3 upon statutory provisions granting or withholding consent.1 These may provide special courts for the determination of a certain class of cases or restrict other courts in respect to the same question. Where, however, pursuant to law, a public corporation has commenced an action, it is then usually subject to all the rules of practice appertaining to that court in connection with the question of consent, the removal to or trial of the case in the Federal courts, or a review of its proceedings by higher tribunals. Statutes relative to the question suggested above are generally strictly construed and cases may be dismissed if not within the jurisdiction of the court, as determined by their provisions." The universal principle that the question of jurisdiction can be raised at any time applies here. 4 § 1149. Generally; liability to action. It has already been observed that the state or the sovereign is not subject in the exercise of any of its powers or the perform 1 Reagan V. Farmers' Loan & Trust Co., 154 U. S. 362. U. S. Const., amend. XI, providing that the judicial power of the United States shall not be construed to extend to any suit against one state by citizens of another state does not apply to a suit against state railroad commissioners to restrain the enforcement of their regulations as unjust and unreasonable. Brown University v. Rhode Island College of Agriculture & Mechanic Arts, 56 Fed. 55; Commissioners of Roads and Revenues v. Hurd, 49 Ga. 462; Shepard v. Easterling, 61 Neb. 882, 86 N. W. 941. 2 Smith v. Reeves, 178 U. S. 436, affirming Smith v. Rackliffe, 87 Fed. 964. A state has the right to annex to its consent to be sued the condition that the action be brought in one of its own courts. Griffith v. County of Sebastian, 49 Ark. 24, 3 S. W. 886; Dandurand v. Kankakee County, 196 Ill. 537, 63 N. E. 1011; Czarnowsky v. City of Rochester, 55 App. Div. 388, 66 N. Y. Supp. 931, affirmed 165 N. Y. 649, 59 N. E. 1121; Steele v. Rutherford Com'rs, 70 N. C. 137; City Nat. Bank v. Presidio County (Tex. Civ. App.) 26 S. W. 775; Baker v. Briggs, 99 Va. 360, 38 S. E. 277. 3 Port Royal A. R. Co. v. South Carolina, 60 Fed. 552. 4 Vincent v. County of Lincoln, 30 Fed. 749; Abeel v. Culberon, 56 Fed. 329. 5 Hoagland v. State (Cal.) 22 Pac. 142; Clermont Com'rs V. Robb, Wright (Ohio) 48. 6 Galbes v. Girard, 46 Fed. 500; City of Fostoria v. Fox, 60 Ohio St. 340, 54 N. E. 370. A city located partly in two counties has its situs in that county where its municipal offices and government are located. An action not local in its character must be brought in that county. McIntosh v. Braden, 80 Va. 217. ance of its duties to the judgment of the courts which it creates or the principles of law applying to private persons which it establishes and enforces." Freedom from liability both in respect to transactions of a contractual nature or those sounding in tort attaches to the state unless by its consent it assumes one. The question primarily, therefore, in determining the liability of a state to an action, is the one of consent. The state may assent to a liability on a claim contractual in its nature." Where the power to sue a state is denied, the question of whether a certain 7 See §§ 953 et seq. 8 Christian v. Atlantic & N. C. R. Co., 133 U. S. 233; Galbes v. Girard, 46 Fed. 500. Where the constitution provides that suits may be brought against a state in such a manner and in such courts as shall be directed by law," affirma tive action is necessary by the legislature to authorize an action against a state. Holmes v. State, 100 Ala. 291, 14 So. 51; Ex parte State, 52 Ala. 231. A statute permitting a state to be sued is a mere matter of grace not conferring a right but a mere privilege which may be withdrawn at pleasure. People v. Miles, 56 Cal. 401; In re Constitutionality of Substitute for Senate Bill No. 83, 21 Colo. 69, 39 Pac. 1088; Printup v. Cherokee R. Co., 45 Ga. 365; Asbell v. State, 60 Kan. 51, 55 Pac. 338; Meigs v. Roberts, 42 App. Div. 290, 59 N. Y. Supp. 215. Ejectment will not lie against a state unless it is expressly so provided by statute. People v. Dennison, 84 N. Y. 272; Bloxham v. Florida Cent. & P. Ry. Co., 35 Fla. 625, 17 So. 902; State v. Gaines, 46 La. Ann. 431, 15 So. 174; State v. Nicholls, 42 La. Ann. 209; State v. Jumel, 38 La. Ann. 337; Meigs v. Roberts, 24 Misc. 668, 54 N. Y. Supp. 214; Baine v. State, 86 N. C. 49; Lord & Polk Chemical Co. v. Board of Agriculture, 111 N. C. 135, 15 S. E. 1032. The consent of the state is necessary to an action to recover back a license tax exacted under a public act for the sale of fertilizers, the defendant being the state board of agriculture. Following North Carolina v. Temple, 134 U. S. 22, and distinguishing County Board of Education v. State Board of Education, 106 N. C. 81, 10 S. E. 1002. Dabney v. Bank of State, 3 S. C. (3 Rich.) 124; Ex parte Dunn, 8 S. C. (8 Rich.) 207; Columbia Water Power Co. v. Columbia Elec. St. R. L. & P. Co., 43 S. C. 154, 20 S. E. 1002; Chicago, M. & St. P. R. Co. v. State, 53 Wis. 509; Houston V. State, 98 Wis. 481, 42 L. R. A. 39. But see North British & Mercantile Ins. Co. v. Craig, 106 Tenn. 621, 62 S. W. 155. See, also, Melvin v. State, 121 Cal. 16; Com. v. Tunstall, 86 Va. 372. 9 Clodfelter v. State, 86 N. C. 51; Lyman County v. State, 9 S. D. 413, 69 N. W. 601. The word "person" as used in Laws 1890, c. 1, authorizing a person to sue the state in certain prescribed cases, includes a county as it is an organized corporate body for civil and political purposes. East Tennessee, V. & G. R. Co. v. Nashville, C. & St. L. R. proceeding against it or some of its officials is a suit within the meaning of the prohibition is material and it does not necessarily follow that every action against it is a suit.10 The subject in connection with torts has already been considered.11 Where a sovereign consents to be sued, the rule universally obtains that the terms and conditions on which the consent is given must be strictly observed.12 Co. (Tenn. Ch. App.) 51 S. W. 202. The state in its private capacity may be the subject of a suit. Com. v.. Dunlop, 89 Va. 431, 16 S. E. 273. See, also, Carolina Nat. Bank v. State, 60 S. C. 465, 38 S. E. 629. 10 Rolston V. Missouri Fund Com'rs, 120 U. S. 390; North Carolina v. Temple, 134 U. S. 22; In re Tyler, 149 U. S. 191. A contempt proceedings against a state officer who has violated an order of the Federal court is not a suit against the state. Norfolk Trust Co. v. Marye, 25 Fed. 654; Chicago & N. W. R. Co. v. Dey, 35 Fed. 866, 1 L. R. A. 744; Tuchman v. Welch, 42 Fed. 548; McConnaughy v. Pennoyer, 43 Fed. 339, distinguishing In re Ayers, 123 U. S. 443, and Hans v. Lousiana, 134 U. S. 1. Sanford v. Gregg, 58 Fed. 620. A suit to enjoin a state officer is not a suit against the state. Tindall v. Wesley (C. C. A.) 65 Fed. 731. An action of ejectment to recover possession of land sold by a state to the plaintiff is not a suit. Saranac Land & Timber Co. v. Roberts, 68 Fed. 521; Mills v. Green, 67 Fed. 818; Donald v. Scott, 67 Fed. 854. A suit against a constable to prevent the seizure of liquors is not a suit against the state. Wheeler v. City of Chicago, 68 Fed. 526; Western Union Tel. Co. v. Henderson, 68 Fed. 588. An injunc tion proceeding to restrain the state auditor acting under an unconstitutional act is not a suit against the state. City of Terre Haute v. Farmers' Loan & Trust Co. (C. C. A.) 99 Fed. 838. Injunction proceedings "to enjoin the opening of a street" is not a suit against the state within the meaning of the prohibition of the constitution of Indiana. Kruger v. Life & Annuity Ass'n, 106 Cal. 98, 39 Pac. 213; State v. Lanier, 47 La. Ann. 110, 16 So. 647. An action against a state officer to compel the issue of a land patent is in effect a suit against the state which cannot be prosecuted without its consent. See, also, article 30 Am. Law Reg. (N. S.) 1, by A. H. Wintersteen discussing the question of what is or what is not a suit against a state considered with reference to the Eleventh Amendmnt. 11-State v. Hill, 54 Ala. 67; Murdock Parlor Grate Co. v. Com., 152 Mass. 28, 24 N. E. 854, 8 L. R. A. 399. See, also, §§ 953 et seq., ante. 12 Gilman v. Contra Costa County, 6 Cal. 676; Randolph County v. Ralls, 18 Ill. 29; Rock Island County v. Steele, 31 Ill. 543; State v. Pinckney, 22 S. C. 484; Com. v. Dunlop, 89 Va. 431, 16 S. E. 273; Dunnington v. Ford, 80 Va. 177. § 1150. Subordinate public corporations. Subordinate public corporations may, in the exercise of their legal powers, assume contractual obligations and in respect to these they are liable, if capacity has been conferred by statue,13 to be sued and sue in the same manner and to the same effect as a private person under the same conditions.1 For a liability to exist on account of actions arising in tort, statutory provisions are necessary to create the same; as these are strictly construed, a liability can only arise under the conditions and in the manner prescribed. The subject of liability for torts, has already been considered.15 13 Vincent v. County of Lincoln, 30 Fed. 749; Randolph County v. Hutchins, 46 Ala. 397; Whittaker v. Tuolumne County, 96 Cal. 100, 30 Pac. 1016; Monroe County v. Flynt, 80 Ga. 489, 6 S. E. 173; Ward v. Appling County, 80 Ga. 662, 6 S. E. 914; Talbot County v. Mansfield, 115 Ga. 766, 42 S. E. 72; County of Rock Island v. Steele, 31 Ill. 543; Bank of Hopkinsville v. Western Kentucky Asylum for Insane, 108 Ky. 357, 56 S. W. 525; Ayres v. Thurston County, 63 Neb. 96, 88 N. W. 178; Doolittle v. Town of Walpole, 67 N. H. 554, 38 Atl. 19; Erhard v. Kings County, 36 N. Y. Supp. 656. A county cannot, by consent or inaction, validate an action against it on claims, by law, not enforceable against it. Granville County Board of Education v. State Board of Education, 106 N. C. 81; State v. Baker County, 24 Or. 141, 33 Pac. 530. But see Lattin v. Town of Oyster Bay, 34 Misc. 568, 70 N. Y. Supp. 386. 14 McCoy v. Washington County, 3 Wall. Jr. 381, Fed. Cas. No. 8,731; Lowndes County v. Hunter, 49 Ala. 507; Payne v. Washington County, 25 Fla. 798, 6 So. 881; Commission ers of Roads & Revenues v. Hurd, 49 Ga. 462; Warwick County Com'rs v. Butterworth, 17 Ind. 129; Gross v. Kentucky Board of Managers of World's Columbian Exposition, 105 Ky. 840, 49 S. W. 458, 43 L. R. A. 703; Adams v. Tyler, 121 Mass. 380; Polk v. Tunica County Sup'rs, 52 Miss. 422; Shepard v. Easterling, 61 Neb. 882, 86 N. W. 941; Ayres v. Thurston County, 63 Neb. 96, 88 N. W. 178; Brown v. City of New York, 66 N. Y. 385. Action of dispossession authorized for nonpayment of rent. Winslow v. Perquimans County Com'rs, 64 N. C. 218. But see Greer County Com'rs v. Watson, 7 Okl. 174, 54 Pac. 441. In respect to liability of county for witness' fees in a criminal case in the absence of a statute imposing it. Fuller v. Brown, 10 Tex. Civ. App. 64, 30 S. W. 506; Ratliff v. County Ct., 33 W. Va. 94, 10 S. E. 28. 15 Madden v. Lancaster County (C. C. A.) 65 Fed. 188; Layman v. Beeler, 24 Ky. L. R. 174, 67 S. W. 995; Jones V. Franklin County Com'rs, 130 N. C. 451, 42 S. E. 144; White's Creek Turnpike Co. v. Davidson County, 82 Tenn. (14 Lea) § 1151. Subject of liability further considered. It is a familiar maxim of the law that there is no wrong without a remedy and this has been applied to all public corporations other than the state. It is also a well known principle that courts of justice in this country are open for the protection of the citizen against those acting under governmental authority and without due process of law, for, as said by the supreme court of the United States:10 "No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it." The further condition is well established that all subordinate public corporations are bodies of restricted powers and that in many cases they, through their officers and agents, act in excess of their powers and commit wrongs, to correct or prevent which remedies are always open in some court to one who may be injuriously affected or damaged by them.17 The remedies of mandamus,18 quo warranto,1o certiorari,20 and injunction,21 and the occasions upon which they or some one or more of them are available have already been considered and pointed out. In addition to other remedies the writ of prohibition is sometimes used as a specific remedy for a distinct species of wrong and 73; Fry v. Albermarle County, 86 Va. 195, 9 S. E. 1004. See §§ 954 et seq., ante. 16 United States v. Lee, 106 U. S. 196. 17 Dunham v. Village of Hyde Park, 75 Ill. 371. Proceedings to enjoin village authorities from widening a street. Brush v. City of Carbondale, 78 Ill. 74. Bill to enjoin city authorities from tearing up and replacing a sidewalk. Wilkins v. City of New York, 9 Misc. 610, 30 N. Y. Supp. 424; North British & Mercantile Co. v. Craig, 106 Tenn. 621, 62 S. W. 155; Blue Jackson Consol. Copper Co. V. Scherr, 50 W. Va. 533, 40 S. E. 514. Abb. Corp. Vol. III — 36. - State officers who, under the color of the authority of unconstitutional state legislation, are guilty of personal trespass and wrongs may be sued although the constitution provides that the state shall neither be made defendant in any suit at law or in equity. 18 People v. Roberts, 157 N. Y. 19 See §§ 1140 et seq., ante. See, |