The opinion of the court was delivered by: Sullivan, District Judge.
This is a libel in Admiralty by a Canadian corporation against
the City of Chicago seeking to recover damages to plaintiff's
ship allegedly caused by defendant's negligent operation of a
drawbridge which crosses the Chicago River.
Defendant has moved to dismiss the libel. It first urges in
support of the motion that the suit against the City must be
considered one against the State of Illinois, and that this court
is accordingly without jurisdiction under the Eleventh Amendment
to the Constitution of the United States. That Amendment reads:
"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".
It is true, as defendant points out, that the state itself need
named directly to bring the Eleventh Amendment into operation,
and that immunity may be granted a state agency which is actually
no more than an arm of the state itself. Oklahoma Real Estate
Commission v. National Business & Property Exchange, 10 Cir.,
1955, 229 F.2d 205. However, the mere fact that an entity may
properly be described as an "agency of the state" or that it does
the work of the state does not qualify it for immunity (Keifer &
Keifer v. Reconstruction Finance Corp., 1939, 306 U.S. 381, 388,
59 S.Ct. 516, 83 L.Ed. 784). This was made clear in early
opinions holding that municipal corporations do not so qualify.
Camden Interstate R. Co. v. City of Catlettsburgh, C.C.E.D.Ky.
1904, 129 F. 421; Wheeler v. City of Chicago, C.C.N.D.Ill. 1895,
68 F. 526. Thus the Camden opinion remarked:
"That such a corporation is an (agent of the state
government) is undoubtedly true, but it does not
follow therefrom that a suit against it or its
officers is such a suit. The most that can be said is
that it is a suit against a subdivision of one of
said states, not that it is a suit against one of
said states itself". 129 F. at page 423.
Dictum in modern cases supports this rule (O'Neill v. Early, 4
Cir., 1953, 208 F.2d 286, 288. Thomas v. Broadlands Community
Consolidated School Dist. No. 201, 1953, 348 Ill. App. 567,
109 N.E.2d 636.) It is further fortified by the tests developed to
determine which "state agencies" inherit the state's immunity.
Thus, it is said that there is no immunity if "full relief can be
obtained from the named defendants without requiring the State to
take any action" (Board of Supervisors of Louisiana State
University and Agr. and Mechanical College v. Ludley, 5 Cir.,
1958, 252 F.2d 372, 376). Another criterion frequently applied is
that the state's immunity operates only when the state itself
rather than the entity named as defendant will have to respond to
a judgment (Petty v. Tennessee-Missouri Bridge Commission,
D.C.E.D.Mo. 1957, 153 F. Supp. 512, 513; Kennecott Copper Corp. v.
State Tax Commission, 1946, 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed.
862; State Highway Commission of Wyoming v. Utah Construction
Co., 1929, 278 U.S. 194, 49 S.Ct. 104, 73 L.Ed. 262). A truly
independent agency does not acquire the state's Eleventh
Amendment immunity from suit (cf. Linger v. Pennsylvania Turnpike
Commission, D.C.W.D.Pa. 1958, 158 F. Supp. 900 and Masse v.
Pennsylvania Turnpike Commission, D.C.E.D.Pa. 1958, 163 F. Supp. 510).
In applying these tests, it is not necessary to review the
nature and powers of the City of Chicago as a municipal
corporation (see Rev. Cities and Villages Act, Ch. 24,
Ill.Rev.Stat. 1957, Sec. 1-1 et seq.). It is enough to note that
it is a completely separate entity from the State of Illinois
with power to levy and collect taxes, borrow money, hire its own
employees and in general to conduct its own affairs. It is, in
short, sufficiently insulated from the State so that the latter
will not be directly affected by a judgment here. Under the tests
described above, there is no reason to extend to the City of
Chicago the immunity granted states by the Eleventh Amendment.
Defendant also contends in support of its motion to dismiss
that the operation of the bridge here involved was a governmental
function and the City is accordingly immune from liability for
resulting injuries. This question presents the
"`non-governmental' — `governmental' quagmire that has long
plagued the law of municipal corporations". Indian Towing Co. v.
United States, 1955, 350 U.S. 61, 65, 76 S.Ct. 122, 124, 100
L.Ed. 48. Without attempting to analyze the myriad cases on the
subject, it can be said with assurance that in Illinois the
operation of this bridge was a corporate as distinguished from a
governmental function, and the City may be liable for negligence
in its performance. Indian Towing Co., supra; Johnston v. City of
East Moline, 1950, 405 Ill. 460, 91 N.E.2d 401; Roumbos v. City
of Chicago, 1928, 332 Ill. 70, 163 N.E. 361, 60 A.L.R. 87;
City of Chicago, 1908, 236 Ill. 9, 86 N.E. 152, 19 L.R.A.,N.S.,
For the reasons given above, the defendant's motion to dismiss
the libel is denied.
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