McCartney v. State of West Virginia

• Decision Date: 30 July 1946
• Docket Number: No. 5481.,5481.
• Citation: 156 F.2d 739
• Parties: McCARTNEY v. STATE OF WEST VIRGINIA et al.
• Court: U.S. Court of Appeals — Fourth Circuit

156 F.2d 739 (1946)

McCARTNEY v. STATE OF WEST VIRGINIA et al.

No. 5481.

Circuit Court of Appeals, Fourth Circuit.

July 30, 1946.

D. M. McCartney, pro se.

Bonn Brown, of Elkins, W. Va. (Ira J. Partlow and Kenneth E. Hines, both of Charleston, W. Va., and Stanley Bosworth, of Elkins, W. Va., on the brief), for appelles.

Before SOPER and DOBIE, Circuit Judges, and CHESNUT, District Judge.

DOBIE, Circuit Judge.

D. M. McCartney of Randolph County, West Virginia, hereinafter referred to as plaintiff, has appealed to this Court from the dismissal of his complaint, for lack of jurisdiction, by the District Court for the Northern District of West Virginia. This complaint sought damages from the State of West Virginia and from the sheriff and jailor of Randolph County for alleged false imprisonment (in "violation of the United States Constitution") and involuntary servitude incident to plaintiff's arrest and detention for a brief period under a lunacy warrant.

The State answered the complaint with a motion to dismiss for lack of jurisdiction upon the basis that the action violated Section 35, Article VI of the State Constitution and also the 11th Amendment to the Constitution of the United States. The individual defendants also asked for dismissal of the complaint for lack of jurisdiction, arising from the absence of diversity of citizenship, and they also entered a general denial. A pre-trial conference was had, at which the jurisdictional question was further inquired into, after which the motion to dismiss was granted. This appeal followed.

The State's immunity from suit without its consent is a doctrine of longstanding and unquestioned authority. This immunity, at least with respect to actions brought by citizens of the state sued, does not arise from the restriction of the 11th Amendment, which provides:

"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."

Rather, it comes from what Hamilton described in the Federalist as the "inherent * * * nature of sovereignty not to be amenable to the suit of an individual without its consent." This rule was laid down in unmistakable terms in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 506, 33 L.Ed. 842, in an opinion by Mr. Justice Bradley, and has continued without modification since that date. It is nowhere contended that the State of West Virginia has consented to be sued by this plaintiff. Accordingly, the motion to dismiss as to it was properly granted.

We come, then, to the question of whether the individual defendants were equally entitled to a dismissal of the complaint. The immunity of the State of West Virginia from a suit brought against it without its consent does not extend to the individual defendants herein. Ohlinger (1 Federal Practice 159, 160, 167) divides suits against state officers or government bodies into four types, the fourth of which is "cases against state officers in which plaintiff seeks judgment for damages arising from their acts." He then summarized the effect of the 11th Amendment on such suits in the following language:

"Generally, cases falling under (1) are held to be within the prohibition of Amend. XI; cases under (2), (3) and (4) are not within that prohibition. The rationale of the distinction is that state officers, in acting illegally, step outside the protection of their office. In such cases, in their individual capacities they may be prevented from wrongfully injuring another, may be forced to give up specific physical property, or may be sued for damages. But to require affirmative action by such officers in their official capacity would be to require the state to act, and is prohibited."

This view was specifically upheld by the Supreme Court in Scott v. Donald, 165 U.S. 58, 68-70, 17 S.Ct. 265, 41 L.Ed. 632. And it may be noted that this Court has previously entertained another suit for damages against the sheriff of this same county. State of West Virginia v. McDonald, 4 Cir., 197 F. 304.

In cases involving a federal question, it is stated in Dobie on Federal Procedure, pages 164-165:

"Since the jurisdiction here depends upon the nature of the controversy, when a federal question is really involved and the jurisdictional amount is present, no other basis of jurisdiction, such as diversity of citizenship, is necessary; so that the District Court would have jurisdiction, even though the plaintiff and defendant may both be citizens of the same state."

If, therefore, the plaintiff here (the jurisdictional amount being present) in good faith asserts a right, the decision of which depends wholly or in part upon the construction or application of the Constitution, laws or treaties of the United States, then the federal District Court (even though plaintiff and defendant are all citizens of West Virginia) has jurisdiction. It is equally clear that the federal question, to confer jurisdiction on the federal District Court, must be real and substantial, not colorable or frivolous. The federal question must really appear, not by mere inference or suggestion. Hanford v. Davies, 163 U.S. 273, 16 S.Ct. 1051, 41 L.Ed. 157; Western Union Telegraph Co. v. Ann Arbor R. Co., 178 U.S. 239, 20 S.Ct. 867, 44 L.Ed. 1052. And the federal question must be an essential or integral part of the plaintiff's case. Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511; Shulthis v. MacDougal, 225 U.S. 561, 32 S.Ct. 704, 56 L.Ed. 1205. Mere references to the federal Constitution, laws or treaties and mere assertions that a federal question is involved are not sufficient to confer jurisdiction. Starin v. New York, 115 U.S. 248, 6 S.Ct. 28, 29 L.Ed. 388; Farrell v. O'Brien, 199 U.S. 89, 25 S.Ct. 727, 50 L.Ed. 101; Lambert Run Coal Co. v. Baltimore & Ohio R. Co., 258 U.S. 377, 42 S.Ct. 349, 66 L.Ed. 671. The federal courts have been vigilant to protect their...