Requirement for Consent

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

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to suit.

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[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 [377 U.S. 193]

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carriers. . . .

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United States v. California, supra, 297 U.S. at 185; California v. Taylor, supra, 353 U.S. at 568. We thus agree

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that

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[T]he State is liable upon the theory that, by engaging in interstate commerce by rail, it has

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subjected itself to the commerce power of the federal government.

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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.

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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.{11}

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[377 U.S. 194]

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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;{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 [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, 466 470. 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,{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 [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 281-282.

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[Parden v. Terminal R. Co., 377 U.S. 184 (1964)]

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Note in the above case that extraterritorial jurisdiction was procured by the federal government within the exterior limits of 50 a “foreign state”, which was a state of the Union, by the commission of an act by the state in the context of its private 51 business ventures, which act constituted interstate commerce. The state indicated that it did not consent to the jurisdiction 52 of the federal government, but their consent was implied by the combination of the Constitution, which is a “contract” or 53 “compact”, as well as an act falling within the USA Constitution for which Congress was granted exclusive authority over 54 the state by the state’s own ratification of said “compact” as a member of the Union. In that sense, the Constitution creates 55 the equivalent of an “implied contract” or “quasi contract” which can be used to regulate all activities covered by the 56 contract extraterritorially, even among parties who were unaware of the implied contract and did not explicitly or 57 individually consent. Below is a definition of “implied contract” from Black’s Law Dictionary: 58

Requirement for Consent

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Copyright Sovereignty Education and Defense Ministry, http://sedm.org Form 05.003, Rev. 7-23-2013

EXHIBIT:________