Operation of a common carrier railroad in interstate commerce by
a State constituted a waiver of its sovereign immunity and consent
to a suit brought in a federal court by employee of the railroad
under the Federal Employer' Liability Act. Pp.
377 U. S.
184-198.
311 F.2d 727, reversed.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The question in this case is whether a State that owns and
operates a railroad in interstate commerce may successfully plead
sovereign immunity in a federal court suit brought against the
railroad by its employee under the Federal Employers' Liability
Act.
Petitioners, citizens of the State of Alabama, brought suit in
the Federal District Court for the Southern District of Alabama
against respondent Terminal Railway of the Alabama State Docks
Department. They alleged that the Railway was a "common carrier by
railroad . . . engaging in commerce between any of the several
States" within the terms of the Federal Employers' Liability Act,
45 U.S.C. §§ 51-60, and sought damages under that Act for personal
injuries sustained while employed by the
Page 377 U. S. 185
Railway. Respondent State of Alabama, appearing specially, moved
to dismiss the action on the ground that the Railway was an agency
of the State and the State had not waived its sovereign immunity
from suit. The District Court granted the motion, and the Court of
Appeals for the Fifth Circuit affirmed, 311 F.2d 727. We granted
certiorari, 375 U.S. 810. We reverse.
The Terminal Railway is wholly owned and operated by the State
of Alabama through its State Docks Department, and has been since
1927. Consisting of about 50 miles of railroad tracks in the area
adjacent to the State Docks at Mobile, it serves those docks and
several industries situated in the vicinity, and also operates an
interchange railroad with several privately owned railroad
companies. It performs services for profit under statutory
authority authorizing it to operate "as though it were an ordinary
common carrier." 1940 Code of Alabama (recompiled 1958), Tit. 38, §
17. [
Footnote 1] It conducts
substantial operations in interstate commerce. It has contracts and
working agreements with the various railroad brotherhoods in
accordance with the Railway Labor Act, 45 U.S.C. § 151 et seq.;
maintains its equipment in conformity with the Federal Safety
Appliance Act, 45 U.S.C. § 1
et seq.; and complies with
the reporting and bookkeeping requirements of the Interstate
Commerce Commission. It is thus undisputably a common carrier by
railroad engaging in interstate commerce.
Petitioners contend that it is consequently subject to this suit
under the Federal Employers' Liability Act. That statute provides
that
"(e)very common carrier by railroad while engaging in commerce
between any of the several States . . . shall be liable in damages
to any person suffering injury while he is employed by such
carrier
Page 377 U. S. 186
in such commerce,"
and that, "[u]nder this chapter, an action may be brought in a
district court of the United States. . . ." 45 U.S.C. §§ 51, 56.
Respondents rely, as did the lower courts in dismissing the action,
on sovereign immunity the principle that a State may not be sued by
an individual without its consent. Although the Eleventh Amendment
is not, in terms, applicable here, since petitioners are citizens
of Alabama, [
Footnote 2] this
Court has recognized that an unconsenting State is immune from
federal court suits brought by its own citizens, as well as by
citizens of another state.
Hans v. Louisiana, 134 U. S.
1;
Duhne v. New Jersey, 251 U.
S. 311;
Great Northern Life Ins. Co. v. Read,
322 U. S. 47,
322 U. S. 51;
Fitts v. McGhee, 172 U. S. 516,
172 U. S. 524.
See also Monaco v. Mississippi, 292 U.
S. 313. Nor is the State divested of its immunity "on
the mere ground that the case is one arising under the constitution
or laws of the United States."
Hans v. Louisiana, supra,
134 U.S. at
134 U. S. 10;
see Duhne v. New Jersey, supra, 251 U.
S. 311;
Smith v. Reeves, 178 U.
S. 436,
178 U. S.
447-449;
Ex parte New York, 256 U.
S. 490,
256 U. S.
497-498. But the immunity may, of course, be waived; the
State's freedom from suit without its consent does not protect it
from a suit to which it has consented.
Clark v. Barnard,
108 U. S. 436,
108 U. S. 447;
Gunter v. Atlantic Coast Line R. Co., 200 U.
S. 273,
200 U. S. 284;
Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.
S. 275. We think Alabama has consented to the present
suit.
This case is distinctly unlike
Hans v. Louisiana,
supra, where the action was a contractual one based on state
bond coupons, and the plaintiff sought to invoke the
Page 377 U. S. 187
federal question jurisdiction by alleging an impairment of the
obligation of contract. [
Footnote
3] Such a suit on state debt obligations without the State's
consent was precisely the "evil" against which both the Eleventh
Amendment and the expanded immunity doctrine of the
Hans
case were directed. [
Footnote
4] Here, for the first time in this Court, a State's claim of
immunity against suit by an individual meets a suit brought upon a
cause of action expressly created by Congress. Two questions are
thus presented: (1) Did Congress in enacting the FELA intend to
subject a State to suit in these circumstances? (2) Did it have the
power to do so, as against the State's claim of immunity?
We think that Congress, in making the FELA applicable to "every"
common carrier by railroad in interstate commerce, meant what it
said. [
Footnote 5] That
congressional
Page 377 U. S. 188
statutes regulating railroads in interstate commerce apply to
such railroads whether they are state owned or privately owned is
hardly a novel proposition; it has twice been clearly affirmed by
this Court. In
United States v. California, 297 U.
S. 175, the question was whether the federal Safety
Appliance Act, 45 U.S.C. §§ 2, 6, applicable by its terms to "[a]ny
common carrier engaged in interstate commerce by railroad," applied
to California's state-owned railroad. The Court unanimously held
that it did. [
Footnote 6] In
rejecting the argument that "the statute is to be deemed
inapplicable to state-owned railroads because it does not
specifically mention them," the Court said, in terms equally
pertinent here:
"No convincing reason is advanced why interstate commerce and
persons and property concerned in it should not receive the
protection of the act whenever a state, as well as a privately
owned carrier, brings itself within the sweep of the statute, or
why its all-embracing language should not be deemed to afford that
protection."
297 U.S. at
297 U. S.
185.
In
California v. Taylor, 353 U.
S. 553, the question was whether the Railway Labor Act,
45 U.S.C. § 151
et seq., applicable by its terms to "any .
. . carrier by railroad, subject to the Interstate Commerce Act,"
applied to the same California state railroad. The Court, again
unanimous, held that it did. [
Footnote 7] After noting that
"federal
Page 377 U. S. 189
statutes regulating interstate railroads, or their employees,
have consistently been held to apply to publicly owned or operated
railroads,"
although "none of these statutes referred specifically to public
railroads as being within their coverage," 353 U.S. at
353 U. S. 562,
the Court stated:
"The fact that Congress chose to phrase the coverage of the Act
in all-embracing terms indicates that state railroads were included
within it. In fact, the consistent congressional pattern in railway
legislation which preceded the Railway Labor Act was to employ
all-inclusive language of coverage with no suggestion that
state-owned railroads were not included."
353 U.S. at
353 U. S. 564.
As support for this proposition, the Court relied on three
decisions involving the precise question presented by the instant
case, in all of which it had been held that the FELA did authorize
suit against a publicly owned railroad despite a claim of sovereign
immunity.
Mathewes v. Port Utilities
Comm'n, 32 F.2d 913
(D.C.E.D.S.C.1929);
Higginbotham v. Public Belt R. Comm'n,
192 La. 525, 188 So. 395 (1938);
Maurice v.
State, 43 Cal. App. 2d
270, 110 P.2d 706 (Cal.Dist.C.A.1941). Thus, we could not read
the FELA differently here without undermining the basis of our
decision in
Taylor.
Nor do we perceive any reason for reading it differently. The
language of the FELA is at least as broad and all-embracing as that
of the Safety Appliance Act or the Railway Labor Act, and its
purpose is no less applicable to state railroads and their
employees. If Congress made the judgment that, in view of the
dangers of railroad work and the difficulty of recovering for
personal
Page 377 U. S. 190
injuries under existing rules, railroad workers in interstate
commerce should be provided with the right of action created by the
FELA, we should not presume to say, in the absence of express
provision to the contrary, that it intended to exclude a particular
group of such workers from the benefits conferred by the Act. To
read a "sovereign immunity exception" into the Act would result,
moreover, in a right without a remedy; it would mean that Congress
made "every" interstate railroad liable in damages to injured
employees, but left one class of such employees those whose
employers happen to be state owned without any effective means of
enforcing that liability. We are unwilling to conclude that
Congress intended so pointless and frustrating a result. We
therefore read the FELA as authorizing suit in a Federal District
Court against state-owned, as well as privately owned, common
carriers by railroad interstate commerce. [
Footnote 8]
Respondents contend that Congress is without power, in view of
the immunity doctrine, thus to subject a State to suit. We
disagree. Congress enacted the FELA in the exercise of its
constitutional power to regulate
Page 377 U. S. 191
interstate commerce.
Second Employers' Liability Cases,
223 U. S. 1. While a
State's immunity from suit by a citizen without its consent has
been said to be rooted in "the inherent nature of sovereignty,"
Great Northern Life Ins. Co. v. Read, supra, 322 U. S.
47,
322 U. S. 51,
[
Footnote 9] the States
surrendered a portion of their sovereignty when they granted
Congress the power to regulate commerce.
"This power, like all others vested in congress, is complete in
itself, may be exercised to its utmost extent, and acknowledges no
limitations other than are prescribed in the constitution. . . .
If, as has always been understood, the sovereignty of congress,
though limited to specified objects is plenary as to those objects,
the power over commerce with foreign nations, and among the several
States, is vested in congress as absolutely as it would be in a
single government, having in its constitution the same restrictions
on the exercise of the power as are found in the constitution of
the United States."
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 196-197.
Thus, as the Court said in
United States v. California,
supra, 297 U.S. at
297 U. S.
184-185, a State's operation of a railroad in interstate
commerce
"must be in subordination to the power to regulate interstate
commerce, which has been granted specifically to the national
government. The sovereign power of the states is necessarily
diminished to the extent of the grants of power to the federal
government in the Constitution. . . . [T]here is no such limitation
upon the plenary power to regulate commerce [as there is upon the
federal power to tax
Page 377 U. S. 192
state instrumentalities]. The state can no more deny the power
if its exercise has been authorized by Congress than can an
individual."
By empowering Congress to regulate commerce, then, the States
necessarily surrendered any portion of their sovereignty that would
stand in the way of such regulation. Since imposition of the FELA
right of action upon interstate railroads is within the
congressional regulatory power, it must follow that application of
the Act to such a railroad cannot be precluded by sovereign
immunity. [
Footnote 10]
Recognition of the congressional power to render a State suable
under the FELA does not mean that the immunity doctrine, as
embodied in the Eleventh Amendment with respect to citizens of
other States and as extended to the State's own citizens by the
Hans case, is here being overridden. It remains the law
that a State may not be sued by an individual without its consent.
Our conclusion is simply that Alabama, when it began operation of
an interstate railroad approximately 20 years after enactment of
the FELA, necessarily consented to such suit as was authorized by
that Act. By adopting and ratifying the Commerce Clause, the States
empowered Congress to create such a right of action against
interstate railroads; by enacting the FELA in the exercise of this
power, Congress conditioned the right to operate a railroad in
interstate commerce upon amenability to suit in federal court as
provided by the Act; by thereafter operating a railroad in
interstate commerce, Alabama must be taken to have accepted that
condition and thus to have consented to suit.
"[B]y engaging in interstate commerce by rail, [the State] has
subjected itself to the commerce power, and is liable for a
violation of the . . . Act, as are other
Page 377 U. S. 193
carriers. . . ."
United States v. California, supra, 297 U.S. at
297 U. S. 185;
California v. Taylor, supra, 353 U.S. at
353 U. S. 568.
We thus agree that
"[T]he State is liable upon the theory that, by engaging in
interstate commerce by rail, it has subjected itself to the
commerce power of the federal government."
"
* * * *"
"It would be a strange situation indeed if the state could be
held subject to the [Federal Safety Appliance Act] and liable for a
violation thereof, and yet could not be sued without its express
consent. The state, by engaging in interstate commerce, and thereby
subjecting itself to the act, must be held to have waived any right
it may have had arising out of the general rule that a sovereign
state may not be sued without its consent."
Maurice v. State, supra, 43 Cal. App. 2d at 275, 277,
110 P.2d at 710-711.
Accord, Higginbotham v. Public Belt R.
Comm'n, supra, 192 La. 525, 550-551, 188 So. 395, 403;
Mathewes v. Port Utilities Comm'n, supra. [
Footnote 11]
Page 377 U. S. 194
Respondents deny that Alabama's operation of the railroad
constituted consent to suit. They argue that it had no such effect
under state law, and that the State did not intend to waive its
immunity or know that such a waiver would result. Reliance is
placed on the Alabama Constitution of 1901, Art. I, Section 14 of
which provides that "the State of Alabama shall never be made a
defendant in any court of law or equity"; on state cases holding
that neither the legislature nor a state officer has the power to
waive the State's immunity; [
Footnote 12] and on cases in this Court to the effect
that whether a State has waived its immunity depends upon its
intention and is a question of state law
Page 377 U. S. 195
only.
Chandler v. Dix, 194 U.
S. 590;
Palmer v. Ohio, 248 U. S.
32;
Ford Motor Co. v. Department of Treasury,
323 U. S. 459,
323 U. S. 466
323 U. S. 470.
We think those cases are inapposite to the present situation, where
the waiver is asserted to arise from the State's commission of an
act to which Congress, in the exercise of its constitutional power
to regulate commerce, has attached the condition of amenability to
suit. More pertinent to such a situation is our decision in
Petty v. Tennessee-Missouri Bridge Comm'n, supra. That was
a suit against a bi-state authority created with the consent of
Congress pursuant to the Compact Clause of the Constitution. We
assumed
arguendo that the suit must be considered as being
against the States themselves, but held nevertheless that, by the
terms of the compact and of a proviso that Congress had attached in
approving it, [
Footnote 13]
the States had waived any immunity they might otherwise have had.
In reaching this conclusion, we rejected arguments, like the one
made here, based on the proposition that neither
Page 377 U. S. 196
of the States, under its own law, would have considered the
language in the compact to constitute a waiver of its immunity. The
question of waiver was, we held, one of federal law. It is true
that this holding was based on the inclusion of the language in an
interstate compact sanctioned by Congress under the Constitution.
But such compacts do not present the only instance in which the
question whether a State has waived its immunity is one of federal
law. This must be true whenever the waiver is asserted to arise
from an act done by the State within the realm of congressional
regulation; for the congressional power to condition such an act
upon amenability to suit would be meaningless if the State, on the
basis of its own law or intention, could conclusively deny the
waiver and shake off the condition. The broad principle of the
Petty case is thus applicable here: where a State's
consent to suit is alleged to arise from an act not wholly within
its own sphere of authority, but within a sphere -- whether it be
interstate compacts or interstate commerce -- subject to the
constitutional power of the Federal Government, the question
whether the State's act constitutes the alleged consent is one of
federal law. Here, as in
Petty, the States by venturing
into the congressional realm "assume the conditions that Congress
under the Constitution attached." 359 U.S. at
359 U. S.
281-282.
Our conclusion that this suit may be maintained is in accord
with the common sense of this Nation's federalism. A State's
immunity from suit by an individual without its consent has been
fully recognized by the Eleventh Amendment and by subsequent
decisions of this Court. But when a State leaves the sphere that is
exclusively its own and enters into activities subject to
congressional regulation, it subjects itself to that regulation as
fully as if it were a private person or corporation.
Cf. South
Carolina v. United States, 199 U. S. 437,
199 U. S. 463;
New York
v.
Page 377 U. S. 197
United States, 326 U. S. 572. It
would surprise our citizens, we think, to learn that petitioners,
who in terms of the language and purposes of the FELA are on
precisely the same footing as other railroad workers, [
Footnote 14] must be denied the
benefit of the Act simply because the railroad for which they work
happens to be owned and operated by a State, rather than a private
corporation. It would be even more surprising to learn that the
FELA does make the Terminal Railway "liable" to petitioners, but,
unfortunately, provides no means by which that liability may be
enforced. Moreover, such a result would bear the seeds of a
substantial impediment to the efficient working of our federalism.
States have entered and are entering numerous forms of activity
which, if carried on by a private person or corporation, would be
subject to federal regulation.
See South Carolina v. United
States, supra, 199 U.S. at
199 U. S.
454-455. In a significant and
Page 377 U. S. 198
increasing number of instances, such regulation takes the form
of authorization of lawsuits by private parties. To preclude this
form of regulation in all cases of state activity would remove an
important weapon from the congressional arsenal with respect to a
substantial volume of regulable conduct. Where, as here, Congress,
by the terms and purposes of its enactment, has given no indication
that it desires to be thus hindered in the exercise of its
constitutional power, we see nothing in the Constitution to
obstruct its will.
Reversed.
[
Footnote 1]
See also Ala.Const. of 1901, amendment 116; 1940 Code
of Ala. (recompiled 1958), Tit. 38, §§ 45(14), (16).
[
Footnote 2]
The Eleventh Amendment provides:
"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."
[
Footnote 3]
Of the other cases cited in which federal question jurisdiction
was asserted,
Smith v. Reeves, 178 U.
S. 436, and
Ex parte New York, 256 U.
S. 490, were also commonplace suits in which the federal
question did not itself give rise to the alleged cause of action
against the State, but merely lurked in the background. The former
case was a tax refund suit brought by receivers of a corporation
created by Congress, and the latter was an admiralty suit for
property damage due to negligence.
Duhne v. New Jersey,
251 U. S. 311, was
a suit against the State to restrain it from enforcing the
Eighteenth Amendment to the Federal Constitution, on the ground
that the Amendment was invalid.
[
Footnote 4]
See Cohens v.
Virginia, 6 Wheat. 264,
19 U. S.
406-407;
Hans v. Louisiana, 134 U. S.
1,
134 U. S. 12-13,
134 U. S. 16; The
Federalist, No. 81 (Hamilton) (Cooke ed. 1961), at 548 549; Irish
and Prothro, The Politics of American Democracy, at 123 (1959),
quoted in
Petty v. Tennessee-Missouri Bridge Comm'n,
359 U. S. 275,
359 U. S. 276,
n. 1; Jaffe, Suits Against Governments and Officers: Sovereign
Immunity, 77 Harv.L.Rev. 1, 19 (1963).
[
Footnote 5]
Although the language of the Act itself is clear enough, further
indication of the congressional desire to cover all rail carriers
that constitutionally could be covered is found in the legislative
history, where the House Report states that
"This bill relates to common carriers by railroad engaged in
interstate . . . commerce. . . . It is intended in its scope to
cover all commerce to which the regulative power of Congress
extends."
H.R.Rep. No. 1386, To Accompany H.R.20310, 60th Cong., 1st Sess.
(1908).
[
Footnote 6]
The suit had been brought against the State not by an
individual, but by the United States, to recover the statutory
penalty for violation of the Act.
[
Footnote 7]
The suit was not against the State, but against members of the
National Railroad Adjustment Board to compel them to take
jurisdiction over the railroad under the Act. The Court left open,
353 U.S. at
353 U. S. 568,
n. 16, the question whether the Eleventh Amendment would bar an
employee of the railroad from enforcing an award by the Board in a
suit against the State in a Federal District Court.
[
Footnote 8]
Respondents make an argument based on the provision in 45 U.S.C.
§ 56 that the jurisdiction of the federal courts under the FELA
"shall be concurrent with that of the courts of the several
States." The contention is that, since Alabama's courts would not
have taken jurisdiction over this suit, the "concurrent"
jurisdiction of the federal courts must be similarly limited.
See Hans v. Louisiana, supra, 134 U.S. at
134 U. S. 18-19;
but see 2 U. S.
Georgia, 2 Dall. 419;
South Dakota v. North Carolina,
192 U. S. 286,
192 U. S. 318.
It is clear, however, that Congress did not intend this language to
limit the jurisdiction of the federal courts, but merely to provide
an alternative forum in the state courts.
See O'Donnell v.
Elgin, J. & E.R. Co., 193 F.2d 348, 352 353 (C.A.7th Cir.
1951),
cert. denied, 343 U.S. 956;
Trapp v. Baltimore
& O. R. Co., 283 F. 655 (D.C.N.D.Ohio 1922);
Waltz v.
Chesapeake & O. R. Co., 65 F. Supp.
913 (D.C.N.D.Ill.1946).
[
Footnote 9]
See also The Federalist, No. 81 (Hamilton) (Cooke ed.
1961), at 548, quoted in
Hans v. Louisiana, supra, 134
U.S. at
134 U. S. 13.
Compare Jaffe,
note 4
supra, 77 Harv.L.Rev. at 3, 18.
[
Footnote 10]
"[B]y engaging in the railroad business, a State cannot withdraw
the railroad from the power of the federal government to regulate
commerce."
New York v. United States, 326 U.
S. 572,
326 U. S. 582
(opinion of Frankfurter, J.).
[
Footnote 11]
Respondents argue that Congress could not "directly strip a
state of its sovereign immunity from suit by a citizen," and hence
cannot constitutionally impose a condition of amenability to suit
upon the State's right to operate a railroad in interstate
commerce. Reliance is placed on such cases as
Howard v.
Illinois Central R. Co., 207 U. S. 463,
207 U. S.
502-503, and
Frost & Frost Trucking Co. v.
Railroad Comm'n of California, 271 U.
S. 583. In
Howard, the Court held the first
Federal Employers' Liability Act unconstitutional because it
applied to intrastate as well as interstate commerce, rejecting the
argument that
"the act is constitutional although it embraces subjects not
within the power of Congress to regulate commerce, because one who
engages in interstate commerce thereby submits all his business
concerns to the regulating power of Congress."
207 U.S. at
207 U. S. 502.
In
Frost & Frost, the Court held that, since a private
carrier could not constitutionally be converted against its will
into a common carrier by mere legislative command, such a condition
could not be attached to the carrier's right to use the highways.
Both cases are clearly distinguishable, because the condition
sought to be imposed was deemed by the Court to fall outside the
scope of valid regulation. Thus, in
Howard, the statute's
application to intrastate commerce was described as an attempt by
Congress to exercise "power not delegated to it by the
Constitution; in other words, . . . the right to legislate
concerning matters of purely state concern," 207 U.S. at
207 U. S. 502,
and in
Frost & Frost, the Court stated that
"the act, as thus applied, is in no real sense a regulation of
the use of the public highways. It is a regulation of the business
of those who are engaged in using them."
271 U.S. at
271 U. S. 591.
Here, in contrast, Congress does have authority, within its power
to regulate commerce, to subject interstate railroads to suit under
the FELA; by imposing a condition requiring state-owned interstate
railroads to submit to such suit, Congress is not attempting to
extend its regulatory power to objects that would not otherwise be
subject to it, but rather to prevent objects otherwise subject to
the power from being unjustifiably excepted. That Congress could
not make a State suable upon all causes of action does not mean
that it cannot do so with respect to this particular cause of
action, where imposition of such liability is within its power to
regulate commerce and where the State, by operating a railroad in
interstate commerce, has voluntarily submitted itself to that
power.
[
Footnote 12]
Dunn Construction Co. v. State Board of Adjustment, 234
Ala. 372, 376, 175 So. 383, 386 (1937);
State Tax Comm'n v.
Commercial Realty Co., 236 Ala. 358, 361, 182 So. 31, 35
(1938).
[
Footnote 13]
This proviso was 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. . . ."
The Court read this as reserving the jurisdiction of the federal
courts in suits brought against the bi-state authority under the
Jones Act or any other applicable congressional regulation of
navigation or commerce. 359 U.S. at
359 U. S. 281.
The Court's reliance on this congressionally imposed condition in
Petty is itself sufficient to refute respondents' argument
here that, since Congress has no power to "directly strip a State
of its sovereign immunity," it could not impose such suability as a
condition to the State's operation of a railroad in interstate
commerce.
See note
11 supra. It was presumably just as true in
Petty as it is here that Congress could not directly
subject the States to suit in matters falling outside the power
granted to Congress by the Constitution. Yet
Petty held
that Congress could impose such suability as a condition to
allowing the States to enter into the compact. Similarly, Congress
can do so here as a condition to allowing the State to operate an
interstate railroad.
[
Footnote 14]
An employee regulation of respondent Terminal Railway explicitly
recognizes that its employees may have causes of action under the
FELA, providing as follows:
"Employees must not make any statement, either oral or written,
concerning any accident, claim or suit in which the company is, or
may be involved, to any person other than [an] authorized
representative of the railway, without permission, [e]xcept in
cases arising under the Federal Employers' Liability Act, otherwise
known as 'an act relating to the liability of common carriers by
railroad to their employees in certain cases.'"
The exception for cases arising under the FELA is required by 45
U.S.C. § 60. Asked about this regulation, respondents' counsel said
on oral argument that it did not indicate an intention to be
subject to the Act, and could not do so in the face of the Alabama
Constitution,
see p.
377 U. S. 194
supra, but had been included inadvertently when the
Railway was adopting a number of regulations based upon those used
by a private railroad carrier. Nevertheless, the presence of this
regulation on the Terminal Railway's books illustrates, we think,
the incongruity of considering this railroad to be immune from a
statutory obligation imposed on privately owned railroads that are
similar in every material respect.
MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE
HARLAN, and MR. JUSTICE STEWART join, dissenting.
I agree that it is within the power of Congress to condition a
State's permit to engage in the interstate transportation business
on a waiver of the State's sovereign immunity from suits arising
out of such business. Congress might well determine that allowing
regulable conduct such as the operation of a railroad to be
undertaken by a body legally immune from liability directly
resulting from these operations is so inimical to the purposes of
its regulation that the State must be put to the option of either
foregoing participation in the conduct or consenting to legal
responsibility for injury caused thereby.
However, the decision to impose such conditions is for Congress,
and not for the courts. The majority today follows the Court's
consistent holdings that an unconsenting State is constitutionally
immune from federal court suits brought by its own citizens as well
as by citizens of other States. It should not be easily inferred
that Congress, in legislating pursuant to one article of the
Constitution, intended to effect an automatic and compulsory waiver
of rights arising under another. Only when Congress has clearly
considered the problem and
Page 377 U. S. 199
expressly declared that any State which undertakes given
regulable conduct will be deemed thereby to have waived its
immunity should courts disallow the invocation of this defense.
Particular deference should be accorded that
"old and well known rule that statutes which in general terms
divest pre-existing rights or privileges will not be applied to the
sovereign without express words to that effect,"
United States v. United Mine Workers, 330 U.
S. 258,
330 U. S. 272,
where the rights and privileges find their origin in the
Constitution. Far from manifesting such an unequivocal
determination, the legislative history of the Federal Employers'
Liability Act indicates that Congress did not even consider the
possible impact of its legislation upon state immunity from suits.
The expressed purpose of the Act was "to change the common law
liability of employers." [
Footnote
2/1] Certain specific defenses available to a railroad employer
in an employee's personal injury suit were removed, but sovereign
immunity was not one of them. To require Alabama's immunity defense
to yield because of a claimed inconsistency with language of the
Act making its provisions applicable to "[e]very common carrier by
railroad while engaging in commerce" relegates the States'
constitutional immunity, not even mentioned in the Act, to the
level of state statutory or common law defenses, four of which the
statute expressly proscribed. A decent respect for the normally
preferred position of constitutional rights dictates that, if
Congress decides to exercise its power to condition privileges
within its control on the forfeiture of constitutional rights, its
intention to do so should appear with unmistakable clarity.
In previous opinions, the Court has indicated that waiver of
sovereign immunity will be found only where
Page 377 U. S. 200
stated by
"the most express language, or by such overwhelming implication
from the text as would leave no room for any other reasonable
construction."
Murray v. Wilson Distilling Co., 213 U.
S. 151,
213 U. S. 171.
See Ford Motor Co. v. Department of Treasury, 323 U.
S. 459,
323 U. S.
468-470. If the automatic consequence of state operation
of a railroad in interstate commerce is to be waiver of sovereign
immunity, Congress' failure to bring home to the State the precise
nature of its option makes impossible the "intentional
relinquishment or abandonment of a known right or privilege" which
must be shown before constitutional rights may be taken to have
been waived.
Johnson v. Zerbst, 304 U.
S. 458,
304 U. S. 464;
Fay v. Noia, 372 U. S. 391. The
majority in effect holds that with regard to sovereign immunity,
waiver of a constitutional privilege need by neither knowing nor
intelligent. [
Footnote 2/2]
Preferring to leave the limiting of constitutional defenses to
that body empowered to impose such conditions, I respectfully
dissent.
[
Footnote 2/1]
H.R.Rep. No. 1386, 60th Cong., 1st Sess., 1 (1908). In debate on
the House floor, Representative Henry also summarized the Act as
having "changed four rules of the common law." 42 Cong.Rec.
4427.
[
Footnote 2/2]
Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.
S. 275;
California v. Taylor, 353 U.
S. 553, and
United States v. California,
297 U. S. 175, are
all inapposite. In
Petty, there was an express waiver, the
compact itself expressly declaring that the bi-state authority
could "sue and be sued."
Taylor was not a suit against a
State, but against the members of the National Railroad Adjustment
Board requiring them to take action on the plaintiffs' claims under
the Railway Labor Act. Though the Court held the Act applicable to
the State Belt Railroad, it expressly disclaimed deciding any
sovereign immunity issue. Footnote 16 of that opinion states:
"The contention of the State that the Eleventh Amendment to the
Constitution of the United States would bar an employee of the Belt
Railroad from enforcing an award by the National Railroad
Adjustment Board in a suit against the State in a United States
District Court under § 3, First (p), of the Act is not before us
under the facts of this case."
353 U.S. at
353 U. S. 568.
And the suit to recover the statutory penalty for violation of the
federal Safety Appliance Act in
United States v.
California was brought by the United States, against whom it
has long been recognized there is no state sovereign immunity.
United States v. Texas, 143 U. S. 621.