The defendant may thus not be compelled to testify at his trial, but he may if he wishes. Likewise he may not be compelled or coerced into saying anything before trial; but until today he could if he wished to, and if he did, it could be used against him. Whether as a matter of self-incrimination or of due process, the proscription is against compulsion — coerced incrimination. Under the prior law, announced in countless cases in this Court, the defendant’s pretrial statements were admissible evidence if voluntarily made; inadmissible if not the product of his free will. Hardly any constitutional area has been more carefully patrolled by this Court, and until now the Court has expressly rejected the argument that admissions are to be deemed involuntary if made outside the presence of counsel. Cicenia v. Lagay, supra; Crooker v. California, supra.

The Court presents no facts, no objective evidence, no reasons to warrant scrapping the voluntary-involuntary test for admissibility in this area. Without such evidence I would retain it in its present form.

This case cannot be analogized to the American Bar Association’s rule forbidding an attorney to talk to the opposing party litigant outside the presence of his counsel. Aside from the fact that the Association’s canons are not of constitutional dimensions, the specific canon argued is inapposite because it deals with the conduct of lawyers and not with the conduct of investigators. Lawyers are forbidden to interview the opposing party because of the supposed imbalance of legal skill and acumen between the lawyer and the party litigant; the reason for the rule does not apply to nónlawyers and certainly not to Colson, Massiah’s codefendant.

Applying the new exclusionary rule is peculiarly inappropriate in this case. At the time of the conversation in question, petitioner was not in custody but free on bail. He was not questioned in what anyone could call an atmosphere of official coercion. What he said was said to his partner in crime who had also been indicted. There was no suggestion or any possibility of coercion. What petitioner did not know was that Colson had decided to report the conversation to the police. Had there been no prior arrangements between Colson and the police, had Colson simply gone to the police after the conversation had occurred, his testimony relating Massiah’s statements would be readily admissible at the trial, as would a recording which he might have made of the conversation. In such event, it would simply be said that Massiah risked talking to a friend who decided to disclose what he knew of Massiah’s criminal activities. But if, as occurred here, Colson had been cooperating with the police prior to his meeting with Massiah, both his evidence and the recorded conversation are somehow transformed into inadmissible evidence despite the fact that the hazard to Massiah remains precisely the same— the defection of a confederate in crime.

Reporting criminal behavior is expected or even demanded of the ordinary citizen. Friends may be subpoenaed to testify about friends, relatives about relatives and partners about partners. I therefore question the soundness of insulating Massiah from the apostasy of his partner in crime and of furnishing constitutional sanctions for the strict secrecy and discipline of criminal organizations. Neither the ordinary citizen nor the confessed criminal should be discouraged from reporting what he knows to the authorities and from lending his aid to secure evidence of crime. Certainly after this case the Colsons will be few and far between; and the Massiahs can breathe much more easily, secure in the knowledge that the Constitution furnishes an important measure of protection against faithless compatriots and guarantees sporting treatment for sporting peddlers of narcotics.

Meanwhile, of course, the public will again be the loser and law enforcement will be presented with another serious dilemma. The general issue lurking in the background of the Court’s opinion is the legitimacy of penetrating or obtaining confederates in criminal organizations. For the law enforcement agency, the answer for the time being can only be in the form of a prediction about the future application of today’s new constitutional doctrine. More narrowly, and posed by the precise situation involved here, the question is this: when the police have arrested and released on bail one member of a criminal ring and another member, a confederate, is cooperating with the police, can the confederate be allowed to continue his association with the ring or must he somehow be withdrawn to avoid challenge to trial evidence on the ground that it was acquired after rather than before the arrest, after rather than before the indictment?

Defendants who are out on bail have been known to continue their illicit operations. See Rogers v. United States, 325 F. 2d 485 (C. A. 10th Cir.). That an attorney is advising them should not constitutionally immunize their statements made in furtherance of these operations and relevant to the question of their guilt at the pending prosecution. In this very case there is evidence that after indictment defendant Aiken tried to persuade Agent Murphy to go into the narcotics business with him. Under today’s decision, Murphy may neither testify as to the content of this conversation nor seize for introduction in evidence any narcotics whose location Aiken may have made known.

Undoubtedly, the evidence excluded in this case would not have been available but'for the conduct of Colson in cooperation with Agent Murphy, but is it this kind of conduct which should be forbidden to those charged with law enforcement? It is one thing to establish safeguards against procedures fraught with the potentiality of coercion and to outlaw “easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection.” McNabb v. United States, 318 U. S. 332, 344. But here there was no substitution of brutality for brains, no inherent danger of police coercion justifying the prophylactic effect of another exclusionary rule. Massiah was not being interrogated in a police station, was not surrounded by numerous officers or questioned in relays, and was not forbidden access to others. Law enforcement may have the elements of a contest about it, but it is not a game. McGuire v. United States, 273 U. S. 95, 99. Massiah and those like him receive ample protection from the long line of precedents in this Court holding that confessions may not be introduced unless they are voluntary. In making these determinations the courts must consider the absence of counsel as one of several factors by which voluntariness is to be judged. See House v. Mayo, 324 U. S. 42, 45-46; Payne v. Arkansas, 356 U. S. 560, 567; Cicenia v. Lagay, supra, at 509. This is a wiser rule than the automatic rule announced by the Court, which requires courts and juries to disregard voluntary admissions which they might well find to be the best possible evidence in discharging their responsibility for ascertaining truth.

       307 F. 2d 62.

       21 U. S. C. 184a.

       21 U. S. C. 173, 174.

       The petitioner’s trial was upon a second superseding indictment which had been returned on March 3, 1961, and which included additional counts against him and other defendants. The Court of Appeals reversed his conviction upon a conspiracy count, one judge dissenting, but affirmed his convictions upon three substantive counts, one judge dissenting. 307 F. 2d 62.

       See also People v. Davis, 13 N. Y. 2d 690, 191 N. E. 2d 674, 241 N. Y. S. 2d 172 (1963); People v. Rodriguez, 11 N. Y. 2d 279, 183 N. E. 2d 651, 229 N. Y. S. 2d 353 (1962); People v. Meyer, 11 N. Y. 2d 162, 182 N. E. 2d 103, 227 N. Y. S. 2d 427 (1962); People v. Di Biasi, 7 N. Y. 2d 544, 166 N. E. 2d 825, 200 N. Y. S. 2d 21 (1960); People v. Swanson, 18 App. Div. 2d 832, 237 N. Y. S. 2d 400 (2d Dept. 1963); People v. Price, 18 App. Div. 2d 739, 235 N. Y. S. 2d 390 (3d Dept. 1962); People v. Wallace, 17 App. Div. 2d 981, 234 N. Y. S. 2d 579 (2d Dept. 1962); People v. Karmel, 17 App. Div. 2d 659, 230 N. Y. S. 2d 413 (2d Dept. 1962); People v. Robinson, 16 App. Div. 2d 184, 224 N. Y. S. 2d 705 (4th Dept. 1962).

       “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”

      Today’s rule picks up where the Fifth Amendment ends and bars wholly voluntary admissions. I would assume, although one cannot be sure, that the new rule would not have a similar supplemental role in connection with the Fourth Amendment. While the Fifth Amendment bars only compelled incrimination, the Fourth Amendment bars only unreasonable searches. It could be argued, fruitlessly I would hope, that if the police must stay away from the defendant they must also stay away from his house once the right to counsel has attached and that a court must exclude the products of a reasonable search made pursuant to a properly issued warrant but without the consent or presence of the accused’s counsel.


author: Per Curiam.

text:
    MARKS v. ESPERDY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE.
    No. 253.

    Argued April 2, 1964.
    Decided May 18, 1964.

      Murray A. Gordon argued the cause and filed briefs for petitioner.

      Charles Gordon argued the cause for respondent. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller and L. Paul Winings.

   Per Curiam.

The judgment is affirmed by an equally divided Court.

Mr. Justice Brennan took no part in the decision of this case.


text:
    LUCKENBACH STEAMSHIP CO., INC., v. FRANCHISE TAX BOARD OF CALIFORNIA.
    No. 916.
    Decided May 18, 1964.

      Hart H. Spiegel and John Hays for appellant.

      Stanley Mosk, Attorney General of California, James E. Sabine, Assistant Attorney General, and Ernest P. Goodman and John J. Klee, Jr., Deputy Attorneys General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


text:
    SINCLAIR v. BAKER et al.
    No. 949.
    Decided May 18, 1964.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    SWAN v. NATION COMPANY.
    No. 771,
    Misc.
    Decided May 18, 1964.

      Alfred Avins for appellant.

      John L. Freeman for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    HUNTER v. ILLINOIS et al.
    No. 1087,
    Misc.
    Decided May 18, 1964.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    HIGHWAY EXPRESS LINES, INC., et al. v. JONES MOTOR CO., INC.
    No. 900.
    Decided May 18, 1964.

      Robert H. Young and William E. Zeiter for appellants in No. 900.

      William A. Ooichman, Edward Munce and Joseph C. Bruno for appellant in No. 977.

      Roland Rice and Christian V. Craf for appellee.

      Solicitor General Cox and Robert W. Ginnane filed a memorandum for the United States and the Interstate Commerce Commission in both cases.

      Together with No. 977, Pennsylvania Public Utility Commission v. Jones Motor Co., Inc., also on appeal from the same court.

   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.

Mr. Justice Douglas, Mr. Justice Harlan and Mr. Justice Goldberg are of the opinion that probable jurisdiction should be noted.


author: Mr. Justice Black

text:
    GRIFFIN et al. v. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY et al.
    No. 592.
    Argued March 30, 1964.
    Decided May 25, 1964.

      Robert L. Carter argued the cause for petitioners. With him on the brief were S. W. Tucker and Frank D. Reeves.

      R. D. Mcllwaine III, Assistant Attorney General of Virginia, and /. Segar Gravatt argued the cause for respondents. With Mr. Mcllwaine on the brief for the State Board of Education of Virginia et al. were Robert Y. Button, Attorney General of Virginia, and Frederick T. Gray. With Mr. Gravatt on the brief for the Board of Supervisors of Prince Edward County was William F. Watkins, Jr. John F. Kay, Jr. >and C. F. Hicks filed a brief for respondents County School Board of Prince Edward County et al.

      Solicitor General Cox, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Assistant Attorney General Marshall, William J. Vanden Heuvel, Louis F. Claiborne and Harold H. Greene.

    Briefs of amici curiae, urging reversal, were filed by William B. Beebe and Hershel Shanks for the National Education Association, and by Landon Gerald Dowdey, T. Raber Taylor and C. Joseph Danahy for Citizens for Educational Freedom.
    Brief of amicus curiae, urging affirmance, was filed by Geo. Stephen Leonard, Paul D. Summers, Jr., D. B. Marshall and Richard L. Hirshberg for the City of Charlottesville.
   Mr. Justice Black

delivered the opinion of the Court.

This litigation began in 1951 when a group of Negro school children living in Prince Edward County, Virginia, filed a complaint in the United States District Court for the Eastern District of Virginia alleging that they had been denied admission to public schools attended by white children and charging that Virginia laws requiring such school segregation denied complainants the equal protection of the laws in violation of the Fourteenth Amendment. On May 17, 1954, ten years ago, we held that the Virginia segregation laws did deny equal protection. Brown v. Board of Education, 347 U. S. 483 (1954). On May 31, 1955, after reargument on the nature of relief, we remanded this case, along with others heard with it, to the District Courts to enter such orders as “necessary and proper to admit [complainants] to public schools on a racially nondiscriminatory basis with all deliberate speed . . . .” Brown v. Board of Education, 349 U. S. 294, 301 (1955).

Efforts to desegregate Prince Edward County’s schools met with resistance. In 1956 Section 141 of the Virginia Constitution was amended to authorize the General Assembly and local governing bodies to appropriate funds to assist students to go to public or to nonsectarian private schools, in addition to those owned by the State or by the locality. The General Assembly met in special session and enacted legislation to close any public schools where white and colored children were enrolled together, to cut off state funds to such schools, to pay tuition grants to children in nonsectarian private schools, and to extend state retirement benefits to teachers in newly created private schools. The legislation closing mixed schools and cutting off state funds was later invalidated by the Supreme Court of Appeals of Virginia, which held that these laws violated the Virginia Constitution. Harrison v. Day, 200 Va. 439, 106 S. E. 2d 636 (1959). In April 1959 the General Assembly abandoned “massive resistance” to desegregation and turned instead to what was called a “freedom of choice” program. The Assembly-repealed the rest of the 1956 legislation, as well as a tuition grant law of January 1959, and enacted a new tuition grant program. At the same time the Assembly repealed Virginia's compulsory attendance laws and instead made school attendance a matter of local option.

In June 1959, the United States Court of Appeals for the Fourth Circuit directed the Federal District Court (1) to enjoin discriminatory practices in Prince Edward County schools, (2) to require the County School Board to take “immediate steps” toward admitting students without regard to race to the white high school “in the school term beginning September 1959,” and (3) to require the Board to make plans for admissions to elementary schools without regard to race. Allen v. County School Board of Prince Edward County, 266 F. 2d 507, 511 (C. A. 4th Cir. 1959). Having as early as 1956 resolved that they would not operate public schools “wherein white and colored children are taught together,” the Supervisors of Prince Edward County refused to levy any school taxes for the 1959-1960 school year, explaining that they were “confronted with a court decree which requires the admission of white and colored children to all the schools of the county without regard to race or color.” As a result, the county’s public schools did not reopen in the fall of 1959 and have remained closed ever since, although the public schools of every other county in Virginia have continued to operate under laws governing the State’s public school system and to draw funds provided by the State for that purpose. A private group, the Prince Edward School Foundation, was formed to operate private schools for white children in Prince Edward County and, having built its own school plant, has been in operation ever since the closing of the public schools. An offer to set up private schools for colored children in the county was rejected, the Negroes of Prince Edward preferring to continue the legal battle for desegregated public schools, and colored children were without formal education from 1959 to 1963, when federal, state, and county authorities cooperated to have classes conducted for Negroes and whites in school buildings owned by the county. During the 1959-1960 school year the Foundation’s schools for white children were supported entirely by private contributions, but in 1960 the General Assembly adopted a new tuition grant program making every child, regardless of race, eligible for tuition grants of $125 or $150 to attend a nonsectarian private school or a public school outside his locality, and also authorizing localities to provide their own grants. The Prince Edward Board of Supervisors then passed an ordinance providing tuition grants of $100, so that each child attending the Prince Edward School Foundation’s schools received a total of $225 if in elementary school or $250 if in high school. In the 1960-1961 session the major source of financial support for the Foundation was in the indirect form of these state and county tuition grants, paid to children attending Foundation schools. At the same time, the County Board of Supervisors passed an ordinance allowing property tax credits up to 25% for contributions to any “nonprofit, nonsectarian private school” in the county.

In 1961 petitioners here filed a supplemental complaint, adding new parties and seeking to enjoin the respondents from refusing to operate an efficient system of public free schools in Prince Edward County and to enjoin payment of public funds to help support private schools which excluded students on account of race. The District Court, finding that “the end result of every action taken by that body [Board of Supervisors] was designed to preserve separation of the races in the schools of Prince Edward County,” enjoined the county from paying tuition grants or giving tax credits so long as public schools remained closed. Allen v. County School Board of Prince Edward County, 198 F. Supp. 497, 503 (D. C. E. D. Va. 1961). At this time the District Court did not pass on whether the public schools of the county could be closed but abstained pending determination by the Virginia courts of whether the constitution and laws of Virginia required the public schools to be kept open. Later, however, without waiting for the Virginia courts to decide the question, the District Court held that “the public schools of Prince Edward County may not be closed to avoid the effect of the law of the land as interpreted by the Supreme Court, while the Commonwealth of Virginia permits other public schools to remain open at the expense of the taxpayers.” Allen v. County School Board of Prince Ed~ ward County, 207 F. Supp. 349, 355 (D. C. E. D. Va. 1962). Soon thereafter, a declaratory judgment suit was brought by the County Board of Supervisors and the County School Board in a Virginia Circuit Court. Having done this, these parties asked the Federal District Court to abstain from further proceedings until the suit in the state courts had run its course, but the District Court declined; it repeated its order that Prince Edward’s public schools might not be closed to avoid desegregation while the other public schools in Virginia remained open. The Court of Appeals reversed, Judge Bell dissenting, holding that the District Court should have abstained to await state court determination of the validity of the tuition grants and the tax credits, as well as the validity of the closing of the public schools. Griffin v. Board of Supervisors of Prince Edward County, 322 F. 2d 332 (C. A. 4th Cir. 1963). We granted certiorari, stating:

“In view of the long delay in the case since our decision in the Brown case and the importance of the questions presented, we grant certiorari and put the case down for argument March 30,1964, on the merits, as we have done in other comparable situations without waiting for final action by the Court of Appeals.” 375 U. S. 391, 392.

For reasons to be stated, we agree with the District Court that, under the circumstances here, closing the Prince Edward County schools while public schools in all the other counties of Virginia were being maintained denied the petitioners and the class of Negro students they represent the equal protection of the laws guaranteed by the Fourteenth Amendment.

I.

Before reaching the substantial questions presented, we shall note several procedural matters urged by respondents in a motion to dismiss the supplemental amended complaint filed July 7, 1961 — ten years after this action was instituted. Had the motion to dismiss been granted on any of the grounds assigned, the result would have been one more of what Judge Bell, dissenting in the Court of Appeals, referred to as “the inordinate delays which have already occurred in this protracted litigation . . . .” 322 F. 2d, at 344. We shall take up separately the grounds assigned for dismissal.

(a) It is contended that the amended supplemental complaint presented a new and different cause of action from that presented in the original complaint. The supplemental pleading did add new parties and rely in good part on transactions, occurrences, and events which had happened since the action had begun. But these new transactions were alleged to have occurred as a part of continued, persistent efforts to circumvent our 1955 holding that Prince Edward County could not continue to operate, maintain, and support a system of schools in which students were segregated on a racial basis. The original complaint had challenged racial segregation in schools which were admittedly public. The new complaint charged that Prince Edward County was still using its funds, along with state funds, to assist private schools while at the same time closing down the county’s public, schools, all to avoid the desegregation ordered in the Brown cases. The amended complaint thus was not a new cause of action but merely part of the same old cause of action arising out of the continued desire of colored students in Prince Edward County to have the same opportunity for state-supported education afforded to white people, a desire thwarted before 1959 by segregation in the public schools and after 1959 by a combination of closed public schools and state and county grants to white children at the Foundation’s private schools. Rule 15 (d) of the Federal Rules of Civil Procedure plainly permits supplemental amendments to cover events happening after suit, and it follows, of course, that persons participating in these new events may be added if necessary. Such amendments are well within the basic aim of the rules to make pleadings a means to achieve an orderly and fair administration of justice.

(b) When this action was originally brought in 1951, it broadly charged that the constitution and laws of Virginia provided a state system of public schools which unconstitutionally segregated school children on the basis of color. This challenge was heard by a District Court of three judges as required by 28 U. S. C. § 2281. When in Brown we held the school segregation laws invalid as a denial of equal protection of the laws under the Fourteenth Amendment and remanded for the District Court to fashion a decree requiring abandonment of segregation “with all deliberate speed,” the three-judge court ceased to function, and a single district judge took over. Respondents contend that the single judge erroneously passed on the issues raised by the supplemental complaint and that we should now delay the case still further by vacating his judgment along with that of the Court of Appeals and remanding to the District Court for a completely new trial before three judges. We reject the contention. In Rorick v. Board of Comm’rs of Everglades Drainage Dist., 307 U. S. 208, 212 (1939), we said, in interpreting the three-judge statute (then § 266 of the Judicial Code of 1911, as amended, 28 U. S. C. (1934 ed.) § 380):

“ ‘Despite the generality of the language' of that Section, it is now settled doctrine that only a suit involving ‘a statute of general application’ and not one affecting a ‘particular municipality or district’ can invoke § 266.”

While a holding as to the constitutional duty of the Supervisors and other officials of Prince Edward County may have repercussions over the State and may require the District Court’s orders to run to parties outside the county, it is nevertheless true that what is attacked in this suit is not something which the State has commanded Prince Edward to do — close its public schools and give grants to children in private schools — but rather something which the county with state acquiescence and cooperation has undertaken to do on its own volition, a decision not binding on any other county in Virginia. Even though actions of the State are involved, the case, as it comes to us, concerns not a state-wide system but rather a situation unique to Prince Edward County. We hold that the single district judge did not err in adjudicating this present controversy.

(c) It is contended that the case is an action against the State, is forbidden by the Eleventh Amendment, and therefore should be dismissed. The complaint, however, charged that state and county officials were depriving petitioners of rights guaranteed by the Fourteenth Amendment. It has been settled law since Ex parte Young, 209 U. S. 123 (1908), that suits against state and county officials to enjoin them from invading constitutional rights are not forbidden by the Eleventh Amendment.

(d) It is argued that the District Court should have abstained from passing on the issues raised here in order to await a determination by the Supreme Court of Appeals of Virginia as to whether the conduct complained of violated the constitution or laws of Virginia. The Court of Appeals so held, 322 F. 2d 332, and this Court has, in cases deemed appropriate, directed that such a course be followed by a district court or approved its having been followed. E. g., Railroad Comm’n of Texas v. Pullman Co., 312 U. S. 496 (1941); Louisiana Power & Light Co. v. City of Thibodaux, 360 U. S. 25 (1959). But we agree with the dissenting judge in the Court of Appeals, 322 F. 2d, at 344-345, that this is not a case for abstention. In the first place, the Supreme Court of Appeals of Virginia has already passed upon the state law with respect to all the issues here. County School Board of Prince Edward County v. Griffin, 204 Va. 650, 133 S. E. 2d 565 (1963). But quite independently of this, we hold that the issues here imperatively call for decision now. The case has been delayed since 1951 by resistance at the state and county level, by legislation, and by lawsuits. The original plaintiffs have doubtless all passed high school age. There has been entirely too much deliberation and not enough speed in enforcing the constitutional rights which we held in Brown v. Board of Education, supra, had been denied Prince Edward County Negro children. We accordingly reverse the Court of Appeals’ judgment remanding the case to the District Court for abstention, and we proceed to the merits.

II.

In County School Board of Prince Edward County v. Griffin, 204 Va. 650, 133 S. E. 2d 565 (1963), the Supreme Court of Appeals of Virginia upheld as valid under state law the closing of the Prince Edward County public schools, the state and county tuition grants for children who attend private schools, and the county’s tax concessions for those who make contributions to private schools. The same opinion also held that each county had “an option to operate or not to operate public schools.” 204 Va., at 671, 133 S. E. 2d, at 580. We accept this case as a definitive and authoritative holding of Virginia law, binding on us, but we cannot accept the Virginia court’s further holding, based largely on the Court of Appeals’ opinion in this case, 322 F. 2d 332, that closing the county’s public schools under the circumstances of the case did not deny the colored school children of Prince Edward County equal protection of the laws guaranteed by the Federal Constitution.

Since 1959, all Virginia counties have had the benefits of public schools but one: Prince Edward. However, there is no rule that counties, as counties, must be treated alike; the Equal Protection Clause relates to equal protection of the laws “between persons as such rather than between areas.” Salsburg v. Maryland, 346 U. S. 545, 551 (1954). Indeed, showing that different persons are treated differently is not enough, without more, to show a denial of equal protection. Kotch v. Board of River Port Pilot Comm’rs, 330 U. S. 552, 556 (1947). It is the circumstances of each case which govern. Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 539-540 (1942).

Virginia law, as here applied, unquestionably treats the school children of Prince Edward differently from the way it treats the school children of all other Virginia counties. Prince Edward children must go to a private school or none at all; all other Virginia children can go to public schools. Closing Prince Edward’s schools bears more heavily on Negro children in Prince Edward County since white children there have accredited private schools which they can attend, while colored children until very recently have had no available private schools, and even the school they now attend is a temporary expedient. Apart from this expedient, the result is that Prince Edward County school children, if they go to school in their own county, must go to racially segregated schools which, although designated as private, are beneficiaries of county and state support.

A State, of course, has a wide discretion in deciding whether laws shall operate statewide or shall operate only in certain counties, the legislature “having in mind the needs and desires of each.” Salsburg v. Maryland, supra, 346 U. S., at 552. A State may wish to suggest, as Maryland did in Salsburg, that there are reasons why one county ought not to be treated like another. 346 U. S., at 553-554. But the record in the present case could not be clearer that Prince Edward's public schools were closed and private schools operated in their place with state and county assistance, for one reason, and one reason only: to ensure, through measures taken by the county and the State, that white and colored children in Prince Edward County would not, under any circumstances, go to the same school. Whatever nonracial grounds might support a State’s allowing a county to abandon public schools, the object must be a constitutional one, and grounds of race and opposition to desegregation do not qualify as constitutional.

In Hall v. St. Helena Parish School Board, 197 F. Supp. 649 (D. C. E. D. La. 1961), a three-judge District Court invalidated a Louisiana statute which provided “a means by which public schools under desegregation orders may be changed to 'private' schools operated in the same way, in the same buildings, with the same furnishings, with the same money, and under the same supervision as the public schools.” Id., at 651. In addition, that statute also provided that where the public schools were “closed,” the school board was “charged with responsibility for furnishing free lunches, transportation, and grants-in-aid to the children attending the ‘private’ schools.” Ibid. We affirmed the District Court’s judgment invalidating the Louisiana statute as a denial of equal protection. 368 U. S. 515 (1962). While the Louisiana plan and the Virginia plan worked in different ways, it is plain that both were created to accomplish the same thing: the perpetuation of racial segregation by closing public schools and operating only segregated schools supported directly or indirectly by state or county funds. See Cooper v. Aaron, 358 U. S. 1, 17 (1958). Either plan works to deny colored students equal protection of the laws. Accordingly, we agree with the District Court that closing the Prince Edward schools and meanwhile contributing to the support of the private segregated white schools that took their place denied petitioners the equal protection of the laws.

III.

We come now to the question of the kind of decree lecessary and appropriate to put an end to the racial discrimination practiced against these petitioners under authority of the Virginia laws. That relief needs to be quick and effective. The parties defendant are the Board of Supervisors, School Board, Treasurer, and Division Superintendent of Schools of Prince Edward County, and the State Board of Education and the State Superintendent of Education. All of these have duties which relate directly or indirectly to the financing, supervision, or operation of the schools in Prince Edward County. The Board of Supervisors has the special responsibility to levy local taxes to operate public schools or to aid children attending the private schools now functioning there for white children. The District Court enjoined the county officials from paying county tuition grants or giving tax exemptions and from processing applications for state tuition grants so long as the county’s public schools remained closed. We have no doubt of the power of the court to give this relief to enforce the discontinuance of the county’s racially discriminatory practices. It has long been established that actions against a county can be maintained in United States courts in order to vindicate federally guaranteed rights. E. g., Lincoln County v. Luning, 133 U. S. 529 (1890); Kennecott Copper Corp. v. State Tax Comm’n, 327 U. S. 573, 579 (1946). The injunction against paying tuition grants and giving tax credits while public schools remain closed is appropriate and necessary since those grants and tax credits have been essential parts of the county’s program, successful thus far, to deprive petitioners of the same advantages of a public school education enjoyed by children in every other part of Virginia. For the same reasons the District Court may, if necessary to prevent further racial discrimination, require the Supervisors to exercise the power that is theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system in Prince Edward County like that operated in other counties in Virginia.

The District Court held that “the public schools of Prince Edward County may not be closed to avoid the effect of the law of the land as interpreted by the Supreme Court, while the Commonwealth of Virginia permits other public schools to remain open at the expense of the taxpayers.” Allen v. County School Board of Prince Edward County, 207 F. Supp. 349, 355 (D. C. E. D. Va. 1962). At the same time the court gave notice that it would later consider an order to accomplish this purpose if the public schools were not reopened by September 7, 1962. That day has long passed, and the schools are still closed. On remand, therefore, the court may find it necessary to consider further such an order. An order of this kind is within the court’s power if required to assure these petitioners that their constitutional rights will no longer be denied them. The time for mere “deliberate speed” has run out, and that phrase can no longer justify denying these Prince Edward County school children their constitutional rights to an education equal to that afforded by the public schools in the other parts of Virginia.

The judgment of the Court of Appeals is reversed, the judgment of the District Court is affirmed, and the cause is remanded to the District Court with directions to enter a decree which will guarantee that these petitioners will get the kind of education that is given in the State’s public schools. And, if it becomes necessary to add new parties to accomplish this end, the District Court is free to do so.

It is so ordered.

Mr. Justice Clark and Mr. Justice Harlan disagree with the holding that the federal courts are empowered to order the reopening of the public schools in Prince Edward County, but otherwise join in the Court’s opinion.

       Virginia tuition grants originated in 1930 as aid to children who had lost their fathers in World War I. The program was expanded until the Supreme Court of Appeals of Virginia held that giving grants to children attending private schools violated the Virginia Constitution. Almond v. Day, 197 Va. 419, 89 S. E. 2d 851 (1955). It was then that Section 141 was amended.

       Va. Code, §22-188.3 et seq.; §51-111.38:1.

       Acts, 1959 Ex. Sess., c. 53.

       Va. Code, §§22-251 to 22-275.

       Va. Code, §§22-275.1 to 22-275.25.

         The Board’s public explanation of its June 3, 1959, refusal to appropriate money or levy taxes to carry on the county’s public school system was:
      “The School Board of this county is confronted with a court decree which requires the admission of white and colored children to all the schools of the county without regard to race or color. Knowing the people of this county as we do, we know that it is not possible to operate the schools of this county within the terms of that principle and, at the same time, maintain an atmosphere conducive to the educational benefit of our people.”

       Va. Code, §§ 22-115.29 to 22-115.35.

       On the question of the validity of state tuition grants, the court held that, as a matter of state law, such grants were not meant to be given in localities without public schools; therefore, the court enjoined the county from processing applications for state grants so long as public schools remained closed. 198 F. Supp., at 504.

       The Supreme Court of Appeals of Virginia had, in a mandamus proceeding instituted by petitioners, held that the State Constitution and statutes did not impose upon the County Board of Supervisors any mandatory duty to levy taxes and appropriate money to support free public schools. Griffin v. Board of Supervisors of Prince Edward County, 203 Va. 321, 124 S. E. 2d 227 (1962).

       In the meantime, the Supreme Court of Appeals of Virginia had held that the Virginia Constitution did not compel the State to reopen public schools in Prince Edward County. County School Board of Prince Edward County v. Griffin, 204 Va. 650, 133 S. E. 2d 565 (1963).

       “Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.” Fed. Rules Civ. Proc. 15 (d).

       “But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.” Brown v. Board of Education, 349 U. S. 294, 300 (1955).

       The county has, since the time of the District Court’s decree, repealed its tax credit ordinance.