Petty v. Tennessee-Missouri Bridge Commission

• Decision Date: 01 May 1958
• Docket Number: No. 15878.,15878.
• Citation: 254 F.2d 857
• Parties: Naomi PETTY, Administratrix of the Estate of Faye R. Petty, Deceased, Appellant, v. TENNESSEE-MISSOURI BRIDGE COMMISSION, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

254 F.2d 857 (1958)

Naomi PETTY, Administratrix of the Estate of Faye R. Petty, Deceased, Appellant, v. TENNESSEE-MISSOURI BRIDGE COMMISSION, a Corporation, Appellee.

No. 15878.

United States Court of Appeals Eighth Circuit.

May 1, 1958.

Douglas MacLeod, St. Louis, Mo. (Fred Robertson, Tiptonville, Tenn., and Miles & Miles, Union City, Tenn., were with him on the brief), for appellant.

James M. Reeves, Caruthersville, Mo. (Ward & Reeves, Caruthersville, Mo., was with him on the brief), for appellee.

Before GARDNER, Chief Judge, and JOHNSEN and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Plaintiff-administratrix has appealed from final order dismissing her complaint for damages for wrongful death of her decedent. Plaintiff, as administratrix of the estate of her deceased husband, in her complaint asserted that her deceased husband, while employed as a seaman upon a ferry boat operated by the defendant across the Mississippi River between Tiptonville, Tennessee, and Portageville, Missouri, met his death when trapped in the pilot house of the ferry boat as it sank, as the result of a collision with another boat; that her husband's death was caused by the negligence of the defendant; and that recovery of damages is authorized by the Jones Act, 46 U.S.C.A. § 688.

Defendant filed a motion to dismiss based upon the following grounds:

"1 — Because this action is essentially a suit against the States of Tennessee and Missouri, which cannot be maintained in the Courts of the United States, or any other Courts.

"2 — Because this action is in substance and effect one against the States of Tennessee and Missouri, without consent, over which neither the judicial power of the United States or the States of Tennessee or Missouri extends.

"3 — Because this is a suit against an agency created by the sovereign States of Tennessee and Missouri, approved by an Act of Congress, and suits of this class are not permitted by the Constitution and Laws of the States of Tennessee and Missouri, or either of them, and this defendant is immune and not liable in damages in suits of this class.

"4 — Because this Court has no jurisdiction over the person of this defendant, or the subject matter of this action."

The court in its decision states that the motion may be treated as a motion for summary judgment.

The trial court sustained the defendant's motion and dismissed the complaint upon the basis that the suit against the defendant was in effect a suit against the States of Tennessee and Missouri, that the defense of sovereign immunity was available to said States, and that such defense had not been waived. The appeal challenges the validity of this determination.

Plaintiff in her brief states that defendant's claim of sovereign immunity must be denied for each of the following reasons: (1) defendant is a separate entity from the States of Tennessee and Missouri; (2) the States have waived sovereign immunity; (3) the States, by empowering the Commission to engage in maritime commerce and interstate commerce, "subordinated themselves and it to the Federal Government's power to regulate interstate commerce and its power over matters maritime, and all laws enacted to implement these powers, including the Jones Act."

The pertinent facts relative to the creation and operation of the Bridge Commission may be summarized. The Bridge Commission is a "body corporate and politic." The Commission was created in 1949 pursuant to the General Bridge Act of 1946, 33 U.S.C.A. §§ 525-533, by joint action of the legislatures of Tennessee and Missouri (Chapters 167 and 168 of the Public Acts of 1949 of the Tennessee Legislature, and Revised Statutes of Missouri, Sections 234.360-234.420, V.A. M.S.) and by special act of Congress (Public Law 411, 81st Congress, Oct. 26, 1949, Chapter 758, 63 Stat. 930). Congressional approval was required by Article I, Section 10, Clause 3 of the Constitution of the United States, which provides, "No State shall, without the Consent of Congress * * * enter into any Agreement or Compact with another State * * *." The terms of the interstate compact are set out in full in each of the state acts and in the congressional act of approval. The main function of the Commission is to plan, construct, maintain, and operate an interstate bridge near Caruthersville, Missouri, with authority granted to purchase and operate ferries across the river within 25 miles of the bridge site.

We now consider the question of whether the Commission is an entity separate and apart from the States of Tennessee and Missouri.

In Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389, the action was brought against various state officials who constituted the Department of Treasury. The action was dismissed on the basis of sovereign immunity. The Court, in support of its determination that the suit was one against the state, says (323 U.S. at page 464, 65 S.Ct. at page 350):

"* * * We have previously held that the nature of a suit as one against the state is to be determined by the essential nature and effect of the proceeding. * * * And when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants. * * *"

In Kansas City Bridge Co. v. Alabama State Bridge Corp., 5 Cir., 59 F.2d 48, at pages 49-50, the action against the bridge company was held to be one against the state, the court stating:

"It is clear that the whole purpose of the act was to erect bridges essential to the highway system, to pay for them with tolls, and then to make them free for the use of the public. It is well settled that the construction of public roads and bridges is a governmental function. * * * The state may either perform this function in its own name or through its public officers or one of its governmental agencies. * * The Alabama Bridge Corporation was but an agency or instrumentality through which the state acted in causing its public bridges to be constructed. It was not a private corporation in any sense of the word, but state officials, who might as well have been designated a board or commission, were ex officio members, and the only members, of it. * * * In the nature of things the state had to choose some such agency in order to effectuate its purpose. * * *"

In Cargile v. New York Trust Co., 8 Cir., 67 F.2d 585, the plaintiff brought an action against the members of the Highway Commission of the State of Arkansas, seeking to have a receiver appointed to take charge of a toll bridge. The action was held to be in effect an action against the State of Arkansas and was dismissed for want of jurisdiction. Copper S. S. Co. v. State of Michigan, 6 Cir., 194 F.2d 465, involved a suit for damages caused by a ferry boat operated across the Mackinac Straits by the State Highway Department. The action was held to be one against the state and was dismissed.

In our present case, it is apparent that the purpose of the States in entering into the compact and in carrying out the authorized activity was to perform their respective governmental obligations to furnish the public with necessary highways and bridges. The defendant Commission was the agency or instrument of the two States and not an entity separate and apart from the States. The Commission could issue no stock. It was controlled by state officials appointed by the respective governors with senate confirmation. Commission action could be authorized only upon a majority vote of the commissioners from each State. Veto power was reserved to the governors. The Commission's authorized bonds were granted exemption from income taxation. Its revenue from tolls could only be used for reasonable operating expenses and for payment of its bonds and interest, and when the indebtedness was paid the bridge was to belong to the two States and to be operated free of tolls. The Commission afforded no opportunity for realization of private profits to anyone. It had no right to levy taxes. Its tolls were pledged exclusively for operating expenses and bond payments. Aside from the tolls, its only sources of money were the creating States and the Federal Government. It is apparent that a judgment against the Commission and a seizure of the ferry would adversely affect the participating States in the performance of their duty of providing a means of crossing the river.

Plaintiff urges that inasmuch as defendant is a creature of two States it must be a separate entity. We see no insuperable obstacle to several states using the same instrumentality to carry out a commom governmental obligation. As heretofore pointed out, the Constitution of the United States specifically provides for congressional approval of compacts between states. The approval of the compact by Congress at least lends support to the propriety of the States carrying out the project here involved jointly.

Justice Frankfurter and Dean Landis, in an article in 34 Yale Law Journal 685, discuss the compact clause of the Constitution, and in an appendix set out many instances in which compacts have been utilized. The effectiveness of the compact in solving many interstate problems is pointed out. The Port of New York Authority is an example of an interstate compact. This authority was created by New York and New Jersey with the approval of Congress, N.J.S.A. 32:1-1 et seq., 32:2-1 et seq.; McKinney's Unconsol.Laws N.Y. §§ 6401 et seq., 6451 et seq.; 42 Stat. 174. It performs harbor duties and provides bridges and tunnels connecting the two States. In Howell v. Port of New York Authority, D.C.N.J., 34 F.Supp. 797, the compact creating the Authority was discussed. In dismissing the action, the court states (at page 801):

"The Port Authority, a bi-state corporation * * * is a joint or common agency of the states of New York and New

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