Benz v. New York State Thruway Authority

PETITIONER:Benz
RESPONDENT:New York State Thruway Authority
LOCATION:United States Court of Appeals District of Columbia Circuit

DOCKET NO.: 234
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 369 US 147 (1962)
ARGUED: Feb 28, 1962 / Mar 01, 1962
DECIDED: Mar 19, 1962

Facts of the case

Question

Audio Transcription for Oral Argument – February 28, 1962 in Benz v. New York State Thruway Authority

Earl Warren:

Number 234, Benz versus New York State Thruway Authority.

Mr. Rachlin.

Lauren D. Rachlin:

Mr. Chief Justice, may it please the Court.

This is a civil action brought in the Supreme Court of the State of New York in which the petitioner seeks to reform for an alternative rescind and agreement entered into between her and the respondent and the ground of the fraud of the respondent or a mutual mistake of facts.

Respondent appeared especially and moved to dismiss petitioner’s complaint on the ground that the Court lacked jurisdiction over the person of the respondent and the subject matter.

A New York special term judge dismissed the complaint on the ground of a lack of jurisdiction over the subject matter.

The appellate division affirmed in the New York Court of Appeals in a four to three decisions affirmed on the grounds that the respondent was immune from the suit.

Subsequent to the decision, the remittitur was amended to show that upon the appeal that was presented and necessarily passed upon a question under the Constitution of the United States to with but their plaintiff was deprived of just compensation in violation of the Due Process Clause of the Fourteenth Amendment.

The New York Court of Appeals held there was no such deprivation or violation.

The United State Supreme Court granted certiorari.

The petitioner now seeks to have this Court reverse the decision of the Court of Appeals and remand the case to the New York Supreme Court for trial on the merits.

The facts of this case are most important.

Petitioner and her husband are elderly town’s people living in town — in the Village of Hamburg outside of Buffalo, New York.

Petitioner owned a large track of land outside of Buffalo fronting on a main highway that she had received by inheritance.

The New York State Thruway Authority, the respondent, under its power of eminent domain appropriated a strip of land through this track which effectively bisected the track of land and making — and made the rear portion of the track which was in fact the major portion of the track completely inaccessible.

Under the New York Appropriation method, title passed immediately upon the filing of the maps.

The respondent, Thruway Authority, employs agents whose job it is to go around to these persons whose land has been appropriated to get what they called agreements of adjustment with them whereby they attempt to agree on a price to be paid for the property.

One of these agents came to the petitioner.

And after much negotiation, it was agreed that the price which was to be paid would be $3500 in cash plus 90% of the value of the rear track of land which had been rendered practically useless by this appropriation, plus the cost of the purchase of an excess route which would allow you at least to obtain access to backtrack.

Now, the agreement was entered into.

And this agreement recites only the sum of $3500 and purports to be in full compensation for the land which was taken.

The agent, however, at the time of the execution of the contract stated that the $3500 which was expressed in the agreement was only part of the compensation which was to be paid.

Now, we have alleged in our complaint and the allegation must be accepted as true for the purpose of this proceeding, that $3500 represented but at one-twentieth of the value of this property which was taken and that the petitioner has in fact been deprived of the sum of $70,000 by this action on the part of the state.

And as we say, that is a premise we must be taken.

Though subsequent to the execution of this agreement, petitioner sought to obtain the money which she felt was coming to her.

These representations were repeatedly — repeated by the representatives of the State and petitioner, being an elderly person as I’ve said, relied upon these representations made by the representatives of the State and she consistently refused to accept the $3500 check which was offered.

And finally, she consulted her attorney and found the true nature of the agreement and action was promptly brought in the Supreme Court of the State of New York to rescind or reform this agreement, to show the true nature of the agreement or what petitioner felt that the agreement that has been made.

The defendant respondent appeared in the proceeding, especially claims sovereign immunity and this claim has been consistently upheld throughout the courts of the State of New York.

Now, petitioner’s contentions are very basic.

One, just compensation is guaranteed by the Fourteenth Amendment to a person whose properly is taken for public use.

Lauren D. Rachlin:

Secondly, a state cannot interpose sovereign immunity as a defense to a claim arising out of a taking without payment of just compensation.

And thirdly, that even if a state were so immune, it could not and it cannot delegate this immunity to a public corporation.

Now, as to our first contention, it is clear the just compensation has been denied the petitioner.

It has been said that the taking of property for public use without payment is tyranny.

It is therefore been a requirement from the beginning of this nation, from Constitution that just compensation be paid and as for the Federal Government, this was embodied in the Fifth Amendment.

As to the States, it was clearly held that it was embodied in the Fourteenth Amendment.

Just compensation has been defined as the full and perfect equivalent for property taken and that must be fixed either by agreement or by judicial inquiry.

Now, petitioner’s compensation was fixed by neither.

There was no more of an agreement here than if the gun had been placed to the petitioner’s head and she had been directed to sign this alleged agreement for the courts recognized little difference between fraud and duress.

There was no meeting of the minds.

We have alleged and it must be accepted as true a mutual mistake.

The paper that was written did not express the agreement of the parties.

Therefore, there is no agreed upon compensations.

Petitioner, therefore, has —

Charles E. Whittaker:

(Voice Overlap) may I ask you?

You say there was no meeting of the minds.

I thought you were saying that there was an agreement and that you were asking reformation of the written one to make it conform to the true agreement is —

Lauren D. Rachlin:

Yes sir.

Charles E. Whittaker:

— that I understand you?

Lauren D. Rachlin:

Yeah, yes sir I perhaps use the term meeting of the minds loosely.

There was no meeting of the minds expressed by this contract.

There was a meeting of the minds we contend but it was not set forth in this contract.

That’s right, sir.

Felix Frankfurter:

Would you take two minutes of your time?

Lauren D. Rachlin:

Sure.

Felix Frankfurter:

Makes such comment as you will.

Forgive me to my procedural of jurisdictional difficulty.

I’m well aware of the fact that the Court of Appeals of New York amended the remittitur.

It says they passed on a question under the Fourteenth Amendment.

I’m also aware of the fact that this Court has said that not even the Court of Appeals or any other state court can amend its remittitur and inject the question into a litigation which wasn’t before the Court.

Felix Frankfurter:

I find nothing in either opinion of the court or the dissenting opinion which deals with anything except the power or except the statutory interpretation of the provisions of the New York law as to the jurisdiction of the Court of Claims.

The greatest difficulty saying that simply because counsel persuaded or the Chief Judge of New York Court of Appeals whom I greatly respect said, “Oh yes, that will inject the Fourteenth Amendment problem that we can take it even that wasn’t an issue at all, if New York chooses not to confer that jurisdiction upon the Court of Claims, that is its business.”

And you’re right, so aren’t they protected by going to the federal courts if you haven’t got any redressed or taking a property without compensation under New York law.

Lauren D. Rachlin:

Well, if it please the Court, our contention from the very beginning was that if the state court refused to accept jurisdiction of this case that such refusal to accept jurisdiction and refusal thereby to give the plaintiff, the petitioner of a just compensation which he was guaranteed by the Fourteenth Amendment would then constitute a deprivation of property without just compensation and therefore, constitute a violation of the Fourteenth Amendment.

Felix Frankfurter:

If New York chooses not to have courts which entertain these claims, this Court can confer that jurisdiction by saying you have a federal right, the federal constitution amply enforceable in federal courts.

Lauren D. Rachlin:

The fact is that the New York courts — let’s say prior to the decision in the Benz case, and in fact constitutionally under the New York State Constitution have established the Supreme Court of the State of New York as a court of general jurisdiction in law and equity.

By the Constitution of the State of New York and under the Strang case and the Pantess case, it was specifically so held that the Supreme Court of the State of New York had jurisdiction, full jurisdiction over this — this authority.

Felix Frankfurter:

You may be right.

All I — all I — all I like I get it is from two written opinions.

Lauren D. Rachlin:

Well —

Felix Frankfurter:

They do not suggest remotely that you have no — that no property was taken here.

They go entirely on a jurisdictional matter.

Lauren D. Rachlin:

Well the — this was of course — our contention from the very first of this — in this case.

We established, as I’ve said, the fact that there was a violation of the Fourteenth Amendment.

But — by this agreement which was — as I say either mistakenly drafted or fraudulently drafted, there was a deprivation of property without due process of law.

Now, we say that the — that sovereign immunity is no defense to a taking by a state under the power of eminent domain.

The respondent conceded this point but states that petitioner’s action to rescind or reform the agreement, fixing the price does not constitute an act of — does not involve an act of eminent domain.

They contend that the subject matter was irrelevant.

But the subject matter is very important and because petitioner’s basic claim here is for just compensation.

The subject matter of the land is — the subject matter of the agreement is land which was appropriate.

No provision is made for compensation at the time of the appropriation.

Now, if there were nothing else, you would of course have to strike down the compen — the statute which provides for the appropriation.

The statute does provide, however, for either determination by the Court of Claims or in the alternative an agreement of adjustment.

Compensation is then fraudulently determined or as we say properly determined and mistakenly set forth in the agreement.

The agreement, therefore, does not provide for just compensation.

Now, you come to the second deprivation.

The state court refuses jurisdiction to rescind or reform the agreement.

And therefore, we have two state instrumentalities which are parti — participating in this deprivation of right under the Fourteenth Amendment.

One is the fraudulent agent under the cost of action based on fraud.

The second is the state court’s refusal to hear the case on the ground of sovereign immunity.

Lauren D. Rachlin:

And state court action has been held as we know of to constitute state action.

That’s the McCoy case which we cite in page 16 of our replied brief.

Felix Frankfurter:

Have you — I haven’t looked at the briefs, is the distinction of the Court of Claims set forth in statute giving the Court of Claims jurisdiction?

Lauren D. Rachlin:

It is not — it is not set forth.

The jurisdiction — the Court of Claims sir has no jurisdiction in equity which I assume that would be your question, has no equitable jurisdiction whatever.

There was presently a statute pending in the New York —

Felix Frankfurter:

But you also — you also got — this isn’t merely an equity suit, is it?

Is it exclusively equity?

Lauren D. Rachlin:

I — yes.

It contains a —

Felix Frankfurter:

Do you want money damages?

Lauren D. Rachlin:

We would rely on the clean-up doctrine, the — the traditional power of the court of equity to grant damages.

Felix Frankfurter:

Therefore you could go — it could go into the Court of Claims and ask for the money, couldn’t you?

Lauren D. Rachlin:

No sir, we clearly cannot in the Court of Appeals —

Felix Frankfurter:

Why not?

Lauren D. Rachlin:

— the Court of Appeals has in fact so held in this case.

Felix Frankfurter:

Why not?

Lauren D. Rachlin:

Because once having executed our agreement of adjustment, we were then foreclosed because the Court of Appeals has no — not the Court of Appeals, the Court of Claims has no equitable jurisdiction and can do nothing about this.

Felix Frankfurter:

And but as to moneys, as to moneys, that you get your money from the Court of Claims?

Lauren D. Rachlin:

No sir.

The — again, I feel that here were foreclosed by the —

Potter Stewart:

But you mean all you can get is the $3500 which you —

Lauren D. Rachlin:

I would imagine so but I don’t think — I feel that once having executed this agreement of adjustment, we are then — the statute being in the alternative, we are then foreclosed from the Court of Claims.

Potter Stewart:

Well, are saying this to the face of that agreement, you can’t get $70,000 unless somehow that agreement is reformed, is that it?

Lauren D. Rachlin:

Yes sir, yes sir.

I can’t get the just compensation to which we are entitled.

Potter Stewart:

As Mr. Justice Frankfurter suggest, couldn’t you cash your complaint in the Court of Claims in the form of a demand for $70,000 for the property that was taken?

And that the state would defend and say, “Aha!

No, you’ve made an agreement to sell it for $3500.”

And you replied and say, “Yes but that agreement was fraudulent or — or mutual mistake to the fact.”

Lauren D. Rachlin:

No sir.

Potter Stewart:

No.

Couldn’t — couldn’t that be done?

Lauren D. Rachlin:

No, this was one of the contentions made by the respondent in this case.

I would quote from the decision in Benz within if — you follow this along —

Potter Stewart:

This case?

Lauren D. Rachlin:

— for this case.

This is what the Court of Appeals said, “This leaves plaintiff without any remedy by suit,” without any remedy.

It didn’t say we could anywhere else.

But —

Potter Stewart:

The statute of limitation is at run I would suggest and that might (Voice Overlap) —

Lauren D. Rachlin:

This was the suggestion made by respondent but there is nothing in the case to show that this was the reason.

Then that’s wrong?

Lauren D. Rachlin:

Oh I would imagine so, there being a two-year statute.

This is an amount of imagine, I would say it’s not a track.

It hasn’t run by (Inaudible).

Lauren D. Rachlin:

The — a statute limitations for provide — for filing of claim had run the question as the tolling of the statute of limitation.

There is no — I’d say I imagine it has.

I wonder whether the statute would be told in the event of actual fraud.

But the contention here is I — I don’t believe that that claim which respondent made is at all open in this case.

I have to go back to the words of the Court of Appeals and then show how it has been explained by that court and I think they will get rid of this — this contention that’s made.

That this leaves plaintiff without any remedy by suit but the immunity of the state agency is in no way affected by the lack of any other remedy.

They set up the immunity.

They say, “Too bad, you have to other remedy; that you might have done this or you might do that.”

Now then, what do they mean by, “This leaves plaintiff without any remedy by way of suit?”

For that we have to go back one case and ahead one case.

We have to go back to the Easley case which I cited on page 13 of my reply brief and there they — the Court said, “Because of sovereign immunity, none of the existing courts could take jurisdiction over such claims unless the legislature should so permit.”

That’s in the doctrine or sovereign immunity.

Not that we could go in the Court of Claims, so that we had anywhere else to go but because of the doctrine of sovereign immunity, none of the existing courts could take jurisdictions.

And then following our case to — to put the nails further in the — in the coffin, they took the Moses case cited which I quote from on the top of page 13, “Decisions such as Benz versus New York State Thruway Authority are expressive of a constitutional and legislative policy that public authorities should be subjected only to those procedures which have been specifically mandated.”

Lauren D. Rachlin:

There is no jurisdiction in any court of any suit against an authority except that the legislature has in terms created such jurisdiction — there is no place (Voice Overlap) —

Felix Frankfurter:

Mr. Rachlin, am I right in — in reading Judge Van Voorhis who went with you, who wrote the dissenting opinion that there is no suggestion in his opinion about constitutionality.

All he says is that the existing jurisdictional laws of the State of New York that the power conferred on the laws of your State do give the courts of New York jurisdiction and Chief Judge Desmond the contrary.

Is there a breath, is there a whisper that either of them were dealing with the constitutional problem?

Lauren D. Rachlin:

We raised this constitutional question properly in the Court —

Felix Frankfurter:

I know you didn’t.

All I’m saying — I’m not against you or I’m not —

Lauren D. Rachlin:

Yes, I understand Your Honor.

The fact that —

Felix Frankfurter:

To contest your — your constitutional claim with just compensation.

I’m suggesting so far as I can see this case, it’s a determination by the Court of Appeals against the strong dissent that no court exists in New York which deal with this problem.

Lauren D. Rachlin:

Well again, all I can say is that we raised the question and the facts — the fact that the New York Courts chose to ignore it in their decision, I would say should normally be (Voice Overlap) —

Felix Frankfurter:

Suppose there were no New York Court to which you would go to.

You go to the — the District Court of the Western District of New York up in Buffalo, wouldn’t you?

Lauren D. Rachlin:

That’s right, sir.

Except the fact is that there is a New York court which by the Constitution of the State of the New York exists for this specific purpose pursuant to the constitutional grant of authority to handle all suits in all (Voice Overlap).

Felix Frankfurter:

You may be right as a matter of intellectual analysis of the New York situation but the authoritative body for determining that says you’re wrong namely the Court of Appeals.

Lauren D. Rachlin:

Well in that — if that — to follow that through then, we would be forced to — after all of this to then commence another action entirely in the District Court of the Western District of New York.

Felix Frankfurter:

Would that be your (Inaudible).

Lauren D. Rachlin:

No but I can’t in view of the — the authorities which we cite in our brief.

I can’t feel that that would be the normal and the proper result.

I feel at this Court can properly hold that the Constitution of the State of New York does provide a Supreme Court which does in fact have this jurisdiction.

Felix Frankfurter:

But surely what you’ve just said — what you’ve just said you asked this Court to tell the New York Court of Appeals that they were wrong in their reading of the New York Court Constitution and the Judiciary Act, whatever it may be called that there is jurisdiction when they said there isn’t.

And I suppose that that’s one thing we can’t do.

Lauren D. Rachlin:

Well, your first step, it would seem to me that the first thing that you could do is the state that the action here was an — an unconstitutional deprivation of property without just compensation.

This it seems to me is clear.

Then if you were to remand the case to be heard by the New York State Supreme Court, I think that it is clear that the New York State Supreme Court would in fact hear this case and the case would be determined.

Potter Stewart:

Yes.

Did the Court of Appeals told them they have no jurisdiction to this?

Lauren D. Rachlin:

I have that on good authority from Judge Desmond.

Lauren D. Rachlin:

We discussed that at length.

This is extra judicial.

Felix Frankfurter:

Are saying now that the Supreme Court says that the deprivation of the Fourteenth Amendment or just compensation is being denied.

Take another look at the New York Constitution and the Judiciary Act of New York and (Inaudible) to all.

Lauren D. Rachlin:

Well, it seems to me that we have been —

Potter Stewart:

You have (Voice Overlap) briefs —

Lauren D. Rachlin:

Sir?

Potter Stewart:

— of the briefs that were filed on the Court of Appeals available?

Lauren D. Rachlin:

Yes, sir.

I have complete set here that I can leave with the Court.

These questions were in fact raised in the briefs.

Earl Warren:

Will you do that please?

Lauren D. Rachlin:

Yes sir, I will.

Because we are finding here for the first time in United States Supreme Court that a state seeks to avoid the mandate of the requirement of just compensation of the Fourteenth Amendment by interposing the immunity of the Eleventh Amendment.

Now, the state courts had held just compensation to be an exception to the sovereign immunity doctrine as a matter of constitutional right.

I think the best — the best quotation that we found on this, from — from any case was that in the Chick Springs case which I cite on page 9 of our brief.

Potter Stewart:

I don’t know about that.

Lauren D. Rachlin:

There, the Court said and I’d like to read this.

“Neither the Commonwealth nor any of its political subdivisions is liable in action ex delicto unless made liable by express enactments of the general assembly, except where the acts complained of, in effect, constituted a taking of private property for public use without just compensation.

They are held liable where they take property not upon the grounds that they are authorize by statute to be sued but because of the constitutional provision requiring compensation to be made for such taking.

This protection is afforded to the humblest citizen by the Constitution of the United States and — of the State in the United States.

And neither Government can itself by any statute or through any agency take property without paying just compensation.

Immunity from suit cannot avail in this instance.

To hold, otherwise, would be to say that the constitution itself is a right which the legislature may deny by failing or refusing to provide a remedy.

Such a construction would indeed make the constitutional provision a hollow mockery instead of the safeguard for the rights citizens.

Now, as I said, the New York Court is held that the petitioner was it — was without any remedy.

They have, thus, effectively barred any legal action by defrauded citizen.

Hugo L. Black:

Did your complaint allege that the property had been taken?

Lauren D. Rachlin:

Yes, they would — yes.

Well, there was an appropriation.

Hugo L. Black:

There what?

Lauren D. Rachlin:

That the land has been taken, yes sir and alleged the appropriation on the agreement of adjustment.

Hugo L. Black:

And that you’re entitled to just compensation, that’s in your complaint?

Lauren D. Rachlin:

In the complaint is the fact that the fraud of the respondents.

Hugo L. Black:

Fraud?

Lauren D. Rachlin:

Fraud.

Hugo L. Black:

Well, suppose the Court does have jurisdiction, I presumed what is held here is that — I don’t know.

They do not have jurisdiction of this kind of action although you say that they could have — should have held under some other cases that they did have jurisdiction of a taking case.

Then that would be whether the fact to allege the — did you — was it decided wholly on the complaint?

Lauren D. Rachlin:

Yes sir.

There’s — there’s nothing (Voice Overlap) —

Hugo L. Black:

That the alleged showed a taking.

It maybe what you’re argue is that the Court refused to recognize the fact and alleged showing and taking and although it had jurisdiction.

Lauren D. Rachlin:

The Court in fact —

Hugo L. Black:

Of the taking.

Lauren D. Rachlin:

I think it’s conceded that there was in fact the takings sir unless I’ve misunderstand you.

Hugo L. Black:

You conceded that there was in fact the taking?

Lauren D. Rachlin:

Yes, sir.

There — there would have to be because there was an appropriation.

Hugo L. Black:

And that they have held that their court does not have jurisdiction?

Lauren D. Rachlin:

They have held that their court — that at their court isn’t that jurisdiction to —

Hugo L. Black:

They say you have a tort.

Lauren D. Rachlin:

They have said no —

Hugo L. Black:

They say you have a taking, do you?

Lauren D. Rachlin:

No.

They have no jurisdiction to rescind or reform this agreement.

There is no jurisdiction in — in equity and I think this is — this may answer the other question.

They say they have knocked this jurisdiction because the respondent partakes of the immunity of the sovereign.

Now, if the respondent in fact does not partake of the immunity of the sovereign then the very basis of the New York State Court of Appeals determination must fall and there is —

Felix Frankfurter:

And do you think that’s not a state question?

Lauren D. Rachlin:

This has been determined to be a federal question, Your Honor in the Hopkins versus Clemson College case.

Felix Frankfurter:

What?

Lauren D. Rachlin:

Which Hopkins versus Clemson College which we cite on page 15 of our brief.

In that case, the landowner sued for damages to his land caused by flooding after a dike had been built.

The defendant claimed, the respondent claimed much as — respondent claims here.

Felix Frankfurter:

Who was the respondent?

Lauren D. Rachlin:

The respondent was Clemson College, was an agent of the State of Arkansas.

William O. Douglas:

Where was Carol —

Lauren D. Rachlin:

South Carolina.

Felix Frankfurter:

South?

Lauren D. Rachlin:

South Carolina.

Felix Frankfurter:

(Inaudible) South Carolina.

Lauren D. Rachlin:

And they claimed that they were acting as an agent of the State by the authority of the State and that they were building this — this dike and as a governmental act, as an agent of the State and the issue in that case was specifically held to be whether a public corporation may avail itself of the state’s immunity from suit.

Felix Frankfurter:

Do you think we can tell — we can decide that the State Department, Department of Government of the State of New York is not — is not part of the Government of the State of New York, can we?

Lauren D. Rachlin:

It isn’t that.

It’s a question of whether a department or an agency or a public corporation which this in fact is can partake of the immunity of the State.

And this I think is a federal question because after all it’s a question of whether the immunity which is in — in effect granted by the Eleventh Amendment can be delegated by that state and again if I can quote from — from the Hopkins case.

But immunity from suit is a high attribute of sovereignty, a prerogative of the State — excuse me of the State itself which cannot be availed of by public agents when sued from their own torts.

The whole frame and scheme of the political institutions of this country state and federal, protest against expanding to any agent the sovereign exemption from legal process.

So that I would —

William J. Brennan, Jr.:

So what was the trial court?

Is that a federal trial court in South Carolina?

Or a state trial court?

Lauren D. Rachlin:

South Carolina State Court, You Honor.

Now, we’ve contended that even if the State is immune from suit that it cannot delegate its immunity to a public corporation.

Now, the growth of the public authority is one of the most important single developments in — in this particular area of the law in the last several decades.

New York alone has over 100 public authorities in — involves in the State of New York a multibillion dollar operation and this can be multiplied by 50 states.

The purpose of the public corporation is to provide independent autonomous operation to protect the state from liability and at the same time, re — avoid the restrictions which are normally takes place upon the State.

Thus the Thruway Authority, the members of the authority are under the — the Board for nine year term.

They have the right to issue fines, to fix tolls, to take land, to enter contracts, to police their own facilities.

Lauren D. Rachlin:

They have the full powers of a public corporation including the right to sue and be sued.

They are not directly responsible to the State or to the local Government nor are they even responsible to the people.

Now, under the Benz decision, they are not even responsible to the courts and as I say, they have achieved the degree of autonomous irresponsibility that has — has been completely unknown in our law.

And according to a law review article which I cite in my brief, this presents, “A fertile area for sovereign irresponsibility.”

Now, we make a final — or I should say this about the — the Hopkins case.

They — the discussions which we mentioned does talk about the public corporation.

And then it goes in, in the very last paragraph or two, they indicate that if the dike had to be removed, if that there was affirmative action required by the State that in that event, they have to make the state a party and the state would be in that case immune.

But I contend that this is far different from saying that the State made by naked power deprived the petitioner of her property without just compensation.

It is — excuse me, different from saying that although the federal court, the federal constitution provides a rate of just compensation that the State can say as it did sovereign immunity is not affected by the essence of a remedy.

Now, I did take the opportunities.

Our time is coming close to an end, the opportunity to look into the constitutional history of the Fourteenth Amendment.

To see what was said whether that the time the Fourteenth Amendment was passed whether, they concerned themselves on the issue of sovereign immunity as opposed to this.

And I think it’s clear that this is — the primary concern was the right of the individual, not the right of the State, the feeling at that time throughout the entire congressional record was not one of concern for the State.

There were concern to protect by national law the privileges and immunities of all the citizens of the republic.

I’ll finish.

Earl Warren:

We’ll recess now.