I readily agree that the State Highway Department and Commission are agencies of the State of Colorado, and as such are clothed with sovereign immunity of the state from unconsented suit. I also readily agree that a suit against the state is not entertainable in the federal court upon the suggestion or mere allegation that it arises under the federal constitution. It is also agreed that the judgment or relief sought, not the parties named in the suit, controls the question of suability. If this is a suit against the state to coerce or compel its officers or agents to perform or exercise a political or governmental function such as the imposition of liability for a money judgment to be paid from general funds, the levying of a tax, or the appropriation of money by the legislature, it is an uncon-sented suit, and the court was clearly without jurisdiction and the writ of prohibition should issue, even though the redress is sought under the prohibition of the federal constitution.
A rightful regard for the independence of the coordinate branches of our government has prompted the courts to assiduously refrain from judicially interfering with the exercise of legislative or executive functions of the government. It is only when agents of the state act under color of authority to deprive a citizen of his liberty or property without due process of law that the courts intervene to stay the executive hand and gi-ant appropriate redress. This notable and historical exception to the rule of immunity has been recognized and emphasized very recently in Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 1474, 93 L.Ed. 1628, and Georgia R. & Banking Co. v. Redwine, 342 U.S. 299, 72 S. Ct. 321, 96 L.Ed. 335. Mr. Justice Frankfurter boiled it down to this: “The federal courts are not barred from adjudicating a claim against a governmental agent who invokes statutory authority for his action if the constitutional power to give him such a claim of immunity is itself challenged.” See his dissent in Larson v. Domestic & Foreign Corp., supra.
The exception is based upon the immutable principle that even the sovereign is amenable to the law and must act within it and that an agent of the sovereign cannot act under color of law to invade the rights and properties of a citizen and claim immunity for it as an act of the state. See Home Telephone and Telegraph Company v. City of Los Angeles 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 510; Cuyahoga-River Power Company v. City *59of Akron, 240 U.S. 462, 36 S.Ct. 402, 60 L.Ed. 743; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714.
Indeed, the majority concede that the taking or injuring of private property without the payment of compensation is unauthorized under the constitution of the State of Colorado and cannot be said to be the act of the state. But it seems to say that since the state has not consented to be sued for liability imposed for such unconstitutional injury, the citizen is without remedy to compel the agent of the state to bring appropriate proceedings to determine whether there has been an injury, and if so, just compensation therefor. This conclusion is based on the concept that to require the state to exercise its sovereign power of eminent domain would be an undue and unauthorized interference with the executive function of the government.
In reaching this conclusion the majority does not wish to be understood as leaving the citizen whose property has been damaged remedyless. Instead it leaves the district court free to restrain the unconstitutional injury until just compensation has been appropriately determined and paid. The basis for granting the writ then is that although the federal court may appropriately restrain the unconstitutional invasion of the citizen’s property rights, it cannot compel the state to provide due process for the injury once committed. I agree that the trial court had jurisdiction to restrain the unconstitutional invasion, but I would also sustain the trial court’s affirmative decree.
In my judgment the procedural distinction between a negative and affirmative decree does not in these circumstances mark the difference between sovereign immunity from the exercise of governmental functions and suability for unconstitutional invasion of private rights.
Apparently to avoid federal jurisdiction the attorney general insists that mandamus lies in the state courts to compel the institution of condemnation proceedings to determine the injury and just compensation. In support of that proposition he relies upon the decisions from six states, all of which deny sovereign immunity from suits to compel the state agency to institute proceedings for the determination of injury to property and the amount of compensation therefor. See cases cited Note 8 of the majority opinion. Mandamus is sustained on the theory that the duty to afford the citizen whose property is taken or injured due process of law is ministerial and nondiscretionary and indeed mandatory.
While the courts of Colorado have not directly spoken on the question they have sustained mandamus against the city council, mayor and auditor to compel the payment by the city of a condemnation award previously entered in favor of the respondent landowner. See Heim-becher v. City and County of Denver, 97 Colo. 465, 50 P.2d 785. And they have also made it plain that, “neither the executive nor the legislative branches of our government has any right whatsoever to deprive anyone of his life, liberty or property without due process or compensation”, and “that the judicial branch of the government stand[s] open as a haven for the protection of any citizen whose rights have been invaded, whether it be by an individual or by either of the other branches of our government.” Boxberger v. State Highway Department, Colo., 250 P.2d 1007, 1008. Moreover, in the absence of authoritative decisions of the Colorado courts, the attorney general of the state is the interpreter of the Colorado law, and his opinion that mandamus will lie in the state courts should have binding force here, especially when he invokes on behalf of the state the respectable and well reasoned authorities of other states.
To be sure, state court jurisdiction in mandamus is inconsistent with sovereign immunity from suit. It is a concession of suability for redress of an unconstitutional act of a state agency and a denial of due process of law. But the attorney general argues that availability of the remedy of mandamus in the state courts deprives the federal court of ju-*60risdietion to' grant the same remedy. The conclusive answer to that is that the reach of the Fourteenth Amendment is coextensive with any exercise by a state of power in whatever form asserted. Home Telephone and Telegraph Company v. City of Los Angeles, supra. And the federal jurisdiction extends to the deprivation of rights secured to the citizen by the Fourteenth Amendment against state infringement. If the state court has jurisdiction to compel the sovereign agent to accord the citizen due process of law for property taken or injured, certainly the federal courts have concurrent jurisdiction of the same subject matter in a suit in federal court as one arising under the constitution and laws of the United States.
Here the plaintiffs have alleged an injury to private property by the officers of the state acting under color of authority without payment of just compensation. By such allegations they have invoked the rights secured to them under the federal constitution against state action. All of the jurisdictional requirements have been met. The court has prudently declined to enjoin state action, for in any event the state is empowered to take or injure the property subject only to the duty to pay just compensation therefor. Instead the court has, in the exercise of a sound discretion, elected to order the state engineer to show cause why he should not institute proceedings to afford due process of law by the payment of just compensation. The only triable issue on the order to show cause is whether as a matter of federal law there has been a taking of private property by the state agent without due process. If the court determines that there has been no constitutional taking, the litigation is at an end. If, on -the other hand, it does determine that the acts complained of amount to an unconstitutional injury to private property, it may require the state agency to exercise its nondiscretionary duty to accord the injured citizen due process of law, or convinced of a state remedy it may conceivably leave the parties to recourse in the state courts. But all of this involves an exercise of jurisdiction. It is not a denial of it. And in any event, the extraordinary writ of prohibition should not issue if the jurisdiction to grant relief is doubtful. Pennsylvania Turnpike Commission v. Welsh, 3 Cir., 1951, 188 F.2d 447.
I would deny the writ.