Mr. Justice Peckham,

after making the foregoing statement, delivered the opinion of the court..

We recognize and appreciate' to the fullest extent the very great importance of this case, not only to the parties now before the court, but also to the great mass of the citizens of this country^ all of whom are interested in the practical working of the courts of justice throughout the land, both Federal and state, and in the proper exercise of the jurisdiction of the Federal courts, as limited and controlled by the Federal Constitution and the laws of Congress.

That there has been room for difference of opinion with regard to such limitations the reported cases in this court bear conclusive testimony. It cannot be stated that the case before us is entirely free from any possible doubt nor that intelligent men may not differ as to the correct answer to the question we are called upon to decide.

The question of jurisdiction, whether of the Circuit Court' or of this court, is frequently a delicate matter to deal with, and it is especially so in this case, where the material and most important objection to the jurisdiction of the Circuit Court is the assertion that the suit is in effect against one of the States of the Union. It is a question, however, which we are called upon, and which it is our duty, to decide. Under these circumstances, the language of Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 404, is most apposite. In that case he said:

*143“It is most true that this court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp- that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment, and conscientiously perform our duty.”

Coming to a consideration of the case, we find that the complainants in the suit commenced ip the Circuit Court were ' stockholders in the Northern Pacific Railway Company, and the reason for commencing it and making the railroad company one of the parties defendant is sufficiently set forth in the bill.- Davis &c. Co. v. Los Angeles, 189 U. S. 207, 220; Equity Rule 94, Supreme Court.

It is primarily asserted on the part of the petitioner that jurisdiction did not exist in the Circuit Court because there was not the requisite diversity of citizenship, and there was no question arising under the Constitution or laws of the United States to otherwise give jurisdiction to that court. There is no claim made here of jurisdiction on the ground of diversity of citizenship, and the claim, if made, would be unfounded in fact. ‘ If no other ground exists, then the order of the Circuit Court, assuming to punish petitioner for contempt, was an unlawful order, made by a court without’jurisdiction. In such case this court, upon proper application, will discharge the person from imprisonment. Ex parte Yarbrough, 110 U. S. 651; Ex parte Fisk, 113 U. S. 713; In re Ayers, 123 U. S. 443, 485. But an examination of the record before us shows that there are Federal questions in this case.

It is insisted by the petitioner that there is no Federal ques-*144jbion: presented under the. Fourteenth Amendment, because there is no dispute as to the meaning of the Constitution, where it provides that no State, shall deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal .protection'of the laws, and whatever , dispute there may be in this case is one of fact simply; whether the freight or passenger rates as fixed by the legislature1 or by the railroad commission are so low as to be confiscatory, and that is not a Federal question.

Jurisdiction is-given to the Circuit Court in suits involving the requisite amount, arising under the Constitution or laws of the United States (1 U. S. Comp. Stat. p. 508), and the ques-' tion really to be determined under this objection is whether rthe acts of the legislature and the orders of the railroad commission,- if enforced, would take property without due process . of- law, and although that question might incidentally involve a question of fact, its solution nevertheless is one which raises a Federal question. See Hastings v. Ames (C. C. A. 8th Circuit); 68 Fed. Rep. 726. The sufficiency of rates with reference to the Federal Constitution is a judicial question, and one oyer which Federal courts have, jurisdiction by reason of its Federal nature. Chicago &c. R. R. Co. v. Minnesota, 134 U. S. 418; Reagan v. Farmers’ &c. Co., 154 U. S. 369, 399; St. Louis &c. Co. v. Gill, 156 U. S. 649; Covington &c: Turnpike Road Company v. Sandford, 164 U. S. 578; Smyth v. Ames, 169 U. S. 466, 522; Chicago &c. Railway Co. v. Tompkins, 176 U. S. 167, 172.

'ÁnothérjFederal question is the alleged unconstitutionality of these acts because' of the enormous penalties denounced for théir. violation, which prevent the railway company, as alleged, or any of- its servants or employés, from resorting to ±he courts for the purpose of determining the validity of such acts. The contention Is urged by the complainants in the suit that thq company is denied the equal protection of the ‘laws and its property is. liable to' be taken without due process of law, because -it is only allowed a hearing upon the claim of • *145the unconstitutionality of the acts and orders in question, at the risk, if mistaken, of being, subjected to such enormous penalties, resulting in the possible confiscation of its whole property, that rather than take such risks,the company would obey the laws, although such obedience might also result in the end (though by a slower process) in such confiscation.

Still another Federal question is urged, growing out of the assertion that the laws are, by their necessary effect, an interference with and a regulation of interstate commerce, the grounds for which assertion it is not now necessary to enlarge upon. The question is not, at any rate, frivolous.

We conclude that the Circuit Court had jurisdiction in the case before it, because it involved the decision of Federal questions arising under the Constitution of the United States.

Coming to the inquiry regarding the alleged invalidity of these acts, we take up the contention that they are invalid on their face on account of the penalties. For disobedience to the freight act the officers, directors, agents and employés of the company are made guilty of a misdemeanor, and upon conviction each may be punished by imprisonment in the county jail for a period not exceeding ninety days. Each violation would be a separate offense, and, therefore, might result in imprisonment of the various agents of the company who would dare disobey for a term of ninety days each for each offense. Disobedience to the passenger rate act renders the party guilty of a felony and subject to a fine'not exceeding' five thousand dollars or imprisonment in the state prison for a period not exceeding five years, or both fine and imprisonment. The sale of each ticket above the price permitted by the act would be a violation thereof. It would-be difficult, if not impossible, for the company to obtain officers, agents or employés willing to carry on its affairs except in obedience to the act and orders in question. The company itself would also, in case of disobedience, be liable to the immense fines provided for in violating orders of the Commission. The company, in order to test the validity of the acts, must find some *146agent or employé to-disobey them at the risk stated. The necessary effect and result of such legislation must be to preclude a resort to the courts (either state or Federal) for the purpose of testing its validity. The officers and employés could not be expected to disobey any of the provisions of the acts or orders at the risk of such fines and penalties being imposed upon them, in case the court should decide that the law was valid. The result would be a denial of any hearing to the company. The observations upon a similar question made by Mr. Justice Brewer in Cotting v. Kansas City Stock Yards Company, 183 U. S. 79, 99, 100, 102, afe very apt. At page 100 he stated: “Do the' laws .secure to an individual an equal protection when' he is allowed to come into court and make his claim or defense subject to the condition that upon a failure to make good that claim or ^ defense the penalty for such failure either appropriates all his' property or subjects him to extravagant and unreasonable loss?” Again, at page 102, he says: “It is doubtless true that the State may impose penalties, such as will tend to compel obedience to its mandates by all, individuals or corporations, and if extreme and cumulative penalties are imposed only after there has been a final determination of the validity of the statute, the question would be very different from that here presented. But when the legislature, in aii' effort' to prevent any inquiry of the validity of a particular statute, so burdens any challenge thereof, in the courts that(',the party affected is necessarily constrained to submit rather than take the chances of the penalties imposed, then it becomes a serious question whether the party is not deprived of the equal protection of the laws.” The question was not decided in that case, as it went off on another ground. We have the same question now before us, only the penalties are more severe in the way of fines, to which is added, in the case of officers, agents or employés of the company, the risk of imprisonment for years as a common felon. See also Mercantile Trust Co. v. Texas &c. Ry. Co., 51 Fed. Rep. 529, 543; Louisville &c. R. R. Co. v. McChord, 103 *147Fed. Rep. 216, 223; Consolidated Gas Co. v. Mayer, 146 Fed. Rep. 150, 153. In McGahey v. Virginia, 135 U. S. 662, 694, it was held that to provide a different remedy to enforce a contract, which is unreasonable, and which imposes conditions not existing when the contract was made, was to offer no remedy, and whgn the remedy is so onerous and impracticable as to substantially give hone at all the law is invalid, although what is termed a remedy is in fact "given. See also Bronson v. Kinzie, 1 How. 311, 317; Seibert v. Lewis, 122 U. S. 284. If the law be such as to make the decision of the legislature or of a commission conclusive as to the sufficiency of the rates,

. this court has held such a law to be unconstitutional. Chicago &c. Railway Co. v. Minnesota, 134 U. S. 418. A law which indirectly accomplishes a like result by imposing such conditions upon the right to appeal for judicial relief as works an abandonment of the right rather than face the conditions .upon which it is offered or may be obtained, is also unconstitutional. It may. therefore be said that when the penalties for disobedience are by fines so enormous and imprisonment so severe as to intimidate the company and its officers from resorting to the courts to test the validity of the legislation,, the result is the same as if the law in terms prohibited the company from seeking judicial construction of laws w^ich deeply afféet» its rights.

It is urged that there is no principle upon which to base the claim that a person is entitled to disobey a statute at least once, for the purpose of testing its validity without subjecting himself to the penalties for disobedience provided by the statute in case it is valid. This is not.- an accurate statement of the case. Ordinarily a law creating offenses in the nature of misdemeanors or felonies relates to a subject over which the jurisdiction of the legislature is complete in any event.. In the case, however, of the establishment of certain rates -without any hearing, the validity of such rates necessarily depends upon whether they are high enough to permit at least some return upon, the investment (how much it is not now *148necessary to state), and an inquiry as to that fact is a proper subject of judicial investigation. If it turns out that the rates are too low for that purpose, then they are illegal. Now, to impose upon a party interested the burden of obtaining a judicial decision of such a question (no prior hearing having ever been given) only upon the condition that if unsuccessful he must suffer imprisonment and pay fines as provided in these acts, is, in effect, to close up all approaches to the courts, and thus prevent any hearing upon the question whether the rates as provided by the acts are not too low, and therefore invalid. The distinction is obvious between a case where the validity of the act depends upon the existence of a fact which can be determined only after investigation of a very compli-. cated and technical character, and the ordinary case of a statute upon a subject requiring no such investigation and over which the jurisdiction of the legislature is complete in any event.

We hold, therefore, that the provisions of the acts relating to the enforcement of the rates, either for freight or passengers, by imposing such enormous fines and possible imprisonment as a result of an unsuccessful effort to test the validity of the laws themselves, are unconstitutional on their face, without regard to the question of the insufficiency of those rates. We also hold that the Circuit Court had jurisdiction under the cases already cited (and it was therefore its duty) to inquire whether the rates permitted by these acts or orders were too low and therefore confiscatory, and if so held, that the court then had jurisdiction to permanently enjoin the railroad company from putting them in force, and that it also had power, while the inquiry was pending, to grant a temporary injunction to the same effect.

Various affidavits were received upon the hearing before the court prior to the granting of the temporary injunction, and the hearing itself was, as appears from the opinion, full and deliberate, and the fact was found that the rates fixed by the commodity act, ünder the circumstances .existing with *149reference to the passenger rate act and the orders of the Commission, were not sufficient' to be compensatory, and were in fact confiscatory, and the act was therefore unconstitutional. The injunction was thereupon granted with reference to the enforcement of the commodity act.

We have, therefore, upon this record the case of án unconstitutional act of the state legislature and an intention by the Attorney General of the State to endeavor to enforce its provisions, to the injury of the company, in compelling it, at great expense, to defend legal proceedings of a complicated and unusual character, and involving questions of vast importance to all employés and officers of the company, as well as to the company itself. The question that arises is whether there is a remedy that the parties interested may resort to, by going into a Federal court of equity, in a case involving a violation of the Federal Constitution, .and obtaining a judicial investigation of the -problem, and pending its solution obtain freedom from suits, civil or criminal, by a temporary injunction, and if the question be finally decided favorably to the contention of the company, a permanent injunction restraining all such actions or proceedings.

This inquiry necessitates an examination of the most material and important objection made to the jurisdiction of the Circuit Court, the objection being that the suit is, in effect, one against the State of Minnesota, and that the injunction issued against the Attorney General illegally prohibits state action, either criminal or civil, to enforce obedience to the. statutes of the State. This objection is to be considered with reference to the Eleventh and Fourteenth Amendments to the Federal Constitution. The Eleventh Amendment prohibits the commencement or prosecution of any suit against one of the United States by citizens of another State- or citizens or subj ects of any foreign State. The Fourteenth Amendment provides that no State shall deprive any person of life, liberty or property without due process of law, nor shall it deny to any person within its jurisdiction the equal protection of the laws.

*150The case before the, Circuit Court proceeded ‘upon the theory that the orders and acts heretofore mentioned would, if enforced, violate rights' df the complainants protected by the latter Amendment. We think that whatever the rights, of complainants may be., they are largely founded upon that. Amendment, but a decision of this case does not require an examination or decision.', of. the' question whether its adoption in any way altered or limited the effect of the earlier Amendment. We may assume that each exists in full force, and that we must give to the Eleventh Amendment all the. effect it naturally would have, without cutting it down or rendering its meaning any more narrow than the language, fairly interpreted, would warrant. It applies to a suit brought against a State by one of its own citizens as well as to a suit brought by a citizen of another State. Hans v. Louisiana, 134 U. S. 14. It was- adopted after the decision of this court in Chisholm v. Georgia, (1793), 2 Dall. 419 where it . was held that a State might be sued by a citizen of another State. Since that time there have been many cases decided in this court involving the Eleventh Amendment, among them being Osborn v. United States Bank (1824), 9 Wheat. 738, 846, 857, which .held that the Amendment applied only to those suits in which the State was a party on the record. In the subsequent case of Governor of Georgia v. Madrazo (1828), 1 Pet. 110, 122, 123, that holding was somewhat enlarged, and Chief Justice Marshall, delivering the opinion of the court, while citing Osborn v. United States Bank, supra, said that where the claim was made, as in the case then before the court, against the Governor of Georgia as governor, and the demand was made upon him, not personally, but officially (for moneys in the treasury of the State and for slaves in possession of the state government), the State might be considered as the party on the record (page 123), and therefore the suit could not be maintained.

Davis v. Gray, 16 Wall. 203, 220, reiterates the rule of Osborn v. United States Bank, so far as concerns the right to enjoin a state officer from executing a state law in conflict with *151the Constitution or a statute of the United States, when such execution will violate the rights of the complainant.

In Virginia Coupon Cases, 114 U. S. 270, 296 (Poindexter v. Greenhow), it was adjudged that a suit against a tax collector who had refused coupons in payment of taxes, and, undér color of a void law, was about to seize and sell the property of a taxpayer for non-payment of his taxes, was a suit against him personally as a wrongdoer and not against the Staté.

Hagood v. Southern, 117 U. S. 52, 67, decided that the bill was in substance a bill for the specific performance of a contract between the complainants and the State of South Carolina, and, although the State was not in name made a party defendant, yet being the actual party to the alleged contract the performance of which was sought and the only party by whom it could be performed, the State was, in, effect, a party to the suit, and it could not be maintained for that reason. The things required to be done by the actual defendants were the very things which when done would constitute a performance of the alleged contract by the State.

The cases upon the subject were reviewed, and it was held, In re Ayers, 123 U. S. 443, that a bill in equity brought against officers of a State, who, as individuals, have no personal interest in the subject-matter of the suit, and defend only as representing the State, where the relief prayed for, if done, would constitute a .performance by the State of the alleged contract of the State, was a suit against the State (page 504), following in this respect Hagood v. Southern, supra.

A suit of such a nature was simply an attempt to make the State itself, through its officers, perform its alleged contract, by directing those officers to do acts which constituted such performance. The State alone had any interest in the question, and a decree in favor of plaintiff would affect the treasury of the State.

On the other hand, United States v. Lee, 106 U. S. 196, determined that an individual in possession of real estate under the. Government of the United States, which claimed to be *152its owner, was, nevertheless, properly sued by the plaintiff, as owner, to, recover possession,-and such suit was not one against the United States, although the individual in possession justified such possession under its authority. See also Tindal v. Wesley, 167 U. S. 204, to the same effect.

In Pennoyer v. McConnaughy, 140 U. S. 1, 9, a suit against land commissioners of the State was said not to be against the State, although the complainants sought to restrain the defendants, officials of the State, from violating, under an unconstitutional act, the complainants’ contract with the State, and thereby working irreparable damage to the property rights' of the complainants. Osborn v. United States Bank, supra, was cited, and it was stated: “But the general doctrine of Osborn v. Bank of the United States, that the Circuit Courts of the United States will restrain a state officer from executing an unconstitutional statute of the State, when to execute it would violate rights and privileges of the complainant which had .been guaranteed by the Constitution, and would work irreparable damage and injury to him, has never been departed from. ' The same principle is decided in Scott v. Donald, 165 U. S. 58, 67. And see Missouri &c. v. Missouri Railroad Commissioners, 183 U. S. 53.

The cases above cited do not include one exactly like this under discussion. They serve to illustrate the principles upon which many cases have been decided. We have not cited all the cases,-as we have not thought it necessary. But the injunction asked for in the Ayers Case, 123 U. S. (supra),'was to restrain the state officers from commencing suits under the act of May 12, 1887 (alleged to be unconstitutional), in the ñame of the State- and brought to recover taxes for its use, on the ground that if such suits were commenced they would be a breach of a contract with the State. The injunction was declared illegal because the suit itself could not be entertained .as it was one against the State to enforce its alleged contract. It was said, however, that if the court had power to entertain such a suit, it would have power to grant the restraining order *153preventing the commencement of suits. (Page 487.) It was not stated that the suit or the injunction was necessarily confined to a case of a threatened direct trespass upon or injury to property.

Whether the commencement of a suit could ever be regarded as an actionable injury to another, equivalent in some cases to a trespass such as is set forth in some of the foregoing cases, has received attention in the rate cases, so called. Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362 (a rate case), was a suit against the members of a railroad commission (created under an act of the State of Texas) and the Attorney General, all of whom Were held suable, and that such suit was not one against the State. The Commission' was enjoined from enforcing the rates it had established under the act, and the Attorney General was enjoined from instituting suits to recover penalties for failing to conform to the rates fixed by the Commission under such act. ’ It is true the statute in that case creating the board provided that suit might be maintained by any dissatisfied railroad company, or other party in interest,, in a court of competent jurisdiction in Travis County, Texas, against the Commission as defendant. This court held that such language. permitted a suit in the United States Circuit Court for the Western District of Texas, which embraced Travis County, but it also held that, irrespective of that consent, the suit was not in effect a suit against the State (although the Attorney General was enjoined), and therefore not prohibited under the amendment. It was said in the opinion, which was delivered by Mr. Justice Brewer, that the suit could not in any fair sense be considered a suit against the State (page 392), and the conclusion of the court was that the objection to the jurisdiction of the Circuit Court was not tenable, whether that jurisdiction was rested (page 393), “upon the provisions of the statute or upon the general jurisdiction of the court existing by virtue of the statutes of Congress and the sanction of the Constitution of the United States.” Each- of these grounds is effective and both are of equal force. *154Union Pacific &c. v. Mason City Company, 199 U. S. 160, 166.

In Smyth v. Ames, 169 U. S. 466 (another rate case), it was again held that a suit against individuals, for the purpose of preventing them, as officers of the State, from enforcing, by the commencement of suits or by indictment, an unconstitutional enactment to the injury of the rights of the plaintiff, was not' a suit against a State, within the meaning of the Amendment. At page 518, in answer to the objection that the suit was really against the State, it was said: “It is the settled doctrine of this court that a suit against individuals for the purpose of preventing them as officers of a State from enforcing an unconstitutional enactment .to the injury of the rights of the plaintiff, is not a suit against the State within the meaning of that Amendment.” The suit was to enjoin the enforcement of a statute of Nebraska because it was alleged to be unconstitutional, on account of the rates being too low to afford some compensation to the company, and contrary, therefore, to the Fourteenth Amendment.

There was no special provision in the' statute as to rates, making it the duty of the Attorney General to enforce it, but under his general powers he had authority to ask for a mandamus to enforce such or any other law. State of Nebraska ex rel. &c. v. The Fremont &c. Railroad Co., 22 Nebraska, 313.

The final decree enjoined the Attorney General from bringing any suit (page 477) by way of injunction, mandamus, civil action or indictment, for the purpose of enforcing the provisions of the act. The fifth section of the act provided that an action might be brought by.a railroad company in the Supreme Court of the State of Nebraska; but this court did not base its decision on that section when it held that a suit of the nature of that before it was not a suit against a State, although brought against individual state officers for the purpose of enjoining -them from enforcing, either by civil proceeding or indictment, an unconstitutional enactment to the injury of the plaintiff’s right. (Page 518.)

*155This decision was reaffirmed in Prout v. Starr, 188 U. S. 537, 542.

Attention is also directed to the case of Missouri &c. Rwy. Co. v. Missouri R. R. &c. Commissioners, 183 U. S. 53. That was a suit brought in a state court of Missouri by the railroad commissioners of the State, who had the powers granted them by the statutes set forth in the report. Their suit was against the railway company to compel it to discontinue certain charges it Was making for crossing the Boonville bridge over the Missouri River. The defendant sought to remove the case to the Federal court, which the plaintiffs resisted, and the state court refused to remove on the ground that the real plaintiff was the State of Missouri, and it was proper to go behind the face of the record to determine that fact. In regular manner the case came here, and this court held that the State was not the real party plaintiff, and the case had therefore' been properly removed from the state court, whose judgment was thereupon reversed.

Applying the same principles of construction to the removal act which had been applied to the Eleventh Amendment, it was said by this court that the State might be. the real party plaintiff when the relief sought enures to it alone, and in. whose-favor the judgment or decree, if for the plaintiff, will effectively operate.

Although the case is one arising under the removal act and does not involve the Eleventh Amendment, it nevertheless illustrates the question now before us, and reiterates the doctrine that the State is not a party to a suit simply because the State Railroad Commission is such party.

The doctrine of Smyth v. Ames is also referred to and reiterated in Gunter, Attorney General, v. Atlantic &c. Railroad Co., 200 U. S. 273, 283. See also McNeill v. Southern Railway, 202 U. S. 543-559; Mississippi Railroad Commission v. Illinois &c. Railroad Co., 203 U. S. 335, 340.

The various authorities we have referred to furnish ample justification for the assertion that individuals, who, as officers *156of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.

It-is objected, however, that Fitts v. McGhee, 172 U. S. 516, has somewhat limited this principle, and that, upon the authority of that case, it must be held that the State was a party to the suit in the United States Circuit Court, and the bill should have been dismissed as to the Attorney General on that ground.

We do not think such contention is well founded. The doctrine of Smyth v. Ames was neither overruled nor doubted in the Fitts case. In that case the Alabama legislature, by the act of 1895, fixed the tolls to be charged for crossing the bridge. The penalties for disobeying that act, by demanding and re--ceiving-higher tolls, were to be collected by the persons pay- ' ing them. No officer of the State had any official connection with the recovery of such penalties. The indictments mentioned were found under another state statute, set forth at page '520 of the report of the case, which provided a fine against an officer of a company for taking any greater rate of toll than was authorized b¿t its charter, or, if the charter' did not specify the amount, then the fine was imposed for charging any unreasonable toll, to be determined by a jury. This act was not claimed to be unconstitutional, and the indictments found under it were not necessarily connected with the alleged unconstitutional act fixing the tolls. As no state officer who was made a party bore any close official connection with the act fixing the tolls, the making of such officer a party defendant was a simple effort to test the constitutioriality of such act in that way, and there is no principle upon which it could be done. A state superintendent of schools might as well have been made a party. In the light of this fact it was said in the opinion (page 530):

*157“In the present case, as we have said, neither of the State officers named held any special relation to the particular statute alleged to be unconstitutional. They were not expressly directed to see to its enforcement. If, because they were law officers of the State, a case could be made for the purpose of testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the governor and the attorney general, based upon the theory that the former, as the executive of the State was, in a general sense, charged with the execution of all its laws, and the latter, as attorney general, might represent the State in litigation involving the enforcement of its statutes. That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the States of the Union consistently with, the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons.”

In making an officer of the State a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional it is plain that such officer must have some connection with the enforcement of the a,ct, or else it is merely making him. a party as a representative of the State, and thereby attempting to make the State a party.

• It has not, however, been held that it was necessary that such duty should be declared in the same act which is to be enforced. In some cases, it is true, the duty of enforcement has been.so imposed (154 U. S. 362, 366, § 19 of the act), but that'may possibly make the duty more clear; if. it otherwise exist it is equally efficacious. The fact that the state officer by virtue of his office has some connection with' the enforcement of. the act is the important and material fact, and whether it - arises out of the general law, or is specially created by the act itself, is not material so long as it exists.

In the course of the opinion in the Fitts case the Reagan and *158Smyth cases were referred to (with others) as instances of state officers specially charged with the execution of a state enactment alleged to be unconstitutional, and who commit under its authority some specific wrong or trespass to the injury of plaintiff’s rights. In those cases the only wrong or injury or trespass involved was the threatened commencement of suits to enforce the statute as to rates, and the threat of such commencement was in each case regarded as sufficient to authorize the issuing of an injunction to prevent the same. The threat to commence those suits under such circumstances was therefore necessarily held to be equivalent to any other threatened wrong or injury to the property of a plaintiff which had theretofore been held sufficient to authorize the suit against the officer. The being specially charged with the duty to enforce the statute is sufficiently apparent when such duty exists under the general authority of some law, even though such authority is not to be found in the particular act. It might exist by reason of the general duties of the officer to enforce it as a law of the State.

The officers in the Fitts case occupied the position of having . no duty at all with regard to the act, and could not be properly made parties to the suit for the reason stated.

It is also objected that as the statute does not specifically make it the duty of the Attorney General (assuming he has that general right) to enforce it, he has under such circumstances a full general discretion whether to attempt its enforcement or not, and the court' cannot interfere to control him as • Attorney General in the exercise of his discretion.

In our view there is no interference with his discretion under the facts herein. There is no doubt that the court cannot control the exercise of the discretion of an officer. It can only direct affirmative action where the officer having some duty to perform not involving discretion, but merely ministerialin its nature, refuses or neglects to take such action. In that case the court can direct the defendant to perform this merely ministerial duty. Board of Liquidation v. McComb, 92 U. S. 531, 541.

*159The general discretion regarding the enforcement of the laws when and as he deems appropriate is not interfered with by an injunction which restrains the state officer from taking any steps towards the enforcement of an unconstitutional enactment to the injury of complainant. In such case no affirmative action of any nature is directed, and the officer is simply prohibited from doing an act which ho had no legal right to do. An injunction to prevent him from doing that which he has no legal right to do is not an interference with the discretion of an officer.

It is'also argued that the only proceeding which the Attorney General could take to enforce the statute, so far as his office is concerned, was one by mandamus, which would be commenced by the State in its sovereign and governmental character, and that the right to bring such action is a necessary attribute of a sovereign government. It is contended that the complainants do not complain and they care nothing about any action which Mr. Young might take or bring as an ordinary individual, but that he was complained of as an officer, to whose discretion is confided the use of the name of the State-of Minnesota so far as litigation is concerned, and that when or how he shall use it is a matter resting in his discretion and cannot be controlled by any court.

The answer to all this is the same as made in every case where an official claims to be acting under the authority of the State. The act to be enforced is alleged to be unconstitutional, and if.it be so, the use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of and one which does not affect the State in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. If. the act which the state Attorney General seeks to enforce be a violation of the Federal. Constitution, the officer in proceeding under such enactment comes into conflict with the *160superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States. See In re Ayers, supra, page 507. It would be an injury to complainant to harass'it with a multiplicity of suits or litigation generally in an endeavor to enforce penalties under an unconstitutional enactment, and to prevent it ought to be within the jurisdiction of a court of equity. If the question of unconstitutionality with reference, at least, to the Federal Constitution be first raised in a Federal court that court, as we think is shown by the authorities cited hereafter, has the right to decide it to the exclusion of all other courts.

The question remains whether the Attorney General had, by the law of the State, so far as concerns these rate acts, any duty with regard to the enforcement of the same. By his official conduct it seems that he regarded it as a duty connected with his office to compel the company to obey the commodity act, for he commenced proceedings to enforce such obedience immediately- after the injunction issued, at the risk of being found guilty of contempt by so doing.

The duties of the Attorney General, as decided by the Supreme Court of the State of Minnesota,- are created partly by statute and exist partly as at common law.- State ex rel. Young, Attorney General, v. Robinson (decided June 7, 1907), 112 N. W. Rep. 269. In the above-cited case^it was held that the Attorney General might institute, conduct and maintain all suits and proceedings he might deem necessary for the enforcement of the laws of the State, the preservation of order and the protection, of public rights, and that there were no statutory restrictions in that State limiting the duties of the. Attorney General in such case.

Section 3 .of chapter 227 of the General Laws of Minnesota, 1905 (same law, §58, Revised Laws of Minnesota., 1905), *161imposes the duty upon the Attorney General to cause proceedings to be instituted against any corporation whenever it shall have offended against the law's of the State. By § 1960 of the Revised Laws of 1905 it is also provided that the Attorney General shall be ex officio attorney for the railroad commission and it is made his duty to institute and prosecute all actions which the Commission shall order brought, and shall render the commissioners all counsel and advice necessary for the proper performance of their duties.

It is said that the Attorney General is only bound to act when the Commission orders action to be brought, and that § 5 of the commodity act (April 18, 1907) expressly provides that no duty shall rest upon the Commission to enforce the act, and hence no duty other than that which is discretionary rests upon the Attorney General in that matter. The provision is somewhat unusual, but' the reasons for its insertion in that act are not material, and neither require nor justify' comment by this court.

It would seem to be clear that the Attorney General, under his power existing at common law and by virtue of these various statutes, had a general duty imposed upon him, which includes the right and the power to enforce the statutes of the State, including, of course, the act in question, if it were constitutional. His power by virtue of his office sufficiently connected him with the duty of enforcement to make him a proper party to a. suit of the nature of the one now before the United States Circuit Court.

It is further objected' (and the objection really forms.part of the contention that the State cannot be sued) that -a court-of equity has no jurisdiction to enjoin criminal proceedings, by indictment or otherwise, under the state law. This, as' a . general rule, is true. But there are exceptions. When such indictment or proceeding is brought to enforce an alleged unconstitutional statute, which is the subject matter of inquiry in a suit already pending in a Federal court, the latter court having first obtained jurisdiction over the subject matter, has *162the right, in both civil and criminal cases, to hold and maintain such jurisdiction, to the exclusion of all other courts, until its duty is fully performed. Front v. Starr, 188 U. S. 537, 544. But the Federal cpurt cannot, of course, interfere in a case where the proceedings were already pending in a -¡state court. Taylor v. Taintor, 16 Wall. 366, 370; Harkrader v. Wadley, 172 U. S. 148.

Where one commences a criminal proceeding who is already party to a suit then pending in a court of equity, if the criminal proceedings are brought to enforce the same'right that is in issue before that court, the latter may enjoin such criminal proceedings.' Davis &c. Co. v. Los Angeles, 189 U. S. 207. In Dobbins v. Los Angeles, 195 U. S. 223-241, it is remarked by Mr. Justice Day, in delivering the 'Opinion of the court, that “it is well settled that where property rights, will be destroyed, unlawful interference by criminal proceedings under a void law or ordinance may be reached and. controlled by a court of equity.”' Smyth v. Ames (supra) distinctly enjoined the proceedings by indictment to compel obedience to the rate act.

These cases show that a court of equity is not always precluded- from granting an injunction to stay proceedings in criminal cases, and we have no doubt the principle appliés in a case such as the present. In re Sawyer, 124 U. S. 200, 211,-is not to the contrary. That case holds that in general a court of equity has no jurisdiction of a bill to stay criminal proceedings, but it expressly states an exception, “unless they are instituted by a party to the suit already pending before it and to try the same right that is in issue there.” Various authorities are cited to sustain the exception. The criminal proceedings here that could be commenced by the state authorities would-be under the statutes relating to passenger or freight rates, and their validity is the very question involved in the. suit in the United States Circuit Court. The right to Restrain proceedings by mandamus is- based upon the same foundation and governed by the same principles.

*163It is proper to add that the right to enjoin an individual, even .though a state official, from commencing suits under circumstances already stated, does not include the power to restrain a- court from acting in any case brought before it, either of a civil or criminal nature, nor does it include power to prevent any investigation or action by a grand jury. The latter body is part of the machinery of a criminal court, and an injunction against a state court would bé a violation of the whole scheme of our Government. If an injunction against an individual is disobeyed, and he. commences proceedings before a grand jury or in a court, such disobedience is personal only, and the court or jury can proceed without incurring any penalty on that account.

The difference between the power to enjoin an individual from doing certain things, and the power to enjoin courts from proceeding in their own way to exercise jurisdiction is plain, and no power to do the latter exists because of a power to do ■the former.

It is further objected that there is a plain and adequate remedy at law open to the complainants and that a court of equity, therefore, has no jurisdiction in such case. It has been suggested that the proper way to test the constitutionality of the act is to disobey it, at least once, after which the company might obey the act pending subsequent proceedings to test its validity. But in the event of a single violation the prosecutor might not avail himself, of the opportunity to make the test, as obedience to the law was thereafter continued, and he might think it unnecessary to start an inquiry. If, however, he should do so while the company was' thereafter obeying the law, several years might elapse before there was a final determination of the question, and if it should be determined that the law was invalid the 'property of the company would have been taken during that time without due process of law, and there would be no possibility of its recovery.

Another obstacle to making the test on the part of the company might be to find an agent ór employé who would disobey *164the law, with a possible fine and imprisonment staring him in the face if the act .should be held valid. Take the passenger rate act, for instance: A sale of a single ticket above the price mentioned in that act might subject the ticket agent to a charge of felony, and upon conviction to a fine of five thousand dollars and imprisonment for five years. It:is true the company might pay the fine, but the imprisonment the agent, would , have to suffer personally. It would not be wonderful if, under such circumstances, there would not be a crowd of agents offering to disobey the law. The wonder would be that a single agent should be found ready to take the risk.

If, however, one should be found and the prosecutor should elect to proceed against him, the defense that the act was invalid, because the ratés established. by it were too low, would require a long and difficult examination of quite complicated facts upon which the validity of the act dépended.' Such investigation it would be almost impossible to make before a jury, as such body could not intelligently pass upon the matter. Questions of the cost of transportation of pas- • sengers and freight, the net earnings of the road, the separation of the cost and earnings, within the State from those arising beyond its boundaries, all depending upon the testimony of experts and the examination of figures relating to these subjects, as well, possibly, as the expenses attending the building and proper cost of the road, would necessarily form the chief matter of inquiry, and intelligent answers- could only be given after a careful and prolonged examination of the whole evidence, and the making of calculations based thereon. All material evidence having been taken upon these issues, it has been held that it ought to be referred to the most competent and reliable master to make all needed computations and to find therefrom the necessary facts upon which a judgment might be rendered that might be reviewed by this court. Chicago &c. Railway Co. v. Tompkins, 176 U. S. 167. Prom all these considerations it is plain that this is not a proper suit for investigation by a jury. Suits for penalties, or in*165dictment or other criminal proceedings for a violation of the act, would therefore furnish no reasonable or adequate opportunity for the presentation of a defense founded upon the assertion that the rates were too low and therefore the act invalid.

We do not say the company could not interpose this defense in an action to recover penalties or upon the trial of an indictment (St. Louis &c. Ry. Co. v. Gill, 156 U. S. 649), but the facility of proving it in either case falls so far below that which would obtain in a court of equity that comparison is scarcely possible.

To await proceedings against the company in a state court grounded upon a disobedience of the act, and then, if necessary, obtain a review in this court by writ of error to the highest state court, would place the company in peril of large loss and its agents in great risk of fines and imprisonment if it should be finally determined that the act was valid. This risk the company ought not to be required to' take. Over eleven thousand millions of dollars, it is estimated, are invested in railroad property, owned by many thousands of people who are scattered over the whole country from océan to .ocean, and they are entitléd to equal protection from the laws and from the courts, with the owners of all other kinds of property, no more, no less. The courts having jurisdiction, ‘ Federal or state, should at all times be open to them as well as to others, for. the purpose of protecting their property and their legal rights.

All the objections to a remedy at law as being plainly.inadequate are obviated by a suit in equity, making all-who are directly interested parties to the suit, and. enjoining the enforcement of the act until the decision of the court upon the legal'question.

An act .of the legislature'1 fixing .rates, either for passengers. or freight, is to be regarded las prima facie valid, and the onus rests upon the company to provedts assertion to the contrary. Under such circumstances it was stated by Mr. Justice Miller, *166in his concurring opinion in Chicago &c. Co. v. Minnesota, 134 U. S. 418, 460, that the proper, if not the only, mode of judicial relief against the tariff of rates established by the legislature or by its Commission is by a bill in chancery, asserting its unreasonable character, and that until the decree of the court in such equity suit was obtained it was not competent for' each individual having dealings with a carrier, or for the carrier in regard to each individual who demands its services, to raise a contest in the courts over the questions which ought to be settled in this general and conclusive manner. This remedy by bill in equity is referred to and approved by Mr. Justice Shiras, in delivering the opinion of the court in St. Louis &c. Co. v. Gill, 156 U. S. 649, 659, 666, although that question was not then directly before the court. Such remedy is undoubtedly the most convenient, the most comprehensive and the most orderly way in which the rights of all parties can be properly, fairly and adequately passed upon. It cannot be to the real interest of anyone to injure or cripple the resources of the railroad companies of the country, because the prosperity of both the railroads and the country is most intimately connected. The question of sufficiency of rates is important and controlling, and being of a judicial nature it ought to be settled at the earliest moment by some court, and when a Federal court first obtains jurisdiction it ought, on general-principles of jurisprudence, to be permitted to finish the inquiry and make a conclusive judgment to the exclusion of all other courts.x This is all that is claimed, and this, we think, must be admitted.

Finally it is objected that the necessary result of upholding this suit in the Circuit Court will be to draw to the lower Federal courts a great flood of litigation of this character, where one Federal judge would have it in his power to enjoin proceedings by state officials to enforce the legislative acts of the State, either by criminal or civil actions. To this it may be answered, in the .first place, that no injunction ought to be granted unless in a case reasonably free from doubt. We *167think such rule is, and will be, followed by all the judges of the Federal courts.

And, again, it must be remembered that jurisdiction of this general character has, in fact, been exercised by Federal courts from the time of Osborn v. United States Bank up to the present; the only difference in regard to the case of Osborn and thé case in hand being that in this case the injury complained of is the threatened commencement of suits, civil or criminal, to enforce the act, instead of, as in the Osborn case, an actual and direct trespass upon or interference with tangible property. A bill filed to prevent the commencement of suits to enforce an unconstitutional act, under the circumstances already mentioned, is no new invention, as we have already seen. The difference between an actual and direct interference with tangible property and the enjoining of state officers from enforcing an unconstitutional act, is not of a radical nature, and does not extend, in truth, the jurisdiction of the courts over the subject matter. In the case of the interference with property the person enjoined is assuming to act in his capacity as an official of the State, and justification for his interference is claimed by reason of his position as a state official. Such official cannot so justify when acting under an unconstitutional enactment of the legislature. So, where the state official, instead of directly interfering with tangible property, is abouj; to commence suits, which have for their object the enforcement of an act which violates the Federal Constitution, to the great and irreparable injury of the complainants, he is seeking the same justification from the authority of the State as in other cases. The sovereignty of the State is, in reality, no more involved in one case than in the other. The State cannot in either case impart to the official immunity from responsibility to the supreme authority of the United States. See In re Ayers, 123 U. S. 507.

This supreme authority, which arises from the specific provisions of the. Constitution itself, is nowhere more fully illustrated than- in the series of decisions under the Federal habeas *168corpus statute (§ 753, Rev. Stat.), in some of which cases persons in vthe custody of state officers for alleged crimes against the State have been taken from that custody and discharged by a Federal court or judge, because the imprisonment was adjudged to be in violation of the Federal Constitution. The right to so discharge has not been doubted by this court, and it has never been supposed there was any suit against the State by reason of serving the writ upon one of the officers of the State in whose custody the person was found. In some of tihe cases the writ has been refused as matter of discretion, but in others it has been granted, while the power has been fully recognized in all. Ex parte Royall, 117 U. S. 241; In re Loney, 134 U. S. 372; In re Neagle, 135 U. S. 1; Baker v. Grice, 169 U. S. 284; Ohio v. Thomas, 173 U. S. 276; Minnesota v. Brundage, 180 U. S. 499, 502; Reid v. Jones, 187 U. S. 153; United States v. Lewis, 200 U. S. 1; In re Lincoln, 202 U. S. 178; Urquhart v. Brown, 205 U. S. 179.

It is somewhat difficult to appreciate the distinction which, while admitting that the taking of such a person, from the. custody of the State by virtue of service of the writ on the state officer in whose custody he is found, is not a suit against the State, and yet service of a writ on the Attorney General to prevent his enforcing an unconstitutional enactment of a' state legislature is a suit against the State.

There is nothing in the case before us that ought properly to breed hostility to the customary operation of Federal courts Of justice in cases of this character.

The rule to show cause is discharged and the petition for writs of habeas corpus and certiorari is dismissed.

So ordered.

Mr. Justice Harlan,

dissenting.

Although the history of this litigation is set forth in the opinion of the court, I deem it appropriate to restate the principal facts of the case in direct connection with my examination of the question upon which the decision turns. *169That question is, whether the suit in the Circuit Court of the United States was, as to the relief sought against the Attorney General of Minnesota, forbidden by the Eleventh Amendment of the Constitution of the United States, declaring that “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.” That examination, I may say at the outset, is entered upon with no little embarrassment, in view of the fact that the views expressed by me are not shared by. my brethren. I may also frankly admit embarrassment arising from certain views stated in dissenting opinions heretofore delivered by me which did not, at the time, meet the approval of my brethren, and which I do not now myself entertain. What I shall say in this opinion will be in substantial accord with what the court has heretofore decided, while the opinion of the court departs, as I think, from principles previously announced by it upon full consideration. I propose to adhere to former decisions of the court, whatever may have been once my opinion as to certain aspects of this general question.

The plaintiffs in the suit referred to, Perkins and Shepard, were shareholders of the Northern Pacific Railway Com'pany and citizens; respectively, of Iowa and Minnesota. The defendants were the railway company, Edward T. Young, Attorney General of Minnesota, the several members of the State Railroad and Warehouse Commission, and certain persons who were shippers of freight over the lines of that railway.

The general object of the suit was to prevent compliance with the provisions of certain acts of the Minnesota legislature and certain .orders of the State Railroad and Warehouse Commission, indicating the rates which the State permits to be charged for the transportation of passengers and commodities upon railroads within its limits; also, to prevent shippers from bringing actions against the railway company to enforce those acts and orders.

*170The bill, among other things, prayed that Edward T. Young, “as Attorney General of the State of Minnesota,” and the members of the State Railroad and Warehouse Commission (naming them) be enjoined from all attempts to compel the railway company to put in force the rates or any of them prescribed by said orders, and “from taking any action, step or proceeding against said Railway Company, or any of its officers, directors, agents or employés, to enforce any penalties or remedies for the violation by said Railway Company of said orders or either of them;” and that said Young, “as Attorney General,” be enjoined from taking any action, step or proceeding against the railway company, its officers, agents or em-ployés, to enforce the penalties and remedies specified in those acts.

The court gave a temporary injunction as prayed for'. The Attorney General of Minnesota appeared specially and, without submitting to or acknowledging the jurisdiction' of the court, moved to dismiss the suit' as to him, upon the ground that the State had not consented to be sued, and also because the bill was exhibited against him “as, and only as, the Attorney General of the State of Minnesota,” to restrain him, by injunction, from exercising the discretion vested in him to commence appropriate actions," on behalf of the State, to enforce or to test the validity of its laws. He directly raised the' question that the suit as to him, in his official capacity, was one against the State, in violation of the Eleventh Amendment.

In response to an order to show cause why the injunction asked for should not be granted the Attorney General also appeared specially and urged like objections to the suit'against him in the Circuit Court.

After hearing the parties the court made an order, September' 23, 1907, whereby the railway company, its officers, directors, agents, servants and employés, were enjoined until thé further order of the court from publishing, adopting or putting into effect the tariffs, rates or charges specified in the *171act of April 18, 1907. The court likewise enjoined the defendant Young, “as Attorney General of the State of Minnesota,” from "taking or instituting any action, suit, step or proceeding to enforce the penalties and remedies specified in said acts or either thereof, or to compel obedience to said act or compliance therewith or any part thereof.” A like injunction was granted against the defendant shippers.

On the next day, September 24, 1907, the State of Minnesota, “on the relation of Edward T. Young, Attorney General,” commenced an action in one of its own courts against the Northern Pacific Railway Company — the only relief sought being a mandamus ordering the company to adopt, publish, keep for public inspection, and put into effect, as the rates and charges to be maintained for the transportation of freight between stations in Minnesota, those named and specified in what is known as chapter 232 of the Session Laws of Minnesota for 1907. That was the act which it was the object of the Perkins-Shepard suit in the Federal court to strike down and nullify. An alternative writ of mandamus, such as the State asked, was issued by the state court.

The institution, in the state court, by the State, on the relation of its Attorney General, of the mandamus proceeding against the railway company having been brought to the attention of the Federal Circuit Court, a rule was issued against the defendant Young to show cause why he should not be punished as for contempt. Answering that rule, he alleged, among other’ things, that the mandamus proceeding was brought by and on behalf of the State,, through him as its Attorney General; that in every way possible he had objected to such jurisdiction on the ground that the action Was commenced against him solely as the Attorney General for Minnesota in order to prevent him from instituting in the proper courts civil actions for and in the name of the State to enforce or test the validity of its laws; that there is no other action or proceeding pending or contemplated by this defendant against said railway company, except said proceedings in mandamus *172hereinbefore referred to. ' Defendant expressly disclaimed any intention, to treat this court with disrespect in the commencement of the proceedings referred to, “but believing that the decision of this, court in this action, holding that it had jurisdiction to enjoin this defendant, as such Attorney General, from performing his discretionary official duties, was in conflict with the Eleventh Amendment of the Constitution of the United States, as the same has been interpreted and applied by the United States Supreme Court, defendant believed it to be his duty as such Attorney General to commence said mandamus proceedings for and in behalf of the-State, and it was in this belief that said proceedings were commenced solely for the purpose of enforcing the said law of the State of Minnesota.”

The rule was heard, and the Attorney General was held to be in contempt, the order of the Federal court being: “Ordered further, that said Edward T. Young forthwith dismiss or cause to be dismissed the suit of The State of Minnesota on the Relation of Edward T. Young, Attorney General, Plaintiff, v. Northern Pacific Railway Company, Defendant, heretofore instituted by him in the District Court of the County of Ramsey, Second Judicial District, State of Minnesota. Ordered further, that for'his said contempt said Edward T. Young be fined the sum of one hundred dollars and stand committed in the custody of the Marshal of this court until'the same be paid, and until he purge himself of his contempt by dismissing or causing to be dismissed said suit last herein mentioned.”

The present proceeding was commenced by an original application by Young to this court for a writ of habeas corpus. The petitioner, in his application, proceeds upon the-.ground that he is held in custody in violation of the Constitution of the United States. The petition set out all the steps taken in the suit in the Federal court, alleging, among other things:“That your petitioner’s office as Attorney General of the State of Minnesota is established and provided for by the constitution of the said State, section 1 of Article V thereof *173providing as follows, to wit: ‘The Executive Department.shall consist of a Governor, Lieutenant Governor, Secretary of State, Auditor, Treasurer and Attorney General, who shall be chosen by the electors of the State.’ That neither by statute nor otherwise is your petitioner charged with any special duty of a ministerial character in the doing or not doing of which said complainants in the said bill of complaint or the said Northern Pacific Railway Company had any. legal right, and that whatever duties your petitioner had or has with respect to the several matters complained of in the said bill of complaint, are of an executive and discretionary nature. That in no case could your petitioner, even though it was his intention so to do, which it was not, deprive the said complainants or the said Northern Pacific Railway Company, or either of them, of any property, nor could he trespass upon their rights in any particular, and that all he could do as Attorney General as aforesaid and all that it was his duty to do in that capacity, and all that he intended to do or would do, was to commence formal judicial proceedings in the appropriate court of Minnesota against the said Northern Pacific Railway Company, its officers, agents and employés, to compel the said company, its agents and servants, to adopt and put in force the schedule of freight rates, tariffs and charges prescribed by said chapter 232, Laws 1907, of the State of Minnesota.” He renewed the objection that the suit instituted by Perkins and Shepard, in so far as the same is against him, was a suit against the State to prevent his commencing the proposed action in the name of the State, and was in restraint of the State itself., “and that the said suit is one against the said State in violation of the Eleventh Amendment to the Constitution of the United States, and that therefore the same is and was, so far as your petitioner is concerned, beyond the jurisdiction of the. said Circuit ■ Court,” etc.

■This statement will sufficiently indicate the nature of the question to be now examined upon its merits,

Let it be observed that the suit instituted by Perkins and *174Shepard in the Circuit Court of the United States'was, as to the defendant Young, one against him as, and only became he was, Attorney General of Minnesota. No. relief was sought against him individually but only in his capacity as Attorney General! And the manifest, indeed the avowed and admitted, object of seeking such relief was to tie the hands of the State so that it could not in any manner or by any mode of proceeding, in its oym courts, test the validity of the statutes and orders in question. It would therefore seem clear that within the true meaning of the Eleventh Amendment the suit brought in the Federal court was one, in legal effect, against the State— as much so as if the State had been formally named on the record as a party — and therefore it was a suit to which, under the Amendment, so far as the State or its Attorney General was concerned, the judicial power of the United States did not and could not' extend. If this proposition be sound it will follow — indeed, it is conceded that if, so far as relief is sought against the Attorney General of Minnesota, this be a suit against the State — then the order of the Federal court enjoining that officer from taking any action, suit, step or proceeding to compel the railway company to obey the Minnesota statute was beyond the jurisdiction of that court and wholly void; in which, case, that officer was at liberty to proceed in the discharge of his official duties as defined by the laws of the State, and the order adjudging him to be in contempt for bringing the mandamus proceeding in. the- state court was a nullity.

The fact that the Federal Circuit Court had, prior , to the institution of the mandamus suit in the state court, preliminarily (but not finally)1 held the statutes of Minnesota and the orders of its Railroad and Warehouse Commission in question to be in violation of the Constitution .of the United States, was no reason why that court should have laid violent hands upon the Attorney General of-Minnesota and by its orders have deprived the State of the services of its constitutional law officer in its own courts. Yet that is what was done by *175the Federal Circuit Court; for, the intangible thing, called' a State, however extensive its powers, can never appear or be represented or known in any court in a litigated case, except by and through its officers. When, therefore, the Federal court forbade the defendant Young, as Attorney General of Minnesota, from taking any action, suit, step or proceeding whatever looking to the enforcement of the statutes in question, it said in effect to the State of Minnesota: “It is true that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to its people, and it is true that under the Constitution the judicial power of the United States dobs not extend to any suit brought against a State by a citizen of another State or by a citizen or subject of a foreign State, yet the Federal court adjudges that you, the State, although a sovereign for many important governmental purposes, shall not appear in your own courts, by your law officer, with the view of enforcing, or even for determining the validity of the state enactments which the Federal court has, upon a preliminary hearing, declared to be in violation of the Constitution of the United States.”

This principle, if firmly established, would work a radical change in our governmental system. It would inaugurate a new era in the American judicial system and in the relations of the National and state governments. It would enable the subordinate Federal courts to supervise and control the official action of the States as if they were “dependencies” or provinces. It would place the States of the Union in a condition of inferiority never dreamed of when 'the Constitution was adopted or when the Eleventh Amendment was made a part of the Supreme Law of the Land. I cannot suppose that the great men who framed the Constitution ever thought the time would come when a subordinate Federal court, having no power- to compel a State, in its corporate capacity, to appear before it as a litigant, would yet assume to deprive a State of the right to be represented in its own courts by its *176regular law officer. That is what the court below did, as to Minnesota, when it adjudged that the appearance of the defendant Young in the state court, as the Attorney General of. Minnesota, representing his State as its chief law officer, was a contempt of the authority of the Federal court, punishable by fine and. imprisonment. Too little consequence has been attached to the fact that the courts of the States are under an obligation equally strong with that resting upon the courts of the Union to respect and. enforce the provisions of the Federal Constitution as the Supreme Law of the Land, and to guard rights secured or guaranteed by that instrument. We must assume — a decent respect for the. States requires us to assume — that the state courts will enforce- every right sécured by the Constitution. If they fail to-do so, the party complaining has a clear remedy for the protection ofhis rights; for, he can come by writ of error, in an orderly, judicial way, from the highest court of the State to this tribunal for redress in respect of every right granted or secured by that instrument and denied by the state court. The state courts, it should be remembered, have jurisdiction concurrent with the courts of the United States of all suits of a civil nature, at common law or equity involving a prescribed amount, arising under the Constitution or laws of the United States. 25 Stat. 434. And this court- Has said: "A state court of original jurisdiction, having the parties before it, may consistently with existing Federal legislation determine cases at law or- in equity arising under the Constitution or.laws of the United States pr involving rights dependent upon such Constitution or laws. Upon the state courts, equally with the cour-ts of the Union, rests the obligation to guard, enforce,'and protect every right granted or secured by the Constitution of -the United States and the laws made in pursuance thereof, whenever those rights are involved in any suit or .proceeding before them; for the judges of the state courts are required to take an oath to support that Constitution, and "they are bound by it, and the laws of the United States made in pursuance thereof, and .all treaties *177made under their authority, as the supreme law of the land, ‘anything in the Constitution or laws of any State to the contrary notwithstanding.’ If they fail therein, and withhold or deny rights, privileges, or immunities secured by the Constitution and laws of the United States, the party aggrieved may bring the case from the highest court of the State in which the question could be decided to this court for final and conclusive determination.” Robb v. Connolly, 111 U. S. 624, 637. So that an order of the Federal court preventing the State from having the services of its Attorney General in one of its own courts, except at the risk of his being fined and arrested, cannot be justified upon the ground that the question of constitutional law, involved in the enforcement of the statutes in question, was beyond the competency of a state < court to consider and determine, primarily, as between the parties before it in a suit brought by the State itself.

At the argument of this case counsel for the railway company insisted that the provisions of the act in question were so drastic that they could be enforced by the State in its own courts with such persistency and in such a manner as, in a very brief period, to have the railway officers and agents all in jail, the business of the company destroyed and its property confiscated by heavy and successive penalties, before a final judicial decision as to the constitutionality of the act could be obtained. I infer from some language in the court’s opinion that these apprehensions are shared by some of my brethren. And this supposed danger to the railway company and its shareholders seems to have been the basis of the action of the Federal Circuit Court when, by its order directed against the Attorney General of Minnesota, it practically excluded the State from its own counts in respect of the issues here involved But really no such question as to the state statute is here in volved or need be now considered; for it cannot possibly arise on the hearing of the present application of that officer for discharge on habeas corpus. The only question now before this court is whether the suit by Perkins and Shepard in the Federal *178court was not, upon its face, as to the relief sought against the Attorney General of Minnesota, a suit against the State. Stated in another form, the question is whether that court may, by operating upon that officer in his official capacity, by means of fine and imprisonment, prevent the-State from being represented by its law officer in one- of its own courts? If the Federal court could not thus put manacles upon the State so as to prevent it from being represented by its Attorney General in its own court and from having the state court pass upon the validity of the state enactment in question in the Perkins-Shepard suit, that is an end to this habeas corpus proceeding, and the Attorney General of Minnesota should be - discharged by order of this court from custody.

It is to be observed that when the State was in effect prohibited by the order of the Federal court from appearing in its own courts, there was no danger, absolutely none whatever, from anything that the Attorney General had ever done or proposed to do, that the property of the railway company would be confiscated and its officers and agents imprisoned, beyond the power of that company to stay any wrong done by bringing to this court, in regular order, any final judgment of the state court, in the mandamus suit, which may have been in derogation of a Federal right. When the Attorney General instituted the mandamus proceeding in the state court against the railway company there was in force, it must not be forgotten, an order of' injunction by the Federal court which prevented that company from obeying the state law. There was consequently no danger from that direction.. Besides, the mandamus proceeding was not instituted for the recovery of any of the penalties prescribed by the state law, and therefore no judgment in that case could operate directly upon the property of the railway company or upon the persons of its officers or agents. The Attorney General in his response to the rule against him assured the Federal court that he did not contemplate any proceeding whatever against the railway company except the one in mandamus. Suppose the *179mandamus case had been finally decided in the state court, the way was open for the railway company to preserve any question it made as to its rights under the Constitution, and, in the event of a decision adverse to it in that court, at once to carry the case to the highest court of Minnesota and thence by a writ of error bring it to this court. That course would have served to determine every question of constitutional law raised by the suit in the Federal court in an orderly way without trampling upon the State, and without interfering, in the meantime, with the operation of the railway property .in the accustomed way. Instead of adopting that course — so manifestly consistent with the dignity and authority of both the Federal and state judicial tribunals — the Federal court practically closed the state courts against the State itself when it adjudged that the Attorney General, without regard to the wishes of the Governor of Minnesota, and without reference to his duties as prescribed by the laws of that State, should stand in the custody of the Marshal, unless he dismissed the mandamus suit. If the Federal court could thus prohibit the law officer of the State from representing it in a suit brought in the state court, why might not the bill in the Federal court be so amended that that court could reach all the district attorneys in Minnesota and forbid them from bringing to the attention of grand juries and the state courts violations of the state act by the railway company? And if a grand jury was about to inquire into the acts of the railway company in respect of the matter of its rates, why may not the Federal court, proceeding upon the same grounds on which it has moved against the Attorney General, enjoin the finding or returning of indictments against the lailway company? If an indictment was returned against the railway company, and was about to be tried by a petit jury, why could not the Federal court, upon the principles now announced, forbid the jury to proceed against the railway company, and if it did, punish every petit juryman as for contempt of court? Indeed, why may it not lay its hands on the Governor of the State and *180forbid him from appealing to the courts of Minnesota in the name of the State to test the validity of the act in question? And why may not the Federal court lay its hands even upon the judge of the state court itsélf, whenever it proceeds against the railway company under the state law?

The subject matter of these questions has evidently been considered by this court, and the startling consequences that would result from an affirmative answer, to them have not been overlooked; for, in its opinion, I find these observations: “It is proper to add that the right to enjoin an individual, even though a state official, from commencing suits under circumstances already stated, does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature, nor does it include power to prevent any investigation or action by a grand jury. The latter body is part of the machinery of a criminal court, and an injunction against a state court would be a violation of the whole scheme of our government. If an injunction against an individual is disobeyed, and he commences proceedings before a grand jury or in a court, such disobedience, is personal only, and the court or jury can proceed without incurring any penalty on that account. The difference between the power to enjoin an individual from doing certain things, and the power to enjoin courts from proceeding in their own way to exercise jurisdiction is plain, and no power to do the latter exists because of a power to do the former.” If an order of the Federal 'court forbidding a state court or its grand jury from attempting to enforce a state enactment would be “a violation of the-whole scheme of our government,” it is difficult to perceive why an order of that court, forbidding the chief law officer and all the district attorneys of a State to represent it in the courts, in a particular case, and practically, in that way, closing the doors of the state court against the State, would not also be inconsistent with the whole scheme of our government, and, therefore, beyond the power of the court to make.

*181Whether the Minnesota statutes are or are not violative of the Constitution'is not. as already suggested, a question in this habeas corpus proceeding. I do not, therefore, stop to consider whether those statutes are repugnant to the Constitution upon the' ground that by their necessary operation, when enforced, they will prevent the railway company from contesting their validity, or upon the ground that they are confiscatory and therefore obnoxious to the requirement of due process of law. While the argument at the bar in support of each of these propositions was confessedly of great force and persuasiveness, those points need not be now examined. I express no opinion about them. Their soundness may, how-éVer, be conceded for the purposes of this discussion. Indeed, it may be assumed for the purposes of this discussion that these state enactments are harsh and intemperate and, in some of their features, invalid. But those questions are wholly apart from the present proceeding. If we now consider them we must go out of our way in order to do go’. We have no evidence in this proceeding, as to the effect which the statutes, if enforced, would have upon the value either of the railway property or of the bonds or stocks of the railway company. The question of their validity has not been finally decided by the Circuit Court, and we have not before us even the evidence upon which its preliminary injunction was based. The essential and only question now before us or that need be decided is whether an order by the Federal court which prevents the State from being represented in its own courts, by its chief law officer, upon an issue involving .the constitutional validity of certain state enactments, does not piake a suit against the State within the meaning of the Eleventh Amendment. If it be a suit of that kind, then, it is conceded, the Circuit Court was without jurisdiction to fine and imprisón the petitioner and he must be- discharged, whatever pur views may be as to the validity of those state enactments.! This must necessarily be so unless the Amendment has less force .and a more restricted meaning now than it had at the time of its adop*182tion, and unless a suit against the Attorney General of a State, 1 in his official capacity, is not one against a State under the Eleventh Amendment when it's determination depends upon . a question of constitutional power or right under the Fourteenth Amendment. In that view I cannot concur. In my opinion the Eleventh Amendment has not been modified in the slightest degree as to its scope or meaning by the Fourteenth Amendment, and a suit which, in its essence, is one, against the State remains one of that character and is forbidden even when brought to strike dcwn a state statute al- ' leged to be in violation of that clause of the Fourteenth Amendment forbidding the deprivation by a State of life, liberty or property without d.ue process of law. If a suit be commenced •in a state court, and involves a right secured by the Federal Constitution, the way is open under our incomparable judicial system to protect that right, first, by the judgment of the state court, and • ultimately by the judgment of this court, upon writ of error. But such right cannot be protected by means of a áuit which, at the outset, is, directly or in legal effect, one against the State whose action is alleged to be illegal. That mode of redress is absolutely forbidden by the Eleventh Amendment and cannot be made legal by mere construction, or by any consideration of the consequences that'may follow from the operation of the statute. Parties cannot, in any case, obtain redress by a suit against the State. Such has been the uniform ruling in this court, and it is most unfortunate that it is now. declared to be competent for a Federal Circuit Court, by exerting its authority over the chief law officer of the State, without the consent of the State, to exclude the State, in its sovereign i capacity, from its own courts when seeking to have the-ruling of those courts as to its powers under its own ■ statutes. Surely, the right of. a ' State to invoke the jurisdiction of its own courts is not less • than the right of individuals to invoke the jurisdiction of a Federal court. The preservation of the dignity and sovereignty of the States, within the limits of their constitutional powers, *183is of the last importance, and vital to the preservation of our system of government. The courts should not permit themselves to be driven by the hardships, real or supposed, of particular cases to accomplish results, even if they be just results, in a mode forbidden by the fundamental law. The country should never be allowed to think that the Constitution can, in any case, be evaded or amended by mere judicial interpretation, or that its behests may be nullified by an ingenious construction of its provisions.

The importance of the question under consideration is a sufficient justification for such a reference to the authorities as will indicate the precise grounds on which this court has oftentimes proceeded when determining what is and what is not a suit against a State within the meaning of the Eleventh Amendment. All the cases agree in declaring the incapacity of a Federal court to éxercise jurisdiction over a State as a party. But assaults upon the Eleventh Amendment have oftenest been made in cases in which the effort has been, without making the State a formal party, to control the acts of its officers and agents, by such orders directed to them as will accomplish, by' indirection, the same results that could be accomplished by a suit directly against the State, if such a suit were possible. It will be well to look at some of the principal adjudged cases.

The general question was examined in Cunningham v. Macon & Brunswick R. R. Co., 109 U. S. 446-451, where the court said that it was conceded in all the cases, and “may be accepted as a point of departure unquestioned, that neither a State nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a State may be made a party in the Supreme Court, of the United States by virtue of the original jurisdiction conferred on this court by the Constitution.” The court has not in any case departed from this constitutional principle. In Pennoyer v. McConnaughy, 140 U. S. 1, 9, it said that “this immunity of a State from suit is *184absolute and unqualified, and the constitutional provision securing it is not to be so construed as to place the Staife within the reach of the process of the court. Accordingly, it is equally well settled that a suit against the officers of 'a State, to compel them to do the acts which constitute a performance by it of its contracts; is, in effect, a suit against the State itself.” In Cunningham v. Macon & Brunswick R. R. Co., just cited, the distinction was drawn between Ú suit in which the State is' the real party in interest, although not technically a party on the record, and one in which “ an individual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government;” in which last case, the court observed, the defendant “ is not sued as, or because, he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer.” L$t it not be forgotten that the defendant Young was sued, not as an individual or because he had any personal interest' in these matters, but as, and■ solely because he is, an officer of the State charged with the performancfe of certain public duties.

In Hagood v. Southern, 117 U. S. 52, 67, 68, which involved the validity of certain scrip alleged to have been issued by the State of" South Carolina, it appeared that the State having denied its obligation to pay, the plaintiff sought relief by simply suing certain state officers, as such, without making the State a formal party» The court said;' “These "suits are accurately described as bills for the specific performance of a contract between the complainants and the State of South Carolina, who are the only parties to it. But to these bills the State is not in name made a party defendant,' though leave is given to it to become such, if it chooses; and, except with that consent, it could not be brought before the court and be made to appear and defend. And yet it is the actual party to the alleged contract the performance of which is decreed, the one required to perform the decree, and the only *185party by whom it can be performed. Though not nominally a party to the record, it is the real and only party in interest, the nominal defendants being the. officers and agent® of the State, having no personal interest in the subject-matter of the suit, and defending only as representing the State. And the things required by the decrees to be done and performed by them, .are the very things, which when done and performed, constitute a performance of the alleged contract by the State. The State is not- .only the real party to the controversy, but the real party against which relief is sought by the suit, and the suit is, therefore, substantially within the prohibition of the Eleventh Amendment to the Constitution of the United States, which declares that ‘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.’ ” Again: “If this case is not within the class of those forbidden by the constitutional guaranty to the States of immunity from suits in Federal tribunals, it is difficult to conceive the frame of one which would be. If the State is named as a defendant, it can only'be reached either by mesne or final process through its officers and agents, and a judgment against it could neither be obtained nor enforced, except as the public ■ conduct and government of the ideal political body called a State could be reached .and affected through its official representatives. A judgment against these latter, in their official and representative capacity, commanding them to perform official functions on behalf of the State according to the dictates and decrees of the court, is, if anything can be, a judicial proceeding against the State itself. If not, it may well be asked, what would constitute such a proceeding? In the present cases the decrees were not only against the defendants in their official capacity, but, that there might be no mistake as to the nature and extent of the duty to be performed, also against their successors in office.” Is it to be said that an order requiring the Attorney General of a *186State to perform certain official functions on behalf of the State is a suit against the State, while an order forbidding him, as Attorney General, not to perform an official function on behalf of the State is not a suit against the State?

The leading case upon the general subject, and one very-similar in many important particulars to the present one, is In re Ayers, 123 U. S. 443, 496, 497, 505. The facts in that case Were briefly these: The legislature of Virginia, in 1887, passed an act which .holders of sundry bonds and tax-receivable coupons of that Commonwealth alleged to be in violation of their rights under the Constitution of the United States. They instituted a suit in equity in the Circuit Court of the United States against the Attorney General and Auditor of Virginia, and against the Treasurers and Commonwealth attorneys of counties, cities and towns in Virginia, the rcr 4 asked being a decree enjoining and restraining the said state officers, and each of them, from bringing or commencing any suit provided for by the above act of 1887, or from doing anything to put that act into operation. The Circuit Court entered an order, enjoining the Attorney General of Virginia and each and all the state officers named “from bringing or commencing any suit against any person who has tendered the State of Virginia tax-receivable coupons in payment of taxes due to said State, as provided for and directed by the act of the legislature of Virginia, approved May 12, 1887.” Subsequently the Circuit Court of the United States- was informed that the Attorney General of Virginia had disobeyed its order of injunction. Thereupon that officer was ruled to show cause why he should not be fined and imprisoned. He responded to the rule, admitting that after being served with the injunction he had instituted a suit, in the state Circuit Court, against the Baltimore and Ohio Railroad Company to recover taxes due the State, and alleging “that he instituted the said suit because he was thereunto required by the act of the General Assembly of Virginia aforesaid, and because he believed this court had no jurisdiction whatever to award the injunction *187violated.” He disclaimed any intention to treat the court with disrespect, and stated that he had been actuated alone by the desire to have the law properly administered. He was, nevertheless, adjudged guilty of contempt, was required forthwith to dismiss the suit he had brought, was fined $500 for contempt of court, and committed to the custody of the marshal until the fine was paid, and until he purged himself of his contempt by dismissing the suit in the state court. The Attorney General then applied directly to this court for a writ of 'habeas corpus, which was granted, and upon hearing he was released by this court from custody. The order for his discharge recited that the suit in which the injunctions were granted was "in substance and in law a suit against the State of Virginia,” and “within the prohibition of the Eleventh Amendment to the Constitution;” that it was one “to which the judicial power of the United States does not extend;” that the Circuit Court was without jurisdiction to entertain it; that all its proceedings in the exercise of jurisdiction were null and void; that.it had no authority or power to adjudge the Attorney General in contempt; and that his imprisonment was without authority of law. In' the opinion in the Ayers case the court said: “ It follows, therefore, in the present case, that the personal act of the petitioners sought to be restrained by the order of the Circuit Court, reduced to the mere bringing of an action in the name of and for the State against taxpayers, who, although they may have tendered tax-receivable coupons, are charged as delinquents, cannot be alleged against them as an individual act in violation of any legal or contract rights of such taxpayers.” Again: “The relief sought is against.the defendants, not in their individual, but in their representative capacity as officers of the State of Virginia. The acts sought to be restrained are the bringing of suits by the State of Virginia in its own name and for its own use. If the State had been made a defendant to this bill by name, charged according to the allegations it now contains — supposing that such a suit could be maintained — it would have been subject *188to the jurisdiction of the court by process served upon its Governor and Attorney General, according to the precedents in such cases. New Jersey v. New York, 5 Pet. 284, 288, 290; Kentucky v. Dennison, 24 How. 66, 96, 97; Rule 5 of 1884, 108 U. S. 574. If a decree could have been rendered enjoining the State from bringing suits against its taxpayers, it would have operated upon the State only through the officers who by law were required to represent it in bringing such suits, viz., the present defendants, its Attorney General, and the Commonwealth’s attorneys for the several counties. For a breach of such an injunction, these officers would be amenable to the court as proceeding in contempt of its authority, and would be liable to punishment thereof by attachment and imprisonment. The nature of the case, as supposed, is identical with that of the case as actually presented in the bill, with the single exception that the State is not named as a defendant. How else can the State be forbidden by judicial process to bring actions in its name, except by constraining the conduct of its officers, its attorneys, and its agentsf And if all such officers, attorneys, and agents are personally subjected to the process of the court, so as to forbid their acting in its behalf, how can it be said that the State itself is not subjected to the jurisdiction of the court as an actual and real defendant?” Further: “The very object and purpose of the Eleventh Amendment • were to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties. It was thought' to be neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons, whether citizens of other States or aliens, or that the course of their public policy and the administration of their public affairs should be subject to and controlled by the members of judicial tribunals without their consent, and in favor of . individual interests. To secure the manifest purposes of the constitutional exemption guaran*189teed by the Eleventh Amendment requires that it should be interpreted, not literally and too narrowly, but fairly, and with such breadth and largeness as effectually to accomplish the substance of its purpose. In this spirit it must be held to cover, not only suits brought against a State by name, but those also against its officers, agents and representatives where the State, though not named as such, is nevertheless the only real party against which alone in fact the relief is asked, and against which the judgment or decree effectively operates. But this is not intended in any way to impinge upon the principle which justifies suits against individual defendants, who, under color of the authority of unconstitutional legislation by the State, are guilty of personal trespasses and wrongs, nor to forbid suits against officers in their official capacity either to arrest or direct their official action by injunction or mandamus, where such suits are authorized by law, and the act to he done or omitted is purely ministerial, in the performance or omission of which the plaintiff has a legal interest.”

It is said that the Ayers case is not applicable here, because the orders made by the Federal Circuit Court had for their object to compel Virginia to perform its contract with bondholders, which is not this case. But that difference between the Ayers case and this case cannot affect the principle in-' volved. The proceeding against the Attorney General of Virginia had for its object to compel, by indirection, the performance of the contract which that Commonwealth -was alleged to have made with bondholders — such performance, on the part of the State, to be effected by means of orders in a Federal Circuit Court directly controlling the official action of that officer. The proceeding in the Perkins-Shepard suit against the Attorney General of Minnesota had for its object, by means of orders in a Federal Circuit Court, directed to that officer, to control the action of that State in reference to the enforcement of certain statutes by judicial proceedings commenced in its own courts. The relief sought in each case was to control the State hy controlling the conduct of its law-officer, *190against its will. I cannot conceive how the proceeding against the Attorney General of Virginia could be deemed a suit against that State, and yet the proceeding against the Attorney General of Minnesota is not to be deemed a suit against Minnesota, when the object and effect of the latter proceeding was, beyond all question, to shut that State entirely out of its own courts, and prevent it' through its law-officer from invoking their jurisdiction in a special matter of public concern, involving official duty, about which the State desired to know the views of its own judiciary. In my opinion the decision in the Ayers case determines this case for the petitioner.

More directly in point, perhaps, for the petitioner Young is the case of Fitts v. McGhee, 172 U. S. 516, 528, 529, 530. That suit was brought by the receivers of a railroad company against the Governor and Attorney General of Alabama. Its object was to prevent the enforcement of the provisions of an Alabama statute prescribing the maximum rates of toll to be charged on a certain bridge across the Tennessee River. The statute imposed a penalty for each time that the owners, lessees or operators of the bridge demanded or received any higher rate of toll than was prescribed by it. The relief asked was an injunction prohibiting the Governor and Attorney General of the State and all other persons from instituting any proceeding against the complainants, or either of them, to enforce the statute. An injunction, as prayed for, was granted. In the progress of the cause the solicitor of the district in which the case was ponding was made a defendant and the injunction was extended to him. By amended pleadings it was made to appear that the tollgate keepers at the public crossing of the bridge were indicted for collecting tolls in violation of the statute. In the progress of the cause the plaintiffs dismissed the case as to the State, and the cause was discontinued as to the Governor. But the case was heard upon the motion to dismiss the bill upón the ground that the suit was one against the State in violation of the Constitution of the United States.

*191After stating the principles settled in the Ayers case and in other cases this court said: “ If these principles be applied in the present case there is no escape from the conclusion that, although the State of Alabama was dismissed as a party defendant, this suit against its officers is really one against the State. As a State can act only by its officers, an order restraining those officers from taking any steps, by means of judicial proceedings, in execution of the statute of February 9, 1895, is one which restrains the State itself, and the suit is consequently as much against the State as if the State were named as a party_ defendant on the record. If the individual defendants held possession or were about to take possession of, or to commit any trespass upon, any property belonging to or under the control of the plaintiffs, in violation of the latter’s constitutional rights, they could not resist the judicial determination, in a suit against them, of the question of the right to such .possession by-simply asserting that they held or were entitled to hold the property in their capacity as officers of the State. In the case supposed, they would be compelled to make good the State’s claim to the property, arid could not shield themselves. against suit because of their official character. Tindal v. Wesley, 167 U. S. 204, 222. No such cáse is before us.” Again, in the same case: “ It is to be observed that neither the Attorney General of Alabama nor the Solicitor of the Eleventh Judicial Circuit of the State appear to have been charged by law with any special duty in connection with the act of Feb- . ruary 9, 1895. In support of the contention that the present suit is not one against the State, reference was made by counsel to several cases, among which were Poindexter v. Greenhow, 114 U. S. 270; Allen v. Baltimore & Ohio Railroad, 114 U. S. 311; Pennoyer v. McConnaughy, 140 U. S. 1; In re Tyler; 149 U. S. 164; Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 388; Scott v. Donald, 165 U. S. 58, and Smyth v. Ames, 169 U. S. 466. Upon examination it will be found that the defendants in each of those cases were officers of the State, especially charged with the execution of a state enactment *192alleged to be unconstitutional, but under the authority of which, it was averred, they were committing or were about to commit some specific wrong or trespass to the injury of the plaintiff’s rights. There is a wide difference between a suit against individuals, holding official positions under a State, to prevent them, under the sanction of an .unconstitutional statute, from committing by some positive act a wrong or trespass, and a suit against officers of a State merely to test the constitutionality of a state statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the State. In the present case, as we have said, neither of the state officers named held any special relation to the particular statute alleged to be unconstitutional. They were not expressly directed to see to its enforcement. If, because they were law officers of the State, a case could be made for the purpose of testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the Governor and Attorney General, based upon the theory that the former as the executive of the State was, in a general-sense, charged with the execution of all its laws, and the latter, as Attorney General, might represent the State in litigation involving the enforcement of its statutes. That would be a very convenient way for .obtaining a' speedy judicial determination' of questions of constitutional law which may be raised by individuals, but it is a-mode which cannot be applied to the.. States of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons. If their officers commit acts of trespass or wrong to the citizen, they may be individually proceeded against for such trespasses or wrong. Under the view we take of the question, the citizen is not without effective remedy, when proceeded against under a legislative enactment void' for repugnancy to the supreme law of the land; for, whatever the form of proceeding against him, he can make his defense upon the *193ground' that the statute is unconstitutional and void. And that question can be ultimately brought to this court for final determination.” I am unable to distinguish that case, in principle, from the one now before us. The Fitts case is not overruled, but is, I fear, frittered away or put out of sight by unwarranted distinctions.

Two cases in this court are much relied on to support the proposition that the Perkins-Shepard suit in the Circuit Court is not a suit against the State. I refer to Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, and Smyth v. Ames, 169 U. S. 466, 472. But each of those cases differs in material respects from the one instituted by Perkins and Shepard in the court below. In the Reagan case it appears that the very act, under which the railroad commission proceeded; authorized the railroad company, or any interested party, if dissatisfied with the action of the commission in establishing rates, to bring suit against that commission in any court, in a named county, with right to appeal to a higher court. This court when combatting the suggestion that only the state court had jurisdiction to proceed against the commission, and give relief in respect of the rates it established, said: “ It may be laid down as a general proposition that, whenever a citizen of a State can go into the courts of a State to defend his property against the illegal acts of its officers, a citizen of another State may invoke the jurisdiction of the Federal courts to maintain a like defense. A State cannot tie up a citizen of another State, having property rights within its territory invaded by unauthorized acts of its own officers, to suits for redress in its own courts. Given a case where a suit can be maintained in the courts of the State to protect property rights, a citizen of another State may invoke the jurisdiction of the Federal courts. ... It comes, therefore, within the very terms of the act. It cannot be doubted that a. State, like any other government, can waive exemption from suit.” The declaration of the court in the Reagan case, that that suit was not, within the true meaning of the Eleventh *194Amendment, to be regarded as a suit against the State, must therefore be taken in connéction with the declaration in the same case that the State haying consented that the commission might be sued in one of its own courts, in respect of the rates established by the statute, must be taken to have waived its immunity • from suit in the Circuit Court of the United States sitting in Texas. In Smyth v. Ames, above cited, which was a suit in a Circuit Court of the United States, involving the constitutional validity of certain rates established for railroads in Nebraska, it appeared that the statute expressly authorized any railroad company claiming that the rates were unreasonable to bring an action against the State before the Supreme Court in the name of the railroad company or companies bringing the same. Thus the State of Nebraska waived its immunity from suit,- and having authorized a suit against itself in one of its courts, in respect of the rates there in question, it could not, according to the decision in the Reagan case, deny its liability to like suit in a court of the United States. It is true that this court, in its opinion in Smyth v. Ames, did not lay any special stress on the fact that Nebraska, by the statute, agreed that it might be sued, but it took especial care in its extended statement of the case to bring out that fact. Its silence on that point is not extraordinary, in view of the fact, as appears from the opinion of this court, that the question whether that suit was to be deemed one against the State was not discussed at the bar by the Nebraska State Board. We there quoted from the' Reagan case these words: “Whenever a citizen of a State can go into the courts of. a State to defend his property against the illegal acts of its officers, a citizen of another State may invoke- the jurisdiction of the Federal courts to maintain a like defense. A State cannot tie up a citizen of another State, having property rights within its territory invaded by unauthorized acts of its own officers, to suits for redress in its own courts.” That the Reagan and Smyth cases did not go as far as is now claimed for them is macje clear by the later case of Fitts v. McGhee, already re*195ferred to, in which the doctrines of In re Ayers were reaffirmed and applied.

We may refer in this connection to Gunter v. Atlantic Coast Line, 200 U. S. 273, 291, in which case one of the points made was that the Circuit Court of the United States had no power to restrain the Attorney General of South Carolina and the counsel associated with him from prosecuting in the state courts actions authorized by the laws of the State, and hence that the court erred in awarding an injunction against said officers. This court said: “Support for the proposition is rested upon the terms of the' Eleventh Amendment and the provision^ of section 720 of the Revised Statutes, forbidding the granting of a writ by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings .in bankruptcy. The soundness of the doctrine relied upon is undoubted. In re Ayers, 123 U. S. 443; Fitts v. McGhee, 172 U. S. 516. The difficulty is that the doctrine is inapplicable to this case. Section 720 of the Revised Statutes was originally adopted in 1793, whilst the Eleventh Amendment was in process of formation in Congress for submission to the States, and long, therefore, before the ratification of 'that Amendment. The restrictions embodied in the section were, therefore, but a partial accomplishment of the more comprehensive result affectuated by the prohibitions of the Eleventh Amendment. Both the statute and the Amendment relate to the power of courts of the United States to deal, against the will and consent of a State, with controversies between it and individuals. None of the prohibitions, therefore, of the Amendment or of the statute relate to the power of a Federal court to administer relief in causes where jurisdiction as to a State and its officers has been acquired as a result of the voluntary action of the State in submitting its rights to judicial determination. To confound the two classes of cases is but to overlook the distinction which exists between the power of a court to deal with a subject over which it has *196jurisdiction and its want of authority to entertain a controversy as to which jurisdiction is not possessed.”

Counsel for the railway company placed some reliance oh Pennoyer v. McConnaughy, 140 U. S. 1, 18, in which the previous cases.on the general subject of suits against the States were classified.. That .case was a suit in equity against certain parties “who, under the constitution of Oregon, as Governor, Secretary of State, and Treasurer of that State, comprised the Board of Land Commissioners of that State, to restrain and enjoin them from selling and conveying a large amount of land in that State, to which the plaintiff asserted title.” That suit, in view of the nature of the relief asked, and of the relations of the defendants to the matters involved, was held not to be one against the State within the meaning of the Eleventh Amendment. But after a review of the facts the court, as explanatory of the conclusion reached by it, took especial care to observe: “In this connection it must be borne in mind that this suit is not nominally against the Governor, Secretary of State, and Treasurer, as such officers, but against them collectively, as the board of land commissioners.” The present suit is, in terms, against Young “as Attorney General of Minnesota,” and the decree was sought against him; as such officer, not against him individually, or as a mere administrative officer charged with certain duties.

One of the cases cited in support of the décision now rendered is Missouri, Kansas & Texas Railway Co. v. Missouri R. R. & Warehouse Commissioners, 183 U. S. 53, 58, 59. But although that particular suit was held not to be one against the State, the case, in respect of the principles announced by the court, is in harmony with the views I have expressed. For, the court there says: “Was the State the real party plaintiff? It was at an early day held by this court, construing the Eleventh Amendment, that in all cases where jurisdiction depends on the party, it is the party named in the record. Osborn v. United States Bank, 9 Wheat. 738. But that technical construction has yielded to one more in' consonance with the *197spirit of the Amendment, and in In re Ayers, 123 U. S. 443, it was ruled upon full consideration that the Amendment covers not only suits against a State by name but those also against its officers, agents and representatives where the State, though not named as such, is nevertheless the only real party against which in fact the relief is asked, and against which the judgment or decree. effectively operates. And that construction of the Amendment has since been followed.” In the present case, the State, although not named on the record as a party, is the real party whose action it is sought to control.

There are other cases in this court in which the scope and meaning of the Eleventh Amendment Were under consideration, but they need not be cited, for they are well known. They are all cited in In re Ayers, 123 U. S. 443, 500. “The vital principle in all such cases,” this court said in the Ayers case, “is that the defendants, though professing to act as officers of the State, are threatening a violation of the personal or property rights of the complainant, for which they are personally and individually liable,” or cases in which the-officer sued refused to perform a purely ministerial duty, about which he had no discretion and in the performance of which the plaintiff had a direct interest. The case before us is altogether different. The statutes in question did not impose upon the Attorney General of Minnesota any special duty to see. to their enforcement. In bringing the mandamus suit he acted under the general authority inhering in him as the chief law officer of his State. He could not become personally liable to the railway company simply because of his bringing the mandamus suit. The Attorney General stated that all he did, or contemplated doing, was to bring the mandamus suit. The mere bringing of such a suit could not be;'alleged against' him as ah individual in violation of any legal -right of the railway company or its shareholders. In re Ayers, 123 U. S. 443, 496. The plaintiffs recognized this fact and hence did not proceed in their suit upon the ground that the defendant was. individually liable. They sued him only as Attorney General, *198and sought a decree against hinTin his official capacity, not otherwise.

Some reference has been made to Ex parte Royall, 117 U. S. 241, and other cases, that affirm the authority of a Federal court, under existing statutes, to discharge upon habeas corpus from the custody of a state officer one who isiheld in violation of the Federal Constitution for an alleged crime against a State. Those cases arq not at all in point in the present discussion. Such a habeas corpus proceeding is ex parte, having for its object only .to inquire whether the applicant for the Writ is illegally restrained of his liberty. If he is, then the state officer holding him in custody is a trespasser, and cannot defend the wrong or tort committed by him, by pleading his official Character. The power in a Federal court to discharge a person from the custody of a trespasser may well exist, and yet the court has .no power in a suit before it, by an order directed against the Attorney General of a State, as such, to prevent the State from being represented by that officer, as a litigant in one of its own courts. The former cases, it may be argued, come within the decisions which hold that a suit- which only seeks to prevent or restrain a trespass upon • property or person by one who happens to be a state officer, but is proceeding in violation of the Constitution of the United States, is not a suit against a State within the meaning of the Eleventh Amendment, but a suit against the trespasser or wrongdoer. But the authority of the Federal court to protect one against a trespass committed or about to be committed by a state officer in violation of the Constitution of the United States is very different from the power now asserted, and recognized by this court as existing, to shut out a sovereign State from its own courts by the device of forbidding its Attorney General, under the penalty of fine and imprisonment, from appearing in such courts in its behalf. The mere bringing of a suit on behalf of a State, by its Attorney General, cannot (this court has decided in the Ayers case) - make that officer a trespasser and individually liable to the *199party sued. To enjoin him from representing the State in such suit is therefore, for every practical or legal purpose, to enjoin the State itself. This court, in the Debs Case, 158 U. S. 564, 584, said: "Every government, entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it' is no sufficient answer to its appeal to' one of those courts that it has no pecuniary interest in the matter. The obligation which it is under to promote the interest of all, and to prevent the wrongdoing of one resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court. This proposition in some of its relations has heretofore received the sanction of this court.” If there be one power that a State possesses, which ought to be deemed beyond the control, in any mode, of the National Government or of any of its courts, it is the power by judicial proceedings to appear in its own courts, by its law-officer or by attorneys, and seek the guidance of those courts in respect of matters of a justiciable nature. If the state court, by its judgment, in such a suit, should disregard the injunctions of the Federal Constitution, that judgment would be subject to review by this court upon writ of error or appeal.

It will bo well'now to look at the course of decisions in other Federal courts.

Attention is first directed to Arbuckle v. Blackburn, 113 Fed. Rep. 616, 622, which was a suit in equity,, one of the principal objects of which was to restrain the enforcement of an act .of the Ohio legislature relating to food products, particularly of a named coffee in' which the plaintiffs were interested. The Circuit Court of Appeals held that the bill was properly dismissed, saying, among other things: “What, then, is the object of the injunction sought in this, case? It is no more or less than to restrain the officer of the State from bringing prosecutions for violations of an act which said offi*200cer is expressly charged to enforce in the only way he is authorized to proceed — by bringing criminal prosecutions in the name of the State. This is virtually to enjoin the State from proceeding through its duly qualified and acting officers. If the food commissioner may be enjoined from instituting such prosecutions, why may not the prosecuting attorney, or any officer of the State charged with the execution of the criminal laws of the State? While the State may not be sued, if the bill can be sustained against its officers, it is as effectually prevented from proceeding to enforce its laws as it would be by an action directly against the State. This view of the case, in our judgment, is amply sustained by the cases above cited, and by the later case of Fitts v. McGhee, 172 U. S. 516. In so far as. this action seeks an injunction against the respondent from proceeding to enforce by prosecution the provisions of the statutes of Ohio above cited, the courts of the United States are deprived of jurisdiction by the Eleventh Amendmént to the Constitution.”

-In Union Trust Co. v. Stearns, 119 Fed. Rep. 790, 791, 792, 795, the Circuit Court of the United States for the District of Rhode Island had occasion to consider the scope of the Eleventh Amendment. The case related to a statute regulating the hours of labor of certain employés of street railways, and imposing a fine for. a violation of its provisions. The court upon an elaborate review of all the cases in this court dismissed the action. The defendants Stearns and Greenough were, respectively, the Attorney General and Assistant Attorney General of the State. They were not named in the act, nor charged with any special duty in connection therewith. The court said: “The purpose of the present bill, in substance and effect, is to enjoin the State of Rhode Island from the enforcement of a penal statute. Indictments under the act are brought in the name and on behalf of the State for the protection of the State. These defendants, the Attorney General and his assistant, merely represent the State in such proceedings. They are simply the officers and agents of the State. It is not as. *201individuals, but solely by virtue of their holding such offices, that they prefer and prosecute indictments in the name of the State. A State can only act or be proceeded against through its officers. If a decree could be entered against the State of Rhode Island enjoining prosecutions under this act, it could only operate against the State through enjoining these defendants. An order restraining the Attorney General and his assistant from the enforcement of this statute is an order restraining the State itself. The present suit, therefore, is as much against the State of Rhode Island as if the State itself were named a party defendant.” After referring to In re Ayers, and Fitts v. McGhee, and upon a review of the cases, the court proceeded: “The defendants Stearns and Greenough hold no special relation to the act of June 1, 1902. They are not specially charged with its execution. They are not thereby constituted a board or commission with administrative powers, nor are they as individuals, and apart from the official authority under which they act, threatening to seize the property of the complainant, or to commit any wrong or trespass against its personal or property rights. They have no other connection with this statute than the institution of formal judicial proceedings for its enforcement in the courts of the State in the name and behalf of the State. Upon reason and authority the present bill is a suit against the State of Rhode Island, within the meaning of the Eleventh Amendment to the Constitution of the United States.”

In Morenci Copper Co. v. Freer, 127 Fed. Rep. 199, 205, which was an action in equity to restrain and inhibit the defendant, in his official capacity as Attorney General of West Virginia, from proceeding to institute an action in the state court for forfeiture of the charter of the plaintiff corporation for a failure to pay a license tax imposed by a state statute, and which statute was alleged to be in violation of the Federal Constitution, the Circuit Court reviewed the decisions of this court upon the question as to what were and what were not suits against the State. The Circuit Court held that it had no juris*202diction of the case, saying: “But it may be said, if the court holds that no remedy of this sort will lie in the Circuit Court of the United States to prevent this breach of a contract by the State of West Virginia by means of the machinery of a law violative of the Constitution of the United States, how are the rights of corporations to be preserved? The answer is that such alleged unconstitutionality is matter of defense to any suit brought for the forfeiture of complainant’s charter, and could be set up as an answer and defense to any bill brought for that purpose, and, if the highest court of the State ruled adversely to that contention, - appeal would lie to the Supreme Court of the United States. Or the case can be removed to the Circuit Court of the United States if it presents a case arising under the Constitution or laws of the United States.”

A well-considered case is that of Western Union Tel. Co. v. Andrews, 154 Fed. Rep. 95, 107. In that case the telegraph company sought by bill, to enjoin the prosecuting attorneys of the various judicial circuits of Arkansas from instituting any proceeding, for penalties for its failure or refusal to comply with the provisions of an act of the legislature of Arkansas relating to foreign corporations doing business in that State and fixing fees, etc. The bill charged that the various prosecuting attorneys would, unless restrained, institute numerous actions for the recovery of the penalties prescribed by the act, which was no less than $1,000 for each alleged violation. The defense was, among other things, that the action was one against the State, and, therefore, prohibited by the Constitution. After a careful review of the adjudged cases in this court and in the subordinate Federal courts, the Circuit Court held the action to be one against the State, forbidden by the Eleventh Amendment, saying among other things: “The allegations in the bill show that this is an attempt to prevent the State of Arkansas, through its officers, who by' its laws are merely its attorneys, to represent it in all legal actions in its favor or in which it is interested, from instituting and prosecuting suits for the recovery of penalties incurred for alleged *203violation of its laws, actions which can only be instituted in the name of the State and for its use and benefit.”

Upon the fullest consideration and after a careful examination of the authorities, my mind has been brought to the conclusion that no case heretofore determined by this court requires us to hold that the Federal Circuit Court had authority to forbid the Attorney General of Minnesota from representing the State in the mandamus suit in the state court, or to adjudge that he was in contempt and liable to be fined and imprisoned simply because of his having, as Attorney General, brought that suit for the State in one of its courts. On the contrary, my conviction is very strong that, if regard be had to former utterances of this court, the suit of Perkins and Shepard in the Federal court, in respect of the relief sought therein against Young, in his official capacity, as Attorney General of Minnesota, is to be deemed — under the Ayers and .Fitts cases particularly' — a suit against the State of which the Circuit Court of the United States could not take cognizance without violating, the Eleventh Amendment of the Constitution. Even if it were held that suits to restrain the instituting of actions directly to recover the prescribed penalties would not be suits against the State, it would not follow that we should go further and hold that a proceeding under which the State was, in effect, denied access, by its Attorney General, to its own courts,, would be consistent with the Eleventh Amendment. A different view means, as I 'think, that although the judicial power of the United States does not extend to any suit expressly brought against a State by a citizen of another State without its consent or to any suit the legal effect of which is to fie the hands of the State, although not formally named as a party, yet a Circuit Court of the United States, in a suit brought against the Attorney General of a State may, by orders directed specifically against that officer, control, entirely control, by indirection, the action of the State itself in judicial proceedings in its own courts involving the constitutional validity of its statutes. This court has heretofore held that *204that could not be done, and that such a result would, for most purposes, practically obliterate the Eleventh Amendment and place the States, in vital particulars, as absolutely under the control of the subordinate Federal courts, as if they were capable of being directly sued. I put the matter in this way, because to forbid the Attorney General of a State (under the penalty of being punished as for contempt) from representing his State in suits of a partiular kind, in its own courts, is to forbid the State itself from appearing and being heard in such suits. Neither the words nor the policy of the Eleventh Amendment will, under our former decisions, justify any order of a Federal court the necessary effect of which will be to exclude a State from its own courts. Such an order attended by such results cannot, I submit, be sustained consistently with the powers which the States, according to the uniform declarations of this court, possess under the Constitution. I am justified, by what this court has heretofore declared, in now saying that the men who framed the Constitution and who caused the adoption of the Eleventh Amendment would have been amazed by the suggestion that a State of the Union can be prevented by an order of a subordinate Federal court from being represented by its Attorney General in a suit brought by it in one of its own courts; and. that such an order would be inconsistent with the dignity of the States as involved in their constitutional immunity from the judicial process of the Federal courts (except in the limited cases in which they may constitutionally be made parties in this court) and would be attended by most pernicious results.

I dissent from the opinion and judgment.

Dissent.

*653Mr. Justice Rehnquist

delivered the opinion of the Court.

Respondent John Jordan filed a complaint in the United States District Court for the Northern District of Illinois, individually and as a representative of a class, seeking declaratory and injunctive relief against two former directors of the Illinois Department of Public Aid, the director of the Cook County Department of Public Aid, and the comptroller of Cook County. Respondent alleged that these state officials were administering the federal-state programs of Aid to the Aged, Blind, or Disabled (AABD) in a manner inconsistent with various federal regulations and with the Fourteenth Amendment to the Constitution.1

AABD is one of the categorical aid programs administered by the Illinois Department of Public Aid pursuant to the Illinois Public Aid Code, Ill. Rev. Stat., c. 23, §§ 3-1 through 3-12 (1973). Under the Social Security Act, the program is funded by the State and the Federal Governments. 42 U. S. C. §§ 1381-1385.2 The Department of Health, Education, and Welfare (HEW), *654which administers these payments for the Federal Government, issued regulations prescribing maximum permissible time standards within which States participating in the program had to process AABD applications. Those regulations, originally issued in 1968, required, at the time of the institution of this suit, that eligibility determinations must be made by the States within 30 days of receipt of applications for aid to the aged and blind, and within 45. days of receipt of applications for aid to the disabled. For those persons found eligible, the assistance check was required to be received by them within the applicable time period. 45 CFR §206.10 (a)(3).3

*655During the period in which the federal regulations went into effect, Illinois public aid officials were administering the benefits pursuant to their own regulations as provided in the Categorical Assistance Manual of the Illinois Department of Public Aid.4 Respondent’s complaint charged that the Illinois defendants, operating under those regulations, were improperly authorizing grants to commence only with the month in which an application was approved and not including prior eligibility months for which an applicant was entitled to aid under federal law. The complaint also alleged that the Illinois defendants were not processing the applications within the applicable time requirements of the federal regulations; specifically, respondent alleged that his own application *656for disability benefits was not acted on by the Illlinois Department of Public Aid for almost four months. Such actions of the Illinois officials were alleged to violate federal law and deny the equal protection of the laws. Respondent's prayer requested declaratory and injunctive relief, and specifically requested “a permanent injunction enjoining the defendants to award to the entire class of plaintiffs all AABD benefits wrongfully withheld.”

In its judgment of March 15, 1972, the District Court declared § 4004 of the Illinois Manual to be invalid insofar as it was inconsistent with the federal regulations found in 45 CFR § 206.10 (a) (3), and granted a permanent injunction requiring compliance with the federal time limits for processing and paying AABD applicants. The District Court, in paragraph 5 of its judgment, also ordered the state officials to “release and remit AABD benefits wrongfully withheld to all applicants for AABD in the State of Illinois who applied between July 1, 1968 [the date of the federal regulations] and April 16, 197 [1] [the date of the preliminary injunction issued by the District Court] and were determined eligible . ...” 5

*657On appeal to the United States Court of Appeals for the Seventh Circuit, the Illinois officials contended, inter alia, that the Eleventh Amendment barred the award of *658retroactive benefits, that the judgment of inconsistency between the federal regulations and the provisions of the Illinois Categorical Assistance Manual could be given prospective effect only, and that the federal regulations in question were inconsistent with the Social Security Act itself. The Court of Appeals rejected these contentions and affirmed the judgment of the District Court. Jordan v. Weaver, 472 F. 2d 985 (1973).6 Because of an apparent conflict on the Eleventh Amendment issue with the decision of the Court of Appeals for the Second Circuit in Rothstein v. Wyman, 467 F. 2d 226 (1972), cert. denied, 411 U. S. 921 (1973), we granted the petition for certiorari filed by petitioner Joel Edelman, who is the present Director of the Illinois Department of Public Aid, and successor to the former directors sued below. 412 U. S. 937 (1973). The petition for certiorari raised the same contentions urged by the petitioner in the Court of Appeals.7 Because we believe the Court of Appeals *659erred in its disposition of the Eleventh Amendment claim, we reverse that portion of the Court of Appeals decision which affirmed the District Court’s order that retroactive benefits be paid by the Illinois state officials.8

*660The historical basis of the Eleventh Amendment has been oft stated, and it represents one of the more dramatic examples of this Court’s effort to derive meaning from the document given to the Nation by the Framers nearly 200 years ago. A leading historian of the Court tells us:

“The right of the Federal Judiciary to summon a State as defendant and to adjudicate its rights and liabilities had been the subject of deep apprehension and of active debate at the time of the adoption of the Constitution; but the existence of any such right had been disclaimed by many of the most eminent advocates of the new Federal Government, and it was largely owing to their successful dissipation of the fear of the existence of such Federal power that the Constitution was finally adopted.” 1 C. Warren, The Supreme Court in United States History 91 (rev. ed. 1937).

Despite such disclaimers,9 the very first suit entered *661in this Court at its February Term in 1791 was brought against the State of Maryland by a firm of Dutch bankers as creditors. Vanstophorst v. Maryland, see 2 Dall. *662401 and Warren, supra, at 91 n. 1. The subsequent year brought the institution of additional suits against other States, and caused considerable alarm and consternation in the country.

The issue was squarely presented to the Court in a suit brought at the August 1792 Term by two citizens of South Carolina, executors of a British creditor, against the State of Georgia. After a year's postponement for preparation on the part of the State of Georgia, the Court, after argument, rendered in February 1793, its short-lived decision in Chisholm v. Georgia, 2 Dall. 419. The decision in that case, that a State was liable to suit by a citizen of another State or of a foreign country, literally shocked the Nation. Sentiment for passage of a constitutional amendment to override the decision rapidly gained momentum, and five years after Chisholm the Eleventh Amendment was officially announced by President John Adams. Unchanged since then, the 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.”

While the Amendment by its terms does not bar suits against a State by its own citizens, this Court has con*663sistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State. Hans v. Louisiana, 134 U. S. 1 (1890); Duhne v. New Jersey, 251 U. S. 311 (1920); Great Northern Life Insurance Co. v. Read, 322 U. S. 47 (1944); Barden v. Terminal R. Co., 377 U. S. 184 (1964); Employees v. Department of Public Health and Welfare, 411 U. S. 279 (1973). It is also well established that even though a State is not named a party to the action, the suit may nonetheless be barred by the Eleventh Amendment. In Ford Motor Co. v. Department of Treasury, 323 U. S. 459 (1945), the Court said:

“[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.” Id., at 464.

Thus the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment. Great Northern Life Insurance Co. v. Read, supra; Kennecott Copper Corp. v. State Tax Comm’n, 327 U. S. 573 (1946).

The Court of Appeals in this case, while recognizing that the Hans line of cases permitted the State to raise the Eleventh Amendment as a defense to suit by its own citizens, nevertheless concluded that the Amendment did not bar the award of retroactive payments of the statutory benefits found to have been wrongfully withheld. The Court of Appeals held that the above-cited cases, when read in light of this Court's landmark decision in Ex parte Young, 209 U. S. 123 (1908), do not preclude *664the grant of such a monetary award in the nature of equitable restitution.

Petitioner concedes that Ex parte Young, supra, is no bar to that part of the District Court’s judgment that prospectively enjoined petitioner’s predecessors from failing to process applications within the time limits established by the federal regulations. Petitioner argues, however, that Ex parte Young does not extend so far as to permit a suit which seeks the award of an accrued monetary liability which must be met from the general revenues of a State, absent consent or waiver by the State of its Eleventh Amendment immunity, and that therefore the award of retroactive benefits by the District Court was improper.

Ex parte Young was a watershed case in which this Court held that the Eleventh Amendment did not bar an action in the federal courts seeking to enjoin the Attorney General of Minnesota from enforcing a statute claimed to violate the Fourteenth Amendment of the United States Constitution. This holding has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect. But the relief awarded in Ex parte Young was prospective only; the Attorney General of Minnesota was enjoined to conform his future conduct of that office to the requirement of the Fourteenth Amendment. Such relief is analogous to that awarded by the District Court in the prospective portion of its order under review in this case.

But the retroactive portion of the District Court’s order here, which requires the payment of a very substantial amount of money which that court held should have been paid, but was not, stands on quite a different footing. These funds will obviously not be paid out of the pocket of petitioner Edelman. Addressing himself to a similar situation in Rothstein v. Wyman, 467 F. 2d 226 *665(CA2 1972), cert. denied, 411 U. S. 921 (1973), Judge McGowan10 observed for the court:

“It is not pretended that these payments are to come from the personal resources of these appellants. Appellees expressly contemplate that they will, rather, involve substantial expenditures from the public funds of the state....

“It is one thing to tell the Commissioner of Social Services that he must comply with the federal standards for the future if the state is to have the benefit of federal funds in the programs he administers. It is quite another thing to order the Commissioner to use state funds to make reparation for the past. The latter would appear to us to fall afoul of the Eleventh Amendment if that basic constitutional provision is to be conceived of as having any present force.” 467 F. 2d, at 236-237 (footnotes omitted).

We agree with Judge McGowan’s observations. The funds to satisfy the award in this case must inevitably come from the general revenues of the State of Illinois, and thus the award resembles far more closely the monetary award against the State itself, Ford Motor Co. v. Department of Treasury, supra, than it does the prospective injunctive relief awarded in Ex parte Young.

The Court of Appeals, in upholding the award in this case, held that it was permissible because it was in the form of “equitable restitution” instead of damages, and therefore capable of being tailored in such a way as to minimize disruptions of the state program of categorical assistance. But we must judge the award actually made in this case, and not one which might have been differently tailored in a different case, and we must judge *666it in the context of the important constitutional principle embodied in the Eleventh Amendment.11

We do not read Ex parte Young or subsequent holdings of this Court to indicate that any form of relief may be awarded against a state officer, no matter how closely it may in practice resemble a money judgment payable out of the state treasury, so long as the relief may be labeled “equitable” in nature. The Court’s opinion in Ex parte Young hewed to no such line. Its citation of Hagood v. Southern, 117 U. S. 52 (1886), and In re Ayers, 123 U. S. 443 (1887), which were both actions *667against state officers for specific performance of a contract to which the State was a party, demonstrate that equitable relief may be barred by the Eleventh Amendment.

As in most areas of the law, the difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not in many instances be that between day and night. The injunction issued in Ex parte Young was not totally without effect on the State's revenues, since the state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in Ex parte Young. In Graham v. Richardson, 403 U. S. 365 (1971), Arizona and Pennsylvania welfare officials were prohibited from denying welfare benefits to otherwise qualified recipients who were aliens. In Goldberg v. Kelly, 397 U. S. 254 (1970), New York City welfare officials were enjoined from following New York State procedures which authorized the termination of benefits paid to welfare recipients without prior hearing.12 But the fiscal consequences to state *668treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court’s decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young, supra.

But that portion of the District Court’s decree which petitioner challenges on Eleventh Amendment grounds goes much further than any of the cases cited. It requires payment of state funds, not as a necessary consequence of compliance in the future with a substantive federal-question determination, but as a form of compensation to those whose applications were processed on the slower time schedule at a time when petitioner was under no court-imposed obligation to conform to a different standard. While the Court of Appeals described this retroactive award of monetary relief as a form of “equitable restitution,” it is in practical effect indistinguishable in many aspects from an award of damages against the State. It will to a virtual certainty be paid from state funds, and not from the pockets of the individual state officials who were the defendants in the action. It is measured in terms of a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials.

Were we to uphold this portion of the District Court’s decree, we would be obligated to overrule the Court’s holding in Ford Motor Co. v. Department of Treasury, supra. There a taxpayer, who had, under protest, paid taxes to the State of Indiana, sought a refund of those taxes from the Indiana state officials who were charged with their collection. The taxpayer claimed that the tax *669had been imposed in violation of the United States Constitution. The term “equitable restitution” would seem even more applicable to the relief sought in that case, since the taxpayer had at one time had the money, and paid it over to the State pursuant to an allegedly unconstitutional tax exaction. Yet this Court had no hesitation in holding that the taxpayer’s action was a suit against the State, and barred by the Eleventh Amendment. We reach a similar conclusion with respect to the retroactive portion of the relief awarded by the District Court in this case.

The Court of Appeals expressed the view that its conclusion on the Eleventh Amendment issue was supported by this Court’s holding in Department of Employment v. United States, 385 U. S. 355 (1966). There the United States was held entitled to sue the Colorado Department of Employment in the United States District Court for refund of unemployment compensation taxes paid under protest by the American National Red Cross, an instrumentality of the United States. The discussion of the State’s Eleventh Amendment claim is confined to the following sentence in the opinion:

“With respect to appellants’ contention that the State of Colorado has not consented to suit in a federal forum even where the plaintiff is the United States, see Monaco v. Mississippi, 292 U. S. 313 (1934), and Ex parte Young, 209 U. S. 123 (1908).” Id., at 358.

Monaco v. Mississippi, 292 U. S. 313 (1934), reaffirmed the principle that the Eleventh Amendment was no bar to a suit by the United States against a State. Id., at 329. In view of Mr. Chief Justice Hughes’ vigorous reaffirmation in Monaco of the principles of the Eleventh Amendment and sovereign immunity, we think it unlikely that the Court in Department of Employment v. United States, in citing Ex parte Young as well as Monaco, *670intended to foreshadow a departure from the rule to which we adhere today.

Three fairly recent District Court judgments requiring state directors of public aid to make the type of retroactive payment involved here have been summarily affirmed by this Court notwithstanding Eleventh Amendment contentions made by state officers who were appealing from the District Court judgment.13 Shapiro v. Thompson, 394 U. S. 618 (1969), is the only instance in which the Eleventh Amendment objection to such retroactive relief was actually presented to this Court in a case which was orally argued. The three-judge District Court in that case had ordered the retroactive payment of welfare benefits found by that court to have been unlawfully withheld because of residence requirements held viola-tive of equal protection. 270 F. Supp. 331, 338 n. 5 (Conn. 1967). This Court, while affirming the judgment, did not in its opinion refer to or substantively treat the Eleventh Amendment argument. Nor, of course, did the summary dispositions of the three District Court cases contain any substantive discussion of this or any other issues raised by the parties.

This case, therefore, is the first opportunity the Court has taken to fully explore and treat the Eleventh Amend*671ment aspects of such relief in a written opinion. Shapiro v. Thompson and these three summary affirmances obviously are of precedential value in support of the contention that the Eleventh Amendment does not bar the relief awarded by the District Court in this case. Equally obviously, they are not of the same precedential value as would be an opinion of this Court treating the question on the merits. Since we deal with a constitutional question, we are less constrained by the principle of stare decisis than we are in other areas of the law.14 Having now had an opportunity to more fully consider the Eleventh Amendment issue after briefing and argument, we disapprove the Eleventh Amendment holdings of those cases to the extent that they are inconsistent with our holding today.

The Court of Appeals held in the alternative that even if the Eleventh Amendment be deemed a bar to the retroactive relief awarded respondent in this case, the State of Illinois had waived its Eleventh Amendment immunity and consented to the bringing of such a suit by participating in the federal AABD program. The Court of Appeals relied upon our holdings in Parden v. Terminal R. Co., 377 U. S. 184 (1964), and Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275 (1959), *672and on the dissenting opinion of Judge Bright in Employees v. Department of Public Health and Welfare, 452 F. 2d 820, 827 (CA8 1971). While the holding in the latter case was ultimately affirmed by this Court in 411 U. S. 279 (1973), we do not think that the answer to the waiver question turns on the distinction between Parden, supra, and Employees, supra. Both Parden and Employees involved a congressional enactment which by its terms authorized suit by designated plaintiffs against a general class of defendants which literally included States or state instrumentalities. Similarly, Petty v. Tennessee-Missouri Bridge Comm’n, supra, involved congressional approval, pursuant to the Compact Clause, of a compact between Tennessee and Missouri, which provided that each compacting State would have the power “to contract, to sue, and be sued in its own name." The question of waiver or consent under the Eleventh Amendment was found in those cases to turn on whether Congress had intended to abrogate the immunity in question, and whether the State by its participation in the program authorized by Congress had in effect consented to the abrogation of that immunity.

But in this case the threshold fact of congressional authorization to sue a class of defendants which literally includes States is wholly absent. Thus respondent is not only precluded from relying on this Court’s holding in Employees, but on this Court’s holdings in Parden and Petty as well.15

*673The Court of Appeals held that as a matter of federal law Illinois had “constructively consented” to this suit by participating in the federal AABD program and agreeing to administer federal and state funds in compliance with federal law. Constructive consent is not a doctrine commonly associated with the surrender of constitutional rights, and we see no place for it here. In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated “by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.” Murray v. Wilson Distilling Co., 213 U. S. 151, 171 (1909). We see no reason to retreat from the Court's statement in Great Northern Life Insurance Co. v. Read, 322 U. S., at 54 (footnote omitted):

“[W]hen we are dealing with the sovereign exemption from judicial interference in the vital field of financial administration a clear declaration of the state’s intention to submit its fiscal problems to other courts than those of its own creation must be found.”

The mere fact that a State participates in a program through which the Federal Government provides assistance for the operation by the State of a system of public aid is not sufficient to establish consent on the part of the State to be sued in the federal courts. And while this Court has, in cases such as J. I. Case Co. v. Borak, 377 *674U. S. 426 (1964), authorized suits by one private party against another in order to effectuate a statutory purpose, it has never done so in the context of the Eleventh Amendment and a state defendant. Since Employees, supra, where Congress had expressly authorized suits against a general class of defendants and the only thing left to implication was whether the described class of defendants included States, was decided adversely to the putative plaintiffs on the waiver question, surely this respondent must also fail on that issue. The only language in the Social Security Act which purported to provide a federal sanction against a State which did not comply with federal requirements for the distribution of federal monies was found in former 42 U. S. C. § 1384 (now replaced by substantially similar provisions in 42 U. S. C. § 804), which provided for termination of future allocations of federal funds when a participating State failed to conform with federal law.16 This provision by its terms did not authorize suit against anyone, and standing alone, fell far short of a waiver by a participating State of its Eleventh Amendment immunity.

Our Brother Marshall argues in dissent, and the Court of Appeals held, that although the Social Security Act itself does not create a private cause of action, the cause of action created by 42 U. S. C. § 1983, coupled with the enactment of the AABD program, and the issuance by HEW of regulations which require the States to make corrective payments after successful “fair hear*675ings” and provide for federal matching funds to satisfy federal court orders of retroactive payments, indicate that Congress intended a cause of action for public aid recipients such as respondent.17 It is, of course, true that Rosado v. Wyman, 397 U. S. 397 (1970), held that suits in federal court under § 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of participating States.18 But it has not hereto*676fore been suggested that § 1983 was intended to create a waiver of a State’s Eleventh Amendment immunity merely because an action could be brought under that *677section against state officers, rather than against the State itself. Though a § 1983 action may be instituted by public aid recipients such as respondent, a federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunc-tive relief, Ex parte Young, supra, and may not include a retroactive award which requires the payment of funds from the state treasury, Ford Motor Co. v. Department of Treasury, supra.

Respondent urges that since the various Illinois officials sued in the District Court failed to raise the Eleventh Amendment as a defense to the relief sought by respondent, petitioner is therefore barred19 from raising the Eleventh Amendment defense in the Court of Appeals or in this Court. The Court of Appeals apparently felt the defense was properly presented, and dealt with it on the merits. We approve of this resolution, since it has been well settled since the decision *678in Ford Motor Co. v. Department of Treasury, supra, that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court:

“[The Attorney General of Indiana] appeared in the federal District Court and the Circuit Court of Appeals and defended the suit on the merits. The objection to petitioner’s suit as a violation of the Eleventh Amendment was first made and argued by Indiana in this Court. This was in time, however. The Eleventh Amendment declares a policy and sets forth an explicit limitation on federal judicial power of such compelling force that this Court will consider the issue arising under this Amendment in this case even though urged for the first time in this Court.” 323 U. S., at 466-467.

For the foregoing reasons we decide that the Court of Appeals was wrong in holding that the Eleventh Amendment did not constitute a bar to that portion of the District Court decree which ordered retroactive payment of benefits found to have been wrongfully withheld. The judgment of the Court of Appeals is therefore reversed and the cause remanded for further proceedings consistent with this opinion.

So ordered.

Mr. Justice Douglas,

dissenting.

Congress provided in 42 U. S. C. § 1983 that:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Con*679stitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

In this class action respondent sought to enforce against state aid officials of Illinois provisions of the Social Security Act, 42 U. S. C. §§ 1381-1385, known as the Aid to the Aged, Blind, or Disabled (AABD) program.1 The complaint alleges violations of the Equal Protection Clause of the Fourteenth Amendment and also violations of the Social Security Act. Hence § 1983 is satisfied in haec verba, for a deprivation of “rights” which are “secured by the Constitution and laws” is alleged. The Court of Appeals, though ruling that the alleged constitutional violations had not occurred, sustained federal jurisdiction because federal “rights” were violated. The main issue tendered us is whether that ruling of the Court of Appeals is consistent with the Eleventh Amendment.2

*680Once the federal court had jurisdiction over the case, the fact that it ruled adversely to the claimant on the constitutional claim did not deprive it of its pendent jurisdiction over the statutory claim. United States v. Georgia Pub. Serv. Comm’n, 371 U. S. 285, 287-288.

In Ex parte Young, 209 U. S. 123, a suit by stockholders of a railroad was brought in a federal court against state officials to enjoin the imposition of confiscatory rates on the railroad in violation of the Fourteenth Amendment. The Eleventh Amendment was interposed as a defense. The Court rejected the defense, saying that state officials with authority to enforce state laws “who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.” Id., at 156. The Court went on to say that a state official seeking to enforce in the name of a State an unconstitutional act “comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequence of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.” Id., at 159-160.

As the complaint in the instant case alleges violations by officials of Illinois of the Equal Protection Clause of the Fourteenth Amendment, it seems that the case is governed by Ex parte Young so far as injunctive relief is concerned. The main thrust of the argument is that the. instant case asks for relief which if granted would .affect the treasury of the State.

Most welfare decisions by federal courts have a fi*681nancial impact on the States. Under the existing federal-state cooperative system, a state desiring to participate, submits a “state plan” to HEW for approval; once HEW approves the plan the State is locked into the cooperative scheme until it withdraws,3 all as described in King v. Smith, 392 U. S. 309, 316 et seq. The welfare cases coming here have involved ultimately the financial responsibility of the State to beneficiaries claiming they were deprived of federal rights. King v. Smith required payment to children even though their mother was co-habitating with a man who could not pass muster as a *682“parent.” Rosado v. Wyman, 397 U. S. 397, held that under this state-federal cooperative program a State could not reduce its standard of need in conflict with the federal standard. It is true that Rosado did not involve retroactive payments as are involved here. But the distinction is not relevant or material because the result in every welfare case coming here is to increase or reduce the financial responsibility of the participating State. In no case when the responsibility of the State is increased to meet the lawful demand of the beneficiary, is there any levy on state funds. Whether the decree is prospective only or requires payments for the weeks or months wrongfully skipped over by the state officials, the nature of the impact on the state treasury is precisely the same.

We have granted relief in other welfare cases which included retroactive assistance benefits or payments. In State Dept. of Health and Rehabilitative Services v. Zarate, 407 U. S. 918, the sole issue presented to us4 was whether the Eleventh Amendment barred a judgment against state officers for retroactive welfare assistance benefits or payments. That had been ordered by the lower court and we summarily affirmed, only Mr. Justice White voting to note probable jurisdiction. We also summarily affirmed the judgment in Sterrett v. Mothers’ & Children’s Rights Organization, 409 U. S. 809, where one of the two questions 5 was whether retroactive payments of benefits violated the Eleventh Amendment. In Wyman v. Bowens, 397 U. S. 49, we affirmed a judgment *683where payments were awarded in spite of the argument that the order was an incursion on the Eleventh Amendment.6 In Shapiro v. Thompson, 394 U. S. 618, we affirmed a judgment which ordered payment of benefits wrongfully withheld;7 and while we did not specifically refer to the point, the lower court had expressly rejected the Eleventh Amendment argument.8

In Gaither v. Sterrett, 346 F. Supp. 1095, 1099, whose judgment we affirmed,9 409 U. S. 1070, the court said:

“[T]his court would note that if defendants’ position regarding the jurisdictional bar of the Eleventh Amendment is correct, a great number of federal district court judgments are void, and the Supreme Court has affirmed many of these void judgments.”

The Court of Appeals for the Seventh Circuit is in line with that view; the opposed view of the Court of Appeals for the Second Circuit in Rothstein v. Wyman, 467 F. 2d 226, is out of harmony with the established law.

What is asked by the instant case is minor compared to the relief granted in Griffin v. School Board, 377 U. S. 218. In that case we authorized entry of an order putting an end to a segregated school system. We held, inter alia, that “the District Court may, if necessary to prevent further racial discrimination, require the Supervisors to *684exercise 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.” Id., at 233. We so held against vigorous contentions of the state officials that the Eleventh Amendment protected the State; and in reply we cited Lincoln County v. Luning, 133 U. S. 529, and Kennecott Copper Corp. v. State Tax Comm’n, 327 U. S. 573, 579, to support the proposition that “actions against a county can be maintained in United States courts in order to vindicate federally guaranteed rights.” 377 U. S., at 233.

Griffin is sought to be distinguished on the ground that a “county” is not the “state” for purposes of the Eleventh Amendment. But constitutionally the county in Griffin was exercising state policy as are the counties here, because otherwise the claim of denial of equal protection would be of no avail.

Counties are citizens of their State for purposes of diversity of citizenship. Bullard v. City of Cisco, 290 U. S. 179; Moor v. County of Alameda, 411 U. S. 693, 718-719. And they are not States for purposes of 28 U. S. C. § 1251 (a) which gives this Court original and exclusive jurisdiction of: “(1) All controversies between two or more states. . . .” Illinois v. City of Milwaukee, 406 U. S. 91, 98. But, being citizens of their State, suits against them by another State are in our original but not exclusive jurisdiction under 28 U. S. C. § 1251 (b)(3). Ibid. Yet, as agencies of the State whether in carrying out educational policies or otherwise, they are the State, as Griffin held, for purposes of the Fourteenth Amendment. And Griffin, like the present case, dealt only with liability to citizens for state policy and state action.

Yet petitioner asserts that money damages may not be awarded against state offenses, as such a judgment *685will expend itself on the state treasury. But we are unable to say that Illinois on entering the federal-state welfare program waived its immunity to suit for injunctions but did not waive its immunity for compensatory awards which remedy its willful defaults of obligations undertaken when it joined the cooperative venture.10

It is said however, that the Eleventh Amendment is concerned, not with immunity of States from suit, but with the jurisdiction of the federal courts to entertain the suit. The Eleventh Amendment does not speak of "jurisdiction”; it withholds the “judicial power” of federal courts “to any suit in law or equity . . . against one of the United States . . . .” If that “judicial power,” or “jurisdiction” if one prefers that concept, may not be exercised even in “any suit in . . . equity” then Ex parte Young should be overruled. But there is none eager to take the step. Where a State has consented to join a federal-state cooperative project, it is realistic to conclude that the State has agreed to assume its obligations under that legislation. There is nothing in the Eleventh Amendment to suggest a difference between suits at law and suits in equity, for it treats the two without distinction. If common sense has any role to play in constitutional adjudication, once there is a waiver of immunity it must be true that it is complete so far as effective operation of the state-federal joint welfare program is concerned.

*686We have not always been unanimous in concluding when a State has waived its immunity. In Parden v. Terminal R. Co., 377 U. S. 184, where Alabama was sued by some of its citizens for injuries suffered in the interstate operation of an Alabama railroad, the State defended on the grounds of the Eleventh Amendment. The Court held that Alabama was liable as a carrier under the Federal Employers' Liability Act, saying:

“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,” id., at 192.

The Court added:

“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.” Id., at 196.

As the Court of Appeals in the instant case concluded, Illinois by entering into the joint federal-state welfare plan just as surely “ [left] the sphere that is exclusively its own.” Ibid.

It is argued that participation in the program of federal financial assistance is not sufficient to establish consent on the part of the State to be sued in federal courts. But it is not merely participation which supports a finding of Eleventh Amendment waiver, but *687participation in light of the existing state of the law as exhibited in such decisions as Shapiro v. Thompson, 394 U. S. 618, which affirmed judgments ordering retroactive payment of benefits. Today's holding that the Eleventh Amendment forbids court-ordered retroactive payments, as the Court recognizes, necessitates an express overruling of several of our recent decisions. But it was against the background of those decisions that Illinois continued its participation in the federal program, and it can hardly be claimed that such participation was in ignorance of the possibility of court-ordered retroactive payments. The decision to .participate against that background of precedent can only be viewed as a waiver of immunity from such judgments.

I would affirm the judgment of the Court of Appeals.

Mr. Justice Brennan,

dissenting.

This suit is brought by Illinois citizens against Illinois officials. In that circumstance, Illinois may not invoke the Eleventh Amendment, since that Amendment bars only federal court suits against States by citizens of other States. Rather, the question is whether Illinois may avail itself of the nonconstitutional but ancient doctrine of sovereign immunity as a bar to respondent's claim for retroactive AABD payments. In my view Illinois may not assert sovereign immunity for the reason I expressed in dissent in Employees v. Department of Public Health and Welfare, 411 U. S. 279, 298 (1973): the States surrendered that immunity in' Hamilton's words, “in the plan of the Convention,” that formed the Union, at least insofar as the States granted Congress specifically enumerated powers. See id., at 319 n. 7; Parden v. Terminal R. Co., 377 U. S. 184 (1964). Congressional authority to enact the Social Security Act, of which AABD is a part, former 42 U. S. C. §§ 1381-1385 *688(now replaced by similar provisions in 42 U. S. C. § 801-804 (1970 ed., Supp. II)), is to be found in Art. I, § 8, cl. 1, one of the enumerated powers granted Congress by the States in the Constitution. I remain of the opinion that “because of its surrender, no immunity exists that can be the subject of a congressional declaration or a voluntary waiver,” 411 U. S., at 300, and thus have no occasion to inquire whether or not Congress authorized an action for AABD retroactive benefits, or whether or not Illinois voluntarily waived the immunity by its continued participation in the program against the background of precedents which sustained judgments ordering retroactive payments.

I would affirm the judgment of the Court of Appeals.

Me. Justice Marshall,

with whom Mr. Justice Blackmun joins, dissenting.

The Social Security Act’s categorical assistance programs, including the Aid to the Aged, Blind, or Disabled (AABD) program involved here, are fundamentally different from most federal legislation. Unlike the Fair Labor Standards Act involved in last Term’s decision in Employees v. Department of Public Health and Welfare, 411 U. S. 279 (1973), or the Federal Employers’ Liability Act-at issue in Parden v. Terminal R. Co., 377 U. S. 184 (1964), the Social Security Act does not impose federal standards and liability upon all who engage in certain regulated activities, including often-unwilling state agencies. Instead, the Act seeks to induce state participation in the federal welfare programs by offering federal matching funds in exchange for the State’s voluntary assumption of the Act’s requirements. I find this basic distinction crucial: it leads me to conclude that by participation in the programs, the States waive whatever immunity they might otherwise have from federal court *689orders requiring retroactive payment of welfare benefits.1

In its contacts with the Social Security Act’s assistance programs in recent years, the Court has frequently described the Act as a “scheme of cooperative federalism.” See, e. g., King v. Smith, 392 U. S. 309, 316 (1968); Jefferson v. Hackney, 406 U. S. 535, 542 (1972). While this phrase captures a number of the unique characteristics of these programs, for present purposes it serves to emphasize that the States’ decision to participate in the programs is a voluntary one. In deciding to participate, however, the States necessarily give up their freedom to operate assistance programs for the needy as they see fit, and bind themselves to conform their programs to the requirements of the federal statute and regulations. As the Court explained in King v. Smith, supra, at 316-317 (citations omitted):

“States are not required to participate in the program, but those which desire to take advantage of the substantial federal funds available for distribution to needy children [or needy aged, blind or disabled] are required to submit an AFDC [or AABD] plan for the approval of the Secretary of Health, Education, and Welfare (HEW). The plan must conform with several requirements of the Social Security Act and with rules and regulations promulgated by HEW.”

So here, Illinois elected to participate in the AABD program, and received and expended substantial federal funds in the years at issue. It thereby obligated itself to comply with federal law, including the require*690ment of former 42 U. S. C. § 1382 (a) (8) that “such aid or assistance shall be furnished with reasonable promptness to all eligible individuals.” In Townsend v. Swank, 404 U. S. 282, 286 (1971), we held that participating States must strictly comply with the requirement that aid be furnished “to all eligible individuals,” and that the States have no power to impose additional eligibility requirements which exclude persons eligible for assistance under federal standards. Today’s decision, ante, at 659-660, n. 8, properly emphasizes that participating States must also comply strictly with the “reasonable promptness” requirement and the more detailed regulations'adding content to it.

In agreeing to comply with the requirements of the Social Security Act and HEW regulations, I believe that Illinois has also agreed to subject itself to suit in the federal courts to enforce these obligations. I recognize, of course, that the Social Security Act does not itself provide for a cause of action to enforce its obligations. As the Court points out, the only sanction expressly provided in the Act for a participating State’s failure to comply with federal requirements is the cutoff of federal funding by the Secretary of HEW. Former 42 U. S. C. § 1384 (now 42 U. S. C. § 804 (1970 ed., Supp. II)).

But a cause of action is clearly provided by 42 U. S. C. § 1983, which in terms authorizes suits to redress deprivations of rights secured by the “laws” of the United States. And we have already rejected the argument that Congress intended the funding cutoff to be the sole remedy for noncompliance with federal requirements. In Rosado v. Wyman, 397 U. S. 397, 420-423 (1970), we held that suits in federal court under § 1983 were proper to enforce the provisions of the Social Security Act against participating States. Mr. Justice Harlan, writing for the Court, ex*691amined the legislative history and found “not the slightest indication” that Congress intended to prohibit suits in federal court to enforce compliance with federal standards. Id,., at 422.

I believe that Congress also intended the full panoply of traditional judicial remedies to be available to the federal courts in these § 1983 suits. There is surely no indication of any congressional intent to restrict the courts’ equitable jurisdiction. Yet the Court has held that “[ujnless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.” Porter v. Warner Holding Co., 328 U. S. 395, 398 (1946). “When Congress entrusts to an equity court the enforcement of prohibitions contained in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity to provide complete relief in light of the statutory purposes.” Mitchell v. DeMario Jewelry, 361 U. S. 288, 291-292 (1960).

In particular, I am firmly convinced that Congress intended the restitution of wrongfully withheld assistance payments to be a remedy available to.the federal courts in these suits. Benefits under the categorical assistance programs “are a matter of statutory entitlement for persons qualified to receive them.” Goldberg v. Kelly, 397 U. S. 254, 262 (1970). Retroactive payment of benefits secures for recipients this entitlement which was withheld in violation of federal law. Equally important, the courts’ power to order retroactive payments is an essential remedy to insure future state compliance with federal requirements. See Porter v. Warner Holding Co., supra, at 400. No other remedy can effectively deter States from the strong temptation to cut *692welfare budgets by circumventing the stringent requirements of federal law. The funding cutoff is a drastic sanction, one which HEW has proved unwilling or unable to employ to compel strict compliance with the Act and regulations. See Rosado v. Wyman, supra, at 426 (Douglas, J., concurring). Moreover, the cutoff operates only prospectively; it in no way deters the States from even a flagrant violation of the Act's requirements for as long as HEW does not discover the violation and threaten to take such action.

Absent any remedy which may act with retroactive effect, state welfare officials have everything to gain and nothing to lose by failing to comply with the congressional mandate that assistance be paid with reasonable promptness to all eligible individuals. This is not idle speculation without basis in practical experience. In this very case, for example, Illinois officials have knowingly violated since 1968 federal regulations on the strength of an argument as to its invalidity which even the majority deems unworthy of discussion. Ante, at 659-660, n. 8. Without a retroactive-payment remedy, we are indeed faced with “the spectre of a state, perhaps calculatingly, defying federal law and thereby depriving welfare recipients of the financial assistance Congress thought it was giving them.” Jordan v. Weaver, 472 F. 2d 985, 995 (CA7 1972). Like the Court of Appeals, I cannot believe that Congress could possibly have intended any such result.

Such indicia of congressional intent as can be gleaned from the statute confirm that Congress intended to authorize retroactive payment of assistance benefits unlawfully withheld. Availability of such payments is implicit in the “fair hearing” requirement, former 42 U. S. C. § 1382 (a) (4), which permitted welfare recipients to challenge the denial of assistance. The regulations *693which require States to make corrective payments retroactively in the event of a successful fair hearing challenge, 45 CFR § 205.10 (a) (18), merely confirm the obvious statutory intent. .HEW regulations also authorize federal matching funds for retroactive assistance payments made pursuant to court order, 45 CFR §§ 205.10 (b) (2), (b)(3). We should not lightly disregard this explicit recognition by the agency charged with administration of the statute that such a remedy was authorized by Congress. See Griggs v. Duke Power Co., 401 U. S. 424, 433-434 (1971).

Illinois chose to participate in the AABD program with its eyes wide open. Drawn by the lure of federal funds, it voluntarily obligated itself to comply with the Social Security Act and HEW regulations, with full knowledge that Congress had authorized assistance recipients to go into federal court to enforce these obligations and to recover benefits wrongfully denied. Any doubts on this score must surely have been removed by our decisions in Rosado v. Wyman, supra, and Shapiro v. Thompson, 394 U. S. 618 (1969), where we affirmed a district court retroactive payment order. I cannot avoid the conclusion that, by virtue of its knowing and voluntary decision to nevertheless participate in the program, the State necessarily consented to subject itself to these suits. I have no quarrel with the Court’s view that waiver of constitutional rights should not lightly be inferred. But I simply cannot believe that the State could have entered into this essentially contractual agreement with the Federal Government without recognizing that it was subjecting itself to the full scope of the § 1983 remedy provided by Congress to enforce the terms of the agreement.

Of course, § 1983 suits are nominally brought against state officers, rather than the State itself, and do not *694ordinarily raise Eleventh Amendment problems in view of this Court’s decision in Ex parte Young, 209 U. S. 123 (1908). But to the extent that the relief authorized by Congress in an action under § 1983 may be open to Eleventh Amendment objections,2 these objections are waived when the State agrees to comply with federal requirements enforceable in such an action. I do not find persuasive the Court’s reliance in this case on the fact that “congressional authorization to sue a class of defendants which literally includes States” is absent. Ante, at 672. While true, this fact is irrelevant here, for this is simply not a case “literally” against the State. While the Court successfully knocks down the strawman it has thus set up, it never comes to grips with the undeniable fact that Congress has “literally” authorized this suit within the terms of § 1983. Since there is every reason to believe that Congress intended the full panoply of judicial remedies to be available in § 1983 equitable actions to enforce the Social Security Act, I think the conclusion is inescapable that Congress authorized and the State consented to § 1983 actions in which the relief might otherwise be questioned on Eleventh Amendment grounds.

My conclusion that the State has waived its Eleventh Amendment objections to court-ordered retroactive assistance payments is fully consistent with last Term’s *695decision in Employees v. Department of Public Health and Welfare, 411 U. S. 279 (1973). As I emphasized in my concurring opinion, there was no voluntary action by the State in Employees which could reasonably be construed as evidencing its consent to suit in a federal forum.

“[T]he State was fully engaged in the operation of the affected hospitals and schools at the time of the 1966 amendments. To suggest that the State had the choice of either ceasing operation of these vital public services or 'consenting’ to federal suit suffices, I believe, to demonstrate that the State had no true choice at all and thereby that the State did not voluntarily consent to the exercise of federal jurisdiction . . . .” Id., at 296.

A finding of waiver here is also consistent with the reasoning of the majority in Employees, which relied on a distinction between “governmental” and “proprietary” functions of state government. Id., at 284-285. This distinction apparently recognizes that if sovereign immunity is to be at all meaningful, the Court must be reluctant to hold a State to have waived its immunity simply by acting in its sovereign capacity — i. e., by merely performing its “governmental” functions. On the other hand, in launching a profitmaking enterprise, “a State leaves the sphere that is exclusively its own,” Parden v. Terminal R. Co., 377 U. S., at 196, and a voluntary waiver of sovereign immunity can more easily be found. While conducting an assistance program for the needy is surely a “governmental” function, the State here has done far more than operate its own program in its sovereign capacity. It has voluntarily subordinated its sovereignty in this matter to that of the Federal Government, and agreed to comply with the conditions imposed *696by Congress upon the expenditure of federal funds. In entering this federal-state cooperative program, the State again “leaves the sphere that is exclusively its own,” and similarly may more readily be found to have voluntarily waived its immunity.

Indeed, this is the lesson to be drawn from this Court’s decision in Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275 (1959), where the Court found that the States had waived the sovereign immunity of the Commission by joining in an interstate compact subject to the approval of Congress. The Court in Petty emphasized that it was “called on to interpret not unilateral state action but the terms of a consensual agreement” between the States and Congress, id., at 279; and held that the States who join such a consensual agreement, “by accepting it and acting under it assume the conditions that Congress under the Constitution attached.” Id., at 281-282. Although the congressional intent regarding the sue-and-be-sued clause was by no means certain, the Court held that the surrounding conditions made it clear that the States accepting it waived their sovereign immunity, id., at 280, especially since this interpretation was necessary to keep the compact “a living interstate agreement which performs high functions in our federalism.” Id., at 279.

I find the approach in Petty controlling here. As even the dissent in that case recognized, id., at 285 (Frankfurter, J., dissenting), Congress undoubtedly has the power to insist upon a waiver of sovereign immunity as a condition of its consent to such a federal-state agreement. Since I am satisfied that Congress has in fact done so here, at least to the extent that the federal courts may do “complete rather than truncated justice,” Porter v. Warner Holding Co., 328 U. S., at 398, in § 1983 actions authorized by Congress against state welfare authorities, I respectfully dissent.

Justice Kennedy

delivered the opinion of the Court.

Each day, according to the Government’s submissions here, the United States Postal Service delivers some 660 million pieces of mail to as many as 142 million delivery points. This case involves one such delivery point — petitioner Barbara Dolan’s porch — where mail left by postal employees allegedly caused her to trip and fall. Claiming injuries as a result, Dolan filed a claim for administrative relief from the Postal Service. When her claim was denied, she and her husband (whose claim for loss of consortium the Dolans later conceded was barred for failure to exhaust administrative remedies) filed suit in the United States District Court for the Eastern District of Pennsylvania, asserting that the Postal Service’s negligent placement of mail at their home subjected the Government to liability under the Federal Tort Claims Act (FTCA), 28 U. S. C. §§ 1346(b)(1), 2674. The District Court dismissed Dolan’s suit, and the Court of Appeals for the Third Circuit affirmed, 377 F. 3d 285 (2004). Both courts concluded that, although the FTCA generally waives sovereign immunity as to federal employees’ torts, Dolan’s claims were barred by an exception to that waiver, 28 U. S. C. § 2680(b). We disagree and hold that Dolan’s suit may proceed.

I

Under the Postal Reorganization Act, 39 U. S. C. § 101 et seq., the Postal Service is “an independent establishment of the executive branch of the Government of the United *484States,” §201. Holding a monopoly over carriage of letters, the Postal Service has “significant governmental powers,” including the power of eminent domain, the authority to make searches and seizures in the enforcement of laws protecting the mails, the authority to promulgate postal regulations, and, subject to the Secretary of State’s supervision, the power to enter international postal agreéments. See Postal Service v. Flamingo Industries (USA) Ltd., 540 U. S. 736, 741 (2004) (discussing 39 U. S. C. §§ 101, 401, 407, 601-606). Consistent with this status, the Postal Service enjoys federal sovereign immunity absent a waiver. See ibid.; cf. FDIC v. Meyer, 510 U. S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit”).

Although the Postal Reorganization Act generally “waives the immunity of the Postal Service from suit by giving it the power ‘to sue and be sued in its official name/ ” Flamingo Industries, supra, at 741 (quoting 39 U. S. C. §401(1)), the statute also provides that the FTCA “shall apply to tort claims arising out of activities of the Postal Service,” § 409(c).

The FTCA, in turn, waives sovereign immunity in two different sections of the United States Code. The first confers federal-court jurisdiction in a defined category of cases involving negligence committed by federal employees in the course of their employment. This jurisdictional grant covers:

“claims against the United States, for money damages, accruing on and after January 1,1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U. S. C. § 1346(b)(1).

*485As to claims falling within this jurisdictional grant, the FTCA, in a second provision, makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances,” though not “for interest prior to judgment or for punitive damages.” § 2674; see generally United States v. Olson, ante, at 44.

The FTCA qualifies its waiver of sovereign immunity for certain categories of claims (13 in all). If one of the exceptions applies, the bar of sovereign immunity remains. The 13 categories of exempted claims are set forth in 28 U. S. C. § 2680, and the relevant subsection for our purposes, pertaining to postal operations, is § 2680(b). It states:

“The provisions of this chapter and section 1346(b) of this title shall not apply to ... [a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.”

As a consequence, the United States may be liable if postal employees commit torts under local law, but not for claims defined by this exception.

This was the provision relied upon by the District Court and Court of Appeals to dismiss Dolan’s suit. The Court of Appeals’ decision created a conflict with a decision of the Court of Appeals for the Second Circuit. See Raila v. United States, 355 F. 3d 118, 121 (2004). We granted certiorari. 544 U. S. 998 (2005).

II

We assume that under the applicable state law a person injured by tripping over a package or bundle of papers negligently left on the porch of a residence by a private party would have a cause of action for damages. See 28 U. S. C. §§ 1346(b)(1), 2674. The question is whether, when mail left by the Postal Service causes the slip and fall, the § 2680(b) exception for “loss, miscarriage, or negligent transmission of letters or postal matter” preserves sovereign immunity despite the FTCA’s more general statements of waiver.

*486If considered in isolation, the phrase “negligent transmission” could embrace a wide range of negligent acts committed by the Postal Service in the course of delivering mail, including creation of slip-and-fall hazards from leaving packets and parcels on the porch of a residence. After all, in ordinary meaning and usage, transmission of the mail is not complete until it arrives at the destination. See, e. g., Webster’s Third New International Dictionary 2429 (1971) (defining “transmission” as “an act, process, or instance of transmitting” and “transmit” as “to cause to go or be conveyed to another person or place”). In large part this inference— transmission includes delivery — led the District Court and Court of Appeals to rule for the Government. See 377 F. 3d, at 288; App. to Pet. for Cert. 5a-6a. The definition of words in isolation, however, is not necessarily controlling in statutory construction. A word in a statute may or may not extend to the outer limits of its definitional possibilities. Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis. Here, we conclude both context and precedent require a narrower reading, so that “negligent transmission” does not go beyond negligence causing mail to be lost or to arrive late, in damaged condition, or at the wrong address. See Raila, supra, at 121 (holding the postal exception covers “damages and delay of the postal material itself and consequential damages therefrom”). The phrase does not comprehend all negligence occurring in the course of mail delivery.

Starting with context, the words “negligent transmission” in §2680(b) follow two other terms, “loss” and “miscarriage.” Those terms, we think, limit the reach of “transmission.” “[A] word is known by the company it keeps” — a rule that “is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress.” Jarecki v. G. D. Searle & Co., 367 *487U. S. 303, 307 (1961); see also Dole v. Steelworkers, 494 U. S. 26, 36 (1990) (“[Wjords grouped in a list should be given related meaning” (internal quotation marks omitted)). Here, as both parties acknowledge, mail is “lost” if it is destroyed or misplaced and “miscarried” if it goes to the wrong address. Since both those terms refer to failings in the postal obligation to deliver mail in a timely manner to the right address, it would be odd if “negligent transmission” swept far more broadly to include injuries like those alleged here— injuries that happen to be caused by postal employees but involve neither failure to transmit mail nor damage to its contents.

Our interpretation would be less secure were it not for a precedent we deem to have decisive weight here. We refer to Kosak v. United States, 466 U. S. 848 (1984). In Kosak, an art collector alleged in an FTCA suit that artworks he owned were damaged when the United States Customs Service seized and detained them. Id., at 849-850. The question was whether the Government retained immunity based on § 2680(c), a provision that has since been amended but at the time covered:

“[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer.” Id., at 852, n. 6 (internal quotation marks omitted).

In its opinion concluding the exception did apply and thus that the United States retained sovereign immunity, the Court gave specific consideration to the postal exception. In a part of the opinion central to its holding, the Court contrasted what it called the “generality of § 2680(c)” with the “specificity of § 2680(b),” id., at 855. The Court observed:

“One of the principal purposes of the Federal Tort Claims Act was to waive the Government’s immunity from liability for injuries resulting from auto accidents *488in which employees of the Postal System were at fault. In order to ensure that § 2680(b), which governs torts committed by mailmen, did not have the effect of barring precisely the sort of suit that Congress was most concerned to authorize, the draftsmen of the provision carefully delineated the types of misconduct for which the Government was not assuming financial responsibility — namely, ‘the loss, miscarriage, or negligent transmission of letters or postal matter’ — thereby excluding, by implication, negligent handling of motor vehicles.” Ibid, (footnote omitted).

In the present case neither party suggests Kosak’s conclusion regarding negligent operation of postal motor vehicles should be ignored as dictum. In light of Kosak’s discussion, we cannot interpret the phrase “negligent transmission” in § 2680(b) to cover all negligence in the course of mail delivery. Although postal trucks may well be delivering — and thus transmitting — mail when they collide with other vehicles, Kosak indicates the United States, nonetheless, retains no immunity.

Séeking to distinguish postal auto accidents from Dolan’s fall, the Government argues that negligent driving relates only circumstantially to the mail, whereas Dolan’s accident was caused by the mail itself. Nothing in the statutory text supports this distinction. Quite the contrary, if placing mail so as to create a slip-and-fall risk constitutes “negligent transmission,” the same should be true of driving postal trucks in a manner that endangers others on the road. In both cases the postal employee acts negligently while transmitting mail. In addition, as the Second Circuit recognized and as the Government acknowledged at oral argument, focusing on whether the mail itself caused the injury would yield anomalies, perhaps making liability turn on whether a mail sack causing a slip-and-fall was empty or full, or whether a pedestrian sideswiped by a passing truck was hit *489by the side-view mirror or a dangling parcel. See Raila, 355 P. 3d, at 122-123.

We think it more likely that Congress intendedrto retain immunity, as a general rule, only for injuries arising, directly or consequentially, because mail either fails to arrive at all or arrives late, in damaged condition, or at the wrong address. Illustrative instances of the exception’s operation, then, would be personal or financial harms arising from nondelivery or late delivery of sensitive materials or information (e. g., medicines or a mortgage foreclosure notice) or from negligent handling of a mailed parcel (e. g., shattering of shipped china). Such harms, after all, are the sort primarily identified with the Postal Service’s function of transporting mail throughout the United States.

Resisting this conclusion, the Government emphasizes the Postal Service’s vast operations — the 660 million daily mailings and 142 million delivery points mentioned at the outset. See Brief for Respondents 36. As delivery to mailboxes and doorsteps is essential to this nationwide undertaking, Congress must have intended, the Government asserts, to insulate delivery-related torts from liability. If, however, doorstep delivery is essential to the postal enterprise, then driving postal trucks is no less so. And in any event, while it is true “[t]he § 2680 exceptions are designed to protect certain important governmental functions and prerogatives from disruption,” Molzof v. United States, 502 U. S. 301, 311 (1992), the specificity of § 2680(b), see Kosak, supra, at 855, indicates that Congress did not intend to immunize all postal activities.

Other FTCA exceptions paint with a far broader brush. They cover, for example: “[a]ny claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system,” 28 U. S. C. § 2680(i); “[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war,” §2680(j); “[a]ny claim arising in a foreign country,” §2680(k); “[a]ny *490claim arising from the activities of the Tennessee Valley Authority,” §2680(Z), or “the Panama Canal Company,” §2680(m); and “[a]ny claim arising from the activities of a Federal land bank, a Federal intermediate credit bank, or a bank for cooperatives,” § 2680(n). Had Congress intended to preserve immunity for all torts related to postal delivery— torts including hazardous mail placement at customer homes — it could have used similarly sweeping language in § 2680(b). By instead “carefully delineat[ing]” just three types’ of harm (loss, miscarriage, and negligent transmission), see Kosak, 465 U. S., at 855, Congress expressed the intent to immunize only a subset of postal wrongdoing, not all torts committed in the course of mail delivery.

Further supporting our interpretation, losses of the type for which immunity is retained under § 2680(b) are at least to some degree avoidable or compensable through postal registration and insurance. See United States Postal Service, Mailing Standards, Domestic Mail Manual 609.1.1 (Nov. 10, 2005), available at http://pe.usps.gov/text/dmm300/ 609.htm (as visited Jan. 9, 2006, and available in Clerk of Court’s ease file) (allowing indemnity claims for loss or damage of “insured, collect on delivery (COD), registered with postal insurance, or Express Mail”); 39 CFR § 111.1 (2005) (incorporating by reference the Domestic Mail Manual). The same was true when Congress enacted the FTCA in 1946. See 39 U. S. C. §245 (1940 ed. and Supp. V) (setting rates and conditions for mail insurance); §381 (1946 ed.) (“For the greater security of valuable mail matter the Postmaster General may establish a uniform system of registration, and as a part of such system he may provide rules under which the senders or owners of any registered matter shall be indemnified for loss, rifling, or damage thereof in the mails . . . ”). As Kosak explains, one purpose of the FTCA exceptions was to avoid “extending the coverage of the Act to suits for which adequate remedies were already available,” 465 U. S., at 858 — an objective consistent with retain*491ing immunity as to claims of mail damage or delay covered by postal registration and insurance. While the Government suggests other injuries falling outside the FTCA'are also subject to administrative relief, even assuming that is true, the provision the Government cites permits only discretionary relief, not an automatic remedy like postal insurance. See 39 U. S. C. § 2603 (indicating the Postal Service “may adjust and settle” personal-injury and property-damage claims “not cognizable” under the FTCA’s administrative relief provision); see also 31 U. S. C. §224c (1940 ed.) (indicating that “[w]hen any damage is done to person or property by or through the operation of the Post Office Department .. . the Postmaster General is invested with power to adjust and settle any claim for such damage when his award for such damage in any case does not exceed $500”); Legislative Reorganization Act of 1946, § 424(a), 60 Stat. 846-847 (repealing §224c as to negligence claims cognizable under the FTCA).

The Government raises the specter of frivolous slip-and-fall claims inundating the Postal Service. It is true that, in addition to other considerations we have identified, Kosak describes “avoiding exposure of the United States to liability for excessive or fraudulent claims” as a principal aim of the FTCA exceptions, 465 U. S., at 858. Slip-and-fall liability, however, to the extent state tort law imposes it, is a risk shared by any business that makes home deliveries. Given that “negligent transmission,” viewed in context and in light of Kosak, cannot sweep as broadly as the Government claims, ordinary protections against frivolous litigation must suffice here, just as they do in the case of motor vehicle collisions.

Finally, it should be noted that this case does not implicate the general rule that “a waiver of the Government’s sovereign immunity .will be strictly construed, in terms of its scope, in favor of the sovereign,” Lane v. Peña, 518 U. S. 187, 192 (1996). As Kosak explains, this principle is “unhelpful” *492in the FTCA context, where “unduly generous interpretations of the exceptions run the risk of defeating the central purpose of the statute,” 465 U. S., at 853, n. 9, which “waives the Government’s immunity from suit in sweeping language,” United States v. Yellow Cab Co., 340 U. S. 543, 547 (1951); see also United States v. Nordic Village, Inc., 503 U. S. 30, 34 (1992) (observing “[w]e have on occasion narrowly construed exceptions to waivers of sovereign immunity where that was consistent with Congress’ clear intent, as in the context of the ‘sweeping language’ of the [FTCA]” (quoting Yellow Cab Co., supra, at 547)). Hence, “the proper objective of a court attempting to construe one of the subsections of 28 U. S. C. § 2680 is to identify ‘those circumstances which are within the words and reason of the exception’ — no less and no more.” Kosak, supra, at 853, n. 9 (quoting Dalehite v. United States, 346 U. S. 15, 31 (1953)). Having made that inquiry here, we conclude Dolan’s claims fall outside § 2680(b).

* * *

The postal exception is inapplicable, and Dolan’s claim falls within the FTCÁ’s general waiver of federal sovereign immunity. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Thomas,

dissenting.

The Federal Tort Claims Act (FTCA) waives the Government’s sovereign immunity for civil suits seeking money damages

“for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting *493within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred,” 28 U. S. C. § 1346(b)(1),

save several exceptions found in §2680. As relevant here, Congress reserved to the Government its sovereign immunity respecting “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” § 2680(b) (postal exception).

Petitioner Barbara Dolan claims to have suffered personal injuries when she tripped over letters, packages, and periodicals that an employee of the United States Postal Service (Postal Service) negligently left on her porch. Today, the Court concludes that Dolan’s lawsuit may proceed because her claim does not fall within the exception. I disagree. Dolan’s claim arises out of the Postal Service’s “negligent transmission” of mail and is thus covered by the terms of the postal exception. Even if the exception is ambiguous, this Court’s cases require that ambiguities as to the scope of the Government’s waiver of immunity be resolved in its favor. Accordingly, I respectfully dissent.

I

The text of the postal exception, and every term therein, should be ascribed its ordinary meaning. See FDIC v. Meyer, 510 U. S. 471, 477 (1994) (noting that we interpret a statutory term in accordance with its ordinary meaning when that term is not defined in the statute). The term in controversy here is “negligent transmission.” The crux of my disagreement with the majority is its failure to assign the term “transmission” its plain meaning. That term is defined as the “[a]ct, operation, or process, of transmitting.” Webster’s New International Dictionary 2692 (2d ed. 1934, as republished 1945). “Transmit” is defined as, inter alia, “[t]o send or transfer from one person or place to another; to *494forward by rail, post, wire, etc., . . . [t]o cause ... to pass or be conveyed.” Id., at 2692-2693. There is no cause to conclude that Congress was unaware of the ordinary definition of the terms “transmission” and “transmit” when it enacted the FTCA and the postal exception in 1946. Nor is there textual indication that Congress intended to deviate from the ordinary meaning of these terms.1 Accordingly, I would interpret the term “transmission” consistent with its ordinary meaning, see ante, at 486, and conclude that the postal exception exempts the Government from liability for any claim arising out of the negligent delivery of the mail to a Postal Service patron, including Dolan’s slip-and-fall claim.

Rejecting the “ordinary meaning and usage” of “negligent transmission,” the majority concludes that the term covers only injury arising “directly or consequentially” from “negligence causing mail to be lost or to arrive late, in damaged condition, or at the wrong address.” Ante, at 486, 489. Thus, in the majority’s view, “negligent transmission” covers direct injury to the mail as well as personal injury arising from injury to the mail, but does not cover personal injury that does not arise from damage to the mail. For example, in the majority’s view, if a mail carrier negligently drops a box containing glassware on a patron’s doorstep, causing the contents to shatter, and the patron later injures himself while attempting to handle the shards of glass, the postal exception would bar a claim for damages for the destroyed item as well as a related claim for personal injury. That *495view is correct, as far as it goes. However, under the majority’s view, if the mail carrier negligently places a heap of mail on a patron’s front porch and the patron trips and falls over the mail as he walks out of his front door, his personal injury claim may go forward. There is no basis in the text for the line drawn by the majority. Indeed, the majority’s view is at odds with the broad language of the postal exception, which expressly applies to “[a]ny claim arising out of . . . negligent transmission of letters or postal matter.” § 2680(b) (emphasis added).

The majority rationalizes its view by concluding that the terms “loss” and “miscarriage” necessarily limit the term “transmission.” Ante, at 486. Applying the rule of nosci-tur a sociis — that a word is known by the company it keeps— the majority reasons that because both “loss” and “miscarriage” refer to “failings in the postal obligation to deliver mail in a timely manner to the right address, it would be odd if ‘negligent transmission’ swept far more broadly.” Ante, at 487. But there is nothing “odd” about interpreting the term “negligent transmission” to encompass more ground than the decidedly narrower terms “loss” and “miscarriage.”

The rule of noscitur a sociis is intended to prevent ascribing to one word a meaning so expansive that it conflicts with other terms of the provision in a manner that gives “‘unintended breadth to the Acts of Congress.’” Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995) (quoting Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961)). That rule, however, “does not require [the Court] to construe every term in a series narrowly because of the meaning given to just one of the terms,” where, as here, nothing in the text demands a more limited construction. Gustafson, supra, at 586 . (Thomas, J., dissenting) (emphasis deleted). Indeed, to read Congress’ use of narrow terms in a list as limiting the meaning of broad terms in the same list “would defy common sense; doing so would prevent Congress from giving effect to expansive words in a list whenever they are combined *496with one word with a more restricted meaning.” 513 U. S., at 587.

Nor does this Court’s opinion in Kosak v. United States, 465 U. S. 848 (1984), support the majority’s narrow construction of the postal exception. In Kosak, this Court suggested that the postal exception does not apply to suits arising from the negligent handling of motor vehicles by Postal Service employees. Specifically, the Court stated:

“One of the principal purposes of the [FTCA] was to waive the Government’s immunity from liability for injuries resulting from auto accidents .... In order to ensure that § 2680(b)... did not have the effect of barring precisely the sort of suit that Congress was most concerned to authorize, the draftsmen of the provision carefully delineated the types of misconduct for which the Government was not assuming financial responsibility — namely, ‘the loss, miscarriage, or negligent transmission of letters or postal matter’ . . . .” Id., at 855 (emphasis added).

That observation has no import beyond the recognition that the postal exception — whatever its scope may be — was carefully crafted so as not to undermine an undisputed principal purpose of the FTCA — to waive the Government’s immunity for injuries arising from auto accidents. It says nothing further about the acts Congress intended to capture when enacting the postal exception, and, thus, is unremarkable for purposes of construing the exception.2

*497Even if Kosak does inform the outcome in this case, it does not support the majority’s interpretation of “negligent transmission.” As discussed above, the majority does not purport to limit the type of negligent act that may fall under the postal exception; rather it limits the scope of the exception based on the type of consequence that the negligent act causes (damage to the mail, late delivery, etc.). But Kosak's exclusion of the act of negligent driving — regardless of whether the consequence of that act is damage to the mail or injury to a person — from the scope of the postal exception implies, if anything, that the Kosak Court envisioned discrete acts as being covered, independently of the nature of their consequences. See ibid, (excluding “negligent handling of motor vehicles” from the “types of misconduct” for which liability is barred by the postal exception). As such, Kosak does not support an interpretation of “negligent transmission” based upon the type of injury that is caused by the Postal Service’s negligent handling of the mail.

Assuming that the postal exception is ambiguous, as the majority suggests, see ante, at 486-487, settled principles *498governing the interpretation of waivers of sovereign immunity require us to rule in favor of the Government.

A court may only exercise jurisdiction over the Government pursuant to “a clear statement from the United States waiving sovereign immunity ... together with a claim falling within the terms of the waiver.” United States v. White Mountain Apache Tribe, 537 U. S. 465, 472 (2003). “[A] waiver of the Government’s sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Peña, 518 U. S. 187, 192 (1996). These settled legal principles apply not only to the interpretation of the scope of the Government’s waiver of immunity, but also to the interpretation of the scope of any exceptions to that waiver. See ibid, (explaining that, consistent with rules of construction respecting waivers of sovereign immunity, ambiguities created by conditions on and qualifications of the waiver must be strictly construed in favor of sovereign immunity).

Thus, the majority is incorrect to conclude that “this case does not implicate the general rule that ‘a waiver of the Government’s sovereign immunity will be strictly construed, in terms of its scope, in.favor of the sovereign.’” Ante, at 491. As this case clearly illustrates, the Government’s amenability to suit can only be ascertained after construing both the waiver of immunity and its exceptions. The well-established rationale for construing a waiver in favor of the sovereign’s immunity, thus, applies with equal force to the construction of an exception to that waiver. Accordingly, even if I were to conclude that the majority’s interpretation of “negligent transmission” were as plausible as my own, I would still resolve this case in favor of the Government’s sovereign immunity as mandated by our canons of construction.3

*499* * *

For these reasons, I would hold that a tort claim for personal injury arising out of negligent delivery of mail to a postal patron is barred by 28 U. S. C. § 2680(b), the postal exception. Accordingly, I would affirm the judgment of the Court of Appeals.

Mr. Justice Rehnquist delivered the opinion of the Court.

Respondents brought this action in the United States District Court under the Federal Tort Claims Act, 28 U. S. C. §§ 1346 (b), 2671-2680. They sought recovery for property damage allegedly resulting from a sonic boom caused by California-based United States military planes flying over North Carolina on a training mission. The District Court entered summary judgment for petitioners, but on respondents’ appeal the United States Court of *798Appeals for the Fourth Circuit reversed. That court held that, although respondents had been unable to show negligence “either in the planning or operation of the flight,” they were nonetheless entitled to proceed on a theory of strict or absolute liability for ultrahazardous activities conducted by petitioners in their official capacities. That court relied on its earlier opinion in United States v. Praylou, 208 F. 2d 291 (1953), which in turn had distinguished this Court’s holding in Dalehite v. United States, 346 U. S. 15, 45 (1953). We granted certiorari. 404 U. S. 1037.

Dalehite held that the Government was not liable for the extensive damage resulting from the explosion of two cargo vessels in the harbor of Texas City, Texas, in 1947. The Court’s opinion rejected various specifications of negligence on the part of Government employees that had been found by the District Court in that case, and then went on to treat petitioners’ claim that the Government was absolutely or strictly liable because of its having engaged in a dangerous activity. The Court said with respect to this aspect of the plaintiffs’ claim:

“[T]he Act does not extend to such situations, though of course well known in tort law generally. It is to be invoked only on a 'negligent or wrongful act or omission’ of an employee. Absolute liability, of course, arises irrespective of how the tortfeasor conducts himself; it is imposed automatically when any damages are sustained as a result of the decision to engage in the dangerous activity.” 346 U. S., at 44.

This Court’s resolution of the strict-liability issue in Dalehite did not turn on the question of whether the law of Texas or of some other State did or did not recognize strict liability for the conduct of ultrahazardous activities. It turned instead on the question of whether the language of the Federal Tort Claims Act permitted *799under any circumstances the imposition of liability upon the Government where there had been neither negligence nor wrongful act. The necessary consequence of the Court’s holding in Dalehite is that the statutory language “negligent or wrongful act or omission of any employee of the Government,” is a uniform federal limitation on the types of acts committed by its employees for which the United States has consented to be sued. Regardless of state law characterization, the Federal Tort Claims Act itself precludes the imposition of liability if there has been no negligence or other form of “misfeasance or nonfeasance,” 346 U. S., at 45, on the part of the Government.

It is at least theoretically possible to argue that since Dalehite in discussing the legislative history of the Act said that “wrongful” acts could include some kind of trespass, and since courts imposed liability in some of the early blasting cases on the theory that the plaintiff’s action sounded in trespass, liability could be imposed on the Government in this case on a theory of trespass which would be within the Act’s waiver of immunity. We believe, however, that there is more than one reason for rejecting such an alternate basis of governmental liability here.

The notion that a military plane on a high-altitude training flight itself intrudes upon any property interest of an owner of the land over which it flies was rejected in United States v. Causby, 328 U. S. 256 (1946). There this Court, construing the Air Commerce Act of 1926, 44 Stat. 568, as amended by the Civil Aeronautics Act of 1938, 52 Stat. 973, 49 U. S. C. §401, said:

“It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe — Cujus est solum ejus est usque ad coelum. But that doctrine has no place in the modern world. The air is a public highway, as Congress has declared. *800Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.” 328 U. S., at 260-261.

Thus, quite apart from what would very likely be insuperable problems of proof in connecting the passage of the plane over the owner’s air space with any ensuing damage from a sonic boom, this version of the trespass theory is ruled out by established federal law. Perhaps the precise holding of United States v. Causby, supra, could be skirted by analogizing the pressure wave of air characterizing a sonic boom to the concussion that on occasion accompanies blasting, and treating the air wave striking the actual land of the property owner as a direct intrusion caused by the pilot of the plane in the mold of the classical common-law theory of trespass.

It is quite clear, however, that the presently prevailing view as to the theory of liability for blasting damage is frankly conceded to be strict liability for undertaking an ultrahazardous activity, rather than any attenuated notion of common-law trespass. See Restatement of Torts §§ 519, 520 (e); W. Prosser, Law of Torts § 75 (4th ed. 1971). While a leading North Carolina case on the subject of strict liability discusses the distinction between actions on the case and actions sounding in trespass that the earlier decisions made, it, too, actually grounds liability on the basis that he who engages in ultrahazardous activity must pay his way regardless of what precautions he may have taken. Guilford Realty & Ins. Co. v. Blythe Bros. Co., 260 N. C. 69, 131 S. E. 2d 900 (1963).

More importantly, however, Congress in considering the Federal Tort Claims Act cannot realistically be said *801to have dealt in terms of either the jurisprudential distinctions peculiar to the forms of action at common law or the metaphysical subtleties that crop up in even contemporary discussions of tort theory. See Prosser, supra, at 492-496. The legislative history discussed in Dalehite indicates that Congress intended to permit liability essentially based on the intentionally wrongful or careless conduct of Government employees, for which the Government was to be made liable according to state law under the doctrine of respondeat superior, but to exclude liability based solely on the ultrahazardous nature of an activity undertaken by the Government.

A House Judiciary Committee memorandum explaining the “discretionary function” exemption from the bill when that exemption first appeared in the draft legislation in 1942 made the comment that “the cases covered by that subsection would probably have been exempted ... by judicial construction” in any event, but that the exemption was intended to preclude any possibility

“that the act would be construed to authorize suit for damages against the Government growing out of a legally authorized activity, such as a flood-control or irrigation project, where no wrongful act or omission on the part of any Government agent is shown, and the only ground for suit is the contention that the same conduct by a private individual would be tortious . . . .” Hearings on H. R. 5373 and H. R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., ser. 13, pp. 65-66 (1942).

The same memorandum, after noting the erosion of the doctrine of sovereign immunity over the years, observed with respect to the bill generally:

“Yet a large and highly important area remains in which no satisfactory remedy has been provided *802for the wrongs of Government officers or employees, the ordinary 'commonlaw’ type of tort, such as personal injury or property damage caused by the negligent operation of an automobile.” Id., at 39.

The type of trespass subsumed under the Act’s language making the Government liable for “wrongful” acts of its employees is exemplified by the conduct of the Government agents in Hatahley v. United States, 351 U. S. 173, 181. Liability of this type under the Act is not to be broadened beyond the intent of Congress by dressing up the substance of strict liability for ultra-hazardous activities in the garments of common-law trespass. To permit respondent to proceed on a trespass theory here would be to judicially admit at the back door that which has been legislatively turned away at the front door. We do not believe the Act permits such a result.

Shortly after the decision of this Court in Dalehite, the facts of the Texas City catastrophe were presented to Congress in an effort to obtain legislative relief from that body. Congress, after conducting hearings and receiving reports, ultimately. enacted a bill granting compensation to the victims in question. 69 Stat. 707; H. R. Rep. No. 2024, 83d Cong., 2d Sess. (1954); S. Rep. No. 2363, 83d Cong., 2d Sess. (1954); H. R. Rep. No. 1305, 84th Cong., 1st Sess. (1955); H. R. Rep. No. 1623, 84th Cong., 1st Sess. (1955); S. Rep. No. 684, 84th Cong., 1st Sess. (1955). At no time during these hearings was there any effort made to modify this Court’s construction of the Tort Claims Act in Dalehite. Both by reason of stare decisis and by reason of Congress’ failure to make any statutory change upon again reviewing the subject, we regard the principle enunciated in Dalehite as controlling here.

Since Dalehite held that the Federal Tort Claims Act did not authorize suit against the Government on claims *803based on strict liability for ultrahazardous activity, the Court of Appeals in the instant case erred in reaching a contrary conclusion. While as a matter of practice within the Circuit it may have been proper to rely upon United States v. Praylou, 208 F. 2d 291, it is clear that the holding of the latter case permitting imposition of strict liability on the Government where state law permits it is likewise inconsistent with Dalehite. Dalehite did not depend on the factual question of whether the Government was handling dangerous property, as opposed to operating a dangerous instrument but, rather, on the Court’s determination that the Act did not authorize the imposition of strict liability of any sort upon the Government. Indeed, even the dissenting opinion in Dalehite did not disagree with the conclusion of the majority on that point.

Our reaffirmation of the construction put on the Federal Tort Claims Act in Dalehite makes it unnecessary to treat the scope of the discretionary-function exemption contained in the Act, or the other matters dealt with by the Court of Appeals.

Reversed.

Mr. Justice Douglas, having heard the argument, withdrew from participation in the consideration or decision of this case.

Mr. Justice Stewart,

with whom Mr. Justice Brennan joins,

dissenting.

Under the Federal Tort Claims Act, the United States is liable for injuries to persons or property

“caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in *804accordance with the law of the place where the act or omission occurred.” 28 U. S. C. § 1346 (b).

The Court of Appeals in this case found that the law of North Carolina renders a person who creates a sonic boom absolutely liable for any injuries caused thereby, and that finding is not challenged here.1 And while the petitioners argue that the conduct involved falls within one of the numerous express exceptions to the coverage of the Act contained in § 2680,2 the Court today does not reach that issue. Rather, the Court holds that the words “negligent or wrongful act or omission” preclude the application to the United States of any state law under which persons may be held absolutely liable for injuries caused by certain kinds of conduct. In my view, this conclusion is not justified by the language or the history of the Act, and is plainly contrary to the statutory purpose. I therefore dissent.

In the vast majority of cases in the law of torts, liability is predicated on a breach of some legal duty owed by the defendant to the plaintiff, whether that duty involves exercising reasonable care in one’s activities or refraining from certain activities altogether. The law of most jurisdictions, however, imposes liability for harm caused by certain narrowly limited kinds of activities even though those activities are not prohibited and even though the actor may have exercised the utmost care. Such conduct is “tortious,” not because the actor is necessarily blameworthy, but because society has made *805a judgment that while the conduct is so socially valuable that it should not be prohibited, it nevertheless carries such a high risk of harm to others, even in the absence of negligence, that one who engages in it should make good any harm caused to others thereby. See generally 2 F. Harper & F. James, Law of Torts 785-795, 815-816 (1956); W. Prosser, Law of Torts 442-496 (4th ed. 1971).

While the doctrine of absolute liability is not encountered in many situations even under modern tort law, it was nevertheless well established at the time the Tort Claims Act was enacted, and there is nothing in the language or the history of the Act to support the notion that this doctrine alone, among all the rules governing tort liability in the various States, was considered inapplicable in cases arising under the Act. The legislative history quoted by the Court relates solely to the “discretionary function” exception contained in § 2680, an exception upon which the Court specifically declines to rely.3 As I read the Act and the legislative *806history, the phrase “negligent or wrongful act or omission” was intended to include the entire range of conduct classified as tortious under state law.4 The only intended exceptions to this sweeping waiver of governmental immunity were those expressly set forth and now collected in § 2680.5 This interpretation was put upon *807the Act by the legislative committees that recommended its passage in 1946: “The present bill would establish a uniform system . . . permitting suit to be brought on any tort claim . . . with the exception of certain classes of torts expressly exempted from the operation of the act.” (Emphasis supplied.) H. R. Rep. No. 1287, 79th Cong., 1st Sess., 3; S. Rep. No. 1400, 79th Cong., 2d Sess., 31. See Peck, Absolute Liability and the Federal Tort Claims Act, 9 Stan. L. Rev. 433, 441-450 (1957).

The Court rests its conclusion on language from Dalehite v. United States, 346 U. S. 15, where a four-man majority of the Court, in an opinion dealing primarily with the “discretionary function” exception, held the doctrine of absolute liability inapplicable in that extremely unusual case arising under the Federal Tort Claims Act. That language has been severely criticized;6 *808it has not since been relied upon in any decision of this Court; and it was rejected as a general principle by at least one Court of Appeals less than a year after Dalehite was decided. United States v. Praylou, 208 F. 2d 291, 295. Moreover, Dalehite represented an approach to interpretation of the Act that was abruptly changed only two years later in Indian Towing Co. v. United States, 350 U. S. 61. That decision rejected the proposition that the United States was immune from liability where the activity involved was “governmental” rather than “proprietary” — a proposition that seemingly had been established in Dalehite.7 And while the Dalehite opinion explicitly created a presumption in favor of sovereign immunity, to be overcome only where relinquishment by Congress was “clear,” 346 U. S., at 30-31, the Court in Indian Towing recognized that the Tort Claims Act “cuts the ground from under” the doctrine of sovereign immunity, and cautioned that a court should not “as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it.” 350 U. S., at 65, 69. See also Rayonier, Inc. v. United States, 352 U. S. 315, 319-320. These developments, together with an approving citation of the Praylou case in Rayonier, supra, at 319 n. 2, have until today been generally understood to mean that the language in Dalehite rejecting the absolute-liability doctrine had been implicitly abandoned.8

*809The rule announced by the Court today seems to me contrary to the whole policy of the Tort Claims Act. For the doctrine of absolute liability is applicable not only to sonic booms, but to other activities that the Government carries on in common with many private citizens. Absolute liability for injury caused by the concussion or debris from dynamite blasting, for example, is recognized by an overwhelming majority of state courts.9 A private person who detonates an explosion in the process of building a road is liable for injuries to others caused thereby under the law of most States even though he took all practicable precautions to prevent such injuries, on the sound principle that he who creates such a hazard should make good the harm that results. Yet if employees of the United States engage in exactly the same conduct with an identical result, the United States will not, under the principle announced by the Court today, be liable to the injured party. Nothing in the language or the legislative history of the Act compels such a result, and we should not lightly conclude that Congress intended to create a situation so much at odds with common sense and the basic rationale of the Act. We recognized that rationale in Rayonier, supra, a case involving negligence by employees of the United States in controlling a forest fire:

“Congress was aware that when losses caused by such negligence are charged against the public treasury they are in effect spread among all those who contribute financially to the support of the Government and the resulting burden on each tax*810payer is relatively slight. But when the entire burden falls on the injured party it may leave him destitute or grievously harmed. Congress could, and apparently did, decide that this would be unfair when the public as a whole benefits from the services performed by Government employees.” 352 U. S., at 320.

For the reasons stated, I would hold that the doctrine of absolute liability is applicable to conduct of employees of the United States under the same circumstances as those in which it is applied to the conduct of private persons under the law of the State where the conduct occurs. That holding would not by itself be dispositive of this case, however, for the petitioners argue that liability is precluded by the “discretionary function” exception in the Act. While the Court does not reach this issue, I shall state briefly the reasons for my conclusion that the exception is inapplicable in this case.

No right of action lies under the Tort Claims Act for any claim

“based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U. S. C. § 2680 (a).

The Assistant Attorney General who testified on the bill before the House committee indicated that this provision was intended to create no exceptions beyond those that courts would probably create without it:

“[I]t is likely that the cases embraced within that subsection would have been exempted from [a bill *811that did not include the exception] by judicial construction. It is not probable that the courts would extend a Tort Claims Act into the realm of the validity of legislation or discretionary administrative action, but [the recommended bill] makes this specific.” Hearings on H. R. 5373 and H. R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., ser. 13, p. 29.

The Dalehite opinion seemed to say that no action of a Government employee could be made the basis for liability under the Act if the action involved “policy judgment and decision.” 346 U. S., at 36. Decisions in the courts of appeals following Dalehite have interpreted this language as drawing a distinction between “policy” and “operational” decisions, with the latter falling outside the exception.10 That distinction has bedeviled the courts that have attempted to apply it to torts outside routine categories such as automobile accidents, but there is no need in the present case to explore the limits of the discretionary function exception.

The legislative history indicates that the purpose of this statutory exception was to avoid any possibility that policy decisions of Congress, of the Executive, or of administrative agencies would be second-guessed by courts in the context of tort actions.11 There is no such danger *812in this case, for liability does not depend upon a judgment as to whether Government officials acted irresponsibly or illegally. Rather, once the creation of sonic booms is determined to be an activity as to which the doctrine of absolute liability applies, the only questions for the court relate to causation and damages. Whether or not the decision to fly a military aircraft over the respondents’ property, at a given altitude and at a speed three times the speed of sound, was a decision at the “policy” or the “operational” level, the propriety of that decision is irrelevant to the question of liability in this case, and thus the discretionary function exception does not apply.

*533 Justice Marshall

delivered the opinion of the Court.

The question in this case is whether the discretionary function exception of the Federal Tort Claims Act (FTCA or Act), 28 U. S. C. § 2680(a), bars a suit based on the Government’s licensing of an oral polio vaccine and on its subsequent approval of the release of a specific lot of that vaccine to the public.

I

On May 10, 1979, Kevan Berkovitz, then a 2-month-old infant, ingested a dose of Orimune, an oral polio vaccine manufactured by Lederle Laboratories. Within one month, he contracted a severe case of polio. The disease left Berkovitz almost completely paralyzed and unable to breathe without the assistance of a respirator. The Communicable Disease Center, an agency of the Federal Government, determined that Berkovitz had contracted polio from the vaccine.

Berkovitz, joined by his parents as guardians, subsequently filed suit against the United States in Federal District Court. 1 The complaint alleged that the United States was liable for his injuries under the FTCA, 28 U. S. C. §§ 1346(b), 2674, because the Division of Biologic Standards (DBS), then a part of the National Institutes of Health, had acted wrongfully in licensing Lederle Laboratories to produce Orimune and because the Bureau of Biologies of the Food and Drug Administration (FDA) had acted wrongfully in approving release to the public of the particular lot of vaccine containing Berkovitz’s dose. According to petitioners, these actions violated federal law and policy regarding the inspection and approval of polio vaccines.

The Government moved to dismiss the suit for lack of subject-matter jurisdiction on the ground that the agency actions fell within the discretionary function exception of the FTCA. The District Court denied this motion, concluding *534 that neither the licensing of Orimune nor the release of a specific lot of that vaccine to the public was a “discretionary function” within the meaning of the FTCA. Civ. Action No. 84-2893 (WD Pa., Apr. 30, 1986). At the Government’s request, the District Court certified its decision for immediate appeal to the Third Circuit pursuant to 28 U. S. C. § 1292(b), and the Court of Appeals accepted jurisdiction.

A divided panel of the Court of Appeals reversed. 822 F. 2d 1322 (1987). The court initially rejected the Government’s argument that the discretionary function exception bars all claims arising out of the regulatory activities of federal agencies. The court stated that “the discretionary function exception-is inapplicable to non-discretionary regulatory actions,” id., at 1328, and noted that employees of regulatory agencies have no discretion to violate the command of federal statutes or regulations. Contrary to petitioners’ claim, however, the court held that federal law imposed no duties on federal agencies with respect to the licensing of polio virus vaccines or the approval of the distribution of particular vaccine lots to the public. Likening the applicable regulatory scheme to the scheme found to confer discretionary regulatory authority in United States v. Varig Airlines, 467 U. S. 797 (1984), the court concluded that the licensing and release of polio vaccines were wholly discretionary actions and, as such, could not form the basis for suit against the United States. A dissenting judge argued that the relevant statutes and regulations obligated the DBS to require the submission of test data relating to a vaccine from the manufacturer and to deny a license when the test data showed that the vaccine failed to conform with applicable safety standards. Reading the complaint in this case as alleging a failure on the part of the DBS to act in accordance with these directives, the dissenting judge concluded that the discretionary function exception did not bar petitioners’ suit.

We granted certiorari, 484 U. S. 1003 (1988), to resolve a conflict in the Circuits regarding the effect of the discre *535 tionary function exception on claims arising from the Government’s regulation of polio vaccines. Compare 822 F. 2d 1322, supra, with Baker v. United States, 817 F. 2d 560, 564-566 (CA9 1987) (holding that discretionary function exception did not bar suit alleging a negligent decision to license a polio vaccine); Loge v. United States, 662 F. 2d 1268, 1272-1273 (CA8 1981) (holding that discretionary function exception did not bar suit alleging negligence in both the licensing of a polio vaccine and the release of a particular vaccine lot). We now reverse the Third Circuit’s judgment.

HH J-H

The FTGA, 28 U. S. C. § 1346(b), generally authorizes suits against the United States for damages

“for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 2

The Act includes a number of exceptions to this broad waiver of sovereign immunity. The exception relevant to this case provides that no liability shall lie for

“[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U. S. C. §2680(a).

*536 This exception, as we stated in our most recent opinion on the subject, “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. Varig Airlines, 467 U. S., at 808.

The determination of whether the discretionary function exception bars a suit against the Government is guided by several established principles. This Court stated in Varig that “it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.” Id., at 813. In examining the nature of the challenged conduct, a court must first consider whether the action is a matter of choice for the acting employee. This inquiry is mandated by the language of the exception; conduct cannot be discretionary unless it involves an element of judgment or choice. See Dalehite v. United States, 346 U. S. 15, 34 (1953) (stating that the exception protects “the discretion of the executive or the administrator to act according to one’s judgment of the best course”). Thus, the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive. And if the employee’s conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect. Cf. Westfall v. Erwin, 484 U. S. 292, 296-297 (1988) (recognizing that conduct that is not the product of independent judgment will be unaffected by threat of liability).

Moreover, assuming the challenged conduct involves an element of judgment, a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. The basis for the discretionary function exception was Congress’ desire to “prevent judicial *537 ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” United States v. Varig Airlines, supra, at 814. The exception, properly construed, therefore protects only governmental actions and decisions based on considerations of public policy. See Dalehite v. United States, supra, at 36 (“Where there is room for policy judgment and decision there is discretion”). In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment.

This Court’s decision in Varig Airlines illustrates these propositions. The two cases resolved in that decision were tort suits by the victims of airplane accidents who alleged that the Federal Aviation Administration (FAA) had acted negligently in certifying certain airplanes for operation. The Court characterized the suits as challenging the FAA’s decision to certify the airplanes without first inspecting them and held that this decision was a discretionary act for which the Government was immune from liability. In reaching this result, the Court carefully reviewed the statutory and regulatory scheme governing the inspection and certification of airplanes. Congress had given the Secretary of Transportation broad authority to establish and implement a program for enforcing compliance with airplane safety standards. In the exercise of that authority, the FAA, as the Secretary’s designee, had devised a system of “spot-checking” airplanes for compliance. This Court first held that the establishment of that system was a discretionary function within the meaning of the FTCA because it represented a policy determination as to how best to “accommodat[e] the goal of air transportation safety and the reality of finite agency resources.” 467 U. S., at 820. The Court then stated that the discretionary function exception also protected “the acts of FAA employees in executing the ‘spot-check’ program” because under this program the employees “were specifically em *538 powered to make policy judgments regarding the degree of confidence that might reasonably be placed in a given manufacturer, the need to maximize compliance with FAA regulations, and the efficient allocation of agency resources.” Ibid. Thus, the Court held the challenged acts protected from liability because they were within the range of choice accorded by federal policy and law and were the results of policy determinations. 3

In restating and clarifying the scope of the discretionary function exception, we intend specifically to reject the Government’s argument, pressed both in this Court and the Court of Appeals, that the exception precludes liability for any and all acts arising out of the regulatory programs of federal agencies. That argument is rebutted first by the language of the exception, which protects “discretionary” functions, rather than “regulatory” functions. The significance of Congress’ choice of language is supported by the legislative history. ' As this Court previously has indicated, the relevant legislative materials demonstrate that the exception was designed to cover not all acts of regulatory agencies and their employees, but only such acts as are “discretionary” in nature. 4 See Dalehite v. United States, supra, at 33-34. *539 This coverage accords with Congress’ purpose in enacting the exception: to prevent “[j]udicial intervention in . . . the political, social, and economic judgments” of governmental-including regulatory — agencies. United States v. Varig Airlines, 467 U. S., at 820. Moreover, this Court twice before has rejected a variant of the Government’s position. See Indian Towing Co. v. United States, 350 U. S. 61, 64-65 (1955) (disapproving argument that FTCA precludes liability for the performance of “uniquely governmental functions”); Rayonier, Inc. v. United States, 352 U. S. 315, 318-319 (1957) (same). 5 And in Varig, we ignored the precise argument the Government makes in this case, focusing instead on the particular nature of the regulatory conduct at issue. To the extent we have not already put the Government’s argument to rest, we do so now. The discretionary function exception applies only to conduct that involves the permissible exercise of policy judgment. The question in this case is whether the governmental activities challenged by petitioners are of this discretionary nature.

I — I HH HH

Petitioners suit raises two broad claims. First, petitioners assert that the DBS violated a federal statute and *540 accompanying regulations in issuing a license to Lederle Laboratories to produce Orimune. Second, petitioners argue that the Bureau of Biologies of the FDA violated federal regulations and policy in approving the release of the particular lot of Orimune that contained Kevan Berkovitz’s dose. We examine each of these broad claims by reviewing the applicable regulatory scheme and petitioners’ specific allegations of agency wrongdoing. 6 Because the decision we review adjudicated a motion to dismiss, we accept all of the factual allegations in petitioners’ complaint as true and ask whether, in these circumstances, dismissal of the complaint was appropriate.

A

Under federal law, a manufacturer must receive a product license prior to marketing a brand of live oral polio vaccine. See 58 Stat. 702, as amended, 42 U. S. C. § 262(a). In order to become eligible for such a license, a manufacturer must first make a sample of the vaccine product. See 42 CFR §73.3 (Supp. 1964); 21 CFR §601.2 (1987). 7 This process *541 begins with the selection of an original virus strain. The manufacturer grows a seed virus from this strain; the seed virus is then used to produce monopools, portions of which are combined to form the consumer-level product. Federal regulations set forth safety criteria for the original strain, see 42 CFR § 73.110(b)(2) (Supp. 1964); 21 CFR § 630.10(b)(2) (1987), the seed virus, see 42 CFR §§ 73.110(b)(3), (4) (Supp. 1964); 21 CFR §§630.10(b)(3), (4) (1987), and the vaccine monopools, see 42 CFR §73.114 (Supp. 1964); 21 CFR §630.16 (1987). Under the regulations, the manufacturer must conduct a variety of tests to measure the safety of the product at each stage of the manufacturing process. See 42 CFR §§73.110, 73.114 (Supp. 1964); 21 CFR §§630.10, 630.16 (1987). Upon completion of the manufacturing process and the required testing, the manufacturer is required to submit an application for a product license to the DBS. See 42 CFR §73.3 (Supp. 1964); 21 CFR §601.2 (1987). 8 In addition to this application, the manufacturer must submit data from the tests performed and a sample of the finished product. Ibid.

In deciding whether to issue a license, the DBS is required to comply with certain statutory and regulatory provisions. The Public Health Service Act provides:

“Licenses for the maintenance of establishments for the propagation or manufacture and preparation of products [including polio vaccines] may be issued only upon a showing that the establishment and the products for which a license is desired meet standards, designed to insure the continued safety, purity, and potency of such products, prescribed in regulations, and licenses for new products may be issued only upon a showing that they *542 meet such standards. All such licenses shall be issued, suspended, and revoked as prescribed by regulations . . . .” §351(d), 58 Stat. 702-703, as amended, 42 U. S. C. § 262(d).

A regulation similarly provides that “[a] product license shall be issued only upon examination of the product and upon a determination that the product complies with the standards prescribed in the regulations . . . .” 42 CFR § 73.5(a) (Supp. 1964); see 21 CFR § 601.4 (1987). In addition, a regulation states that “[a]n application for license shall not be considered as filed” until the DBS receives the information and data regarding the product that the manufacturer is required to submit. 42 CFR § 73.3 (Supp. 1964); 21 CFR § 601.2 (1987). These statutory and regulatory provisions require the DBS, prior to issuing a product license, to receive all data the manufacturer is required to submit, to examine the product, and to make a determination that the product complies with safety standards.

Petitioners’ first allegation with regard to the licensing of Orimune is that the DBS issued a product license without first receiving data that the manufacturer must submit showing how the product, at the various stages of the manufacturing process, matched up against regulatory safety standards. See App. 12-13; Brief for Petitioners 5-6. The discretionary function exception does not bar a cause of action based on this allegation. The statute and regulations described above require, as a precondition to licensing, that the DBS receive certain test data from the manufacturer relating to the product’s compliance with regulatory standards. See § 351(d), 58 Stat. 702-703, as amended, 42 U. S. C. § 262(d) (providing that a license shall issue “only upon a showing” by the manufacturer); 42 CFR §73.3 (Supp. 1964); 21 CFR §601.2 (1987) (providing that application for license shall be deemed as filed only upon receipt of relevant test data). The DBS has no discretion to issue a license without first receiving the required test data; to do so would violate a specific statutory *543 and regulatory directive. Accordingly, to the extent that petitioners’ licensing claim is based on a decision of the DBS to issue a license without having received the required test data, the discretionary function exception imposes no bar.

Petitioners’ other allegation regarding the licensing of Orimune is difficult to describe with precision. Petitioners contend that the DBS licensed Orimune even though the vaccine did not comply with certain regulatory safety standards. See App. 12; Brief for Petitioners 4-6. 9 This charge may be understood in any of three ways. First, petitioners may mean that the DBS licensed Orimune without first making a determination as to whether the vaccine complied with regulatory standards. Second, petitioners may intend to argue that the DBS specifically found that Orimune failed to comply with certain regulatory standards and nonetheless issued a license for the vaccine’s manufacture. Third, petitioners may concede that the DBS made a determination of compliance, but allege that this determination was incorrect. Neither *544 petitioners’ complaint nor their briefs and argument before this Court make entirely clear their theory of the case.

If petitioners aver that the DBS licensed Orimune either without determining whether the vaccine complied with regulatory standards or after determining that the vaccine failed to comply, the discretionary function exception does not bar the claim. Under the scheme governing the DBS’s regulation of polio vaccines, the DBS may not issue a license except upon an examination of the product and a determination that the product complies with all regulatory standards. See 42 CFR § 73.5(a) (Supp. 1964); 21 CFR §601.4 (1987). The agency has no discretion to deviate from this mandated procedure. 10 Petitioners’ claim, if interpreted as alleging that the DBS licensed Orimune in the absence of a determination that the vaccine complied with regulatory standards, therefore does not challenge a discretionary function. Rather, the claim charges a failure on the part of the agency to perform its clear duty under federal law. When a suit charges an agency with failing to act in accord with a specific mandatory directive, the discretionary function exception does not apply.

If petitioners’ claim is that the DBS made a determination that Orimune complied with regulatory standards, but that the determination was incorrect, the question of the applicability of the discretionary function exception requires a some *545 what different analysis. In that event, the question turns on whether the manner and method of determining compliance with the safety standards at issue involve agency judgment of the kind protected by the discretionary function exception. 11 Petitioners contend that the determination involves the application of objective scientific standards, see Brief for Petitioners 16-17, whereas the Government asserts that the determination incorporates considerable “policy judgment,” Brief for United States 36. In making these assertions, the parties have framed the issue appropriately; application of the discretionary function exception to the claim that the determination of compliance was incorrect hinges on whether the agency officials making that determination permissibly exercise policy choice. The parties, however, have not addressed this question in detail, and they have given us no indication of the way in which the DBS interprets and applies the regulations setting forth the criteria for compliance. Given that these regulations are particularly abstruse, we hesitate to decide the question on the scanty record before us. We therefore leave it to the District Court to decide, if petitioners choose to press this claim, whether agency officials appropriately exercise policy judgment in determining that a vaccine product complies with the relevant safety standards.

B

The regulatory scheme governing release of vaccine lots is distinct from that governing the issuance of licenses. The former set of regulations places an obligation on manufacturers to examine all vaccine lots prior to distribution to ensure that they comply with regulatory standards. See 21 CFR *546 §610.1 (1978). 12 These regulations, however, do not impose a corresponding duty on the Bureau of Biologies, Although the regulations empower the Bureau to examine any vaccine lot and prevent the distribution of a noncomplying lot, see 21 CFR § 610.2(a) (1978), they do not require the Bureau to take such action in all cases. The regulations generally allow the Bureau to determine the appropriate manner in which to regulate the release of vaccine lots, rather than mandating certain kinds of agency action. The regulatory scheme governing the release of vaccine lots is substantially similar in this respect to the scheme discussed in United States v. Varig Airlines, 467 U. S. 797 (1984).

Given this regulatory context, the discretionary function exception bars any claims that challenge the Bureau’s formulation of policy as to the appropriate way in which to regulate the release of vaccine lots. Cf. id., at 819-820 (holding that discretionary function exception barred claim challenging FAA’s decision to establish a spot-checking program). In addition, if the policies and programs formulated by the Bureau allow room for implementing officials to make independent policy judgments, the discretionary function exception protects the acts taken by those officials in the exercise of this discretion. Cf. id., at 820 (holding that discretionary function exception barred claim that employees charged with executing the FAA’s spot-checking program made negligent policy judgments respecting the proper inspection of airplanes). The discretionary function exception, however, does not apply if the acts complained of do not involve the permissible exercise of policy discretion. Thus, if the Bureau’s policy leaves no room for an official to exercise policy judgment in performing a given act, or if the act simply does *547 not involve the exercise of such judgment, the discretionary function exception does not bar a claim that the act was negligent or wrongful. Cf. Indian Towing Co. v. United States, 350 U. S., at 69 (holding that a negligent failure to maintain a lighthouse in good working order subjected the Government to suit under the FTCA even though the initial decision to undertake and maintain lighthouse service was a discretionary policy judgment).

Viewed in light of these principles, petitioners’ claim regarding the release of the vaccine lot from which Ke'van Berkovitz received his dose survives the Government’s motion to dismiss. Petitioners allege that, under the authority granted by the regulations, the Bureau of Biologies has adopted a policy of testing all vaccine lots for compliance with safety standards and preventing the distribution to the public of any lots that fail to comply. Petitioners further allege that notwithstanding this policy, which allegedly leaves no room for implementing officials to exercise independent policy judgment, employees of the Bureau knowingly approved the release of a lot that did not comply with safety standards. See App. 13; Brief for Petitioners 20 — 21; Reply Brief for Petitioners 15-17. Thus, petitioners’ complaint is directed at a governmental action that allegedly involved no policy discretion. Petitioners, of course, have not proved their factual allegations, but they are not required to do so on a motion to dismiss. If those allegations are correct — that is, if the Bureau’s policy did not allow the official who took the challenged action to release a noncomplying lot on the basis of policy considerations — the discretionary function exception does not bar the claim. 13 Because petitioners may yet show, *548 on the basis of materials obtained in discovery or otherwise, that the conduct challenged here did not involve the permissible exercise of policy discretion, the invocation of the discretionary function exception to dismiss petitioners’ lot release claim was improper.

<1

For the foregoing reasons, the Court of Appeals erred in holding that the discretionary function exception required the dismissal of petitioners’ claims respecting the licensing of Orimune and the release of a particular vaccine lot. The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Utter, J.

Patti Bailey suffered serious injury when a motorcycle on which she was a passenger collided with a truck. She filed a complaint against the Town of Forks, *264alleging her injuries directly and proximately resulted from a town police officer's failure to prevent a man he knew to be heavily intoxicated from driving a truck. The trial court dismissed the complaint on a motion for judgment on the pleadings under CR 12(c). The Court of Appeals, relying on the "public duty doctrine," affirmed dismissal. Bailey v. Forks, 38 Wn. App. 656, 688 P.2d 526 (1984). Although the wisdom and continued viability of the public duty doctrine remains a subject of debate, resolution of this case does not require us to reach any conclusions as to its continued application. Ms. Bailey's allegations fit within one of our recognized exceptions to the public duty doctrine. Consequently, we reverse and remand for trial.

Forks moved for judgment on the pleadings and therefore admits, for the purposes of the motion, the truth of every fact well pleaded by Ms. Bailey. See Pearson v. Vandermay, 67 Wn.2d 222, 407 P.2d 143 (1965). Accordingly, we consider whether the facts alleged in the complaint, Bailey's only pleading, establish a basis for liability.

Her complaint alleges the following:

2. Accident. On or about August 5, 1979, at approximately 2:10 a.m., on the Bogachiel Road, about five miles from Forks, Washington, an automobile-motorcycle collision occurred when a pickup truck driven by Harvey Medley made an illegal left turn in front of the motorcycle driven by Paul W. Peterson. Mr. Peterson was fatally injured and his passenger, plaintiff Patti Bailey, was seriously and permanently injured.

3. Harvey Medley Intoxication. Harvey Medley was intoxicated at the time of the accident.

4. Defendant's Knowledge of Medley's Condition. Mike Riddle, a duly authorized police officer and agent of the Town of Forks, was in official contact with Harvey Medley shortly before the above-described accident regarding Medley's involvement in an altercation at or near the Vagabond Lounge. Officer Riddle, as an agent of the Town of Forks, and while operating within the scope of that agency, knew or should have known that Harvey Medley was intoxicated to such an extent as to be physically and legally unfit to drive his pickup truck and therefore, a hazard to other users of the highways. Nev*265ertheless, Officer Riddle ordered Harvey Medley to leave the area and personally observed him enter his truck "behind the wheel".

Clerk's Papers, at 22-23.

Relying on these facts, Bailey further alleged that the officer was negligent "in failing to prevent Harvey Medley from driving his vehicle while obviously impaired by intoxication." Clerk's Papers, at 23.

Municipalities in this state are no longer broadly protected by the shield of sovereign immunity. In 1967, by adopting RCW 4.96.010, the Legislature decreed that municipal corporations "shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their officers ... to the same extent as if they were a private person or corporation ..." This statute, however, does not render the State liable for all official misconduct. At some point, tort liability ends and governing begins. See King v. Seattle, 84 Wn.2d 239, 243, 525 P.2d 228 (1974); Evangelical United Brethren Church v. State, 67 Wn.2d 246, 253, 407 P.2d 440 (1965). Because judicial abstention is required where the responsibility for "'basic policy decisions has been committed to coordinate branches of government", discretionary policymaking decisions remain protected from suit. King v. Seattle, 84 Wn.2d at 246. Discretionary decisions by police officers in the field, however, are not immune. Bender v. Seattle, 99 Wn.2d 582, 590, 664 P.2d 492 (1983).

Forks argues, and the Court of Appeals agreed, that under the "public duty doctrine" the officer owed no duty of care to Ms. Bailey upon which liability for negligence could be imposed. We have described the public duty doctrine as " provid [ing] generally that for one to recover from a municipal corporation in tort it must be shown that the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one)." J & B Dev. Co. v. King Cy., 100 Wn.2d 299, 303, 669 P.2d 468, 41 A.L.R.4th 86 (1983) (citing 18 E. McQuillin, *266Municipal Corporations § 53.04b, at 127 (3d ed. 1977). Absent a showing of a duty running to the injured plaintiff from agents of the municipality, no liability may be imposed for a municipality's failure to provide protection or services to a particular individual. See, e.g., Chambers-Castanes v. King Cy., 100 Wn.2d 275, 285, 669 P.2d 451, 39 A.L.R.4th 671 (1983); J & B Dev. Co. v. King Cy., supra at 304-05.

Under basic tort principles, an action for negligence does not lie unless the defendant owes a duty of care to the plaintiff. Chambers-Castanes v. King Cy., supra at 284. The concept of duty turns on foreseeability and pertinent policy considerations. See Chambers-Castanes v. King Cy., supra at 292 (Utter, J., concurring in result). By requiring that a duty toward the particular plaintiff be established, these basic tort principles serve the same end as the public duty doctrine. See Note, Municipal Liability, 19 Gonz. L. Rev. 727, 735 (1983-1984). After reviewing our "public duty" case law, one commentator has observed that in each case we have applied these basic tort principles — duty, foreseeability, and pertinent public policy — to find an exception to the public duty doctrine. Note, supra at 734.

We have almost universally found it unnecessary to invoke the public duty doctrine to bar a plaintiff's lawsuit. See, e.g., Chambers-Castanes v. King Cy., supra; J & B Dev. Co. v. King Cy., supra; Halvorson v. Dahl, 89 Wn.2d 673, 574 P.2d 1190 (1978); Mason v. Bitton, 85 Wn.2d 321, 534 P.2d 1360 (1975); Campbell v. Bellevue, 85 Wn.2d 1, 530 P.2d 234 (1975); see also Note, supra. The only identified instance where a plaintiff's claim was barred came in Baerlein v. State, 92 Wn.2d 229, 595 P.2d 930 (1979). There, we rejected a cause of action against the State based upon a failure to enforce securities regulations. However, our decision turned on the existence of a specific statutory disclaimer of any duty as to security documents that may be untrue or misleading. Baerlein, at 233; see ChambersCastanes, at 292 (Utter, J., concurring in result); Rogers v. Toppenish, 23 Wn. App. 554, 561, 596 P.2d 1096, review *267denied, 92 Wn.2d 1030 (1979). In our most recent decision, we acknowledged the public duty doctrine, but used general tort principles to dismiss the case. Hartley v. State, 103 Wn.2d 768, 698 P.2d 77 (1985).

The standard rationales offered to support continued reference to the public duty doctrine are the risk of excessive governmental liability and the need to prevent interference with governmental process. J & B Dev. Co., at 304. The doctrine is also viewed as a mechanism for focusing attention on whether the governmental agency owed a duty to the particular plaintiff, rather than the public as a whole. J & B Dev. Co., at 304-05. On the other hand, continued reiteration of the doctrine has been attacked as perpetuating sovereign immunity in the guise of the public duty doctrine. Chambers-Castanes v. King Cy., supra at 291 (Utter, J., concurring). One commentator persuasively argues that in abrogating sovereign immunity for tortious conduct, the Legislature rejected the same standard rationales now put forth to support the public duty doctrine. Note, supra at 730 nn.14, 15. In effect, the public duty doctrine places in this court's hands the task of determining as a matter of "public policy" when a duty of care exists on the part of public employees. This raises the difficult question as to whether affording special protection to agents of the government violates the Legislature's directive, which requires governmental bodies to be liable in tort "to the same extent as if they were a private person or corporation." RCW 4.96.010. See also RCW 4.92.090. In addition, injured plaintiffs suffer harshly under the doctrine, a result that may have played a role in the various exceptions this court has carved out of the "no duty" rule. See, e.g., ChambersCastanes v. King Cy., supra; J & B Dev. Co. v. King Cy., supra.

Close inspection of the doctrine and its myriad exceptions may well reveal that the exceptions have virtually consumed the rule. Nevertheless, the facts alleged in this case do not require us to reweigh the pros and cons of the public duty doctrine. Under the facts alleged in the plead*268ing, the public duty doctrine does not bar Ms. Bailey's action against Forks.

Thus far, we have identified four situations in which a governmental agency acquires a special duty of care owed to a particular plaintiff or a limited class of potential plaintiffs, rather than the general duty of care owed to the public at large. These exceptions include: (1) when the terms of a legislative enactment evidence an intent to identify and protect a particular and circumscribed class of persons (legislative intent), Halvorson v. Dahl, supra at 676-77; (2) where governmental agents responsible for enforcing statutory requirements possess actual knowledge of a statutory violation, fail to take corrective action despite a statutory duty to do so, and the plaintiff is within the class the statute intended to protect (failure to enforce), Campbell v. Bellevue, supra at 12-13; Mason v. Bitton, supra at 326-27; (3) when governmental agents fail to exercise reasonable care after assuming a duty to warn or come to the aid of a particular plaintiff (rescue doctrine), Brown v. MacPherson's, Inc., 86 Wn.2d 293, 299, 545 P.2d 13 (1975); see also Chambers-Castanes v. King Cy., supra at 285 n.3; or (4) where a relationship exists between the governmental agent and any reasonably foreseeable plaintiff, setting the injured plaintiff off from the general public and the plaintiff relies on explicit assurances given by the agent or assurances inherent in a duty vested in a governmental entity (special relationship), Chambers-Castanes v. King Cy., supra at 286; J & B Dev. Co. v. King Cy., supra.

In addition to these exceptions, we have not applied the public duty doctrine where the State engages in a proprietary function such as providing medical or psychiatric care. Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983) (the State can be held liable for negligent decision by physician to release a mentally disturbed patient from Western State Hospital). As the New York Court of Appeals has observed, in the proprietary context the state is held to the same duty of care as private individuals or institutions engaging in the same activity. See, e.g., Schrempf v. State, *26966 N.Y.2d 289, 295, 487 N.E.2d 883, 886 (1985).

Facts alleged by Ms. Bailey satisfy all three requirements of the failure to enforce exception. First, the Forks police officer was a governmental agent with a duty to enforce statutory requirements. State statutes prohibit and establish criminal sanctions for driving or being in physical control of a motor vehicle while under the influence of alcohol. RCW 46.61.515. Moreover, under RCW 70.96A.120(2),1 a police officer has a statutory duty to take into custody a publicly incapacitated individual. Second, Ms. Bailey alleged that the police officer took no corrective action and possessed actual knowledge of statutory violations. According to Ms. Bailey, the officer allowed Medley to take the wheel of the pickup truck and drive away even though Medley's intoxicated state was apparent to the officer.

Finally Ms. Bailey, riding as a passenger on a motorcycle, came within the class RCW 70.96A.120(2) and RCW 46.61-.515 were intended to protect. This court and the Legislature have recognized the important public policy interests inherent in the effective removal of drunken drivers from the roads and the concomitant problem of deciding who should bear the costs for injuries and deaths caused to innocent motorists. See, e.g., Heinemann v. Whitman Cy., 105 Wn.2d 796, 718 P.2d 789 (1986); Dickinson v. Edwards, 105 Wn.2d 457, 716 P.2d 814 (1986); Hartley v. State, 103 Wn.2d 768, 698 P.2d 77 (1985); Laws of 1986, ch. 87, 153; Laws of 1985, ch. 101, 302, 352, 407.

Undoubtedly the Legislature enacted RCW 46.61.515 in its entirety, and RCW 70.96A.120(2) in part, to protect the users of public highways from accidents caused by intoxicated drivers. When Ms. Bailey sustained her injuries she was undoubtedly a member of the class to be protected. When a governmental agent knows of the violation, a duty *270of care runs to all persons within the protected class, not merely those who have had direct contact with the governmental entity. For example, in Campbell v. Bellevue, 85 Wn.2d 1, 530 P.2d 234 (1975), a city electrical inspector knew of the extreme danger created by a nonconforming underwater lighting system, which later electrocuted the plaintiff's wife. Even though the plaintiff had personally complained of the dangerous condition, we held that a duty of due care existed with reference to "those persons or class of persons residing within the ambit of the danger involved". Campbell, at 13. Like an electrical inspector who leaves a live electric wire unattended, a police officer who allows an obviously drunk driver to continue on his or her way sets loose an "inherently dangerous instrumentality". See Campbell, at 12.2 When statutes intend to insure the safety of the public highways, a governmental officer's knowledge of an actual violation creates a duty of care to all persons and property who come within the ambit of the risk created by the officer's negligent conduct. See Mason v. Bitton, 85 Wn.2d 321, 325-26, 534 P.2d 1360 (1975).

Application of the failure to enforce exception does not expose Forks to the specter of unlimited liability. Liability will not attach unless the governmental agent failed to take care '"commensurate with the risk involved.'" Campbell, at *27112 (quoting Runkel v. New York, 282 A.D. 173, 176, 123 N.Y.S.2d 485 (1953)). Forks has only the limited duty of care to act reasonably within the framework of the laws governing the municipality and the economic resources available to it. In determining whether a municipality's act or failure to act was unreasonable, the trier of fact can take into account the municipality's available resources and its resource allocation policy. Thus, under the instant facts, Forks would be subject to liability only if the police officer's failure to detain Medley was unreasonable under the circumstances. For example, the trier of fact could consider the following circumstances: the impracticability of detaining Medley in light of other considerations at the time of the incident; the financial resources available to the town to detain all drivers thought to be under the influence of alcohol; and the number of police personnel available at the time to respond to other calls for assistance. Furthermore, Forks' liability is also limited by the requirements of foreseeability, Campbell, at 12 (quoting Runkel v. New York, supra at 176), and proximate cause, Hartley v. State, supra at 777.

Although Ms. Bailey must now prove that Forks breached its duty and that the officer's breach proximately caused her injuries, judgment on the pleadings was improper. We reverse.

Durham, J.

(concurring in the result) — I agree with the majority that the trial court erred in dismissing Bailey's complaint. However, to the extent that the majority opinion questions the viability of the public duty doctrine, I do not concur.

Our task in this case is to determine if Bailey has alleged facts in her pleading that will withstand a CR 12(c) motion. As the majority correctly concludes, the facts alleged by *272Bailey come within an exception to the public duty doctrine, and, therefore, Bailey may proceed with her action. Having decided this, we need not consider the viability of the public duty doctrine itself in this case. Hence, the doubts expressed by the majority about the wisdom of the public duty doctrine are mere dicta.

STEPHENS, J.

¶1 Cesar Beltran-Serrano, a mentally ill homeless man, was shot multiple times by Tacoma Police Officer Michel Volk, after a simple social contact escalated to the use of deadly force. Beltran-Serrano survived the shooting and, through a guardian ad litem, brought this action for negligence and assault and battery against the city of Tacoma (City). The Pierce County Superior Court dismissed the negligence claims on summary judgment, agreeing with the City that the sole avenue for any recovery must be an intentional tort claim for assault and battery.

¶2 We reverse. The fact that Officer Volk's conduct may constitute assault and battery does not preclude a negligence claim premised on her alleged failure to use ordinary care to avoid unreasonably escalating the encounter to the use of deadly force. Under well-established negligence principles, police officers owe a duty of reasonable care in situations such as this. Beltran-Serrano has presented evidence to allow a jury to find that the City failed to follow accepted practices in Officer Volk's interactions with him leading up to the shooting and that this negligence resulted in his injuries.

*610FACTS AND PROCEDURAL HISTORY1

¶3 Beltran-Serrano suffers from mental illness and has limited English language proficiency. On June 29, 2013, he was homeless when Officer Volk noticed him standing on the corner of East 28th Street, an area of Tacoma where the police had received multiple complaints about panhandlers. Officer Volk parked her patrol vehicle near Beltran-Serrano and approached him with the goal of educating him about the City's panhandling laws. She did not have reasonable suspicion or probable cause to believe he was committing a crime.

¶4 As Officer Volk approached Beltran-Serrano, he laid down on his stomach and started digging in a hole. Officer Volk greeted Beltran-Serrano, but he looked up at her blankly and kept digging in the hole. Noticing that the hole contained mainly garbage, Officer Volk observed Beltran-Serrano pull out an old soda container, take a drink, and throw it back in the hole. When Officer Volk asked Beltran-Serrano if he understood English, he shook his head no. Officer Volk then radioed for a Spanish-speaking officer. Officer Jake Gutierrez, who spoke Spanish, was within one and a half to five minutes away.

¶5 Instead of waiting for Officer Gutierrez to arrive, Officer Volk attempted to engage Beltran-Serrano in conversation; he was nonresponsive. She attempted to get Beltran-Serrano to produce identification, gesturing to indicate she wanted to see an ID card. Beltran-Serrano began to pat his pockets as if to look for identification, but then he bent down and reached back into the hole. When Officer Volk moved closer to Beltran-Serrano and continued to address him in English, he became scared and started to run away. Officer Volk shot him in the back with a stun gun as he ran across the street. Clerk's Papers (CP) at 400-01. The stun gun did not have the desired effect, and Beltran-Serrano continued to run away. Id. Officer Volk then pulled out her duty weapon and fired multiple shots until Beltran-Serrano fell to the ground. CP at 401. The total time between when Officer Volk called for a Spanish-speaking officer and the shooting was 37 seconds. CP at 396.2

¶6 In resisting summary judgment, Beltran-Serrano offered declaration testimony from multiple witnesses who stated that they did not see Beltran-Serrano assault Officer Volk or brandish any weapon and that there was no instance of struggle or altercation on the street corner. Witnesses expressed concern as to why Beltran-Serrano was shot because he did not appear to be acting aggressively or making threatening motions. CP at 415-16, 432-33. A shooting scene reconstruction led a ballistics expert to conclude that "[n]one of the fired bullet paths to Beltran-Serrano support him 'swinging' or otherwise moving his arms at the time of receiving the gunshots." CP at 459.

¶7 Through a guardian ad litem, Beltran-Serrano brought this action against the City. In addition to a claim for assault and battery, his complaint alleged that Officer Volk improperly, unreasonably, and unnecessarily escalated the situation, and that the City failed to properly train and supervise officers to deal with the mentally ill and to exercise appropriate force. CP at 77. The City filed a motion for partial summary judgment, arguing it owed no duty of reasonable care to Beltran-Serrano. Specifically, the City asserted that (1) a negligence claim could not be based on an intentional tort, (2) the public *611duty doctrine barred any negligence claim, and (3) a negligent training and supervision claim was unavailable because Officer Volk was acting within the scope of her employment. CP at 240-54. The Pierce County Superior Court granted the City's motion to dismiss the negligence claims and entered an order certifying for interlocutory review the issue of "whether a police officer owes a duty of reasonable care to act reasonably when using deadly force." CP at 698-99, 757.3 Beltran-Serrano then filed a motion for direct discretionary review in this court, which our commissioner granted pursuant to RAP 4.2(a)(4).4

ANALYSIS

¶8 Claims of negligent law enforcement are not novel. Washington courts have long recognized the potential for tort liability based on the negligent performance of law enforcement activities. See, e.g. , Washburn v. City of Federal Way, 178 Wash.2d 732, 310 P.3d 1275 (2013) (negligent service of a protective order); Chambers-Castanes v. King County, 100 Wash.2d 275, 669 P.2d 451 (1983) (negligent failure to respond with police assistance in a timely manner); Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1360 (1975) (negligent police vehicle chase); Garnett v. City of Bellevue, 59 Wash. App. 281, 796 P.2d 782 (1990) (negligent infliction of emotional distress for officers' harsh and offensive language in responding to a call that plaintiffs were loitering). Indeed, the City readily acknowledges that such liability is consistent with the broad waiver of sovereign immunity for municipalities under RCW 4.96.010. Br. Of Resp't at 10.

¶9 The question in this case is whether a claim of negligence can be based on Officer Volk's shooting of Beltran-Serrano when it is clear the shooting was intentional, i.e., volitional. The City insists that "[t]here is no such thing as the negligent commission of an intentional tort." Id. at 18. The City further argues that the public duty doctrine precludes liability because the statutory duty "to enforce the laws and keep the peace ... is imposed solely on government and owed to the public at large." Id. at 36. We believe the City misunderstands both the nature of Beltran-Serrano's negligence claim and the nature of its law enforcement duty.

A. An Intentional Tort Claim Does Not Foreclose a Negligence Claim Premised on the Failure To Use Reasonable Care To Avoid the Use of Force

¶10 In arguing that Beltran-Serrano seeks to allege negligence in the commission of an intentional tort, the City fails to appreciate the nature of Beltran-Serrano's claim. The core of his negligence claim is that Officer Volk unreasonably failed to follow police practices calculated to avoid the use of deadly force. CP at 77-78. Beltran-Serrano focuses on Officer Volk's negligence leading up to the shooting, including her failure to respond appropriately to clear signs of mental illness or impairment, her decision to continue to engage with Beltran-Serrano in English, and her decision to prevent him from walking away. The negligence allegations also identify Officer Volk's lack of adequate training and her failure to recognize the ineffectiveness of using a stun gun against a mentally ill individual.5 While these negligence claims relate *612to events that culminated in Officer Volk intentionally shooting Beltran-Serrano, they do not assert a "negligent intentional shooting." Instead, they require consideration of the totality of the circumstances involved in the encounter between Officer Volk and Beltran-Serrano, and identify potential negligence in the series of actions leading up to the decision to shoot.

¶11 The District of Columbia Court of Appeals has considered cases similar to this one and has explained the distinction between negligence and intentional tort claims arising from police use of force. District of Columbia v. Chinn, 839 A.2d 701, 710 (D.C. 2003). The court observed, " '[W]here there is sufficient evidence to submit to a jury the question of assault and battery, there may be, on the facts of a particular case, sufficient evidence to submit the question of negligence as well.' " Id. (alteration in original) (quoting Holder v. District of Columbia , 700 A.2d 738, 742 (D.C. 1997) ). Cases allowing for both claims present a set of common characteristics:

Each involves the use of deadly force. Each invokes a police regulation establishing a standard of care with respect thereto that is arguably distinct from the excessive force standard. Each involves alternate scenarios in at least one of which a distinct act of negligence, a misperception of fact, may have played a part in the decision to fire. Each involves a negligent act that precedes the application of the relevant force of resort to firearms, i.e., prior to the pulling of the trigger.

Id. at 710-11. These characteristics underscore how ordinary negligence principles apply in situations that involve both a claim of battery or unprivileged use of force and the duty to act reasonably in carrying out law enforcement functions. The series of actions culminating in the use of deadly force may be analyzed in its constituent parts or, alternatively, as involving either negligent or intentional conduct. Id . ; see also Hayes v. County of San Diego, 57 Cal. 4th 622, 626, 305 P.3d 252, 160 Cal. Rptr. 3d 684 (2013) (recognizing negligence claim may be asserted for police use of deadly force "if the tactical conduct and decisions leading up to the use of deadly force show, as part of the totality of circumstances, that the use of deadly force was unreasonable").6

¶12 To understand how negligent acts leading up to the ultimate use of force may be delineated from the use of force itself, one need consider only a variation on the facts of this case. A person in Beltran-Serrano's situation might just as readily be injured, not by an officer shooting, but perhaps by running into a car as he attempts to flee from the officer in panic. The same acts of negligence remain under either scenario, but we would not describe the latter scenario as involving an intentional tort. By focusing on the alleged acts of negligence during the totality of Officer Volk's encounter with Beltran-Serrano, we avoid mischaracterizing this case as involving "nothing but" an intentional tort.

¶13 Our analysis also accords with the practice in Washington of allowing claims to be pursued under alternative, even inconsistent, theories of recovery. CR 8(e)(2) (specifying *613that a party may plead "as many separate claims or defenses as the party has regardless of consistency"). Here, the fact that Beltran-Serrano may have a valid intentional tort claim for excessive force has no bearing on the viability of his negligence claim for violation of the duty to act reasonably. A jury could find one claim or the other (or neither claim) to be supported. The City certainly has not conceded that Beltran-Serrano has an assault and battery claim as opposed to a negligence claim. All claims remain for trial.

¶14 The City misreads Boyles v. City of Kennewick, 62 Wash. App. 174, 813 P.2d 178 (1991), as precluding overlapping claims of negligence and assault and battery under Washington law. See Br. of Resp't at 9, 22; Resp. to Mot. for Discr. Review at 12. Boyles merely explains that a police officer may be an intentional tortfeasor and "is liable as such for assault and battery if unnecessary violence or excessive force is used in accomplishing the arrest." Boyles, 62 Wash. App. at 176, 813 P.2d 178 (citing 6A C.J.S. Assault & Battery § 27 (1975) ). This statement alone, however, does not support the City's argument because it does not foreclose a separate claim premised on negligence. The authority cited in Boyles for the above statement is a Corpus Juris Secundum entry describing claims for assault and battery. Not only does Boyles fail to limit actions against law enforcement to intentional torts, it specifically states that a claim for negligence against a police officer remains possible:

As Ms. Boyles points out, there are no Washington cases mandating a claim of assault and battery for all injuries inflicted during or after an arrest. While a claim for negligence against a police officer is possible, it is not raised by the factual allegations of the complaint in this case and, therefore, does not relate back to the original pleadings; additional facts would be necessary to support it.

Id. at 178, 813 P.2d 178 (emphasis added). Here, Beltran-Serrano's amended complaint asserted a valid claim of negligence and alleged facts necessary to support it. CP at 73-79. Consistent with Washington case law and CR 8(e)(2), Beltran-Serrano is allowed to pursue both an intentional tort and a negligence action.

¶15 The City further argues that allowing a negligence action based on police use of force would "circumvent both the defense of self-defense and the standard of objective reasonableness applicable to an excessive force claim." Br. of Resp't at 23. We disagree. The statute the City relies on, RCW 9A.16.040, governs "[j]ustifiable homicide or use of deadly force by public officer, peace officer, [or] person aiding." (Boldface omitted.) This statute defines when police officers are justified in using deadly force. See id. Regardless of whether Beltran-Serrano's claims sound in negligence or assault and battery, the statute allows Officer Volk to argue to the jury that her actions were privileged under the good faith standard of the statute that requires consideration of "all the facts, circumstances, and information known to the officer at the time." RCW 9A.16.040(4). This statutory standard fully accords with Beltran-Serrano's view that the facts of this case must be evaluated under the totality of the circumstances, including Officer Volk's preshooting conduct. Br. of Appellants at 27-28.

¶16 We hold that Beltran-Serrano's intentional tort and negligence claims may coexist under the facts of this case. Considering the totality of the circumstances, the allegations support a claim for negligence that does not amount to a "negligent intentional shooting." Moreover, all facts remain to be determined at trial, and negligence and intentional tort claims may be pleaded in the alternative under CR 8(e)(2). The superior court erred in dismissing the negligence claims as a matter of law.

¶17 A remaining question is whether Beltran-Serrano's negligence claims should nonetheless be dismissed in light of the public duty doctrine. Stated differently, we must determine whether the duty owed by Officer Volk represents a tort duty owed specifically to Beltran-Serrano rather than a nonactionable duty owed to the public as a whole.

B. Officer Volk Owed a Duty in Tort to Beltran-Serrano Based on Her Affirmative Conduct throughout Their Interaction

¶18 The public duty doctrine recognizes that governments, unlike private persons, *614are tasked with duties that are not actionable duties within the meaning of tort law. Washburn, 178 Wash.2d at 753, 310 P.3d 1275. The central purpose behind the public duty doctrine is to ensure that governments do not bear greater tort liability than private actors. Munich v. Skagit Emergency Commc'ns Ctr., 175 Wash.2d 871, 886, 288 P.3d 328 (2012) (Chambers, J., concurring).

¶19 To establish a duty in tort against a governmental entity, a plaintiff must show that the duty breached was owed to an individual and was not merely a general obligation owed to the public. Babcock , 144 Wash.2d at 785, 30 P.3d 1261. While there are four exceptions to the public duty doctrine that provide for liability even in the face of otherwise public duties, see Munich, 175 Wash.2d at 879, 288 P.3d 328, an enumerated exception is not always necessary to find that a duty is owed to an individual and not to the public at large.7 Instead, the public duty doctrine is simply a "focusing tool" to ensure that the government is not held liable in tort for duties owed solely to the general public. Id. at 878, 288 P.3d 328.

¶20 Importantly, this court has recognized that the public duty doctrine comes into play when special governmental obligations are imposed by statute or ordinance. Id. at 886, 288 P.3d 328 (Chambers, J., concurring). As to common law negligence, Justice Chambers pointed out in his concurrence in Munich that "[t]his court has never held that a government did not have a common law duty solely because of the public duty doctrine." Id. at 886-87, 288 P.3d 328 (emphasis added).8 To apply the doctrine so broadly would inappropriately lead to a partial restoration of immunity by carving out an exception to ordinary tort liability for governmental entities. Id. at 892, 288 P.3d 328 (Chambers, J., concurring). This would undermine the value of tort liability to protect victims, deter dangerous conduct and provide a fair distribution of risk of loss. Eastwood v. Horse Harbor Found., Inc., 170 Wash.2d 380, 407, 241 P.3d 1256 (2010) (Chambers, J, concurring).

¶21 At common law, every individual owes a duty of reasonable care to refrain from causing foreseeable harm in interactions with others. Restatement (Second) of Torts § 281 cmt. e (Am. Law Inst. 1965) explains that "the duty established by law to refrain from the negligent conduct is established in order to protect the other from the risk of having his interest invaded by harm resulting from one or more of this limited number of hazards." This duty applies in the context of law enforcement and encompasses the duty to refrain from directly causing harm to another through affirmative acts of misfeasance. See Robb v. City of Seattle, 176 Wash.2d 427, 295 P.3d 212 (2013) ; see also Coffel v. Clallam County, 47 Wash. App. 397, 403, 735 P.2d 686 (1987) (recognizing that, "if the officers do act, they have a duty to act with reasonable care"). In Washington, this principle dates to at least the 1926 case of Jahns v. Clark , which specifically recognized an actionable duty on the part of law enforcement officers exercising deadly force. 138 Wash. 288, 296-97, 244 P. 729 (1926) (holding sheriff and deputies liable on a bond for civil damages arising from an "intentional or negligent shooting").9

*615¶22 Garnett illustrates how recognizing tort liability for negligent law enforcement activities is consistent with the public duty doctrine. 59 Wash. App. at 287, 796 P.2d 782. There, the Court of Appeals identified a law enforcement situation where, even though no public duty doctrine exception directly applied, the city was liable for its officers' negligence. Id. Garnett concerned an interaction between police officers and two women who were allegedly soliciting customers at a Bellevue hotel and refused to leave. Id. at 282, 796 P.2d 782. During the interaction, the police officers accused the women of being prostitutes, saying things like " 'You know what you did and you know what you are,' " and " 'I am going to pick you up and take you downtown because we don't want your kind here.' " Id. at 284, 796 P.2d 782. In addressing the plaintiffs' claims for negligent infliction of emotional distress, the Court of Appeals focused on the fact that harm resulted from the officer's direct contact with the plaintiffs, not the performance of a general public duty of policing. Id. at 286, 796 P.2d 782. Even though the facts did not fit neatly into a previously identified exception, the Court of Appeals correctly rejected the public duty doctrine as a basis to preclude liability. Id. at 286-287, 796 P.2d 782.

¶23 The present case aligns with the analysis in Garnett. As noted, under the common law, "if the officers do act, they have a duty to act with reasonable care." Coffel , 47 Wash. App. at 403, 735 P.2d 686. Beltran-Serrano's negligence claims arise out of Officer Volk's direct interaction with him, not the breach of a generalized public duty. The City therefore owed Beltran-Serrano a duty in tort to exercise reasonable care. Recognizing such a duty does not open the door to potential tort liability for a city's statutorily imposed obligation to provide police services, enforce the law, and keep the peace. These statutory duties have always been, and will continue to be, nonactionable duties owed to the public at large. In this case, however, the specific tort duty owed to Beltran-Serrano arises from Officer Volk's affirmative interaction with him. The public duty doctrine does not apply to prevent the City from being found liable in tort.10

CONCLUSION

¶24 The superior court wrongly dismissed Beltran-Serrano's negligence claims, which are not foreclosed by his intentional tort claim. Under Washington common law, the City owes a duty to refrain from causing foreseeable harm in the course of law enforcement interactions with individuals. Because the duty at issue in this case, grounded in common law negligence, is owed specifically by Officer Volk to Beltran-Serrano rather than to the public as a whole, the public duty doctrine does not apply. Beltran-Serrano has properly pleaded a separate negligence cause of action and identified genuine issues of material fact regarding Officer Volk's breach of the duty to act reasonably. We reverse the superior court order granting summary judgment and remand to the trial court for further proceedings consistent with this opinion.

WE CONCUR:

Fairhurst, C.J.

González, J.

Gordon McCloud, J.

Yu, J.

MADSEN, J. (dissenting)

¶25 A Tacoma police officer stopped her patrol car and approached a man at the northwest corner of East 28th Street and *616Portland Avenue, a location for which police had received complaints about aggressive panhandlers. The encounter quickly escalated until the officer drew her firearm and shot the man. The majority holds that these facts support a claim of negligence, but there is no doubt that the officer acted intentionally when she shot this man and that it was the officer's action of shooting the man that caused the injury for which he now seeks compensation. The majority divorces the first portion of the encounter from the injury and says that the escalation is the injury. But it is not. The man is seeking redress for being shot; he does not identify any independent injury related to the escalating conduct. Rather, the events leading up to the shooting are relevant to support the plaintiffs' claim for assault and battery. For these reasons, as expounded below, I dissent.

¶26 This case concerns claims against the city of Tacoma stemming from a police shooting of Cesar Beltran-Serrano, a Spanish-speaking, mentally ill man, on a Tacoma street following a community caretaking contact with Beltran-Serrano by Tacoma Police Officer Michel Volk. The present review addresses the trial court's dismissal on partial summary judgment of a negligence claim against the city stemming from the noted shooting; at issue is whether Beltran-Serrano's negligence claim may be maintained in light of Officer Volk's intentional shooting of Beltran-Serrano.

¶27 As noted, the majority answers that question affirmatively by "focus[ing] on Officer Volk's negligence leading up to the shooting" (majority at 611) and reverses the trial court's grant of summary dismissal of the negligence claim. In the majority's view, "[t]he gravamen of the negligence claim is the mishandling of the encounter, not the use of excessive force." Id. at 612 n.6. I disagree. In my view, we cannot so easily parse and ignore the required elements of a negligence claim. In the present circumstance, where intentional injury is the basis of the complaint, a claim of negligence is not available as a matter of law. I begin with the required elements of a negligence claim.

¶28 To sustain an actionable negligence claim, a plaintiff must establish four essential elements: duty, breach, proximate cause, and resulting harm. Pedroza v. Bryant , 101 Wash.2d 226, 228, 677 P.2d 166 (1984) ; Hansen v. Friend , 118 Wash.2d 476, 479, 824 P.2d 483 (1992) ; Kennedy v. Sea-Land Serv., Inc., 62 Wash. App. 839, 856, 816 P.2d 75 (1991). "If any of these elements cannot be met as a matter of law, summary judgment for the defendant is proper." Ranger Ins. Co. v. Pierce County , 164 Wash.2d 545, 552-53, 192 P.3d 886 (2008). "A defendant as moving party may prevail by showing that there is an absence of evidence to support the plaintiff's case." Kennedy , 62 Wash. App. at 856, 816 P.2d 75 (citing Young v. Key Pharm., Inc., 112 Wash.2d 216, 225 n.1, 770 P.2d 182 (1989) ).

¶29 Critically, the damage or harm must be the proximate result of the breach of duty; merely following subsequently in time is not enough. "Negligence and causation are independent legal requirements, and a finding of negligence does not automatically imply causation." 65 C.J.S. Negligence § 15 at 301 (2010). Further, "[d]amages constitute an essential element of a negligence claim; without damages, a negligence claim fails. Proof of damages, that is, actual injury to the plaintiff, is an essential element of a claim for negligence." Id. § 54, at 351 (footnote omitted). "An allegedly negligent act must cause an injury in order to be actionable. A plaintiff in a negligence action therefore is required to adduce evidence showing there was a negligent act on the part of the defendant and that such act was the cause of the plaintiff's injury ." Id. at 351-52 (emphasis added) (footnote omitted).

If the negligent act or omission has resulted in no injury or loss to anyone, it is merely injuria sine damno even though it involved a violation of a statute or ordinance. Even though injury may have resulted, there is no liability unless such injury was proximately caused by the negligence complained of; the real cause of action in a negligence case is not the negligent act but the injury resulting therefrom, since to support the action there must be not only the negligent act but a consequential injury, and the injury is the gravamen of the charge.

*617Id. at 352 (emphasis added) (footnotes omitted).

¶30 Put another way, even if the conduct preceding the injury is substandard, such fact cannot "fill in" for the absence of a proximately caused resulting injury. "An action in negligence is not determined alone from the doing of an act resulting in injury to another. Similarly, a defendant's breach of a duty, standing alone, does not mean that a defendant is negligent." Id. § 20, at 305 (footnote omitted). "The essence of negligence is behavior creating an unreasonable danger to others"-it is "relative to the time, place, circumstances, or persons involved"; accordingly, "[n]egligence in the abstract does not support a cause of action." Id. § 4, at 280. "To maintain an action in negligence, the plaintiff must assert in the complaint [the noted four elements]. When these elements are present, they together constitute negligence, and the absence of any one of these elements renders the complaint bad or the evidence insufficient." Id. § 20, at 305-06 (footnote omitted).

A negligent or careless act is not necessarily actionable negligence. To constitute actionable negligence, there must be not only a lack of care, but such lack of care must involve a breach of some duty owed to a person who is injured in consequence of such breach. Even though an act or omission may involve a lack of care, it does not necessarily follow that any cause of action arises therefrom since negligence which did not contribute to the damage sustained is negligence, but not actionable negligence, and negligence is not a tort unless it results in the commission of a wrong or in harm to someone.

Id. § 11, at 292 (footnotes omitted).

¶31 Further, the injury must be cognizable in the negligence context. "The term 'negligence' is synonymous with disregard, heedlessness, inadvertence, inattention oversight and thoughtlessness." Id. § 15, at 299-300 (footnotes and most internal quotation marks omitted). "The words 'negligence' and 'intentional' are contradictory; negligence is not synonymous with intentional action." Id. § 17, at 302 (footnote omitted); see also Tegman v. Accident & Med. Investigations, Inc., 150 Wash.2d 102, 109-10, 75 P.3d 497 (2003) ("fault" within the meaning of chapter 4.22 RCW, which encompasses liability for negligence, does not include intentional acts or omissions); State Farm Fire & Cas. Co. v. Justus , 199 Wash. App. 435, 455, 398 P.3d 1258, review denied , 189 Wash.2d 1026, 406 P.3d 629 (2017) (distinguishing "intentional acts to harm" as "not merely conduct which created an 'unreasonable risk of harm' ").

"Negligence," by definition, is not an intentional tort: it includes only such conduct as creates liability for the reason that it involves risk and not certainty of invading the interest of another, and therefor excludes conduct which creates liability because of the actor's intention to invade a legally protected interest of the person injured.

65 C.J.S. Negligence § 17, at 302 n.1.

[N]egligence excludes the idea of intentional wrong; the absence of an intent or purpose to inflict the injury of which complaint is made is essential to the legal conception of negligence and is an element which distinguishes it from other torts. Where an intention to inflict the injury exists , whether that intention is actual or constructive only, the wrongful act is not negligent but is one of violence or aggression.

Id. § 28, at 313 (emphasis added) (footnotes omitted). Accordingly, "[n]egligence claims and assault and battery claims ... are mutually exclusive." Id. § 15, at 300.

¶32 With these requirements in mind, turning to the current case, the majority's focus on Officer Volk's alleged substandard conduct concerning her initial contact with Beltran-Serrano does not cure the absence of a qualifying proximately caused injury. That is, while Beltran-Serrano was indeed injured, there is no dispute that the shooting of Beltran-Serrano by Officer Volk was an intentional act. The shooting is the only harm alleged by Beltran-Serrano in his complaint and is pleaded as the basis for both his assault and battery claim and his negligence claim. The amended complaint states, "Defendant [city] ... unreasonably, unnecessarily, and without provocation shot Cesar Beltran ... thereby inflicting an assault and *618battery on Cesar Beltran." Clerk's Papers at 78. The amended complaint further states, "As a direct and proximate result of the breaches, failures, and negligence of Defendant [city], ... Plaintiff was shot ... multiple times causing serious injuries." Id. Only a single harm is alleged-the shooting. There is no dispute that the shooting was intentional. Officer Volk deliberately drew her service handgun and shot Beltran-Serrano multiple times.1 There is simply no inadvertence that would support a negligence claim. See 65 C.J.S. Negligence § 14, at 298 ("A negligent act is an inadvertent act."); see also Boyles v. City of Kennewick, 62 Wash. App. 174, 176, 813 P.2d 178 (1991) ("[A] police officer making an arrest is justified in using sufficient force to subdue a prisoner, however [the officer] becomes a tortfeasor and is liable as such for assault and battery if unnecessary violence or excessive force is used in accomplishing the arrest." (citing 6A C.J.S. Assault & Battery § 27 (1975) )). A complaint that refers only to intentional, deliberate conduct does not state a prima facie claim of negligence. "To state a claim for negligence, the underlying complaint must allege facts that support a conclusion that the conduct was negligent." Grange Ins. Ass 'n v. Roberts , 179 Wash. App. 739, 769, 320 P.3d 77 (2013). " 'In order to state a cause of action for negligence, it is necessary to allege facts which would warrant a finding that the defendant has committed an unintentional breach of a legal duty, and that such breach was a proximate cause of the harm.' " Id. (quoting McLeod v. Grant County Sch. Dist. No. 128, 42 Wash.2d 316, 319, 255 P.2d 360 (1953) ).

¶33 The majority cites District of Columbia v. Chinn , 839 A.2d 701 (D.C. 2003), and Hayes v. County of San Diego, 57 Cal. 4th 622, 305 P.3d 252, 160 Cal. Rptr. 3d 684 (2013), as support, but in my view, Chinn argues against the availability of a negligence claim here and Hayes simply does not convince. In Chinn , "the plaintiff failed to make a separate and distinct claim for negligence apart from the battery allegations." 839 A.2d at 711. Chinn's allegations "neither establish[ed] a claim separate and distinct from the alleged battery, nor demonstrate[d] the essential elements of a negligence claim. The allegations [did] not reflect negligence, but rather an intentional tort with a conclusory allegation of negligence." Id. The same is true here. The Chinn court explained,

The crux of Chinn's claim is that the officers deliberately inflicted excessive force upon him, and ... assaulted him without provocation. Chinn did not argue that the officers mistakenly or negligently thought Chinn was armed; Chinn did not allege that the officers misperceived him as a threat. The negligence claim ... should not have gone to the jury as no separate and distinct cause or theory of negligence was presented before the court.

Id. Chinn does not support the notion that a negligence claim can be premised upon an intentional tort as the majority advocates here.

¶34 In Hayes , the California Supreme Court, answering a certified question from the Ninth Circuit Court of Appeals, noted that under California state law, the court had "long recognized that peace officers have a duty to act reasonably when using deadly force." 57 Cal. 4th at 629, 305 P.3d 252, 160 Cal.Rptr.3d 684. The California court explained that in its prior decision in Grudt v. City of Los Angeles, 2 Cal. 3d 575, 468 P.2d 825, 86 Cal. Rptr. 465 (1970), it had determined that preshooting circumstances might show that an otherwise reasonable use of deadly force by officers was, in fact, unreasonable. But the circumstances in Grudt and Hayes are nothing like the case here. In Grudt , a police officer in plain clothes, carrying a double-barreled shotgun, approached a car, possibly causing the driver to think he was being robbed or attacked. The driver accelerated the car toward a second plainclothes officer, and then both officers opened fire on the driver, killing him. See Hayes , 57 Cal. 4th at 629, 305 P.3d 252, 160 Cal.Rptr.3d 684 (discussing Grudt ). In Hayes , police officers were called to a house and advised that the man inside was potentially suicidal. When the officers entered the house to investigate, the man approached them, holding a knife in his raised hand. Both officers drew their *619firearms and fired two shots, killing the man. Id. at 626, 160 Cal. Rptr. 3d 684, 305 P.3d 252.

¶35 In my view, Hayes does not offer any useful guidance here. It is based on foreign jurisdiction law, and the circumstances in both Hayes and Grudt are simply too different from the present case to be helpful.2 More to the point, for the reasons discussed above, I disagree with Hayes. While an officer's use of deadly force must be appropriate, "[w]here an intention to inflict the injury exists, whether that intention is actual or constructive only, the wrongful act is not negligent." 65 C.J.S. Negligence § 28, at 313. As discussed above, a plaintiff "may not base claims of negligence on alleged intentional actions, such as excessive force or unlawful arrest." Lawson v. City of Seattle , No. C12-1994-MAT, 2014 WL 1593350, at *13 (W.D. Wash. Apr. 21, 2014) (court order); see also St. Michelle v. Robinson , 52 Wn. App. 309, 315-16, 759 P.2d 467 (1988) (where alleged sexual abuse was intentional, and the resulting emotional distress was also intentionally inflicted as a matter of law, plaintiff cannot state a cause of action for negligent infliction of emotional distress); Willard v. City of Everett, No. Cl 2-14 TSZ, 2013 WL 4759064, at *2 (W.D. Wash. Sept. 4, 2013) (court order), aff'd , 637 F. App'x 441 (2016) ("A plaintiff may not base a claim of negligence on an intentional act, like the use of excessive force."); Keates v. City of Vancouver, 73 Wash. App. 257, 267, 869 P.2d 88 (1994) ("As a general rule, law enforcement activities are not reachable in negligence.").

¶36 Finally, I note that affirming the trial court's dismissal of the negligence claim does not leave Beltran-Serrano without a remedy concerning the shooting. As Boyles noted, where a police officer is alleged to have used excessive force in accomplishing an arrest, a claim for assault and battery may lie, and Beltran-Serrano has so alleged. See Boyles, 62 Wash. App. at 176, 813 P.2d 178. However, for the reasons discussed, in my view, a negligence claim based on the intentional shooting that occurred here is simply not available. I would affirm the trial court's dismissal of Beltran-Serrano's negligence claim. Accordingly, I dissent.

Johnson, J.

Owens, J.

WIGGINS, J, (concurring in dissent)

¶37 I concur in Justice Madsen's dissent that a negligence claim based on the intentional act of shooting a weapon is not available. Dissent at 9. I write separately to emphasize the important distinction in mental states between negligence and intentional tort claims.

¶38 As we have repeatedly held, a cause of action in negligence requires a plaintiff to show that a defendant owed a duty of care to the plaintiff, there was a breach of that duty, there was a resulting injury, and there was proximate cause between the breach and the injury. Hutchins v. 1001 Fourth Ave. Assocs., 116 Wash.2d 217, 220, 802 P.2d 1360 (1991). An intentional tort requires, among other things, proof of intent. For example, an "intentional tort" is "[a] tort committed by someone acting with general or specific intent." BLACK'S LAW DICTIONARY 1717 (10th ed. 2014).

¶39 The mental states of intentional torts and negligence are vastly different and exist on a sliding scale:

If the actor knows that the consequences are certain, or substantially certain, to result from his [or her] act, and still goes ahead, [the actor] is treated by the law as if he [or she] had in fact desired to produce the result. As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor's conduct loses the character of intent, and becomes mere recklessness, as defined in § 500. As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence.

RESTATEMENT (SECOND) OF TORTS § 8A cmt. b (AM. LAW INST. 1965) (RESTATEMENT) . Negligence *620conveys the idea of neglect or inadvertence, "as distinguished from premeditation or formed intention." Adkisson v. City of Seattle, 42 Wash.2d 676, 682, 258 P.2d 461 (1953).

¶40 Thus, an actor cannot be of two minds. He or she may act either negligently, lacking intent to cause harm, or intentionally, intending to cause or aware that harmful consequences are substantially certain to result from an action. RESTATEMENT § 8A. These mental states are mutually exclusive. Id. §§ 8A, 282 cmt. d; DAN B. DOBBS ET AL., THE LAW OF TORTS § 31, at 77 (2d ed. 2011) ("Any given act may be intentional or it may be negligent, but it cannot be both. Intent and negligence are regarded as mutually exclusive grounds for liability.").

¶41 Here, assuming that Cesar Beltran-Serrano could prove the first three elements in negligence, he cannot prove that the proximate cause of his injuries resulted from a negligent act. The sole cause of Beltran-Serrano's injury was the shooting of Officer Michel Volk's weapon. The officer's decision to pull the trigger was intentional. This fact cannot be used simultaneously as evidence of intention and negligence, as liability under these theories requires distinct and mutually exclusive mental states. E.g., RESTATEMENT § 8A.

¶42 The majority's decision combines two mutually exclusive principles of tort law and does not answer the inherent conflict it creates in so doing. A claim is one of either negligence or intention-it cannot be both. If a principled path existed to reconciling these conflicting principles, the majority would have offered such a path. It has not, and this silence is telling.

¶43 Accordingly, I respectfully dissent.