ford motor department treasury state indiana argued december decided january merle miller indianapolis petitioner john mcshane winslow van horne indianapolis appellees justice reed delivered opinion writ brings review action petitioner resident foreign manufacturing corporation respondents department treasury state indiana clifford townsend joseph robertson frank thompson governor treasurer auditor respectively state indiana constituted board department treasury petitioner seeks refund gross income taxes paid department measured sales claimed state occurred indiana jurisdiction district founded allegations violation article section commerce clause fourteenth amendment constitution state statutory procedure obtaining refund petitioner followed set forth section indiana statutes district denied recovery circuit appeals affirmed certiorari tioner assertion error circuit appeals decided important question local law probably conflict applicable decision indiana department treasury international harvester ind conclude petitioner action maintained federal decide merits issue petitioner right maintain action federal depends first upon whether action state indiana individual secondly action state whether state consented sued federal courts recently questions discussed great northern life insurance read case held suit state official proceedings authorized statute compel carry state funds state agreement reimburse moneys illegally exacted color tax power suit one state said suit clearly distinguishable actions tax collector recover personal judgment money wrongfully collected color state law relief sought general law wrongful acts state officials sovereign immunity eleventh amendment extend wrongful individual action citizen allowed remedy wrongdoer personally atchison ry cf matthews rodgers however action authorized statute state officer official capacity constituting action state eleventh amendment operates bar suit except far statute waives state immunity suit smith reeves great northern life insurance read opinion petitioner suit instant case department individuals board constitutes action state indiana state statute prescribed procedure obtaining refund taxes illegally exacted providing taxpayer first file timely application refund state department treasury upon denial claim taxpayer authorized recover illegal exaction action judgment obtained action satisfied payment funds state treasury section clearly provides action state opposed one collecting official individually state decision called attention indicate different interpretation statute adopted state courts petitioner suit federal district based indiana statutes therefore constitutes action state collecting official individual petitioner brought action strict accord action state department treasury complaint carefully details compliance provisions require timely application refund department prerequisite action authorized section true petitioner present proceeding joined governor treasurer auditor state defendants constitute board department treasury state indiana joined collective sentatives state individuals personal judgment sought petitioner assert claim personal judgment individuals contested tax payments petitioner claim imposition personal liability individual defendants sums illegally exacted previously held nature suit one state determined essential nature effect proceeding ex parte ayers ex parte state new york worcester county trust riley action essence one recovery money state state real substantial party interest entitled invoke sovereign immunity suit even though individual officials nominal defendants smith reeves supra great northern life insurance read supra opinion therefore present proceedings brought reliance suit state remains considered whether state indiana consented action federal eleventh amendment provides judicial power shall construed extend suit law equity commenced prosecuted one citizens another state citizens subjects foreign state express constitutional limitation denies federal courts authority entertain suit brought private parties state without consent hans state louisiana ex parte state new york state missouri fiske fidelity guaranty great northern life insurance read supra state mutual life ins ind hogston bell ind state immunity suit may waived clark barnard gunter atlantic coast line state missouri fiske nothing indicate authorization waiver indiana present proceeding section authorizes suit department competent jurisdiction circuit superior county taxpayer resides located shall original jurisdiction action recover amount improperly collected read case construed similar provision oklahoma tax refund statute waiver state immunity suit state courts said case state authorizes suit justice taxpayers deem injured exaction consonant dual system federal courts astute read consent embrace federal well state courts dealing sovereign exemption judicial interference vital field financial administration clear declaration state intention submit fiscal problems courts creation must found cf shaw section contain clear indication state intended consent suit federal courts provision section vests original jurisdiction suits refund superior county taxpayer resides located indicates state legislature contemplated suit state courts moreover interpretation authorize suits state courts accords state legislative policy indiana adopted liberal policy toward general contract claimants confines suits state state courts remains considered whether attorney general state indiana conduct present proceeding waived state immunity suit state attorney general authorized represent state actions brought indiana refund statute appeared federal district circuit appeals defended suit merits objection petitioner suit violation eleventh amendment first made argued indiana time however eleventh amendment declares policy sets forth explicit limitation federal judicial power compelling force consider issue arising amendment case even though urged first time conceded respondents within power administrative executive officers indiana waive state immunity done proceeding issue thus becomes one power state law issue determined state must resort general policy state expressed constitution statutes decisions article section indiana constitution provides may made general law bringing suit state liabilities originating adoption constitution special act authorizing suit brought making compensation person claiming damages state shall ever passed interpret provision indicating policy prohibiting state consent suit one particular case absence general consent suit similar causes action since state legislature may waive state immunity general law presumed absence clear language contrary conferred administrative executive officers discretionary power grant withhold consent individual cases think general special powers conferred statute indiana attorney general appear defend actions brought state officials deemed confer officer power consent suit state courts state consented sued state sions construe strictly statutory powers conferred indiana state attorney general hold exercises powers statute possess powers attorney general law seem therefore properly authorized executive administrative officer state waived state immunity suit federal courts gunter atlantic coast line applicable instant case since involved taxpayer ancillary suit enjoin south carolina tax officials collecting taxes violation earlier decision upholding validity state agreement exempt taxpayer property humphrey pegues wall pegues case involved suit state person tax officials state attorney general appearing state arguing case merits issue sovereign immunity raised gunter proceeding brought twenty years later defendant south carolina attacked validity pegues judgment gound proceeding state consented sued held pegues judgment res judicata binding state south carolina statutes conferred state officials attorney general power judgment state pages page state submission authorized statute unauthorized consent official farish state banking board distinction drawn federal state courts reliance placed contemporaneous administrative interpretation state statutes absence legislative action repudiating attorney general conduct case failure state government departments twenty years assert right conflict pegues adjudication administrative construction state statutes consent influence determining conclusions great northern life insurance read supra indicated read case construction given indiana statute leaves open road review constitutional grounds issues passed upon state courts advantage state courts pass initially upon questions involve state liability tax refunds illustrated instant case petitioner sued federal refund urge certiorari federal erred interpretation state law applicable questions raised judgment circuit appeals vacated cause remanded district directions dismiss complaint want consent state suit vacated remanded justice murphy took part consideration decision case footnotes need consider present status board department treasury burns indiana replacement provides suit agaisnt see indiana acts ch indiana acts ch ch tucker state ind burns indiana replacement section burns indiana replacement provides person considers paid department year amount excess amount legally due year terms act may apply department verified petition writing time within three years payment annual period alleged overpayment made correction amount paid department refund amount claims illegally collected paid petition shall set forth amount claims refunded reasons claim department shall promptly consider petition may grant refund whole part may wholly deny denied whole part petitioner shall forthwith notified action department grounds denial department may discretion grant petitioner hearing respect petition person improperly charged tax provided terms act required pay may recover amount thus improperly collected together interest proper action suit department competent jurisdiction circuit superior county taxpayer resides located shall original jurisdiction action recover amount improperly collected provided however shall entertain suit unless taxpayer shall show filed petition refund department hereinabove provided within one year prior institution action provided suit shall entertained expiration six months time filing petition refund department unless meantime department shall notified petitioner writing denial petition ford motor department treasury state indiana et see note supra burns indiana replacement section burns indiana replacement acts ch provides creation state board finance section reads part follows board may sue sued name action jurisdiction whenever necessary accomplish purposes act appear right sue department treasury erroneous tax payments granted burns indiana replacement see acts ch pp repealed transferred state board finance acts ch otherwise held indiana state consent sued recovery taxes covered rather opinion otherwise advised indiana adjudications consent limited suits state courts chapter acts creates state board finance apparently invests board control public funds rather collection refund taxes reference particular state california statute similar held warrant inference state legislature consented suit state state see smith reeves burns indiana provides person persons claiming money demand state indiana arising law equity contract express implied may bring suit state therefor superior marion county indiana jurisdiction hereby conferred upon said superior marion county indiana hear determine action section provides shall duty represent department state indiana legal matters litigation either criminal civil relating enforcement construction application administration act upon order direction department state ex rel woodward smith indiana decision come attention involving authority state executive administrative officials consent suit state case plaintiff sued foreclose mortgage certain land joined state indiana defendant order obtain cancellation prior judgment lien property favor state defendant state filed affirmative relief seeking satisfaction lien intermediate state held since state appeared pleaded merits filed affirmative relief thereby consented might made party determine priority lien case involves application principle sovereign sues affirmative relief deemed waived sovereign immunity issues presented affirmative claim state portsmouth savings bank ind section burns indiana authorizes state attorney general represent state actions brought see note supra provides shall duty state person deputy defend represent interests state said superior marion county indiana also appeal section provides generally shall prosecute defend suits may instituted state indiana prosecution defense otherwise provided law whenever shall given ten days notice pendency thereof clerk suits pending whenever required governor majority officers state writing furnished within reasonable time shall represent state criminal cases shall defend suits brought state officers official relations except suits brought state shall required attend interests state suits actions claims state may become interested state section specifically authorizes represent state actions brought provisions petitioner suit brought see note supra state ex rel home brewing ind julian et al state ind various lower federal decisions held state attorney general waive state immunity suit deseret water oil irrigation state california title guaranty surety guernsey slaker dunnuck kansas state highway commission attorney general held without power waive sovereign immunity stanley schwalby cf shaw see richardson fajardo sugar without consideration limitations powers held attorney general puerto rico waive sovereign immunity