Harrison Construction Co. v. OHIO TURNPIKE COM'N
| Decision Date | 03 December 1959 |
| Docket Number | No. 13779.,13779. |
| Citation | 272 F.2d 337 |
| Parties | HARRISON CONSTRUCTION COMPANY, Appellant, v. OHIO TURNPIKE COMMISSION, Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John H. Leddy, Columbus, Ohio, Lawrence D. Stanley, John H. Leddy of Porter, Stanley, Treffinger & Platt, Columbus, Ohio, William Wallace Booth, and John D. McIntyre of Reed, Smith, Shaw & McClay, Pittsburgh, Pa., Sheldon S. Reynolds of Arter, Hadden Wykoff & Van Duzer, Cleveland, Ohio, on brief, for appellant.
John Lansdale, Jr., Cleveland, Ohio, Lockwood Thompson, General Counsel, Ohio Turnpike Commission, Strongville, Ohio, John Lansdale, Jr., and John E. Kirkpatrick of Squire, Sanders & Dempsey, Cleveland, Ohio, on brief, for appellee.
Arnold F. Bunge of Marshall, Melhorn, Bloch & Belt, Toledo, Ohio, Jamille G. Jamra of Eastman, Stichter & Smith, Toledo, Ohio, on brief amici curiæ for Johnson-Greene Co.
Wm. E. Knepper of Knepper, White, Richards, Miller & Roberts, Columbus, Ohio, Ross W. Shumaker of Shumaker, Loop & Kendrick, Toledo, Ohio, on brief amici curiæ for S. J. Groves & Sons Co.
Before McALLISTER, Chief Judge, and MILLER and CECIL, Circuit Judges.
Harrison Construction Company, Appellant, filed its complaint in the District Court for the Northern District of Ohio, to recover damages from Ohio Turnpike Commission, Appellee, alleged to have been caused by breach of contract on the part of the Commission. A motion to dismiss was sustained by order of the District Court. Appellant seeks a reversal of that order.
The sole question presented here is whether or not the action is in reality a suit against the State of Ohio and thus barred by the eleventh amendment to the Constitution of the United States.
The amendment reads: "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 or by Citizens or Subjects of any Foreign State."
The statutory provisions creating and governing the Ohio Turnpike Commission are embraced within sections 5537.01-5537.99, Ohio Revised Code. Pertinent characteristics are as follows:
Sec. 5537.02, O.R.C.
The director of highways is an ex-officio member of the commission without compensation but no action may be taken by it without the affirmative vote of three of the four regular members of the commission. The director of highways may make a study of a turnpike project and may use his engineering and other forces including consulting and traffic engineers for the purpose, but the expenses of such study shall be a part of the cost of the project with reimbursement to be made from the proceeds of bonds sold by the commission.
The salary of the commissioners and all expenses incurred by them in constructing and operating any project shall be paid from the proceeds of the bonds provided for in the Act and the operating revenues of the project. The commission shall not incur any liability or obligation beyond the extent of these funds, nor can it incur any indebtedness or liability on behalf of or payable by the state or any political subdivision thereof.
The commission is empowered to construct, maintain and operate turnpike projects at such locations as are approved by the governor and in accordance with standards approved by the director of highways for the benefit of the people of the state and for the purpose of improving traffic conditions in the state, promote the agricultural and industrial development of the state and to provide for the general welfare. Whenever all of the bonds and the interest thereon of any turnpike project have been paid and the project is in good repair, it shall become part of the state highway system and be maintained free of tolls.
Among the powers granted to the commission it may adopt an official seal which shall not be the seal of Ohio; sue and be sued in its own name provided that any suits against it shall be in the common pleas courts of the state, plead and be impleaded; issue revenue bonds; fix, revise, charge and collect tolls; acquire, hold and dispose of real and personal property; acquire in the name of the state by purchase or condemnation such public or private lands, including public parks, playgrounds or reservations or parts thereof or rights therein, etc., as it deems necessary for its purpose. (Full compensation shall be paid for public lands, playgrounds, parks, parkways, or reservations so taken); make and enter into all contracts and agreements necessary or incidental to its purpose; employ consulting engineers, superintendents, managers, and such other engineers, construction and accounting experts, attorneys and other employees and agents as in their judgment are necessary and fix their compensation; provide unemployment insurance and workmen's compensation coverage for its employees.
Title to property taken by condemnation shall be vested in the state. The commission must compensate the state adequately for the use of all state lands.
The Commission is authorized to issue revenue bonds in its name to finance a turnpike project but the principal and interest on such bonds are to be paid solely from the revenue received from the operation thereof. Bonds may be issued without obtaining the consent of any department, division, commission, board, bureau, or agency of the state. The issuance of the bonds need not comply with any other law of the state applicable to the issuance of bonds and they do not constitute a debt or a pledge of the faith and credit of the state.
The commission is not required to pay taxes on any turnpike project or any property acquired in the performance of its duty. The income from the bonds and any profit made on their sale is free from taxation by the state.
It is apparent that the Legislature very carefully immunized the treasury of the state from any obligations whatever arising out of the creation of the turnpike commission or any projects which it might undertake.
The question as to whether or not the state is the real party in interest must be "determined by the essential nature and effect of the proceeding as it appears from the entire record." Copper S. S. Co. v. State of Michigan, 6 Cir., 194 F.2d 465, 466; In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216; Pennoyer v. McConnaughly, 140 U.S. 1, 12, 11 S.Ct. 699, 35 L.Ed. 363; Ford Motor Co. v. Department of Treasury of State of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L. Ed. 389.
It is claimed on behalf of appellee that the relationship between the state and various agencies of state is a question of state law. Decisions of the Ohio Supreme...
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