BROWNING, Circuit Judge.
The United States sued the State of California in the District Court to recover losses resulting from allegedly negligent acts of State employees in starting a fire in a national forest, and in attempting to extinguish it. The complaint was filed under 28 U.S.C.A. § 1345, which grants to district courts original juris
diction over “all” civil actions commenced by the United States.
The District Court dismissed the action on the ground that Section 1345 “does not confer upon a Federal district court jurisdiction over a State in a civil action brought by the United States to recover from the State damages resulting from negligence of State agents, absent a waiver of the State’s sovereign immunity.”
I
The District Court read this exception into the language of Section 1345 in part because the court entertained “serious Constitutional doubts” as to the power of Congress to extend the jurisdiction of district courts to suits by the United States against a State without the State’s specific consent unless a federal question is presented.
It is not clear whether the asserted lack of power pertains to all federal courts or only to those inferior
to the
Supreme Court. Nor is it clear whether an issue of federal supremacy is thought essential, or whether any kind of federal question will suffice.
Neither is it evident why a suit by the United States to collect damages from the State for injury to the national forests does not meet any subject-matter limitation which may be thought to exist.
It is unnecessary to consider these problems, however, for we are satisfied that the Constitution grants- original jurisdiction to the Supreme Court over civil suits brought by the United States against a State without specific consent regardless of the nature of the controversy, provided the issue is justiciable, and that the Constitution empowers Congress to confer upon the district courts concurrent jurisdiction over such suits.
A.
The Supreme Court
Article III,
Section 2, Clause 1 of the Constitution extends the federal judicial
power “to Controversies to which the United States shall be a Party.”
Clause 2 vests the Supreme Court with original jurisdiction over “all Cases * * * in which a State shall be a Party.” Since the latter grant does not exclude cases in which the United States is the opposite party, the Supreme Court has original jurisdiction over suits by the United States against a State. Each State impliedly consented to such suits “when admitted into the Union upon an equal footing in all respects with the other States,” and no further consent is needed. United States v. Texas, 143 U.S. 621, 646, 12 S.Ct. 488, 494, 36 L.Ed. 285 (1892).
Accordingly, the Supreme Court has repeatedly entertained suits by the United States against a State, without the State’s consent.
Moreover, the jurisdiction of the Supreme Court extends to suits by the United States against a State “without regard to the subject of such controversies” (United States v. Texas, 143 U.S. at 646, 12 S.Ct. at 494, 36 L.Ed. 285) for “it is apparent upon the face of these clauses that in one class of cases the jurisdiction of the courts of the Union depends ‘on the character of the cause, whoever may be the parties,’
and, in the other, on the character of the parties, whatever may be the subject of controversy.” 143 U.S. at 643, 12 S.Ct. at 492, 36 L.Ed.2d 285. There is no suggestion in any of the opinions in cases brought by the United States against a State in the Supreme Court that the subject matter of the controversy was relevant to the Court’s jurisdiction.
The policy considerations underlying Supreme Court jurisdiction over such suits precludes the imposition of a subject-matter limitation. The jurisdiction exists because if it did not the United States would be forced to resort to the courts of the State which was resisting the federal claim (if, indeed, that State would permit suit against it in its own courts), or no means at all would be available for finally resolving the dispute short of an ultimate test of physical strength;
and neither of these alternatives is compatible with our constitutional scheme. The problem is the same whatever the nature of the controversy between the two governments. It therefore calls for the same solution without, regard to the kind of question presented,, provided the subject matter be justiciable- and hence appropriate for judicial resolution.
B.
Lower courts
As a result of Convention compromise the Constitution vested in Congress discretion to establish such lower federal courts as it might think proper ;
“and it seems to be a necessary inference from the express decision that the creation of inferior federal courts was to rest in the discretion of Congress that the scope of their jurisdiction, once created, was also to be discretionary.” Hart & Wechsler, The Federal Courts and the Federal System 18 (1953).
The power of Congress to confer jurisdiction upon lower courts is not limited by the constitutional grant of original jurisdiction over certain cases to the Supreme Court.
“The true rule in this case is * * * [that] the grant of jurisdiction over a certain subject-matter to one court, does not, of itself, imply that that jurisdiction is to be exclusive.” Gittings v. Crawford, 10 Fed.Cas. 447, 450 (No. 5465) (C.C.D. Md.1838).
That this was in fact the intention of the framers appears from changes made in article III in the course of the Convention.
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BROWNING, Circuit Judge.
The United States sued the State of California in the District Court to recover losses resulting from allegedly negligent acts of State employees in starting a fire in a national forest, and in attempting to extinguish it. The complaint was filed under 28 U.S.C.A. § 1345, which grants to district courts original juris
diction over “all” civil actions commenced by the United States.
The District Court dismissed the action on the ground that Section 1345 “does not confer upon a Federal district court jurisdiction over a State in a civil action brought by the United States to recover from the State damages resulting from negligence of State agents, absent a waiver of the State’s sovereign immunity.”
I
The District Court read this exception into the language of Section 1345 in part because the court entertained “serious Constitutional doubts” as to the power of Congress to extend the jurisdiction of district courts to suits by the United States against a State without the State’s specific consent unless a federal question is presented.
It is not clear whether the asserted lack of power pertains to all federal courts or only to those inferior
to the
Supreme Court. Nor is it clear whether an issue of federal supremacy is thought essential, or whether any kind of federal question will suffice.
Neither is it evident why a suit by the United States to collect damages from the State for injury to the national forests does not meet any subject-matter limitation which may be thought to exist.
It is unnecessary to consider these problems, however, for we are satisfied that the Constitution grants- original jurisdiction to the Supreme Court over civil suits brought by the United States against a State without specific consent regardless of the nature of the controversy, provided the issue is justiciable, and that the Constitution empowers Congress to confer upon the district courts concurrent jurisdiction over such suits.
A.
The Supreme Court
Article III,
Section 2, Clause 1 of the Constitution extends the federal judicial
power “to Controversies to which the United States shall be a Party.”
Clause 2 vests the Supreme Court with original jurisdiction over “all Cases * * * in which a State shall be a Party.” Since the latter grant does not exclude cases in which the United States is the opposite party, the Supreme Court has original jurisdiction over suits by the United States against a State. Each State impliedly consented to such suits “when admitted into the Union upon an equal footing in all respects with the other States,” and no further consent is needed. United States v. Texas, 143 U.S. 621, 646, 12 S.Ct. 488, 494, 36 L.Ed. 285 (1892).
Accordingly, the Supreme Court has repeatedly entertained suits by the United States against a State, without the State’s consent.
Moreover, the jurisdiction of the Supreme Court extends to suits by the United States against a State “without regard to the subject of such controversies” (United States v. Texas, 143 U.S. at 646, 12 S.Ct. at 494, 36 L.Ed. 285) for “it is apparent upon the face of these clauses that in one class of cases the jurisdiction of the courts of the Union depends ‘on the character of the cause, whoever may be the parties,’
and, in the other, on the character of the parties, whatever may be the subject of controversy.” 143 U.S. at 643, 12 S.Ct. at 492, 36 L.Ed.2d 285. There is no suggestion in any of the opinions in cases brought by the United States against a State in the Supreme Court that the subject matter of the controversy was relevant to the Court’s jurisdiction.
The policy considerations underlying Supreme Court jurisdiction over such suits precludes the imposition of a subject-matter limitation. The jurisdiction exists because if it did not the United States would be forced to resort to the courts of the State which was resisting the federal claim (if, indeed, that State would permit suit against it in its own courts), or no means at all would be available for finally resolving the dispute short of an ultimate test of physical strength;
and neither of these alternatives is compatible with our constitutional scheme. The problem is the same whatever the nature of the controversy between the two governments. It therefore calls for the same solution without, regard to the kind of question presented,, provided the subject matter be justiciable- and hence appropriate for judicial resolution.
B.
Lower courts
As a result of Convention compromise the Constitution vested in Congress discretion to establish such lower federal courts as it might think proper ;
“and it seems to be a necessary inference from the express decision that the creation of inferior federal courts was to rest in the discretion of Congress that the scope of their jurisdiction, once created, was also to be discretionary.” Hart & Wechsler, The Federal Courts and the Federal System 18 (1953).
The power of Congress to confer jurisdiction upon lower courts is not limited by the constitutional grant of original jurisdiction over certain cases to the Supreme Court.
“The true rule in this case is * * * [that] the grant of jurisdiction over a certain subject-matter to one court, does not, of itself, imply that that jurisdiction is to be exclusive.” Gittings v. Crawford, 10 Fed.Cas. 447, 450 (No. 5465) (C.C.D. Md.1838).
That this was in fact the intention of the framers appears from changes made in article III in the course of the Convention.
Accordingly, the Supreme Court held in Börs v. Preston, 111 U.S. 252, 4 S.Ct. 407, 28 L.Ed. 419 (1884), that Congress may grant jurisdiction to lower courts over suits against aliens, including consuls, despite the provision of article III that “In all Cases affecting * * * Consuls * * * the supreme Court shall have original Jurisdiction.” And at the same term the Court in Ames v. Kansas, 111 U.S. 449, 4 S.Ct. 437, 28 L.Ed. 482 (1884), concluded that the grant of original jurisdiction to the Supreme Court over cases “in which a State shall be a Party,” does not preclude Congress from vesting concurrent jurisdiction over such actions in lower courts.
Since
Ames v. Kansas, statutes granting jurisdiction to lower courts over suits by the United States under particular legislation have been repeatedly construed as including shits against a State and, as so interpreted, have been uniformly upheld.
There is nothing to indicate that the power of Congress in this regard is limited by the subject matter of the controversy.
Since the character of the parties is a basis of federal judicial power distinct and independent from that of the nature of the controversy,
there is no logical reason why Congress may not treat these two heads of jurisdiction separately in distributing the judicial power to lower courts. And Congress has in fact done so from the beginning. Section 9 of the Judiciary Act of 1789, for example, granted district courts jurisdiction based solely upon the nature of the cause (“all civil causes of admiralty and maritime jurisdiction”), upon both the nature of the cause and the character of the parties (“all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States”), and solely upon the character of the parties (“all suits at common law where the United States sue”).
The relevant court decisions support the view, evidently entertained by Congress, that congressional power to confer jurisdiction upon lower courts based upon the character of the parties is not limited by the subject matter of the controversy.
The subject matter of Börs v. Preston, supra, 111 U.S. 252, 4 S.Ct. 407, 28 L.Ed. 419, was the tortious conversion of personal property, and among the decisions relied upon by the Court was an action against a counsel to collect a promissory note.
In Ames v. Kansas, supra, 111
U.S. 449, 4 S.Ct. 437, 28 L.Ed. 482, the Court relied primarily upon these and other authorities upholding lower court jurisdiction over suits against consuls without regard to subject matter,
and there is nothing in Ames v. Kansas, or in the opinions in cases which have followed it,
suggesting that the power of Congress to grant jurisdiction to lower courts over suits against States, unlike suits against consuls, is limited by the nature of the controversy. In context, the unqualified assertion by Chief Justice Waite in Ames v. Kansas that it is “within the power of Congress to grant to the inferior courts of the United States jurisdiction in cases where the Supreme Court has been vested by the Constitution with original jurisdiction” (111 U.S. at 469, 4 S.Ct. at 447, 28 L.Ed. 482), cannot be discounted as unintentionally broad.
The fact that there is no subject-matter limitation upon the original jurisdiction of the Supreme Court over suits by the United States against a State argues strongly against a subject-matter limitation upon lower court jurisdiction over such suits. If a subject-matter limitation were applicable only to lower courts, States could be sued in district courts when questions of constitutional power and overriding federal interest were at stake, but could be sued only in the Supreme Court when disputes concerned nonfederal issues, of relatively minor consequence in the federal constitutional scheme.
Aside from the incongruity of this result, it would lead to one or another of two unfortunate consequences. Either the Supreme Court would be compelled to divert time and energy from the resolution of federal constitutional and statutory problems which are properly its primary concern; or it would be compelled to refuse to entertain all but the most significant of the nonfederalquestion cases brought by the United States against a State,
thus depriving the United States of access to any federal forum in many suits of this kind.
A construction of article III which recognizes power in Congress to vest
.jurisdiction in lower courts over suits against a State without regard to the nature of the controversy does not deprive the constitutional grant of original jurisdiction to the Supreme Court “of ■any effective meaning,” as the District ■Court suggested.
That jurisdiction remains, to be invoked in those controversies which are of sufficient consequence to justify the attention of the highest tribunal. Congress is left free, however, to vest concurrent jurisdiction in lower courts so that disputes of lesser importance, and those which may be determined more effectively in trial courts, may be litigated there.
II
The question remains whether Congress in enacting 28 U.S.C.A. § 1345
■exercised its power to vest such jurisdiction in district courts.
An understanding of the problem re■quires a brief review of the history of Section 1345 and a related provision of the Judicial Code, Section 1251(b) (2).
Section 1345 had its origin in the provision of Section 11 of the Judiciary Act ■of 1789 granting federal circuit courts “original cognizance * * * of all .suits of a civil nature * * 'x‘ where * * * the United States are plaintiffs.”
The subject matter of Section 1251 was first treated in the provision of Section 13 of the Act granting the Supreme Court “exclusive jurisdiction of all controversies * * * where a state is a party.”
In view of this stipulation in Section 13, suits by the United States against a State were excluded by implication from Section ll’s general grant to lower courts of jurisdiction over suits by the United States.
These provisions of Sections 11 and 13 of the Judiciary Act of 1789 remained a part of federal law essentially unchanged, until the revision of the Judicial Code in 1948.
However, various statutes enacted during the intervening yeai’s, which conferred jurisdiction on district courts over certain suits brought by the United States, were interpreted as permitting suit in such cases against a State, and as modifying to that extent the section 13 grant to the Supreme Court of exclusive jurisdiction over all suits against States.
In the 1948 Revision of the Judicial Code, the Section 11 grant of district court jurisdiction over suits brought by the United States was re-enacted as Section 1345, with the addition of an introductory phrase, “Except as otherwise provided by Act of Congress.” The Section 13 grant of exclusive Supreme Court jurisdiction over suits to which a State
was a party was replaced by Section 1251(b) (2), which provided that the Supreme Court should have “original but not exclusive jurisdiction of * * * •controversies between the United States and a State.”
By abrogating the prior grant of exclusive jurisdiction to the Supreme Court, Section 1251(b) (2) removed the bar which had prevented district courts from entertaining suits by the United States against a State under the jurisdictional grant now embodied in Section 1345. After the adoption of Section 1251(b) (2), Section 1345 granted juris- ■ diction over all such suits to district ■ courts, for no other Act of Congress then “otherwise provided.”
Our inquiry might end here, for as Professor James Wm. Moore, special -consultant to the revisers, has said, the 1948 Revision embodies “a large number • of changes, many of considerable importance. The Code should be construed with this in mind and where plain language works a change in the former law this change should be given effect * Moore’s Commentary on the United ■ States Judicial Code 83 (1949).
In any event, the Reviser’s Notes also ■demonstrate “that by enacting section 1251(b) (2), Congress sought to remove the need for further legislation conferring jurisdiction upon the district courts in cases where the United States brings an action against a state.” 38 N.Y.U.L. Rev. 405, 410 (1963).
The revisers were well aware that district courts generally lacked jurisdiction of suits by the United States against a State because of the general statutory grant of exclusive jurisdiction over such eases to the Supreme Court, and that special Acts had been adopted from time to time to overcome this impediment to district court jurisdiction in particular cases. The state of the law was fully discussed in opinions cited in the Reviser’s Note to Section 1251.
As Professor Moore stated, “while former 28 U.S.C. § 341 (1940)
gave the Supreme Court exclusive jurisdiction of an action by the United States against a state, there were other and more recent statutes that qualified this grant so that the United States could sue a state in a district court in certain cases. Section 1251(b) (2) gives general recognition to this principle by providing that the Court shall have original, but not exclusive jurisdiction of all actions between the United States and a state.” Moore’s Commentary on the United States Judicial Code 621 (1949).
That this was the intended effect of the change finds
further support in the Reviser’s Note to Section 1345 which states explicitly that the phrase, “Except as otherwise provided by Act of Congress” was inserted in that section “to make clear that jurisdiction [over suits brought by the United States] exists generally in district courts in the absence of special provisions conferring it elsewhere.”
Since the 1948 revision the courts have held repeatedly that Section 1345 vests jurisdiction in district courts over suits by the United States against a State.
Commentators have uniformly reached the same conclusion.
The contrary decision of the court below stands alone.
The principal argument advanced for the exclusion of suits against a State from the reach of Section 1345 (other than the constitutional doubts with which we have already dealt) is that since prior statutory embodiments of the rule stated in Section 1345 were not effective to confer jurisdiction upon district courts over suits against a State, and since the language is essentially unchanged, it should be interpreted as before. But suits against a State were not excluded from the coverage of the pre-1948 counterparts of Section 1345 because the statutory language failed to include them; on the contrary, the language was and is amply broad. Suits against a State were excluded solely because the predecessors of Section 1251(b) (2) had vested exclusive jurisdiction over such sui.ts in the Supreme Court. Removal of this bar by Section 1251(b) (2) eliminated the basis for the exception which had been implied in the clear language of the predecessors to Section 1345. This change, as we have seen, was a product of deliberate choice. It should be given effect.
It is also argued that surrender of sovereign immunity is not to be lightly implied, and, since Section 1345 does not specifically mention States as parties defendant, an intent to permit suit against them in district courts should not be implied, at least where the claim is merely for damages in tort.
The doctrine of sovereign immunity from suit in tort is scarcely a favored one.
And statutes vesting jurisdiction in district courts over suits by the United States have been held to apply to suits against States although States were not specifically mentioned as possible defendants.
The presumption that the sovereign is not bound unless
named “is an aid to consistent construction of statutes of the enacting sovereign when their purpose is in doubt, but it does not require that the aim of a statute fairly to be inferred be disregarded because not explicitly stated.” United States v. California, 297 U.S. 175, 186, 56 S.Ct. 421, 425, 80 L.Ed. 567 (1936).
As we have seen, States may be sued by the United States in the Supreme Court without their consent, and it is difficult to understand how they would benefit if jurisdiction were confined to that Court. The Supreme Court is primarily an appellate tribunal, ill-suited to trial of factual issues commonly crucial in such cases as the present one. Litigation of such issues in the Supreme Court would be inconvenient and costly to both parties, and particularly to the State. Jurisdictional grants to district courts over suits by the United States against States on particular claims have become so commonplace
as to sap the substance from the notion that the dignity of the State will suffer damage from a grant of jurisdiction to district courts over suits on all federal claims.
Suits by the United States against States, until recently rare,
are now not uncommon, and must inevitably increase with the broader activities of both the national government and the governments ■of the States. Common sense dictates that those suits which involve routine, largely factual disputes be litigated in the district courts,
and that the jurisdiction of the Supreme Court be invoked initially only in those rare cases which present large issues.
Reversed.