PETTY, ADMINISTRATRIX, v. TENNESSEE-MISSOURI BRIDGE COMMISSION.
No. 233.
Argued March 4, 1959.
Decided April 20, 1959.
Douglas MacLeod argued the cause for petitioner. With him on the brief were Charles W. Miles III, W. Morris Miles and Fred Robertson.
James M. Reeves argued the cause and filed a brief 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 State (Chisholm v. Georgia, 2 Dall. 419), the Eleventh Amendment was passed precluding it. But this is an immunity which a State may waive at its pleasure (Missouri v. Fiske, 290 U. S. 18, 24) as by a general appearance in litigation in a federal court (Clark v. Barnard, 108 U. S. 436, 447-448) or by statute. Ford Motor Co. v. Department of Treasury, 323 U. S. 459, 468-470. 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. 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. 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 Comm’n v. Colburn, 310 U. S. 419. Suits against agencies of a State based on maritime torts are no exception to these rules. Ex parte New York, 256 U. S. 490.
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 seg., 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 pursuant to the Compact Clause of the Constitution. Art. I, § 10, cl. 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 ácross 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, 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.
The construction of a compact sanctioned by Congress under Art. I, § 10, cl. 3, of the Constitution presents a federal question. Delaware River Comm’n v. Colburn, supra, at 427. Moreover, the meaning of a compact is a question on which this Court has the final say. Dyer v. Sims, 341 U. S. 22, 28: 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 Comm’n v. Colburn, supra: In making that interpretation we must, treat the compact as a living interstate agreement which performs high functions in our federalism, including the operation of vast interstate enterprises.
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 Comm’n v. Colburn, supra. Cf. Commissioner v. Stern, 357 U. S. 39; Helvering v. Stuart, 317 U. S. 154; Myers v. Matley, 318 U. S. 622. But Congress took, no such step here. It approved a sue-and-be-sued 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, 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., at 395. 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., at 396.
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. This is not enlarging the jurisdiction of. the federal courts but only recognizing as one of its appropriate applications the business activities of an agency active in commerce and maritime matters.
The States who are parties to the compact by accepting it and acting under it assume the conditions that Congress under the Constitution attached. So if there be doubt as to the meaning of the sue-and-be-sued clause in the setting of the compact prior to approval by Congress, the doubt dissipates when the condition attached by Congress is accepted and acted upon by the two States.
Finally we can find no more reason for excepting state or bi-state corporations from “employer” as Used in the Jones Act than we could for excepting them either from the Safety Appliance Act (United States v. California, 297 U. S. 175) or the Railway Labor Act (California v. Taylor, 353 U. S. 553). In the latter case we reviewed at length federal legislation governing employer-employee relationships and said, “When Congress wished to exclude state employees, it expressly so provided.” 353 U. S., at 564. The Jones Act (46 U. S. C. § 688) has no exceptions from tíie broad sweep of the words “Any seaman who shall suffer personal injury in the course of his employment may” etc. The rationale of United States v. California, supra, and California v. Taylor, supra, makes it impossible for us to mark a distinction here and hold that this bi-state agency is not an employer under the Jones Act.
Reversed.
Mr. Justice Black, Mr. Justice Clark and Mr. Justice Stewart concur in the judgment and opinion of the Court with the understanding that we do not reach the constitutional question as to whether the Eleventh Amendment immunizes from suit agencies created by' two or more States under state compacts which the Constitution requires to. be approved by the Congress.
“When Chisholm dared to sue the ‘sovereign state’ of Georgia, all the states were so indignant that Congress moved with vehement speed to prevent subsequent affronts to the dignity of states. More than the dignity of a sovereign state was probably at issue, however. When the Eleventh Amendment was proposed many states were in financial difficulties and had defaulted on their debts. The states could therefore use the new amendment not only in • defense of theoretical sovereignty but also in a more practical way to forestall suits by individual creditors!” Irish and Prothro, The Politics of American Democracy (1959), p. 123.
“The Judicial power of the United States shall not be construed to extend to apy 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.”
“No State shall, without the consent of Congress, . . . enter into any Agreement or Compact with another State
That is true even though the matter in dispute concerns a question of state law on which the courts or other agencies of the State have spoken. Dyer v. Sims, 341 U. S. 22, 30-32. While we show deference to state law in construing a compact, state law as pronounced, in prior adjudications and rulings is not binding. Ibid.
The Court in Hinderlider v. La Plata Co., 304 U. S. 92, 104, spoke of two methods under our Constitution of settling controversies between States. One is our original jurisdiction defined in Art. Ill, §2. The other is the compact: “The compact — the legislative means — adapts to our Union of sovereign States the age-old treaty-making power of independent sovereign nations. Adjustment by compact without a judicial or quasi-judicial determination of existing rights had been practiced in the Colonies, was practiced by the States before the adoption of the Constitution, and had been extensively practiced in the United States for nearly half a century before this Court first applied the judicial means in settling the boundary dispute in Rhode Island v. Massachusetts, 12 Pet. 657, 723-25.”
See Port of New York Authority, 42 Stat. 174; New York and New Jersey Tunnel Agreement, 41 Stat. 158; Kansas City Water Works Agreement, 42 Stat. 1058; New York-Vermont Bridge Agreement, 45 Stat. 120; Delaware River Toll Bridge Compact, 61 Stat. 752; Menominee River Bridge Compact, 45 Stat. 300.
“Historically the consent of Congress, as a prerequisite to the validity of agreements by States, appears as the republican transformation of the needed approval by the Crown. . But the Constitution plainly had two very practical objectives in view in conditioning agreement by States upon consent of Congress. For only Congress is the appropriate organ for' determining what arrangements between States might fall within the prohibited class of ‘Treaty, Alliance, or Confederation’, and what arrangements come within the permissive class of ‘Agreement or Compact.’ But even the permissive agreements may affect the interests of States other than those parties to the agreement: the national, and not merely a regional, interest may be involved. Therefore, Congress must exercise national supervision through its power to grant or withhold consent, or to.grant it under appropriate conditions. The framers thus astutely created a mechanism of legal control over affairs that are projected beyond State lines and yet may not call for, nor be capable of, national treatment. They allowed interstate adjustments but duly safeguarded the national interest.” Frankfurter and Landis, The Compact Clause of the Constitution — A Study in Interstate Adjustments, 34 Yale L. J. 685, 694^695.
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