NA-JA CONSTRUCTION CORPORATION v. Roberts
Decision Date | 10 October 1966 |
Docket Number | Civ. A. No. 3197. |
Citation | 259 F. Supp. 895 |
Parties | NA-JA CONSTRUCTION CORPORATION, Plaintiff, v. Harry B. ROBERTS, Jr., John D. Daniello, Joseph F. Dayton, Commissioners of Levy Court of New Castle County, Delaware, Defendants. |
Court | U.S. District Court — District of Delaware |
H. Alfred Tarrant, Jr., and Piet H. van Ogtrop of Cooch & Taylor, Wilmington, Del., for plaintiff, C. Edmund Wells, of Wells, Campbell, Reynier & Yohn, Pottstown, Pa., of counsel.
Lawrence M. Sullivan, Wilmington, Del., for Levy Court of New Castle County.
Plaintiff, a Pennsylvania corporation, has sued defendant, Commissioners of Levy Court of New Castle County (county government), Delaware, for the balance allegedly due it on a sewer construction contract. Defendant has moved to dismiss upon these grounds:
The principle of sovereign immunity is based upon the proposition that the United States, the individual states, and the governmental subdivisions of the states are not liable to suit without their consent. This principle was written into the basic law of Delaware by the Delaware Constitution of 1776. Shellhorn & Hill, Inc. v. State, 187 A.2d 71 (Del. 1962).
However, such a defense is capable of being waived. While such waiver or consent to be sued usually is done explicitly by Constitutional provision or statute, it may be implied. George & Lynch, Inc. v. State, 197 A.2d 734 (Del. 1964). In that case, the Delaware State Highway Department sued defendant upon a highway contract and defendant counterclaimed against the State. The State interposed the defense of sovereign immunity to the counterclaim. The Supreme Court of Delaware rejected the defense on the theory that where a state legislature by law authorizes a department of the state to enter into contracts, such authorization constitutes a waiver of sovereign immunity. The Court said, inter alia:
By very strong analogy, the above language applies to the facts here. 9 Del.C. § 1521 authorizes the Levy Courts, inter alia, to contract for the construction of sewers. The contract in this case grows out of the construction of a sewer. Even more persuasive is the fact that 9 Del.C. § 379 states that all suits brought by the Levy Courts pursuant to the administration of county government "* * shall be in the name of the Levy Court of the County." Surely the power to sue implies a liability to be sued.1 Cowles v. Mercer County, 7 Wall. 118, 122, 19 L.Ed. 86 (1868).
It is my view that the Supreme Court of Delaware, if faced with the exact facts of this case, would hold that the defense of sovereign immunity had been waived. I so hold.
Next, defendant argues that aside from the defense of sovereign immunity, there is no diversity jurisdiction because the Levy Court is in practical effect the State of Delaware and the 11th Amendment2 constitutes a bar. In support of this argument, defendants cite State v. Warwick, 9 Terry 568, 48 Del. 568, 108 A.2d 85 (Super.Ct.Del.1954), where Judge Terry, for the Delaware Superior Court, distinguished counties organized as bodies politic and corporate from those in this state, stating:
* * *"108 A.2d at 89.
However, while the federal courts should regard state decisions and statutes with respect, the ultimate determination in matters of this sort must be in the federal courts. White v. Umatilla County, 247 F.Supp. 918 (D.Ore.1965). It is to be noticed that the Warwick case represents an unusual situation in a criminal case brought by the State against defendant prothonotary (Clerk) of the Superior Court of the County under an indictment providing penalties for embezzlement by clerks of corporate bodies. Employing the strict construction demanded in criminal cases, the Court found that defendant was not a clerk of a corporate body.
But this is far different from the case at hand. Here the defendant, a county, is sued upon a sewer contract which the County by law was authorized to enter into. Dozens of authorities support the proposition that an organized county is a citizen for the purposes of diversity. White v. Umatilla County, supra, Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890); Pettibone v. Cook County, Minnesota, 120 F.2d 850 (8 Cir. 1941). In Luning, the Supreme Court of the United States dismissed an argument similar to the defendant's here somewhat brusquely, stating:
"With regard to the first objection, it may be observed that the records of this court for the last 30 years, are full of suits against counties; and it would seem as though by general consent the jurisdiction of the federal courts in such suits had become established." 133 U.S. at 530, 10 S.Ct. at 363.
See also Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 63, 64 S.Ct. 873, 88 L.Ed. 1121 (1944) (dissenting opinion); Cameron County Water Imp. Dist. No. 1 v. Ashton, 81 F.2d 905, 908 (5 Cir. 1936); Henrietta Mills Co. v. Rutherford County, 26 F.2d 799 (W.D.N.C.1928); Wright, Federal Courts, § 46, p. 151.
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