Petty v. Tennessee-Missouri Bridge Commission

PETITIONER:Petty
RESPONDENT:Tennessee-Missouri Bridge Commission
LOCATION:Union Station

DOCKET NO.: 233
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 359 US 275 (1959)
ARGUED: Mar 04, 1959
DECIDED: Apr 20, 1959

Facts of the case

Question

Audio Transcription for Oral Argument – March 04, 1959 in Petty v. Tennessee-Missouri Bridge Commission

Earl Warren:

Number 233, Naomi Petty, Petitioner, versus Tennessee-Missouri Bridge Commission.

Mr. MacLeod.

Douglas MacLeod:

May it please the Court.

We’re dealing here with the death of a crew member of a ferryboat which happened back in July of 1956, on the occasion of a collision between his ferry and an up bound barge pusher or a towboat, that was pushing some barges, the ferry crossing from Missouri to Tennessee and the towboat coming upstream in the Mississippi River.

The collision happened in the channel of navigation.

The suit originated as a Jones Act suit by the administratrix of the deckhand of the ferry who was drowned and the defendant in the original action, the Tennessee-Missouri Bridge Commission came in on a motion in the District Court asserting sovereign immunity of the States of Tennessee and Missouri and this motion was sustained.

We were thrown out of court.

We went to the Court of Appeals of the Eighth Circuit and the Court of Appeals of the Eighth Circuit affirmed the District Court.

Now, we know who the plaintiff is, the petitioner.

The difficulty in this case arises with the respondent, the defendant in the Jones Act action below.

What sort of a creature?

What sort of standing in court in federal court particularly, does the federal — do the federal courts have any jurisdiction in this kind of a case?

First, is it the sovereignty?

Is the sovereignty of the States of Missouri and Tennessee involved?

Are we dealing with the sovereign States of Tennessee and Missouri?

That’s one question which, as of a purely substantive character, goes to the very essence of the right to sue at all in this type of situation by anybody.

The second question, even if there is a right to sue, does the Eleventh Amendment of the Constitution preclude the exercise of jurisdiction by the courts of the United States?

Tennessee-Missouri Bridge Commission is a body, a corporate, and politic to use the language of its charter or compact set up by joint action, simultaneous action of the legislators of Tennessee and Missouri with the consent of the Congress of the United States and without which consent such compact would be null and void under the Constitution.

The Congress gave conditional consent at the time that it gave us consent and it is of the utmost importance to petitioner, the conditions under which Congress gave its consent.

The language of Congress, in approving the compact, provided “That nothing contained herein 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 other matter, any other person, matter or thing forming the subject matter of the aforesaid compact or agreement or otherwise affected by the terms thereof.”

Now, that’s in the appendix to our brief and it’s listed in the body of the brief as pages 8, 3 and 4.

The printer, however, continued in directing numerical sequence.

So, it begins on page 19 and that will be page 21 of the brief.

That’s the Public Law 411 of the 81st Congress, the consent statute approving this compact, just by a State compact, and it’s our position that the compact itself and all language contained therein must be construed in the light of the conditions imposed by Congress and there is language in the compact conferring upon the respondent commission, the power to sue and be sued.

That’s in language that has become familiar in granting powers to public corporate bodies, the languages, the power to contract, to sue and be sued.

What does it mean?

Does it mean what it says or does it mean that the words to sue and be sued are limited by the word preceding to contract?

William J. Brennan, Jr.:

Yes, but even if the — that constitute consent to sue and be sued, you’re still though — you do not have to get over the hurdle, whether there is any substantive obligation, in other words whether the — there is any immunity involved here because this is a government obligation —

Douglas MacLeod:

If the Government —

William J. Brennan, Jr.:

— with respect to the doctrine of respondent’s superior?

Douglas MacLeod:

If the Court please, first, we — assuming that we are dealing with the sovereign States themselves, then we must find either consent or the equivalent thereof in terms of waiver.

William J. Brennan, Jr.:

Well, I’m — I’m assuming that there — that there’s no Eleventh Amendment problem in terms of your ability to bring a suit against this bi-state agency because of the clause that you referred to, in other words, that the agency might sue or be sued.

Douglas MacLeod:

Yes.

William J. Brennan, Jr.:

But there’s — they’re still involved in this case.

The question of the liability of the agency is a governmental agency.

Douglas MacLeod:

That —

William J. Brennan, Jr.:

Or the tort involved here in place of the actions ordinarily if any respond, they have the superior obligation by a public body in respect to the governmental function.

Douglas MacLeod:

Well, the question of governmental function is one which is an open question in this case.

For purposes of argument, it has been — it’s a — it’s a matter of interpretation of the compact as to whether this was, in fact, a governmental function, purely a question of law in this State.

William J. Brennan, Jr.:

Now, you’re drawing a distinction between proprietary and governmental function.

Douglas MacLeod:

And governmental function.

I am not, in my brief, drawing this distinction because I don’t think the solution of the problem depends upon that.

We are dealing here with a public corporate body and if the decision of this Court, Workman against the Mayor of the City of New York, 1900, decided by this Court in 1900, is valid law, then being a public corporate body as distinguished from the States themselves, there’s no problem.

It makes no difference whether it’s in a governmental or proprietary capacity.

William J. Brennan, Jr.:

Well, that — that was — that’s because of the maritime law had taken over, those distinctions of the States, is that it?

Douglas MacLeod:

That’s because the maritime law as interpreted in that case in the Supreme Court, doesn’t recognize local rules —

William J. Brennan, Jr.:

That was the tort submitted by a fire-boat, wasn’t it?

Douglas MacLeod:

It was indeed.

William J. Brennan, Jr.:

And it was a maritime tort.

Douglas MacLeod:

It was maritime tort.

William J. Brennan, Jr.:

And then I believe the — I believe something didn’t carry over the State distinctions (Voice overlap) —

Douglas MacLeod:

And we have a maritime tort here also, then we have an analogous situation except that we don’t have a fire-boat.

We have a common —

William J. Brennan, Jr.:

That’s your case then, isn’t it?

Douglas MacLeod:

— the common carrier charging ferries.

William J. Brennan, Jr.:

Well, that’s your case then, isn’t it?

Douglas MacLeod:

No, Mr. Justice Brennan.

That’s not my case.

That’s one way of disposing of the case and if the Court sees fit to follow Workman —

William J. Brennan, Jr.:

Well, that’s one way of disposing it in your favor, isn’t it?

Douglas MacLeod:

Precisely.

And if the Court sees fit to follow Workman, then there’s very little — very little else to do and no worries and no headaches.

However, even if —

William J. Brennan, Jr.:

And you — you wouldn’t abandon that.

Douglas MacLeod:

Well, no indeed, sir.

Hugo L. Black:

You didn’t suggest you can be overruled?

Douglas MacLeod:

No, sir, I am not suggesting that at all.

I think that this is a sound decision for a reasons which are not fully developed in the opinion, but which are developed later on in the brief in connection with the additional reasons why I think this Court —

William J. Brennan, Jr.:

Well, now what — what — you must see some problems there that make it advisable for you not to rest on — on that approach.

What are they?

Douglas MacLeod:

There are — I have a worthy opponent here and I have asked if he’s going to have another side to argue in this case, Justice Brennan.

I — I feel that — that maybe I have another string to my bow and I do.

I have two more.

One is that —

Felix Frankfurter:

Well, is this suit in admiralty?

Douglas MacLeod:

This is an — it’s a Jones Act action at the law, but the substantive rights are maritime.

This is a maritime law we’re dealing with.

We’re dealing with the Jones Act which is an inevitable part of the maritime law.

Felix Frankfurter:

(Voice Overlap) the Congress say this is a maritime tort that if Congress can simply give members of the crew the same right it gave since it’s not available.

Douglas MacLeod:

It did, but in so doing I believe, Mr Justice, that this Court has said repeatedly that this constituted an amendment to the body of the maritime law and it has been so regarded as an integral part.

Felix Frankfurter:

(Voice Overlap) but that means if there wasn’t recovery on the maritime law, and Congress granted a new statutory right, that’s all that means.

Douglas MacLeod:

Well, the maritime law, if the Court please, I believe, is whatever this Court and Congress have adopted and what Congress has amended from the whole body of the maritime law, going back to what it was at the times of the Colonies.

Felix Frankfurter:

Are you suggesting that I understand your desire to have another string to your bow?

Douglas MacLeod:

The provisions of the consent statute of Congress, it seems to me, require a finding of waiver of governmental immunity even if this be regarded as a suit in essence against the States of Tennessee and Missouri themselves.

I’m willing, if I have to, to defend on that ground.

Felix Frankfurter:

But you said that by reading the condition that Congress imposed made part of its consent to the compact, what’s the relevance of that?

Douglas MacLeod:

The relevance of that is, that here, States are setting up an agency, an instrumentality to carry on activities in two areas which are exclusively federal in nature and control, which the Federal Government has priority to control, first, interstate commerce.

That’s a common carrier charging ferries.

This ferry is a common carrier.

Felix Frankfurter:

May I interrupt you?

Felix Frankfurter:

Did by Congress by that — by that provision condition new rights or if — if they said nothing that our contention — take away anything that you got otherwise.

That’s all it said.

Douglas MacLeod:

In the reference to the particular compact, what meaning could the words have other than mere surplusage except as a limitation upon the power of the two States to deal with the subject matter of the compact as they saw fit according to their own local rules.

Felix Frankfurter:

Well, it’s the most common thing in laws to be sure that you don’t deprive and undo something that you don’t want to undo and this is just a nice caveat that this doesn’t change anything that there before existed.

That’s all I can find.

Douglas MacLeod:

It seems to me that —

Felix Frankfurter:

It doesn’t create any right.

If you didn’t have any right before that compact, what language is there in which you can say, is the creation of a right?

Douglas MacLeod:

The — every seaman has a right under the Jones Act to sue his employer for negligence.

Except —

Felix Frankfurter:

Yes, but not — but not a state employer.

Douglas MacLeod:

Except —

Felix Frankfurter:

Are you really suggesting that this proviso more than affect statement by Congress and not really talking about the Workmen’s Act.

That Congress implied and said, “Although, before this compact, you couldn’t be sued without your consent and we now (Inaudible)”

Is that what you’re suggesting?

Douglas MacLeod:

No, I’m not suggesting that, Mr. Justice.

Felix Frankfurter:

What are you suggesting?

Douglas MacLeod:

I’m suggesting that two States who are doing something which — without the consent of Congress, they’d be otherwise, unable to do.

And that is to enter a bi-state compact to run a ferry over navigable waters controlled by the Federal Government, and interstate commerce also controlled by the Federal Government, that Congress says, “All right, fine, but if you do that, you have to play it according to our rules.”

Felix Frankfurter:

And what is the rule —

Douglas MacLeod:

That’s what I’m saying.

Felix Frankfurter:

— and what is the rule they gave you?

They say nothing herein contained shall be construed to affect the care or diminish any rights by jurisdiction of any court, (Inaudible)

So I’ve look what the rights were that was abridged, not to say, something new was added.

Charles E. Whittaker:

(Inaudible)

Douglas MacLeod:

It’s preserved the status quo as to the right of the United States Government, not only as to its authority over these matters, but also, as to any other person, matter or thing forming the subject matter or a thing forming the subject matter of the aforesaid compact or agreement or otherwise affected by the terms thereof.

In other words, any vessel on navigable waters, any ferry, any individuals working on navigable waters or in interstate commerce, that’s my view of the meaning of — to be ascribed in this language and to — to take this meaning away would render it absolutely meaningless.

It will have no meaning, whatsoever, it seems to me, unless that meaning be ascribed.

William O. Douglas:

What the courts below say about the provision that they can sue and be sued”?

Douglas MacLeod:

They went along with the state courts in Missouri and Tennessee both of which give a narrow construction, both of which follow a narrow construction.

Douglas MacLeod:

It says —

William J. Brennan, Jr.:

Any reference that were made to our decision in the Keifer case?

Douglas MacLeod:

No reference made in your decision in the Keifer case.

The only authority — the only authority that is quoted was the District Court with the Missouri case and I believe the Missouri and Tennessee cases were quoted by the Court of Appeals of the Eighth Circuit.

William J. Brennan, Jr.:

Although those were respondeat superior cases.

Douglas MacLeod:

I —

William J. Brennan, Jr.:

In line with distinction on (Inaudible)

Douglas MacLeod:

In — in the main, those were respondeat superior cases.

William J. Brennan, Jr.:

That’s what the Tenth — that’s the Missouri case, isn’t it?

Douglas MacLeod:

Yes.

Now, that is the third string.

Felix Frankfurter:

Before you leave — before you go on to the next.

They relied you said on the Missouri and Tennessee cases, is that right?

Douglas MacLeod:

Yes.

Felix Frankfurter:

What I understand by that — I understand that you are arguing that in those two States — I don’t know a thing about it (Inaudible), what the law of Missouri and Tennessee is as to the scope of the provision with reference to a public body giving us the authority of just having a provision (Inaudible).

Is it the local law of those States that that provision with the creation of a public body has a very limited — locally limited meaning?

Douglas MacLeod:

It means that suit is permitted in contract but not in tort where the language to contract to sue and be sued is used in such — in such bodies in both Tennessee and Missouri.

Felix Frankfurter:

Both of these are more specific, does that mean and I can infer from that basing on the judgment for me that in those States that’s brazen to see a construction, the equivalent of which is the writing in it, to sue and be sued in contract but not in tort.

Is that what your case was told?

Douglas MacLeod:

If in respect to their local affairs, purely and simply.

Felix Frankfurter:

I understand that.

Douglas MacLeod:

Yes.

Felix Frankfurter:

But it isn’t as to their local affair, Tennessee and Missouri could by the legislature say, suppose Tennessee and Missouri by their legislature say, “When we all grow and we create a public body with the right to sue and be sued, we merely waive the state sovereignty to the tune of contract but not the tort.”

Can this Court say, “If you do that, you must waive more?”

Douglas MacLeod:

Without more, this Court cannot say so.

However, the — an interstate compact —

Felix Frankfurter:

And it says so even though that the tort involved the Jones Act, this Court that comes to the United States can create a Jones Act but can it decide to what extent a State may waive its immunity?

Douglas MacLeod:

This Congress — Congress can decide to the — which compacts it will approve between States and the conditions.

Felix Frankfurter:

Then you’re back — you’re back on your compact.

You have — you have to get a good deal of support from your view, putting Workman on side from the way in which you read the proviso and the compact can stand, is that right?

Douglas MacLeod:

I’m sorry, I didn’t — I didn’t follow your last question, Mr. Justice.

Felix Frankfurter:

Let me put it more (Inaudible)

Putting Workman to one side and putting the limitation which the States of Tennessee and Missouri, on what you tell me, have put upon the extent to which they waive their national — their state sovereignty.

Do you rely — I mean I’d have to rely on your reading of the proviso that that proviso was a — was a determination by the Congress that we agree to this context, we give consent, but we add that to the condition that you must waive the consent which otherwise you wouldn’t, that’s your position.

Douglas MacLeod:

That is part of it, yes, sir, correct.

That the Congress has said that, here, in order to get approval of this context, you must subordinate yourself to the power of the Federal Government over into interstate commerce and also over navigable waters and that is maritime.

Felix Frankfurter:

I agree with you entirely, that Congress has conditioned the consent that is implied constitutionally to give but the legality of the compact by appropriate condition.

And the question is whether it didn’t, is that right?

Douglas MacLeod:

Correct.

The third point, regardless of a congressional compact — act of consent of Congress with the compact by engaging in activities in an area where Congress under the powers granted the Federal Government, has legislated and set up standards, the States have subordinated themselves and yet by the mere fact of engaging in those activity.

(Inaudible)

Douglas MacLeod:

They’re subject —

(Inaudible)

Douglas MacLeod:

As respects all regulation set up by Congress, all rules, all laws enacted by Congress and all regulations of proper administrative bodies in the Federal Government or interstate commerce and over navigable waters.

In so doing, by the mere act of doing it, and as a unanimous decision of this Court in the United States against California, which is directly in point on this question, and that a terminal railroad was operated by the State of California.

As in this case, they charged rates, freight rates for moving cars, but ultimately it was nonprofit.

It was all filed back into Harbour improvement.

The United States undertook to collect a penalty — penalty provisions of the Safety Appliance Act and California pleaded sovereign immunity and also pleaded the absence of jurisdiction of the District Court, said that since it was stated, entitled to be tried even if there was no sovereign immunity only by the Supreme Court.

And this — this Court rejected both pleas and said, “That in this situation, the State of California by the mere act of engaging in interstate commerce has subordinated itself to the Safety — the — the Safety Appliance Act.”

Now, the Safely Appliance Act is a companion legislation to the FELA.

The FELA is the Jones Act for maritime workers.

In other words, we have a very strikingly lanalogous situation and a subsequent state court of — from California the — the appellate court of the State of California following the United States against California held that an FELA suit by an employee of the railroad against the State of California directly is perfectly good.

Now, so here we have not only the question of the Workman problem, the corporate — public corporate body as distinguished from the State and even there that you could easily find and then there’s plenty of authority that this is not necessarily governmental.

This is maybe is proprietary.

There are cases both ways.

That’s one thing.

Second point, we have this — the consent statute of Congress which imposes the conditions and subsequent to which the States did set this commission up and accept money from the Federal Government as well as contribute themselves.

And thirdly, they did in fact go into this area, this area of interstate commerce and operation of vessel on navigable waters.

They subjected themselves to the authority of the United States Government and they’ve subordinated themselves and they have waived their sovereign immunity and they have waived any privilege they have on the Eleventh Amendment, which of course, as this Court is quite familiar, no (Inaudible) of authority is needed that the privilege of the Eleventh Amendment may be waived and they have certainly done so here.

Hugo L. Black:

May I ask you one question before you sit down?

Hugo L. Black:

You stated and answered the question that local law that they construed — that they construed in making that a consent to sue and be sued must be construed as not applying to tort (Voice Overlap)

Douglas MacLeod:

Well, the language to contract to sue and be sued without more.

Hugo L. Black:

What’s the scope of the law?

Douglas MacLeod:

The — in the State of Missouri and in the State of Tennessee and in a number of instances cited in respondent’s brief where the Supreme Court of Missouri has so held, that where this language was employed by the state legislature in setting up a body whether the whether it be a road district or whatever it might be and the language to contract, “to sue and be sued” was employed that that meant that suit could be in contract but not in tort.

But just to pose the problem in another way, suppose that this ferryboat, ferry commission had been completely in the clear on this collision and suppose it had undertaken to sue this big towboat company that was — big towboat that was coming up the river.

Do you think that then that the commission would take the position that this language referred only to contract and not the tort if they were the plaintiffs in a tort suit? What about a collision between that ferry and another vessel?

They’d be the first to come in, of course.

Well, if they can’t be the defendant in a tort suit, they can’t be the plaintiff in a tort suit, either.

And then how can they serve the public, have passengers, people in automobiles, hire people to work for them and say, “We’re immune.

You can’t sue us.”

Felix Frankfurter:

Are you suggesting we should — we should make an independent determination to what the law of Missouri intended to use?

Douglas MacLeod:

No, sir.

I’m suggesting that you should determine this as a matter of international law, as this Court has in very early case held, that the construction of a compact of this nature is not a matter in which the rules of decision of the courts of the participating States even should be considered.

Felix Frankfurter:

We are free — you’re a free speaker.

That’s one, your reading of the proviso is a compact.

Two, the Workman (Inaudible) immunity.

And three, that in fact —

Douglas MacLeod:

Attributes.

Felix Frankfurter:

— there’s been a waiver, is that right?

Now, as to this latter, may ask whether one reaches that whether you’re asking this Court to determine what Tennessee and Missouri law is and against what the Court of Appeals is holding — or controlling on this, which is —

Douglas MacLeod:

I think that you are to determine for your own, on your own, in — in terms of international law —

Felix Frankfurter:

I understand that, but suppose — suppose one is against you on the proviso, suppose one is against you on Workman and then says, “Well, why is there a waiver (Inaudible) in the Court of Appeals tells us that the local law has given that a restrictive, as you read a narrow, unjustified interpretation but such is the local law.

Douglas MacLeod:

I’m not going —

Felix Frankfurter:

What if you decide that that isn’t the local law?

Douglas MacLeod:

I’m not trying — I’m not asking this Court —

Felix Frankfurter:

(Inaudible)

Douglas MacLeod:

— to change — to change the determination of the local law of Missouri or Tennessee.

Felix Frankfurter:

Well, and the law — and the Court of Appeals has held that is the local law, didn’t it?

Douglas MacLeod:

It did.

Hugo L. Black:

I asked you the question because I do not see whether the Court of Appeals held it.

Hugo L. Black:

It did hold that that was the law of Missouri.

It does not hold it in such (Inaudible) Tennessee that’s quite a different rule in Tennessee.

I don’t think it makes much difference that’s why I asked the question.

I was curious to know because it did hold (Inaudible) Missouri that they didn’t have in Tennessee.

They made it (Inaudible)

Douglas MacLeod:

As far as I’m concerned, it’s not important.

(Inaudible)

Earl Warren:

Mr. Reeves.

James M. Reeves:

Mr. Chief Justice, may it please the Court.

Mr. Justice Frankfurter wrote an article in 1925.

It’s recorded in Volume 34, I believe, Yale Law Journal.

Felix Frankfurter:

I don’t know what that said but as it is the statute limitations run against (Inaudible)

James M. Reeves:

If Your Honor please, I have read that.

It’s cited in the Court of Appeals opinion.

But that article goes a very fine historical background to compacts between States, has a beginning way back in the early colonial days when a colonist had disputed boundary alliance and all of that.

So, it’s been — been brought down to present day through provision in our Constitution.

That is, that two States may contract with each other provided Congress gives its consent.

Now, this contract or compact between Tennessee and Missouri was set up to perform one function.

That was to plan, build, and maintain a bridge at or near Caruthersville, Missouri across the Mississippi River.

And when the bridge was paid for by the use of some toll bonds, income bonds, the property was to become the — the ownership of that property was divested in two States, Tennessee and Missouri.

Now, the Commission was also authorized to operate ferries within a radius of 25 miles off Caruthersville, during the progress of the planning and the construction of this bridge.

And the Commission did obtain, by the issuance of revenue bonds of $200,000 title to the — what’s known as the Tiptonville Ferry, and that’s where this disaster occurred.

An employee on the ferry was killed, the accident happened — happening in the mid-channel of the Mississippi River.

Now, the income of these bonds issued and to be issued by this Commission, by contract with the Federal Treasury Department are tax-free, recognizing that it is a governmental agency.

Not all of that, but the two States with the aid of the Federal Government has allocated $100,000 to assist in the planning, the engineering designs and so forth in connection with the construction of this bridge.

Now, that’s the rule, insofar as I have been able to ascertain all over the United States, including the federal courts that the building and maintaining of bridges and roads are governmental functions.

I have not seen anything to the contrary and the able counsel have not cited anything to the contrary in his brief.

So, we start out here with this Commission.

Incidentally the Commission was appointed by the two governors with senate — senate consent, five from Tennessee, five from Missouri and then the — the governor of each State has veto power over any action they may take.

Now, this — this Commission then was set up as an arm of the two States to perform a governmental function.

James M. Reeves:

Now, it’s unlike a municipality, that one member of the Court mentioned a while ago.

This proprietary or governmental functions, one, you’re liable, and the other you’re not liable is brought into play in — all I have seen in cities, municipalities.

That can’t be true here because this Commission had no function to perform except the one which the courts have held to be a governmental function.

A reference has been made and admitted by counsel for the petitioner, I believe, that there’s no doubt about the law of Tennessee and Missouri with reference to the granting of power to contract to sue and be sued, not giving the governmental agencies so set up the capacity to be sued in tort action.

We held —

Earl Warren:

Suppose another ship had run down your ferry and — and had destroyed it.

Would you — would you have a cause of action against the shipowner?

James M. Reeves:

I haven’t investigated that —

Earl Warren:

(Voice Overlap)

James M. Reeves:

— rule, but I think on principle, the answer is yes.

I know no reason why the sovereign cannot maintain a suit against an individual or some other person or corporation which commits a wrong against this property.

It has been done, I do know that.

Earl Warren:

But they have a right to sue and be sued.

Would claim the right to sue for such an injury and not to grant the reciprocal right to — to —

James M. Reeves:

If Chief Justice, please, I would not claim that right by a virtue of the grant of the power in the statutory enactment.

I would claim the right to bring the suit because it’s a sovereign and it has always, as I understand it, exercised that power without regard to any statutory enactment.

Why, of course, now it’s strange to say but all of these agencies which are set up in the States, and I think all of them without exception, are granted the capacity to sue and be sued.

We have the State of Highway Commission which is a — a commission set up similar to this except it’s wholly within the State of Missouri which builds all of our highways.

William J. Brennan, Jr.:

(Inaudible)

James M. Reeves:

That’s a crucial question.

My answer to that is that whenever a compact is entered into, it does become a federal question of interpretation.

But my answer to that is this.

We must bear in mind that the two contracting parties are the States of Missouri and Tennessee.

And it occurs to me that you would be trying to interpret what they meant by the language used in the compact.

You would be interpreting the language.

William J. Brennan, Jr.:

(Inaudible) is the same language, given one meaning to one state and a different meaning to the other state (Inaudible)

James M. Reeves:

Well, fortunately, we don’t have that condition here.

William J. Brennan, Jr.:

(Voice Overlap)

James M. Reeves:

Well, I couldn’t answer it.

William J. Brennan, Jr.:

(Inaudible)

James M. Reeves:

Well —

William J. Brennan, Jr.:

But the jury takes it that way.

But apart from that, apart from that, what would be (Inaudible)

James M. Reeves:

I think then, Your Honor, it would be terrible and the — your jurisdiction to determine.

William J. Brennan, Jr.:

Section to determine —

James M. Reeves:

Well, I — I have to say, I wouldn’t know.

That’s the question I haven’t investigated because it’s not in this record.

William J. Brennan, Jr.:

(Inaudible)

James M. Reeves:

Well, here, Mr. Justice Brennan, you have two contracting parties.

It is my understanding that you always try to get the intent of the contracting parties.

Now, the interpretation of that consent is a federal interpretation, but don’t you still go back to find out what the intent was when they entered into it by the nature of their local laws.

Now, my opponent says that this and he says is a maritime tort, and maritime law should be applied.

I agree that it is maritime in nature on the Jones Act, but the — this Court has always held that the fact that an action is under the maritime law or in admiralty still does not give the federal court jurisdiction to entertain a tort involving maritime — maritime action.

That’s always been held as I understand it.

Now, the — you mentioned the Workman case a moment ago, the Workman case was what I was trying to mention in my argument a moment ago.

The Workmen case, if the Court please, was a suit in admiralty against the State of New York.

Now, the Court was very careful to point out in the Workman case that qualify, if the Court had jurisdiction, if the Court had jurisdiction.

And that this Court held that it did have jurisdiction for the reason that the Fire Department of the city of New York was liable in damages for negligence and that was governed by the maritime law not the jurisdiction, but it was governed by the maritime law.

William J. Brennan, Jr.:

(Inaudible) that if there were a jurisdiction rather than there were (Inaudible) the Government which allowed the court to entertain the fact that it was held then that as a matter of liability if necessary consent to be sued (Inaudible)

James M. Reeves:

Indeed, it was under the Jones Act.

But this Court has explained in the Workman case in — in two different decisions in which it — its — this Court said that the Workman case did not mean that because it was a maritime tort that the federal court had jurisdiction.

They didn’t mean that at all and it was a unanimous opinion by this Court.

The California case, the simple answer to the California case is a fact that that law, says it’s a superior sovereign suing an inferior sovereign and as —

Hugo L. Black:

Was it based — was it based on that?

I didn’t think so and I thought we had laid on (Inaudible)

James M. Reeves:

I beg your pardon?

Hugo L. Black:

I didn’t know it was held on — based on the fact that that was —

James M. Reeves:

Well —

Hugo L. Black:

(Inaudible)

James M. Reeves:

Well — well, that’s my own language.

James M. Reeves:

That’s — I — I didn’t mean to quote from the case, but what I’m getting at, Mr. Justice Black, that the Eleventh Amendment was not involved because the Eleventh Amendment to the Constitution does not prohibit the United States from suing another State in one of its own courts.

Hugo L. Black:

But the Commerce Clause gives the Congress power to grant legislation and it regulates the interstate commerce.

It had regulated railroad (Inaudible)

James M. Reeves:

Yes.

Hugo L. Black:

Is your argument that the railroads were owned by the State would not be liable under the Interstate Commerce Act?

James M. Reeves:

It would be liable at a suit by the Federal Government.

Hugo L. Black:

But the — the Federal Government couldn’t make it liable if it went into railroad business?

James M. Reeves:

Well, it might —

Hugo L. Black:

(Inaudible)

James M. Reeves:

— it might be but you haven’t held that it was liable to an individual.

Hugo L. Black:

I rather thought that the California case was based on the idea that Congress had —

James M. Reeves:

Correct.

Hugo L. Black:

— held the interstate commerce.

James M. Reeves:

Correct, if the Court please.

Hugo L. Black:

And I thought we had another case and you looked it up which happened to be in the brief case we have.

James M. Reeves:

I haven’t seen one later than the California case.

But in the California case, the — the — this Court held that the federal court had jurisdiction because the Interstate Commerce Act applied against all persons or corporations and even the State if they were engaged in interstate commerce.

But they — they — you didn’t hold in that case that an individual could sue the State of California under the Interstate Commerce Act or the Federal Employers Liability Act.

And this decision by the State of California following your decision held that since the plaintiff in the case had gone through the procedure provided by the State of California in negligent actions that he had a cause of action for negligence, created by the Federal Employers Liability Act.

But the State of California had given its consent to be sued in this substantive case subsequent to United States against California.

May I ask a question?

I understood you to say to Mr. Justice Brennan that you agreed with him that if the Workman doctrine applied, it would apply to this Jones Act situation, a Jones Act case even though it isn’t technically brought into —

James M. Reeves:

Sure.

— admiralty in every side.

Supposing we came to conclusion that the Court of Appeals in construing the Missouri Law and the Tennessee Law had not been aware of the Workman doctrine, what should we do then?

James M. Reeves:

Well, if the Court please, the Workman doctrine would not rule this case.

I thought you said it would.

James M. Reeves:

No, I didn’t mean — I didn’t mean to make that admission.

He qualified by asking me I had several question, I’d said, “Yes.”

If, if — well then, we would be out of the Jones Act.”

James M. Reeves:

But I don’t concede that the Workman case has anything to do with this because there, this Court was interpreting the jurisdiction of the admiralty courts and applying a measure of liability, not a question of whether they could be sued or not sued but you — you were — mentioned the — the question of liability of the Fire Department for a tort committed on the high seas or in the harbor in that particular case.

And you held that as to whether the fire department was liable or not liable was governed not by the local law of — of New York, but was governed by the maritime law because it was maritime tort.

Felix Frankfurter:

Are you saying that the Workman case had no justification for holding that somebody could sue the State of New York for a maritime tort committed by or told by the State of New York in the action of a specific authorization?

James M. Reeves:

Yes, sir.

Yes, (Voice Overlap)

James M. Reeves:

The State of New York.

Felix Frankfurter:

Not to be sued.

James M. Reeves:

I beg Your Honor’s pardon?

Felix Frankfurter:

Could — could —

James M. Reeves:

You held that.

Felix Frankfurter:

(Inaudible) people of the State of New York in the technical type, they owned vessels —

James M. Reeves:

Yes.

Felix Frankfurter:

I think it was (Inaudible) cases.

James M. Reeves:

Yes.

Felix Frankfurter:

Now, if — if such a vessel commits and changes to a private — if there is such a private person, sue apart from the (Inaudible)

James M. Reeves:

Well, no, you held that in the 256.

Felix Frankfurter:

But it could be.

James M. Reeves:

You held it — you couldn’t sue the State of New York for a maritime tort.

(Inaudible) that if, if, an act should apply that is the consent, a necessary consent of to appear here, contradict the whole issue of to be sued with this kind of action that the Workman, had the state principle of liability of subsequent liability (Inaudible)

James M. Reeves:

Well, I think it would be a little wrong to say that, if the Justice please, for the simple reason that the liability would be governed by the Jones Act and in turn by the Federal Employers Liability Act, but it would be, the overall governing law would be maritime in nature.

Yes, I — I agree to that.

I see my time is up.

Felix Frankfurter:

If there is power to sue here, there is no question that (Inaudible)

James M. Reeves:

I’m not questioning that, if the Court please.

There’s no question about it if — if we have given consent to be sued, we’re in court.

If we haven’t, we’re not.

Thank you.

Earl Warren:

Mr. Reeves, we’re — we’re going to finish this case tonight.

You have two minutes more if you have anything you would like to argue, you may do so.

James M. Reeves:

Thank you, but I believe this is a good time to quit.

James M. Reeves:

Thank you.

And I wonder if I could be excused.

My plane reservation is at six o’clock.

Earl Warren:

Yes — yes, indeed.

I think (Inaudible) about one minute — one minute —

Douglas MacLeod:

I think I have one minute only —

James M. Reeves:

I thought — well, I thought you mentioned we’re going to finish it later in the evening.

Go and finish it now, (Inaudible)

Douglas MacLeod:

The New York case which I think is the principal weapon in my opponent’s arsenal differs in several respects from the instant case.

First, it is the State of New York by definition.

So, that’s separate and distinct from our case.

Second, it did not involve an interstate compact which we have here, which changes the whole complexion.

We can never get away from this interstate compact anywhere in this case, no matter what theory you go on.

It’s not in the — it’s not in the New York case.

And thirdly, in my view, the New York case was wrongly decided for the simple reason that the arguments advanced in the California case with respect to interstate commerce were not advanced in the State of New York case, with respect to navigable waters and matters of maritime and the power of the United States Government to control in this area — in this area of navigable waters.

This was not advanced apparently at any level in — in the case of in Re State of New York.