The doctrine of immunity from suit by a State without its consent is sometimes mistakenly said to be founded upon *Page 135 a theory now obsolete, that the king can do no wrong. But that assertion overlooks the principle that exemption from suit is an attribute of sovereignty. That this was the conception of many of the leaders in the Constitutional Convention and of the advocates of ratification of the Constitution in the several States is clear from the record of the proceedings of the conventions. But when the question was presented for judicial determination it was held that a State was subject to suit in an action of assumpsit by an individual. Chisolm v. Georgia, 4 Dall. 419.

In Hans v. Louisiana, 134 U.S. 1, the impression that the decision made and its result are expressed by the court as follows: "That decision * * * created such a shock of surprise throughout the country that, at the first meeting of Congress thereafter, the Eleventh Amendment to the Constitution was almost unanimously proposed, and was in due course adopted by the legislatures of the States. This amendment, expressing the will of the ultimate sovereignty of the whole country, superior to all legislatures and all courts, actually reversed the decision of the Supreme Court. It did not in terms prohibit suits by individuals against the States, but declared that the Constitution should not be construed to import any power to authorize the bringing of such suits. The language of the amendment is that 'judicial power of the United States shallnot 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.' The Supreme Court had construed the judicial power as extending to such a suit, and its decision was thus overruled. The court itself so understood the effect of the amendment, for, after its adoption, Attorney General Lee, in the case of Hollingsworth v. Virginia, 3 Dall. 378, submitted this question to the court, 'whether the amendment did, or did not, supersede all suits *Page 136 depending, as well as prevent the institution of new suits, against any one of the United States, by citizens of another State?' Tilghman and Rawle argued in the negative, contending that the jurisdiction of the court was unimpaired in relation to all suits instituted previously to the adoption of the amendment. But, on the succeeding day, the court delivered a unanimous opinion, 'that the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a State was sued by the citizens of another State, or by citizens or subjects of any foreign State.' This view of the force and meaning of the amendment is important. It shows that, on this question of the suability of the States by individuals, the highest authority of this country was in accord rather with the minority than with the majority of the court in the decision of the case of Chisolm v. Georgia; and this fact lends additional interest to the able opinion of Mr. Justice IREDELL on that occasion. The other justices were more swayed by a close observance of the letter of the Constitution, without regard to former experience and usage; and because the latter said that the judicial power shall extend to controversies 'between a State and citizens of another State;' and 'between a State and foreign states, citizens or subjects,' they felt constrained to see in this language a power to enable the individual citizen of one State, or of a foreign State, to sue another State of the Union in the federal courts. Justice Iredell, on the contrary, contended that it was not the intention to create new and unheard of remedies, by subjecting sovereign States to actions at the suit of individuals, (which he conclusively showed was never done before,) but only, by proper legislation, to invest the federal courts with jurisdiction to hear and determine controversies and cases, between the parties designated, that were properly susceptible of litigation in courts. Looking back from our present standpoint at the *Page 137 decision in Chisolm v. Georgia, we do not greatly wonder at the effect which it had upon the country. Any such power as that of authorizing the federal judiciary to entertain suits by individuals against the States, had been expressly disclaimed, and even resented, by the great defenders of the Constitution whilst it was on its trial before the American people."

In Kawananakoa v. Polyblank, 205 U.S. 349, this principle is tersely reiterated where, speaking through Mr. Justice HOLMES, the court said: "A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law in which the right depends."

This doctrine, while firmly established, does not comprehend absolute immunity from suit, but recognizes the right to judicially resist any attempt by the State to violate property rights or rights acquired under its contracts, and discriminates between acts of the State and acts of officials not legally authorized. Hans v. Louisiana, supra; Pennoyer v. McConnaughy, 140 U.S. 1; Ex Parte Young, 209 U.S. 123; Bloxham v. F. C. P. R. Co., 35 Fla. 625, 17 South. Rep. 902; L. N. R. Co. v. Railroad Commission, 63 Fla. 491, 58 South. Rep. 543.

In this State the manner in which consent by the State to be sued may be given is fixed by the Constitution. It is ordained that "provision may be made by general law for bringing suit against the State as to all liabilities now existing or hereafter originating." Sec. 22, Art. 8, Const.

But the authority to "sue and be sued," given by statute (Sec. 1493, Rev. Gen. Stats.) does not subject a county to an action of tort by an individual, on the theory that it is a political subdivision of the State and possesses the sovereign attribute of exemption from suit without consent *Page 138 duly given. Keggin v. County of Hillsborough, 71 Fla. 356, 71 South. Rep. 372.

The defendant, Board of Commissioners of Everglades Drainage District, was created by legislative act and is clothed with the powers of taxation, of eminent domain, and with police powers. Representative as it is of the State, in the performance of public functions the quality of sovereignty inheres in it. Clearly, therefore, it seems to me, the decision that a county is not amenable to suit in an action ex delicto on the ground that it is a governmental agency, is applicable and authority for holding that an action of this character may not be maintained against the Board of Commissioners of Everglades Drainage District.