William O. Douglas

“ 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. ”

“ 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. ”

“ 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, 58 S.Ct. 803, 808, 82 L.Ed. 1202, spoke of two methods under our Constitution of settling controversies between States. One is our original jurisdiction defined in Art. III, § 2. The other is the compact: 'The compact-the legislative means-adapts to our Union o so vereign States the ageold treaty-making power of independent sovereign nations. ”

“ Such an explicit imposition is deemed to lie in the language in the Act which states that nothing in the Compact 'shall be construed to affect, impair, or diminish any right, power, or jurisdiction of the United States or of any court, * * * over or in regard to any navigable waters, or any commerce etw een the States * * *.' Read as this should be read on the natural understanding of the phrasing, there is nothing to indicate that the subject of immunity from suit was in contemplation. ”

“ 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. ”

“ The Court, acknowledging the applicability of the provisions of the Eleventh Amendment to the Tennessee-Missouri Bridge Commission, states: 'The question here is whether Tennessee and Missouri have waived their immunity under the facts of this case.' 359 U.S. 277, 79 S.Ct. 787. The Court finds such a waiver in the words 'sue and be sued' included in Art. I, § 3, of the Compact creating respondent Commission. The Supreme Court of Missouri has said: 'A statutory provision that such a public corporation 'may sue and be sued' does not authorize a suit against it for negligence.' Todd v. ”

“ Sims. This is a suit by an individual against the States over which the federal courts have jurisdiction only if the States have authorized such suits. Bot St ates deny having given such authorization and the Court of Appeals, has justified their denial in its finding of their law. Since a Compact comes into being through an Act of Congress, its construction gives rise to a federal question. ”

“ Cf. Delaware River Joint Toll Bridge Commission, Pennsylvania-New Jersey v. Colburn, 310 U.S. 419, 60 S.Ct. 1039, 84 L.Ed. 1287. Suits against agencies of a State based on maritime torts are no exception to these rules. ”