Arthur KRAUSE, Administrator of the Estate of Allison Krause, Deceased, Plaintiff-Appellant, v. James RHODES, Governor of the State of Ohio, et al., Defendants-Appellees; Elaine B. MILLER, Administratrix of the Estate of Jeffrey Glenn Miller, Deceased, Plaintiff-Appellant, v. James RHODES, Individually and as Governor of the State of Ohio, et al., Defendants-Appellees; Sarah SCHEUER, Administratrix of the Estate of Sandra Lee Scheuer, Deceased, Plaintiff-Appellant, v. James RHODES, Governor of the State of Ohio, et al., Defendants-Appellees, 471 F.2d 430

WEICK, Circuit Judge. The Governor of Ohio called out the Ohio National Guard to suppress a riot in the City of Kent, Ohio, and on the campus of Kent State University. Two proclamations of the Governor with respect thereto are appended to this opinion. They were attached to motions to dismiss filed by certain defendants in the District Court. During the riot each of the plaintiffs’ decedents, who were students at Kent State University, allegedly were shot and killed by one of the unnamed arid unknown members of the National Guard.

Their personal representatives filed separate actions in the District Court to recover a total of $11,000,000 — damages against the Governor of Ohio, the Adjutant General, and the Assistant Adjutant General. Two of the suits named four officers and various unknown and unnamed officers and enlisted men of the National Guard.

The two suits even named the President of Kent State University as a defendant, in one of which suits it was alleged that he recklessly, wilfully and wantonly omitted to take any action to control the troops on the campus, or to decrease the risk of injury to the students, and in the other suit he was charged with a conspiracy. The suits were brought under the Civil Rights Act, 42 U.S.C. § 1983, 28 U.S.C.A. §§ 1331, 1334, and also under the wrongful death statutes of Ohio, on the theory of pendent jurisdiction.

The complaints alleged generally and in conclusory terms that the defendants conspired to call out the National Guard and were guilty of wanton, wilful and negligent conduct when they knew or should have known that there was no cause or insufficient cause therefor; that the troops were not properly trained in the correct and reasonable use of weapons to suppress civil disorders; and that the troops were permitted to be armed with loaded weapons. It is alleged that as a result the decedents, who allegedly were not participating in any way in a riot and were not negligent in any manner, were shot and killed.

The motions to dismiss were filed by the defendants Rhodes, Del Corso, Canterbury, Jones, Martin and Srp. These defendants were the only defendants who were served with process in the cases in the District Court, or who filed motions in the cases.

The theory of the motions to dismiss was that these suits, although nominally against the Chief Executive and officers of the State, in substance and effect were against the State of Ohio since they directly and vitally affected the rights and interests of the State in the performance of its highest function, namely, the suppression of riots or insurrection and the protection of the public. It was on this theory and that of executive immunity that the District Court dismissed the actions and the plaintiffs have appealed. We affirm.

Amendment XI of the Constitution of the United States 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 . . . . ” In Ex Parte New York, 256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057 (1921), the Supreme Court held: “That a state may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a state without consent given; not one brought by citizens of another state, or by citizens or subjects of a foreign state, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the amendment is but an exemplification.” The Court made it clear that the applicability of the Eleventh Amendment “is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record.” Id. at 500, 41 S.Ct. at 590.

The general rule was stated in Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), as follows: “The general rule is that a suit is against the sovereign if ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,’ Land v. Dollar, 330 U.S. 731, 738, [67 S.Ct. 1009, 1012, 91 L.Ed. 1209] (1947), or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act.’ Larson v.

Domestic & Foreign Corp., supra, [337 U.S.] at 704, [69 S.Ct. 1457, at 1468, 93 L.Ed. 1628]; Ex parte New York, 256 U.S. 490, 502 [41 S.Ct. 588, 591, 65 L.Ed. 1057] (1921).” Moyer v. Peabody, 212 U.S. 78, 29 S.Ct. 235, 53 L.Ed. 410 (1909), like the present case, was an action brought under the Civil Rights Act to recover damages against the former Governor of Colorado, the former Adjutant General of the National Guard of the same state, and a Captain of a company of the National Guard, for an imprisonment of plaintiff by them while in office.

In upholding the dismissal of the complaint on demurrer, Justice Holmes stated: “In such a situation we must assume that he had a right, under the state Constitution and laws, to call out troops, as was held by the supreme court of the state. The Constitution is supplemented by

an act providing that ‘when an invasion of or insurrection in the state is made or threatened, the governor shall order the national guard to repel or suppress the same.’ Laws of 1897, chap. 63, art. 7, § 2, p. 204. That means that he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power.

So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the governor is the final judge and cannot be subjected to an action after he is out of office, on the ground that he had not reasonable ground for his belief. If we suppose a governor with a very long term of office, it may be that a case could be imagined in which the length of the imprisonment would raise a different question.

But there is nothing in the duration of the plaintiff’s detention or in the allegations of the complaint that would warrant submitting the judgment of the governor to revision by a jury. It is not alleged that his judgment was not honest, if that be material, or that the plaintiff was detained after fears of the insurrection were at an end.” (pp. 84-85, 29 S.Ct. pp. 236-237) He further said: “When it comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment.

C Public danger warrants the substituJ tion of executive process for judicial process. See Keely v. Sanders, 99 U.S. 441, 446, [25 L.Ed. 327, 328]. This was admitted with regard to killing men in the actual clash of arms; and we think it obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm.

As no one would deny that there was immunity for ordering a company to fire upon a mob in insurrection, and that a state law authorizing the governor to deprive citizens of life under such circumstances was consistent with the 14th Amendment, we are of opinion that the same is true of a law authorizing by implication what was done in this case. As we have said already, it is unnecessary to consider whether there are other reasons why the circuit court was right in its conclusion.

It is enough that, in our opinion, the declaration does not disclose a ‘suit authorized by law to be brought to redress the deprivation of any right secured by the Constitution of the United States.’ See Dow v. Johnson, 100 U.S. 158, [25 L.Ed. 632].” (Id. at 85-86, 29 S.Ct. at 251). In Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375 (1932), Chief Justice Hughes, in referring to Moyer v.

Peabody, supra, stated: “By virtue of his duty to ‘cause the laws to be faithfully executed,’ the executive is appropriately vested with the discretion to determine whether an exigency requiring military aid for that purpose has arisen. His decision to that effect is conclusive.

That construction, this Court has said, in speaking of the power constitutionally conferred by the Congress upon the President to call the militia into actual service, ‘necessarily results from the nature of the power itself, and from the manifest object contemplated.’ The power ‘is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union.’ Martin v. Mott, 12 Wheat. 19, 29, 30, [6 L.Ed. 537].

Similar effect, for corresponding reasons, is ascribed to the exercise by the Governor of a state of his discretion in calling out its military forces to suppress insurrection and disorder. Luther v. Borden, 7 How. 1, 45, [12 L.Ed. 581]; Moyer v. Peabody, 212 U.S. 78, 83, [29 S.Ct. 235, 236, 53 L.Ed. 410]. The nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order, for, without such liberty to make immediate decisions, the power itself would be useless.

Such measures, conceived in good faith, in the face of the emergency, and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the executive in the exercise of his authority to maintain peace. Thus, in Moyer v. Peabody, supra, the Court sustained the authority of the Governor to hold in custody temporarily one whom he believed to be engaged in fomenting disorder, and right of recovery against the Governor for the imprisonment was denied.

The Court said that, as the Governor ‘may kill persons who resist,’ he ‘may use the milder measures of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power.

So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief.’ In that case it appeared that the action of the Governor had direct relation to the subduing of the insurrection by the temporary detention of one believed to be a participant, and the general language of the opinion must be taken in connection with the point actually decided. Cohens v.

Virginia, 6 Wheat. 264, 399, [5 L.Ed. 257]; Carroll v. Carroll’s Lessee, 16 How. 275, 287 [14 L.Ed. 936]; Myers v. United States, 272 U.S. 52, 142, [47 S.Ct. 21, 71 L.Ed. 160].” (Id. at 399-400, 53 S.Ct. at 196; emphasis added). In Gregoire v.

Biddle, 177 F.2d 579 (2nd Cir. 1949), which was an action under the Civil Rights Act for damages against federal officers for false arrest, Chief Judge Learned Hand who wrote the opinion for the Court said: “It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery.

The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its . outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith.

There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.

Judged as res nova, we should not hesitate to follow the path laid down in the books. “The decisions have, indeed, always imposed as a limitation upon the immunity that the official’s act must have been' within the scope of his powers ; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment’s reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine.

What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him. For the foregoing reasons it was proper to dismiss the first count.” In Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), Mr. Justice Harlan, who wrote the opinion for the Court, stated, “The reasons for the recognition of the privilege have been often stated.

It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.” Justice Harlan then quoted the language of Learned Hand from Gregoire v.

Biddle, hereinbefore set forth, and stated: “We do not think that the principle announced in [Spalding v.] Vilas [161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780] can properly be restricted to executive officers of cabinet rank, and in fact it never has been so restricted by the lower federal courts. The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government.

The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.” (Footnotes omitted) In Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), the Court said in discussing legislative immunity : “The claim of an unworthy purpose does not destroy the privilege.

Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to motives. The holding of this Court in Fletcher v.

Peck, 6 Cranch 87, 130, [3 L.Ed. 162], that it was not consonant with out scheme of government for a court to inquire into the motives of legislators, has remained unquestioned. See cases cited in Arizona v. California, 283 U.S. 423, 455, [51 S.Ct. 522, 526, 75 L.Ed. 1154].” Bradley v. Fisher, 80 U.S. 335, 20 L.Ed. 646 (1871), and Alzua v. Johnson, 231 U.S. 106, 34 S.Ct. 27, 58 L.Ed. 142 (1913), upheld judicial immunity even though acts were in excess of jurisdiction and were alleged to have been done corruptly and maliciously.

Although occasionally both legislators and judges have been charged with depriving individuals of their constitutional rights, they have unquestioned immunity from suit. Gregoire v. Biddle, supra, and Barr v. Matteo, supra, applied the immunity to the Executive Department for the same reasons that it was extended to legislators and judges. The Executive Department is charged with the duty of protecting not only the other two departments of government but also the general public from domestic as well as foreign enemies. Such protection is the highest duty the Executive Department is obligated to perform.

It would not be conducive to good government to require the Chief Executive of either the nation or the state to defend himself in court, in a multitude of protracted actions, because he called out troops to suppress riots or disorders which resulted in injury. It would surely take a hardy executive to exercise his discretion by calling out troops to suppress a riot or insurrection, if he knew that in so doing the wisdom of his action could later be challenged in the courts.

And since the courts have granted to themselves absolute immunity, it would seem incongruous for them not to extend the same privilege to the Executive. To place a straight jacket on the state’s Chief Executive in times of emergency so that he could not freely exercise his discretion, would indeed stop the state government “in its tracks.” Dugan v. Rank, supra,, 372 U.S. at 621, 83 S.Ct. 999; Larson v. Domestic & Foreign Corp., 337 U.S. 682 at 704, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Ogletree v. McNamara, 449 F.2d 93 (6th Cir. 1971).

The suit against the state executives in this case, while not asking for a money judgment against the state, would seriously “interfere with public administration”, would “restrain the Government from acting”, and would “compel it to act”. Dugan v. Rank, supra. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), relied upon by the appellants is inapposite. It was an action for injunction to prohibit a state attorney general from enforcing an unconstitutional state statute which fixed confiscatory rates and interfered with interstate commerce.

Our case, on the other hand, is an action for damages and also involves the question whether the federal courts should interfere with the performance by the state’s chief executive of his highest duty to suppress riots or insurrections and protect the public.

Article III,

Section 10 of the Ohio Constitution provides that the Governor shall be Commander in Chief of the military and naval forces of the state except when they are called into service of the United States.

Article IX

Section 3 provides that the Governor has power to appoint the adjutant general, quartermaster general and other staff officers.

Article IX

Section 4 provides that he has the “power to call forth the militia to execute the laws of the state, to suppress insurrection, and repel invasion.” Pertinent provisions of Ohio statutes relating to the militia are as follows: Ohio Revised Code,

Section 5923.21, “The organized militia may be ordered by the governor to aid the civil authorities to suppress or prevent riot or insurrection, or to repel or prevent invasion, and shall be called into service in all cases before the unorganized militia.” Ohio Revised Code,

Section 5923.22, “When there is a tumult, riot, mob, or body of men acting together with intent to commit a felony, or to do or offer violence to person or property, or by force and violence break or resist the laws of the state, the commander in chief may issue a call to the commanding officer of any organization or unit of the organized militia, to order his command or part thereof, describing it, to be and appear, at a time and place therein specified, to act in aid of the civil authorities. “No officer or enlisted man in the organized militia, shall refuse to appear at the'time and place designated when lawfully directed to do so in conformity to the laws of the suppression of tumults, riots, and mobs, or shall fail to obey an order issued in such case.” Ohio Revised Code,

Section 5923.37 (Supp.), “When a member of the organized militia is ordered to duty by state authority during a time of public danger, he is not answerable in a civil suit for any act performed within the scope of his military duties at the scene of any disorder within said designated area unless the act is one of willful or wanton misconduct.” Ohio Revised Code,

Section 2923.55 (Supp.), “Police officers, special police officers, sheriffs, deputy sheriffs, highway patrolmen, other law enforcement officers, members of the organized militia, members of the armed forces of the United States, and firemen, when engaged in suppressing a riot or in dispersing or apprehending rioters and after an order to desist and disperse has been issued pursuant to

section 2923.51 of the Revised Code, are guiltless for killing, maiming, or injuring a rioter as a consequence of the use of such force as is necessary and proper to suppress the riot or disperse or apprehend rioters. This

section does not relieve a member of the organized militia or armed forces of the United States from prosecution by-court-martial for a military offense.” Kent State University is a state institution. Ohio Rev.Code § 3341.01. Its Board of Trustees is appointed by the governor with the advice and consent of the senate. Ohio Rev.Code § 3341.02 (B). Ohio has long applied the doctrine of sovereign immunity not only to suits against the state but also to its agencies and instrumentalities. Board of Commissioners v. Mighels, 7 Ohio St. 109 (1857); Palmer v. State, 96 Ohio St. 513, 118 N.E. 102 (1917); Palumbo v.

Industrial Commission, 140 Ohio St. 54, 42 N.E.2d 766 (1942); State ex rel. Williams v. Glander, 148 Ohio St. 188, 74 N.E.2d 82 (1947); Wolf v. Ohio State University Hospital, 170 Ohio St. 49, 162 N.E.2d 475 (1959).

In Glander, the Court approved and quoted the following language from American Jurisprudence: “While a suit against state officials is not necessarily a suit against the state, within the rule of immunity of the state from suit without its consent, that rule cannot be evaded by bringing an action nominally against a state officer or a state board, commission, or department in his or its official capacity when the real claim is against the state itself, and the state is the party vitally interested.

If the rights of the state would be directly and adversely affected by the judgment or decree sought, the state is a necessary party defendant, and if it cannot be made a party, that is, if it has not consented to be sued, the suit is not maintainable. The state’s immunity from suit without its consent is absolute and unqualified, and a constitutional provision securing it is not to be so construed as to place the state within the reach of the process of the court.” Glander was approved and followed in Krause v. State, 31 Ohio St.2d 132, 134, 142, 285 N.E.2d 736 (1972) certiorari pending. In Palmer v.

State, 248 U.S. 32, 39 S.Ct. 16, 63 L.Ed. 108 (1918), which grew out of Palmer v. State, 96 Ohio St. 513, 118 N.E. 102 (1917), the Supreme Court held: “The right of individuals to sue a state, in either a federal or state court, cannot be derived from the Constitution or laws of the United States. It can come only from the consent of the state.” The State of Ohio has not consented to be sued in either the state or federal courts. Lower court cases holding that State universities are not amenable to suits in tort actions are: Thacker v. Board of Trustees, 29 Ohio Misc. 31, 277 N.E.2d 818, following Wolf v.

Ohio State University Hospital, 170 Ohio St. 49, 162 N.E.2d 475 (1959); Carolyne v. Youngstown State University, unreported, 7th Dist. Court of Appeals dismissed by Supreme Court of the United States, 404 U.S. 1007, 92 S.Ct. 683, 30 L.Ed.2d 656. In Estate of Burks v. Ross, 438 F.2d 230 (6th Cir. 1971), we held that an Administrator of a Veterans Hospital and the institution’s psychiatrist had executive immunity. In our judgment, President White had executive immunity. No possible claim for relief, other than in conclusory language, was .stated against him.

Relative to the allegations in the complaint that the members of the National Guard were permitted to carry loaded weapons and that they were not properly trained for suppressing civilian riots and disturbances, it is clear that the judiciary ought not to involve itself in determining military or political questions. Our expertise does not extend to that field.

We ought not to limit the Governor in the exercise of his discretion to call out the National Guard to suppress a riot or insurrection; neither should we tell the military not to carry loaded weapons to protect the troops when someone may shoot or throw rocks at them. Bright v. Nunn, Governor, 448 F.2d 245 (6th Cir. 1971), involved a riot on the campus of the University of Kentucky at Lexington following the Kent State riots, during the course of which the ROTC building and several other buildings were destroyed by fire. An adjoining dormitory for women had to be evacuated in the middle of the night.

Rocks were thrown at teachers, security officers, and a policeman. A meeting of the Board of Trustees was disrupted. Outside agitators were on the campus, some of whom were convicted felons, and one was an arsonist. The trouble in that case was that the Guard was not called out soon enough to prevent the destruction of property. When the Guard was finally called out the disturbances were promptly quelled. The President of the student body, joined by the local

chapter of the American Association of College Professors, brought a class action in behalf of the students and professors against the governor and the President of the University alleging that their rights of speech and assembly had been denied them by the presence of the troops on the campus, and they asked for declaratory relief determining the impropriety of such actions and an injunction against further invasion of their asserted rights. The District Court dismissed the complaint following an evidentiary hearing. We affirmed.

The federal government is inextricably involved with the states in the training and weaponry of the National Guard. The involvement is stated very well in the dissenting opinion of Judge Celebrezze in Morgan v. Rhodes, 456 F.2d 608 (6th Cir. 1972), wherein he said: “I find a ‘textually demonstrable constitutional commitment’ of National Guard training and weaponry to a coordinate political department under

Article I,

Section 8, Clause 16, of the United States Constitution, which provides that Congress shall have the power ‘To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.’ “Pursuant to this constitutional authority, Congress has enacted legislation which governs the training and weaponry of the National Guard. 32 U.S.C. §§ 501-507, 701.

Moreover, Congress has expressly provided that ‘The President shall prescribe regulations, and issue orders, necessary to organize, discipline, and govern the National Guard.’ 32 U. S.C. § 110.

And under 32 U.S.C. § 108, the President has available the following means by which to enforce any regulations which he or the Congress may prescribe for the National Guard: ‘If, within a time to be fixed by the President, a State does not comply with or enforce a requirement of, or regulation prescribed under, this title its National Guard is barred, wholly or partly as the President may prescribe, from receiving money or any other aid, benefit, or privilege authorized by law.’ “This power to prescribe and enforce regulations for the training and weaponry of the National Guard, which Congress has delegated in part to the President, is more than a mere token and unexercised authority.

In July of 1967, when civil disorders had come to the forefront of national concern, President Johnson announced that he had ordered the addition of special training courses to the existing National Guard training program. Weekly Compilation of Presidential Documents, Vol. 3, No. 30, at 1056 (1967). Moreover, under the authority delegated to the President, the Department of the Army has specifically set mandatory riot-control training requirements for all Army National Guard and certain Air National Guard units.

See Report of the National Advisory Commission on Civil Disorders, supra, at 505. “I believe that the congressional and executive authority to prescribe and regulate the training and weaponry of the National Guard, as set forth above, clearly precludes any form of judicial regulation of the same matters.

I can envision no form of judicial relief which, if directed at the training and weaponry of the National Guard, would not involve a serious conflict with a ‘coordinate political department; a lack of judicially discoverable and manageable standards for resolving [the question]; . the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; . . . the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; an unusual need for unquestioning adherence to a political decision already made; [and] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.’ Baker v.

Carr, supra, 369 U.S. [186] at 217, 82 S.Ct. [691] at 710, 7 L.Ed.2d 663. Any such relief, whether it prescribed standards of training and weaponry or simply ordered compliance with the standards set by Congress and/or the Executive, would necessarily draw the courts into a non justiciable political question, over which we have no jurisdiction.” It would appear that the United States was a necessary party to the determination of the issues as it was involved in the training of the National Guard and their use of weaponry. Failure to join an indispensable party requires dismissal of the action, Rules 12(

b) and 19, Fed.R.Civ.P. Any decision rendered by the District Court relative to the training and weaponry of the Guard would require action to be taken by both state and federal governments. To require such action to be taken is beyond the jurisdiction of the Court. The United States has not consented to be sued. It is obvious from a reading of the complaints that the plaintiffs do not know who fired the shots that resulted in the deaths of their decedents.

In two of the complaints they have sued “Various Officers and Enlisted Men, true names presently unknown, being members of G Company, 107th Armored Cavalry Regiment and A Company, First Battalion, 145th Infantry Regiment, of the Ohio National Guard.” The- two plaintiffs may not bring into court an entire regiment of troops merely by suing “various officers and enlisted men, true names presently unknown.” The unnamed Officers and Enlisted Men were not served with process and were not properly before the District Court. It had no jurisdiction over them.

Furthermore, no relationship of respondeat superior existed between the unnamed enlisted men and the named and unnamed officers and the Governor of Ohio. The enlisted men, as well as the officers of the Guard, were all agents and servants of the State of Ohio. The allegation of conspiracy, without stating any supporting facts, is a pure conclusion of law. We hold that the actions against the Governor, the officers of the National Guard, and the President of Kent State University, are in substance and effect actions against the State of Ohio. Suits against the State are prohibited by the Eleventh Amendment.

The Governor, the officers of the Guard, and the President of Kent State University all have executive immunity. The unnamed and unknown officers and enlisted members of the Guard, none of whom was served with process, were not before the District Court, and it had no jurisdiction over them. THE DISSENT With all due respect to our brother, we have difficulty in following his lengthy and labored dissenting opinion. We are unable to reconcile it with his partial dissent in the ease of Morgan v.

Rhodes, 456 F.2d 608 (6th Cir. 1972), wherein he stated rather clearly that the federal government was inextricably involved in the training and weaponry of the National Guard. (Id. at 618, et seq.). If this is true, the suit should also be against the Federal Government. The United States is an indispensable party; there is a defect of parties. But, as we have pointed out, the Federal Government is not amenable to suit, and neither is the state. According to the dissent, the constitutional rights of a citizen may even be violated flagrantly by legislators and judges, with impunity, because they have immunity.

He relies on Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). See also Bradley v. Fisher, 80 U.S. 335, 20 L.Ed. 646 (1871) ; Alzua v. Johnson, 231 U.S. 106, 34 S.Ct. 27, 58 L.Ed. 142 (1913). Where immunity exists, it cannot be defeated by allegations that the defendant acted maliciously. Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949); Tenney v. Brandhove, supra. We think the dissent incorrectly applies Ohio law. In State ex rel. Williams v.

Glander, 148 Ohio St. 188, 74 N.E.2d 82 (1947), the Supreme Court of Ohio made it clear that the common law rule of immunity cannot be evaded by bringing a suit nominally against a state officer when the real claim is against the state itself. Glander was approved by the Supreme Court in Krause v. State, 31 Ohio St.2d 132, 285 N.E.2d 736 (1972), wherein the Court held that the state had not waived immunity with respect to the claim of one of the appellants in these appeals. Nor do we agree with the dissent’s

interpretation of Ohio Revised Code § 5923.37 (Supp.) which states: “When a member of the organized militia is ordered to duty by state authority during a time of public danger, he is not answerable in a civil suit for any act performed within the scope of his military duties at the scene of any disorder within said designated area unless the act is one of willful or wanton misconduct.” This statute is in derogation of the common law of the state and must be strictly construed. Lee Turzillo Contracting Co. v. Cincinnati Metropolitan Housing Authority, 10 Ohio St.2d 5, 225 N.E.2d 255 (1967).

It must be read in pari materia with Sections 5923.21, 5923.22 and 2923.55 hereinbefore quoted, and must be considered in the light of State ex rel. Williams v. Glander, supra. It applies only when a member of the Guard is ordered to duty by state authority. In the present ease the members of the Guard were ordered to duty by state authority, namely, the Governor of Ohio. The liability part of the statute thus applies only to the members of the Guard and not to the Governor, who was already protected by executive immunity without limitation thereon.

Furthermore, there is no averment in the pleadings that the Governor was at the “scene” at the time of the shooting. The officers of the Guard can be held liable only for their own conduct. They are not liable for negligence or willful and wanton conduct on the part of members of the Guard, as these members are agents of the state of Ohio and are not servants of the officers. The complaints do not state claims upon which relief can be granted. It is also clear that the District Court had no jurisdiction of the diversity claim .of Sarah Scheuer, as she is a resident of Ohio.

Not one Ohio case is cited in the dissent wherein the Governor, the officers or members of the Guard, have been held liable in a civil action for acts performed in the suppression of insurrection. They obviously are not responsible for any dereliction of the Federal Government in the training and weaponry of the Guard, in which it is inextricably involved; nor are they liable under Ohio law for negligence.

We ought not to deter the Chief Executives of either the state or the nation in the unflinching performance of their duty to protect the public, nor should we make their actions in this respect in times of emergency, subject to judicial review. The Civil Rights Act, § 1983, cannot be engrafted on the Eleventh Amendment by judicial construction. Affirmed.

APPENDIX EXHIBIT I State of Ohio EXECUTIVE DEPARTMENT Office of the Governor Columbus PROCLAMATION WHEREAS, in northeastern Ohio, particularly in the counties of Cuyahoga, Mahoning, Summit and Lorain, and in other parts of Ohio, in particular Rich-land, Butler and Hamilton Counties, there exist unlawful assemblies and roving bodies of men acting with intent to commit felony and to do violence to person or property in disregard of the laws of the State of Ohio and the United States of America; and WHEREAS, said unlawful assemblies and bodies of men have by acts of intimidation and threats of violence put law-abiding citizens in fear of pursuing their normal vocations in the transportation industry; and WHEREAS, local government officials, including sheriffs and their deputies and municipal police departments, are unable with their own forces to bring about a cessation of violence and reduce the believability of threats of violence ; and , WHEREAS, troops of the Ohio National Guard, in coordination with the Ohio State Highway Patrol and local peace officers, can bring about a restoration of confidence in the ability of citizens to move freely in the conduct of their business over the streets and highways of the State; and WHEREAS, the Mayors of many Ohio cities, after taking counsel with each other, have urgently requested that the Governor make available the troops of the Ohio National Guard to assist in maintaining order and in restoring freedom of transportation movement, NOW, THEREFORE, I, JAMES A.

RHODES, Governor and commander-inehief of the militia of the State of Ohio, do hereby order into active service such personnel and units of the militia as may be designated by the Adjutant General to maintain peace and order and to protect life and property throughout the State of Ohio; and said Adjutant General, and through him the commanding officer of any organization of such militia, is authorized and ordered to take action necessary for the restoration of order throughout the State of Ohio.

The military forces involved will act in aid of the civil authorities and shall consult with them to the extent necessary to determine the objects to be accomplished, leaving the procedure of execution to the discretion of the commanding military officer designated by the Adjutant General. The Adjutant General shall provide all transportation, services, and supplies necessary for the militia; and all statutory provisions requiring advertisement for bids in relation to their procurement are hereby suspended. I command all persons engaged in riotous and unlawful proceedings to cease and desist from such activities.

The active military duty herein ordered is hereby designated as service in a time of public danger. This proclamation shall continue in force until revoked. (SEAL OF OHIO) IN WITNESS WHEREOF, I have hereunto subscribed my name and caused the Great Seal of the State of Ohio to be affixed at Columbus, this 29th day of April, in the year of our Lord, one thousand nine hundred and Seventy. /S,/ James A. Rhodes Governor ATTEST: Ted W.

Brown Secretary of State EXHIBIT II State of Ohio EXECUTIVE DEPARTMENT Office of the Governor Columbus PROCLAMATION WHEREAS, on April 29, 1970, the Governor of Ohio as commander-in-chief issued verbal orders to the Adjutant General of Ohio directing him to call-up such units of the Ohio National Guard as in his judgment might be necessary or desirable to meet disorders and threatened disorders relating to wildcat strikes in the truck transportation industry, and to meet disorders or threatened disorders on campuses of Ohio State University in Franklin County, and campuses of other state-assisted universities ; and WHEREAS, pursuant to

Section 5923.231 of the Ohio Revised Code, the Governor of Ohio thereafter on April 29, 1970 issued his Proclamation ordering into active service such personnel and units of the militia as the Adjutant General might designate “to maintain peace and order and to protect life and property throughout the State of Ohioand WHEREAS, pursuant to the verbal orders aforementioned, the Adjutant General of Ohio called to active service units of the Ohio National Guard and assigned them variously to service in the City of Kent and on the campus of Kent State University in Portage County, and on the campus of Ohio State University in Fránklin County.

In addition to divers specific assignments related to restoration of order in the truck transportation industry; and WHEREAS, it is desirable to make a written record, both events and the derivation of authority exercised by personnel and units of the Ohio National Guard in Portage County and Franklin County. NOW, THEREFORE, I, JAMES A.

RHODES, Governor and commander-in-chief of the militia of the State of Ohio, do hereby supplement my Proclamation of April 29, 1970, by specifying that personnel and units of the militia as may or may have been designated by the Adjutant General to maintain peace and order in the City of Kent and on the campus of Kent State University in Portage County, and on the campus of Ohio State University in Franklin County, are included in the call to active service hereinbefore referred to; and said Adjutant General and through him the commanding officer of any organization of said militia is and was ordered to take action necessary for the restoration of order in the city and on the campuses aforesaid.

The military forces involved are and were ordered to act in aid of the civil authorities, and the Adjutant General was directed to consult with them to the extent necessary to determine the object to be accomplished, leaving the procedure of execution to the discretion of the commanding military officer designated by the Adjutant General. The active military duty herein further delineated is again designated as service in time of public danger.

This Proclamation shall continue in force until revoked with my Proclamation of April 29, 1970. (SEAL OF OHIO) IN WITNESS WHEREOF, I have hereunto subscribed my name and caused the Great Seal of the State of Ohio to be affixed at Columbus, this 5th day of May, in the year of our Lord, one thousand nine hundred and seventy. /S/ James A. Rhodes Governor ATTEST: Ted W. Brown Secretary of State . Plaintiff Krause filed a similar suit against the State of Ohio in the Court of Common Pleas of Cuyahoga County, Ohio, which was dismissed on the ground of sovereign immunity.

On appeal a divided Appellate Court reversed the Common Pleas Court and held that the State was amenable to suit and that the individual officers of the State had immunity. Krause v. State, 28 Ohio App.2d 1, 274 N.E.2d 321 (1971). In s.o holding the State Appellate Court did not follow a long line of decisions of the Supreme Court of Ohio, going back as far as 1840.

Certiorari was granted by the Supreme Court of Ohio, and on July 19, 1972, the Supreme Court of Ohio reversed the Appellate Court, and held: “The state of Ohio is not subject to suits in tort in the courts of this state without the consent of the General Assembly.” (Syl. 1) (Krause, Admr., Appellee v. State of Ohio, Appellant, 31 Ohio St.2d 132, 285 N.E.2d 736 (1972) certiorari pending). In a concurring opinion Justice Corrigan sharply criticized the Appellate Court for flouting the Supreme Court of Ohio opinions. . As well stated by Mr.

Justice White, “The most basic function of any government is to provide for the security of the individual and of his property.” Miranda v. Arizona, 384 U.S. 436, 539, 86 S.Ct. 1602, 1661, 16 L.Ed.2d 694 (1966), White, J., dissenting. . While the Civil Rights Act (§ 1983) was recently held to be within an exception to the anti-injunction statute (28 U.S.C. § 2283) forbidding federal courts from issuing injunctions against state courts, Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), the Eleventh Amendment contains no exceptions.

We ought not to engraft an exception on the Amendment by judicial construction. . In Martone v. McKeithen, 413 F.2d 1373 (5th Cir. 1969), the Court, relying on Barr v. Matteo, supra, and Gregoire v. Biddle, supra, held that the Governor of the state has immunity from damage suits for acts within the sphere of executive activity; that tlie members of the Labor-Management Commission and four investigators on its staff had legislative immunity; and the grand jurors had judicial immunity. Officials of the Department of Justice also have immunity. Norton v. McShane, 332 F.2d 855 (5th Cir. 1964).

Allegations of malice are not sufficient to p,revent tlie application of executive immunity. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), is authority for the proposition that

Section 1983 does not abolish the immunity of public officers from suit. . The potential effectiveness of this sanction is evidenced by the fact that [t] he Federal Government pays for 90 percent of the operating costs, virtually all of the equipment, and nearly half of the cost of the physical installations and facilities’ of the National Guard. Report of the National Advisory Commission on Civil Disorders at 498 (Bantam ed. 1968).” . Presidents have called out troops to suppress disorders, enforce orders of the federal courts and even to prevent disorders at political conventions.

It could hardly be maintained that the President of the United States is not protected with Executive immunity. (Footnote ours.)