Harris v. Municipality John, Civil No. 355 - 1952

• Decision Date: 09 March 1953
• Docket Number: Civil No. 355 - 1952
• Citation: 2 V.I. 251
• Parties: MARGARET E. HARRIS, Plaintiff v. MUNICIPALITY OF ST. THOMAS AND ST JOHN, et al., Defendants
• Court: U.S. District Court — Virgin Islands

2 V.I. 251

MARGARET E. HARRIS, Plaintiff v. MUNICIPALITY OF ST. THOMAS AND ST JOHN, et al., Defendants

Civil No. 355 - 1952

District Court of the Virgin Islands Div. of St. Thomas and St. John at Charlotte Amalie

March 9, 1953

See, also, 111 F. Supp. 63

Same case on appeal, see 3 V.I.

Action for damages against Municipality of St. Thomas and St. John and others arising from injuries allegedly sustained on a public street by loose plate covering water main. The Municipality moved for dismissal on ground of lack of jurisdiction. The District Court, Moore, J., granted the motion holding that under the Organic Act the Municipality could not be sued in tort.DUDLEY, HOFFMAN AND MCGOWAN, Charlotte Amalie, St. Thomas, Virgin Islands (Geo. H. T. Dudley, Charlotte Amalie, St. Thomas, Virgin Islands, of counsel), for plaintiff

CYRIL MICHAEL, District Attorney, Charlotte Amalie, St. Thomas, Virgin Islands, for defendant municipality

MOORE, Judge

This is an action for damages in the amount of $25,000arising out of injuries sustained by plaintiff, while traveling along the public street at the intersection of Trumpeter Gade and Vimmelskafts Gade, Queens Quarter, and caused by a loose steel plate covering the salt water main. Plaintiff is suing: (1) the Municipality of St. Thomas and St. John for its alleged failure to discharge an alleged implied contractual obligation to maintain the public way in a safe condition: (2) Donald S. Boreham as the servant of the Municipality charged with the duty of supervising and maintaining the public roadways; and (3) Ella Blanche Barbel as the owner of the property which is connected to the salt water main in issue.

This matter came on for hearing on a motion by the Municipality of St. Thomas and St. John to be dismissed from the action as a party defendant on the ground of lack of jurisdiction. The Municipality entered a special appearance for the sole purpose of contesting the jurisdiction of the Court.

The Municipality avers that: (1) it is exempt from suit without its consent; (2) under its Organic Act (1936; prec. 1 V.I.C), it has no authority whatever to be sued in tort, and (3) this is a suit in tort.

Plaintiff, Margaret E. Harris, contends that: (1) the Municipality is liable to suit on the grounds that the defendant Municipality is a municipal corporation vested with full and complete control over its streets and highways, and (2) the Organic Act is a contract between the Federal Government and the Municipality for the benefit of third parties who may sue thereon.

The question before the Court is, therefore: Is the Municipality of St. Thomas and St. John a municipal corporation and/or can it be sued without its consent in a case of this nature?

The Virgin Islands is an outlying possession of the United States and as such has been governed as a terri-tory of the United States. Its organization and powers are set forth in an organic act passed by the Congress of the United States in 1936, sections 2 and 3 of which provide as follows:

"SEC. 2. The insular possession which is the Virgin Islands shall be divided into two municipalities, namely, (1) the municipality of Saint Croix and (2) the municipality of Saint Thomas and Saint John. The boundaries of said municipalities shall be the same as at present established in accordance with laws in force on the date of enactment of this Act, and the capital and seat of the central government shall be Saint Thomas. In this Act the phrase 'the Government of the Virgin Islands' shall include, in addition to the governing authority of the insular possession, the governing authority of the two municipalities, unless the context shall indicate a different intention.

"SEC. 3. The inhabitants of the municipality of Saint Croix and of the municipality of Saint Thomas and Saint John are hereby constituted into bodies politic and juridic, under the present name of each such municipality, and as such bodies they shall have perpetual succession and power (a) to adopt and use an official seal; (b) to sue and in cases arising out of contract to be sued; (c) to demand the fulfillment of obligations under the law and to defend and prosecute all actions at law; (d) to acquire property by purchase, exchange, donation or bequest, by virtue of proceedings for the collection of taxes, by eminent-domain proceedings, or by any other means provided by law, and to possess, administer, and govern such property; and (e) to alienate or encumber any of their property, subject to the provisions of this Act." 49 Stat. 1807, ch. 699, sees. 2 and 3, 48 U.S.C. §§ 1405a, 1405b.

[1] "Territories" of the United States have been recognized as "inchoate states" and as "temporary sovereign governments" organized under the laws of Congress and limited only by the organic law and the Constitution of the United States. Ex parte Morgan, D.C., 20 Fed. 298, 304; Territory of Dakota ex rel. McMahon v. O'Connor, 5 Dak. 397, 41 N.W. 746, 3 L.R.A. 355, 359; First National Bank of Brunswick, Maine v. County of Yankton, Dakota,101 U.S. 129, 25 L. Ed. 1046, 1047. It has also been said that "a territory is a distinct political society and therefore sovereign in its action, except as limited by the Organic Act . . ." Territory v. Lee, 2 Mont. 124, 133. Of the status and rank of territorial governments, the Supreme Court has said:

"The government of the territories of the United States belongs primarily to Congress and secondarily to such agencies as Congress may establish for that purpose . . . The extent of the power thus granted depends entirely upon the organic act of Congress in each case, and is at all times subject to such alterations as Congress may see fit to adopt." Snow v. United States, 18 Wall 317, 85 U.S. 317, 21 L. Ed. 784.

It is argued that the Virgin Islands is a territory of the United States within the meaning of the above definitions. The Supreme Court has many times reviewed the nature and status of the government of specific territories and its decisions with respect to various territories have been cited by counsel on each side and the Court has studied them carefully.

With respect to Puerto Rico, it has been necessary for the Supreme Court to determine in various instances whether Puerto Rico was included in acts of Congress referring simply to "states and territories." In Gromer, Treasurer of Puerto Rico v. Standard Dredging Co., 224 U.S. 362, 32 S. Ct. 499, 502, 56 L. Ed. 801, 805, the court in reviewing the taxing power of Puerto Rico said that "The purpose of the (organic) act is to give local self-government, conferring an autonomy similar to that of the states and territories." Also, in Kopel v. Bingham, 211 U.S. 468, 29 S. Ct. 190, 192, 53 L. Ed. 286, where the Supreme Court had before it the question whether the Governor of Puerto Rico had the power to request arrestand surrender of a fugitive criminal by the Governor of New York, it was declared by the court that:

"It may be justly asserted that Puerto Rico is a completely organized territory, although not a territory incorporated into the United States, and that there is no reason why Puerto Rico should not be held to be such a territory as is comprised in § 5278[^*]."

The District Attorney cites the case of the People of Porto Rico v. Rosaly y Castillo, 227 U.S. 270, 274, 33 S. Ct. 352, 353, 57 L. Ed. 507, as the principal authority that the government of the Virgin Islands is likewise exempt from suit without its consent. In this case the Supreme Court, after quoting the Gromer case, supra, concluded that "immunity from suit without its consent is necessarily inferable from a mere consideration of the nature of the Puerto Rican government." The court then discussed section 7 of Puerto Rico's Organic Act which reads as follows:

"Sec. 7. All inhabitants continuing to reside in Porto Rico who were Spanish subjects on the 11th day of April, 1899, and then resided in Porto Rico, and their children born subsequent thereto, shall be deemed and held to be citizens of Porto Rico[^**], and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain on or before the 11th day of April 1900, in accordance with the provisions of the treaty of peace between the United States and Spain entered into on the 11th day of April 1899; and they, together with such citizens of the United States as mey reside in Porto Rico, shall constitute a body politic under the name of the People of Porto Rico, with governmental powers as hereinafter conferred, and with power to sue and be sued as such." 31 Stat. 79, ch. 191, sec. 7 (Organic Act of 1900; prec. 1 Laws of Puerto Rico Annotated), 48 U.S.C. § 733.and said that:

"Unquestionably the provision (Sec. 7), disconnected from its context, would sustain the conclusion that there exists a general liability to be sued without reference to consent . . . The destructive potency of the words if given the meaning insisted upon is self-evident, since the claim here is that they denature the government created by the organic act by depriving it of an immunity which has been frequently decided by this court would otherwise necessarily arise from the scope of the powers conferred."

The court was also of the opinion that to allow a suit against the government of Puerto Rico without its legislative consent would be an exercise of judicial power which would be destructive of the system of separation of powers set up by Congress.

The decision in People of Porto Rico v. Rosaly y Castillo, supra, has been affirmed by the Supreme Court in many subsequent cases. People of Porto Rico v. Ramos, 232 U.S. 627, 34 S. Ct. 461, 58 L. Ed. 763; People of Porto Rico v. Emmanuel, 235 U.S. 251, 35 S. Ct. 33, 59 L. Ed. 215, 218; People of Puerto Rico v. Shell Co., 302 U.S. 253, 266, 58 S. Ct. 167, 82 L. Ed. 235; Sancho Bonet, Treasurer of Puerto Rico v. Yabucoa Sugar Co., 306 U.S. 505, 307 U.S. 613, 59 S. Ct. 626, 83 L. Ed. 946. In the last...