Florida State Turnpike Authority v. Van Kirk

• Decision Date: 20 January 1956
• Docket Number: 6682-M.,Civ. No. 6681-M
• Citation: 146 F. Supp. 364
• Parties: The FLORIDA STATE TURNPIKE AUTHORITY, a body corporate and politic of the State of Florida, Plaintiff, v. John C. VAN KIRK and others, Defendants.
• Court: U.S. District Court — Southern District of Florida

146 F. Supp. 364

The FLORIDA STATE TURNPIKE AUTHORITY, a body corporate and politic of the State of Florida, Plaintiff, v. John C. VAN KIRK and others, Defendants.

Civ. Nos. 6681-M, 6682-M.

United States District Court S. D. Florida, Miami Division.

January 20, 1956.

Jackson L. Peters; Knight, Smith, Underwood & Peters, Miami, Fla., for plaintiff.

C. A. Hiaasen; McCune, Hiaasen, Kelley & Crum; C. Shelby Dale; Dale, Scott & Singer, Fort Lauderdale, Fla., for defendants.

CHOATE, District Judge.

This cause coming on to be heard upon the motions of The Florida State Turnpike Authority to remand this condemnation suit, to the Circuit Court of the Fifteenth Judicial Circuit in Broward County, Florida, for which condemnation suit two petitions for removal were filed in this Court (Nos. 6681-M-Civil and 6682-M-Civil) on January 10, 1956, by two different sets of non-resident defendants, and the Court having ordered the cases consolidated for hearing upon the motions, and having heard argument of counsel and having considered the briefs submitted by the several parties, is of the opinion that this cause should be remanded to the aforementioned state Circuit Court for the reason that The Florida State Turnpike Authority is an arm or alter ego of the State of Florida and therefore is not a citizen within the "diversity of citizenship" concept. Admittedly this Court would have no jurisdiction on the ground of diversity where the State is a party.

There are several tests which have been applied under like circumstances, one of the tests being whether or not the state is in fact a real party in interest regardless of the names of the titular parties. See 147 A.L.R. 786, 795. Another test, as was stated by the Fifth Circuit Court of Appeals in the case of Louisiana Highway Commission v. Farnsworth, 74 F.2d 910, is whether or not the highest court of the state has recognized the agency as a part of the state government, or to put it another way, is it the alter ego of the state. A third test is whether the activity in question affected the whole state.

In The Turnpike Act itself the legislature says in Section 340.02 of Florida Statutes, F.S.A., that the purpose of the creation of the authority and to authorize its functions was —

"* * * to facilitate vehicular traffic, diminish the present handicaps and hazards and promote safety on the congested highways in Florida, and make possible the construction of modern express highways * * * at the location herein established, and at such other locations as may be hereafter established by law * * *."

In the same Section the Legislature prohibits creation of turnpikes and toll roads by other authorities. In the next Section, 340.03 the Legislature points out the route of the authorized road which extends generally down the East Coast of Florida. In the next Section, 340.05, the Legislature says that The Florida State Turnpike Authority is a "state agency" and then empowers the Governor to appoint its members. Also, as has been stated heretofore, it denominates the authority as "a body corporate and politic performing an essential governmental function."

In State v. Florida State Turnpike Authority, 80 So.2d 337, 343, the Supreme Court of Florida said that the Authority "is a State agency charged with creating a highway that is bound, it seems to us, to affect traffic statewide." Generally speaking, "state agencies" have been recognized by the great majority of the courts as being the alter ego of the state so as to preclude federal jurisdiction on diversity claims. See the very numerous authorities cited in 147 A.L.R. 786, 793 (c). The Supreme Court of the United States has recognized state agencies as being immune to federal jurisdiction. State Highway Comm. of Wyoming v. Utah Const. Co., 1929, 278 U.S. 194, 49 S.Ct. 104, 73 L.Ed. 262 (holding the Wyoming State Highway Commission to be an arm or alter ego of the State and therefore no diversity of citizenship existed between it and the plaintiff construction company); Lankford v. Platte Iron Works Co., 1915, 235 U.S. 461, 35 S.Ct. 173, 59 L.Ed. 316 (holding Oklahoma State Banking Board immune as an instrumentality of the State and further holding that decision of State courts designating the Board as being the alter ego of the State was an important element to be considered); Murray v. Wilson Distilling Co., 1909, 213 U.S. 151, 29 S.Ct. 458, 53 L.Ed. 742 (holding a suit against the South Carolina State Liquor Dispensary was a suit against the State); Ex parte State of New York, 1921, 256 U.S. 490, 41 S.Ct. 588, 65 L. Ed. 1057 (holding a suit against the Superintendent of Public Works of the State of New York was a suit against the State); See also: Larson v. Domestic & Foreign Commerce Corp., 1949, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (holding a suit against the Administrator of the War Assets Administration could not be maintained as it was a suit against the United States.

In arriving at this conclusion the Court is aware that there are cases bearing on both sides of this controversy, but it is the opinion of this Court that in Florida there can be little or no question but that the Florida Turnpike Authority is definitely a part of the State and is the alter ego of the State because (1) the Legislature has so stated; (2) the Legislature has also stated that this board is to have exclusive control in this type of highway construction "throughout" the State; ...