by John Marshall Harlan

“ It is to enforce the liability of the state to pay a certain amount of money on account of the payment of taxes alleged to have been wrongfully exacted by the state from the plaintiffs. Nor is it a suit to enjoin the defendant from doing some positive or affirmative act to the injury of the plaintiffs in their persons or property, but one in effect to compel the state, through its officer, to perform its promise to return to taxpayers such amount as may be adjudged to have been taken from them under an illegal assessment. ”

“ Arkansas, by its Constitution, so far waived the privilege of sovereignty as to authorize suitsto be instituted against it in its own courts, and delegated to its general assembly the power of directing in what courts, and in what manner, the suit might be commenced. And if the law of 1854 had been passed before the suit was instituted, we do not understand that any objection would have been made to it. The objection is that it was passed after the suit was instituted, and contained regulations with which the plaintiff could not conveniently comply. ”

“ Again: 'The suability of a state without its consent was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted. ”

“ In the Reagan and Smyth Cases the relief sought was against the proposed action of state officers or agents, and they were not in any sense suits against the state-the relief asked being protection against affirmative action about to be taken by state officers in hostility to the rights of the respective plaintiffs. ”

“ The attorney general must defend the action. The provisions of the Code of Civil Procedure relating to pleadings, proofs, trials, and appeals are applicable to the proceedings herein provided for. If the final judgment be against the treasurer, upon presentation of a certified copy of such judgment to the Comptroller, he shall draw his warrant upon the state treasurer, who must pay to the plaintiff the amount of the taxes so declared to have been illegally collected ”

“ Bank of United States, 9 Wheat. 738, 6 L. ed. 204; California v. Central P. R. Co. 127 U.S. 1, 32 L. ed. 750, 2 Inters. Com. Rep. 153, 8 Sup. Ct. Rep. 1073; Northern P. R. Co. v. Amato, 144 U.S. 465, 36 L. ed. ”