Petty v. Bridge Commission

• Citation: 3 L.Ed.2d 804,79 S.Ct. 785,359 U.S. 275
• Decision Date: 20 April 1959
• Docket Number: TENNESSEE-MISSOURI,No. 233,233
• Parties: Naomi PETTY, Administratrix of the Estate of Faye R. Petty, Deceased, Petitioner, v. BRIDGE COMMISSION, a Corporation,
• Court: United States Supreme Court

359 U.S. 275

79 S.Ct. 785

3 L.Ed.2d 804

Naomi PETTY, Administratrix of the Estate of Faye R. Petty, Deceased, Petitioner,

v TENNESSEE-MISSOURI BRIDGE COMMISSION, a Corporation,

No. 233.

Argued March 4, 1959.

Decided April 20, 1959.

Mr. Douglas MacLeod, St. Louis, Mo., for petitioner.

Mr. James M. Reeves, Caruthersville, Mo., for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

When the Court in 1793 held that a State could be sued in the federal courts by a citizen of another State¹ (Chisholm v. State of Georgia, 2 Dall. 419, 1 L.Ed. 440), the Eleventh Amendment² was passed precluding it. But this is an immunity which a State may waive at its pleasure (State of Missouri v. Fiske, 290 U.S. 18, 24, 54 S.Ct. 18, 20, 78 L.Ed. 145) as by a general appearance in litigation in a federal court (Clark v. Barnard, 108 U.S. 436, 447 448, 2 S.Ct. 878, 882—883, 27 L.Ed. 780) or by statute. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 468—470, 65 S.Ct. 347, 352—353, 89 L.Ed. 389. The conclusion that there has been a waiver of immunity will not be lightly inferred. Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742. Nor will a waiver of immunity from suit in state courts do service for a waiver of immunity where the litigation is brought in the federal court. Chandler v. Dix, 194 U.S 590, 591—592, 24 S.Ct. 766, 767, 48 L.Ed. 1129. And where a public instrumentality is created with the right 'to sue and be sued' that waiver of immunity in the particular setting may be restricted to suits or proceedings of a special character in the state, not the federal, courts. Cf. Delaware River Joint Toll Bridge Commission, Pennsylvania-New Jersey v. Colburn, 310 U.S. 419, 60 S.Ct. 1039, 84 L.Ed. 1287. Suits against agencies of a State based on maritime torts are no exception to these rules. Ex parte State of New York, 256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057.

The question here is whether Tennessee and Missouri have waived their immunity under the facts of this case.

Congress, under conditions specified in 33 U.S.C. § 525, et seq., 33 U.S.C.A. § 525 et seq., gave its consent to the construction of bridges over the navigable waters in the United States. Respondent is a 'body corporate and politic' created by Missouri (13 Vernon's Ann.Stat., Tit. 14, § 234.360) and Tennessee (P.L.1949, cc. 167, 168) acting urs uant to the Compact Clause of the Constitution. Art. I § 10, cl. 3.³ The compact prepared by the two States and submitted to the Congress provided in Art. I, §§ 1 and 2 that respondent should have the power to build a bridge and operate ferries across the Mississippi at specified points and in Art. I, § 3, that it should have the power 'to contract, to sue and be sued in its own name.' Congress granted its consent to the compact, 63 Stat. 930, stating in a proviso:

'That nothing herein contained shall be construed to affect, impair, or diminish any right, power, or jurisdiction of the United States or of any court, department, board, bureau, officer, or official of the United States, over or in regard to any navigable waters, or any commerce between the States or with foreign countries, or any bridge, railroad, highway, pier, wharf, or other facility or improvement, or any other person, matter, or thing, forming the subject matter of the aforesaid compact or agreement or otherwise affected by the terms thereof.' (Italics added.)

The facts are that petitioner's husband was employed on a ferryboat operated by respondent as a common carrier across the Mississippi between a point in Missouri and one in Tennessee. He met his death when he was trapped in the pilothouse of the ferryboat as it sank, following a collision with another boat. Suit was brought under the Jones Act, 46 U.S.C. § 688, 46 U.S.C.A. § 688, charging respondent with negligence.

The District Court granted the motion to dismiss, holding that respondent is an agency of the States of Tennessee and Missouri and immune from suit in tort. 153 F.Supp. 512. The Court of Appeals, agreeing with that view, affirmed. 254 F.2d 857. The case is here on certiorari. 358 U.S. 811, 79 S.Ct. 53, 3 L.Ed.2d 55.

The construction of a compact sanctioned by Congress under Art. I, § 10, cl. 3, of the Constitution presents a federal question. Delaware River Joint Toll Bridge Commission, Pennsylvania-New New Jersey v. Colburn, supra, 310 U.S. at page 427, 60 S.Ct. at page 1041. Moreover, the meaning of a compact is a question on which this Court has the final say.⁴ State ex rel. Dyer v. Sims, 341 U.S. 22, 28, 71 S.Ct. 557, 560, 95 L.Ed. 713. The rule is no different when the contention is that a State has, by compact, waived its immunity from suit. Of course, when the alleged basis of waiver of the Eleventh Amendment's immunity is a state statute, the question to be answered is whether the State has intended to waive its immunity. Chandler v. Dix, supra. But where the waiver is, as here, claimed to arise from a compact between several States, the Court is called on to interpret not unilateral state action but the terms of a consensual agreement, the meaning of which, because made by different States acting under the Constitution and with congressional approval, is a question of federal law. Delaware River Joint Toll Bridge Commission, Pennsylvania-New Jersey v. Colburn, supra. In making that interpretation we must treat the compact as a living interstate agreement which performs high functions in our federalism,⁵ including the operation of vast interstate enterprises.⁶

The Court of Appeals laid emphasis on the law of Missouri, which, it said, construes a sue-and-be-sued provision as not authorizing a suit for negligence against a public corporation. It likewise cited Tennessee decisions strictly construing statutes permitting suits against the State. We assume arguendo that this suit must be considered as one against the States since this bi-state corporation is a joint or common agency of Tennessee and Missouri. But we disagree with the construction given by the Court of Appeals to the sue-and-be-sued clause. For the resolution of that question we turn to federal not state law. Congress might of course adopt as federal law the law of either or both of the States. Delaware River Joint Toll Bridge Commission, Pennsylvania-New Jersey v. Colburn, supra. Cf. Commissioner of Internal Revenue v. Stern, 357 U.S. 39, 78 S.Ct. 1047, 2 L.Ed.2d 1126; Helvering v. Stuart, 317 U.S. 154, 63 S.Ct. 140, 87 L.Ed. 154; Myers v. Matley, 318 U.S. 622, 63 S.Ct. 780, 87 L.Ed. 1043. But Congress took no such step here. It approved a sue-and-be-sued clause in a compact under conditions clause in a compact under conditions that make it clear that the States accepting it waived any immunity from suit which they otherwise might have.

This compact, approved by Congress in 1949, was made in an era when the immunity of corporations performing governmental functions was not in favor in the federal field. In Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784, decided nearly 10 years before the present compact was made, the authority to sue and be sued contained in a federal charter granted a government corporation was held to be broad enough to include suits in torts, at least where the duties relied upon 'have their source in contract even though the guilty agents may be merely tort-feasors.' Id., 306 U.S. at page 395, 59 S.Ct. at page 521. There the underlying contract was a bailment; here it is employment. To draw a distinction in either the Keifer case or in this case between tort and contract would be to 'make application of a steadily growing policy of governmental liability contingent upon irrelevant procedural factors. These, in our law, are still deeply rooted in historical accidents to which the expanding conceptions of public morality regarding governmental responsibility should not be subordinated.' Id., 306 U.S. at page 396, 59 S.Ct. at page 521.

This case, like the Keifer case, involves the launching of a governmental corporation into an industrial or business field. In view of the federal climate of opinion which by that time had grown up around the sue-and-be-sued clause, we cannot believe that Congress intended to confine it more narrowly here than in the Keifer case. But we need not rest on that alone. Congress, when it approved this compact, attached a condition that 'nothing herein contained shall be construed to affect, impair, or diminish any right, power, or jurisdiction of * * * any court * * * of the United States over or in regard to any navigable waters or any commerce between the States * * *.' We need not stop to catalogue all the ends that may be served by this proviso. See S.Rep. No. 1198, 81st Cong., 1st Sess.; H.R.Rep.No.1429, 81st Cong., 1st Sess. It is argued that the proviso was included to make plain that the bonds issued by the agency were taxable by the United States. We must go further however, to find a rational purpose since another proviso of the Act of Congress specifically stated: 'That any obligations issued and outstanding, including the income derived therefrom, under the terms of the compact or agreement, and any amendments thereto, shall be subject to the tax laws of the United States.' Whatever may be the several effects of the other proviso with which we are presently concerned, one result seems to us clear. This proviso, read in light of the sue-and-be-sued clause in the compact, reserves the jurisdiction of the federal courts to act in any matter arising under the compact over which they would have jurisdiction by virtue of the fact that the Mississippi is a navigable stream and that interstate commerce is involved. There is no more apt illustration of the involvement of the commerce power and the power over maritime matters than the Jones Act. O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 39—43, 63 S.Ct. 488, 490—492, 87 L.Ed. 596. This is...