Parden v. Terminal Railway of Alabama State Docks Dept.

• Decision Date: 27 February 1963
• Docket Number: No. 19519.,19519.
• Parties: R. B. PARDEN et al., Appellants, v. TERMINAL RAILWAY OF the ALABAMA STATE DOCKS DEPARTMENT et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

311 F.2d 727 (1963)

R. B. PARDEN et al., Appellants, v. TERMINAL RAILWAY OF the ALABAMA STATE DOCKS DEPARTMENT et al., Appellees.

No. 19519.

United States Court of Appeals Fifth Circuit.

January 3, 1963.

Rehearing Denied February 27, 1963.

T. M. Conway, Jr., Al. G. Rives, Birmingham, Ala., Rives, Peterson, Pettus & Conway, Birmingham, Ala., of counsel, for appellants.

Willis C. Darby, Jr., N. S. Hare, Mobile, Ala., MacDonald Gallion, Atty. Gen., Leslie Hall, Asst. Atty. Gen., Montgomery, Ala., for respondent.

Before RIVES, CAMERON and BROWN, Circuit Judges.

CAMERON, Circuit Judge.

This appeal involves the question whether the State of Alabama may be sued by its citizen in a District Court of the United States on a claim based upon the Federal Employers Liability Act¹ for damages for personal injuries sustained by its citizen while employed by a railroad belonging to the State of Alabama which was operated as a common carrier in interstate commerce and while he was so engaged. The action² was brought against Terminal Railway, Alabama State Docks; and the sovereign State of Alabama, entering its appearance specially, moved to quash the return of summons on it or to dismiss the action, on the grounds that the Terminal Railway was an agency of the State, that the State had not consented to be sued or waived its immunity, and that the judicial power of the United States did not extend to this controversy because it is between a citizen of Alabama and the State of Alabama. Both motions were heard on the face of the pleadings supplemented by four affidavits and two depositions and were granted by the court below in an order stating:

"It is Ordered by the Court that the motion of the Sovereign State of Alabama to quash return of service of summons be, and the same hereby is, Granted, and

"It is Further Ordered by the Court that the motion of the Sovereign State of Alabama to dismiss the action be, and the same hereby is, Granted, with costs herein taxed against the Plaintiff."

The parties do not contend on appeal that there is any dispute about the facts, but agree that the case presents only questions of law. The basic facts are here set forth and others will be adverted to in our discussion of the several arguments:

The Terminal Railway was and is wholly owned and operated by the State of Alabama, consists of about fifty miles of railroad tracks in the area adjacent to the Alabama State Docks at Mobile, Alabama, serving in addition several industries situated in the general vicinity, and operating an interchange railroad with Alabama, Tennessee and Northern Railroad Company, Louisville and Nashville Railroad Company, Southern Railway Company, and Gulf, Mobile and Ohio Railroad Company. A large percent of its operations are in interstate commerce; and it has contracts and working agreements with the various railroad brotherhoods, and makes reports to the Interstate Commerce Commission concerning injuries sustained by its employees, and keeps its accounts so as to comply with the regulations of the Interstate Commerce Commission.

Appellant Parden argues that the owner of every common carrier by railroad engaging in interstate commerce is liable for injuries to its employees so engaged under the clear and all-embracing language of the F.E.L.A. quoted in footnote 1, supra;³ that the State of Alabama is so liable because it operates this railroad under constitutional amendment⁴ and statute;⁵ and that, under the Commerce Clause of The United States Constitution and three Supreme Court cases hereinafter considered, it is subject to and liable under F.E.L.A. and the Safety Appliance Act to the same extent as an individual.

Alabama counters with the contention that the whole sum of the judicial power granted by the Constitution to the central government does not embrace any authority in its courts to entertain a suit brought by a citizen against his own State; and that the State of Alabama has not waived its immunity from suit. The appellant responds by asserting that the general principles relied upon by the State do not apply where the State is deemed to have consented to suit; and that, since Alabama is not protected by the Eleventh Amendment to the Constitution, it is deemed to have consented by the mere fact that it entered into and conducted the operation of an interstate railroad under the statutory and organic law of the State.⁶

We do not agree that the State of Alabama, by the mere fact that it legally operated an interstate carrier, surrendered its right not to be sued, which belongs to the Union and all the States in it, except as explicitly provided otherwise in the Constitution. It is conceded that Alabama could not be sued by a citizen of another State seeking to assert the identical right claimed here. This, the appellant conceives to be a protection vouchsafed by the Eleventh Amendment which, it says, Alabama does not possess when it is sued by its own citizen. We think this attitude arises from a misunderstanding of the effect of the Eleventh Amendment and of the status of the States of the Union independent of it. This is made clear by a brief consideration of the history of the Amendment as developed in decisions of the Supreme Court.

Almost before the ink had dried on the signatures to the Constitution, a citizen of South Carolina filed suit against the State of Georgia in the Supreme Court of the United States asserting jurisdiction under Article III, Section 2, Clause 1 of the Constitution.⁷ The Supreme Court⁸ upheld the claimed right in a decision whose essence the syllabus sums up in these words: "A State may be sued, in the Supreme Court, by an individual citizen of another State * * *"

The people, who had just adopted a Constitution which delegated certain powers to the central government, did not agree with this construction of what they had written; and they promptly adopted the Eleventh Amendment: "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." Emphasis supplied.

The Amendment dealt solely with the prepositional phrases — "between a State and Citizens of another State" and "between a State * * * and foreign States, Citizens or Subjects" — being cast in the precise words of those phrases. And it dealt with the construction of those phrases only, stating without equivocation that the grant of power was not to be construed as authorizing a citizen or subject to sue another State. It directed simply that no court considering that phrase should have the power to construe it other than as directed by the Eleventh Amendment. The Amendment did not add anything to the Constitution and did not take anything from it. It simply gave directions as to the meaning of a phrase already in the Constitution. It was definitely a limitation on the right of any court to construe that language of the Constitution in such a way as to diminish the immunity from suit which is an essential and universal attribute of sovereignty.

It was not necessary that the Amendment negate the right of a citizen to sue his own State because Article III of the Constitution, which alone deals with the federal Judiciary and defines the judicial power being delegated to the central government, nowhere mentions or hints at a case or controversy between a State and its own citizens as being justiciable by any court. As against its own citizens, therefore, a State did not need and has never needed the shelter or protection of the Eleventh Amendment.

It was almost a century after Chisholm v. Georgia and the Eleventh Amendment before the Supreme Court was faced with a suit brought by a citizen against his own State, Hans v. Louisiana, 1890, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842. Jurisdiction in the Circuit Court was claimed under Article III of the Constitution, which declares that "the judicial power of the United States shall extend to all cases in law and equity arising under this Constitution, the laws of the United States and treaties made * * *," and the Act of March 3, 1875, 18 Stat. 470, c. 137, § 1, now 28 U.S.C.A. § 1331(a), vesting in the Circuit Courts jurisdiction "of all suits of a civil nature at common law or in equity, * * * arising under the Constitution or laws of the United States, or treaties made * * *." The lower court dismissed the suit and the Supreme Court affirmed without a dissent.

The opinion analyzes thoroughly the decision in Chisholm v. Georgia, the Eleventh Amendment, and the debates among the writers of the Constitution, and, in addition, those between Mason and Patrick Henry on one side and Madison and Marshall on the other, in the Virginia Convention. It quotes from Madison: "Its jurisdiction the Federal jurisdiction in controversies between a State and citizens of another State is much objected to, and perhaps without reason. It is not in the power of individuals to call any State into court. The only operation it can have is that, if a State should wish to bring a suit against a citizen, it must be brought before the Federal Court;" and from Marshall: "With respect to disputes between a State and the citizens of another State, its jurisdiction has been decried with unusual vehemence. I hope that no gentleman will think that a State will be called at the bar of the Federal Court * * *. It is not rational to suppose that the sovereign power should be dragged before a court. The intent is to enable States to recover claims of individuals residing in other States * * *." And it characterizes the contention that the passage of the Eleventh Amendment had the effect of leaving a State open to suit by its own citizens in cases arising under the Constitution or laws of the United States as "* * * supposition * * * almost an absurdity on its face." 134 U.S. pp. 14 and 15, 10 S.Ct. 507.

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