United States v. State of California

• Decision Date: 14 September 1962
• Docket Number: Civ. No. 62-521-WM.
• Citation: 208 F. Supp. 861
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES of America, Plaintiff, v. STATE OF CALIFORNIA, Defendant.

208 F. Supp. 861

UNITED STATES of America, Plaintiff, v. STATE OF CALIFORNIA, Defendant.

Civ. No. 62-521-WM.

United States District Court S. D. California, Central Division.

September 14, 1962.

Francis C. Whelan, U. S. Atty., James R. Akers, Jr., Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.

Stanley Mosk, Atty. Gen. of California, Joan D. Gross, Deputy Atty. Gen., Sanford Guskin, Deputy Atty. Gen., Los Angeles, Cal., for defendant.

MATHES, District Judge.

Plaintiff United States of America invoked the jurisdiction of this Court under 28 U.S.C. § 1345, seeking damages from defendant, the State of California, by reason of alleged negligence on the part of employees of the State in causing, and in failing to extinguish, a fire which destroyed trees and other vegetation covering approximately 24,000 acres within Angeles National Forest in the County of Los Angeles, California.

It is alleged in plaintiff's complaint that "on November 21, 1957, the * * Division of Highways of the State of California was engaged in constructing a highway upon lands of the United States of America, within the Angeles National Forest"; that at said time and place an employee of the State Division of Highways negligently kindled a fire in a warming stove while aiding in the road construction; that the foreman of the highway construction crew, "acting within the scope of his employment", ordered the crew members to leave the construction site, and strong winds in the highway area thereafter overturned the stove, causing the fire to spread into the adjacent forest; that shortly thereafter other employees of the State Division of Highways arrived, attempted to extinguish the blaze, "but did so negligently", with the result that the fire continued to rage, and the Federal Government was "compelled to expend the approximate sum of $455,194.43 to suppress said fire". It is also alleged that "plaintiff sustained damages to national forest resources".

At a hearing held in response to an order to show cause why the action should not be dismissed pursuant to Rule 12(h) of the Federal Rules of Civil Procedure, 28 U.S.C. the State of California asserted sovereign immunity to suit in this Court upon the claim here alleged.

It has long been the rule in California that the State is immune from private suit, based upon negligent conduct of its agents, where the public activity involved is deemed essentially "governmental" in nature. See: People v. Superior Court, 29 Cal.2d 754, 761-762, 178 P.2d 1, 5, 40 A.L.R.2d 919 (1947); Plaza v. City of San Mateo, 123 Cal.App.2d 103, 106, 266 P.2d 523, 525 (1954). Road construction by California's Division of Highways has been held to be a "governmental" function, as distinguished from a "proprietary undertaking or business". See Bettencourt v. State, 123 Cal.App.2d 60, 63, 266 P.2d 201, 203, 43 A.L.R.2d 545 (1954); cf.: Gibson Properties Co. v. City of Oakland, 12 Cal.2d 291, 301, 83 P.2d 942, 947 (1938); Yonker v. City of San Gabriel, 23 Cal.App.2d 556, 558-559, 73 P.2d 623, 624 (1937). And since the cause of action here asserted by the Federal Government accrued in November of 1957, California would be clearly immune from suit under the circumstances alleged, had the action been brought by a private individual in the State court. Cal.Civ. Code § 22.3; see Corning Hospital Dist. v. Superior Court, 57 A.C. 529, 370 P.2d 325, 20 Cal.Rptr. 621 (1962); and see: Cal.Gov.Code, §§ 800-803, § 1953, § 53051.

The question for decision, then, and one of first impression it appears, is whether a Federal district court has jurisdiction, at the suit of the Federal Government, to impose liability upon a State for damages caused by allegedly tortious conduct of the State's agents, in a case where the State is an involuntary defendant — is sued without sovereign consent.

Since any Federal court possesses "no other jurisdiction than that conferred by the Constitution and laws of the United States, the presumption is that a cause is without its jurisdiction unless the contrary affirmatively appears". Grace v. American Cent. Ins. Co., 109 U.S. 278, 283, 3 S.Ct. 207, 27 L.Ed. 932 (1883); see: McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Minnesota v. Hitchcock, 185 U.S. 373, 382, 22 S.Ct. 650, 46 L.Ed. 954 (1902). As Mr. Chief Justice Ellsworth pointed out in the beginning: "A circuit district court * * * is of limited jurisdiction: and has cognisance, not of cases generally, but only of a few specially circumstanced, amounting to a small proportion of the cases which an unlimited jurisdiction would embrace. And the fair presumption is (not as with regard to a court of general jurisdiction, that a cause is within its jurisdiction unless the contrary appears, but rather) that a cause is without its jurisdiction, until the contrary appears." Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 11, 1 L.Ed. 718 (1799); Shamrock Oil & Gas Co. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941).

Underlying all Congressional enactments dealing with Federal-court jurisdiction is Article Three of the Constitution, which declares, inter alia, that: "The judicial Power shall extend * * * to Controversies to which the United States shall be a Party * * *." U.S. Const. art. 3, § 2, cl. 1. The same Article divides this judicial power among the Federal courts, providing in the first instance that the Supreme Court of the United States shall have original jurisdiction "In all Cases * * * in which a State shall be Party * * * U.S.Const. art. 3 § 2, cl. 2; see Georgia v. Pennsylvania R. Co., 324 U.S. 439, 464, 65 S.Ct. 716, 89 L.Ed. 1051 (1945); for it was thought that the establishment of a high court, with its consequent authority to determine controversies involving States of the Union, was "essential to the peace of the Union". Principality of Monaco v. Mississippi, 292 U.S. 313, 328 (1934), 54 S.Ct. 745, 78 L.Ed. 1282.

Indeed, Alexander Hamilton, at the time of New York's ratification convention in 1788, urged that: "In cases in which a state might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal." The Federalist No. 81, at 548 (Cooke ed. 1961).

However, the question soon arose whether the "original jurisdiction" granted by the Constitution to the Supreme Court was meant to be exclusive. See: United States v. Ravara, 2 U.S. (2 Dall.) 297, 1 L.Ed. 388 (1793); Osborn v. President, etc., of Bank of United States Bank, 22 U.S. (9 Wheat.) 738, 821, 6 L.Ed. 204 (1824). And by 1884 the Supreme Court had held that the Court's original jurisdiction is "not necessarily exclusive, and * * * the subordinate courts of the Union may be invested with jurisdiction" by the Congress, in cases concerning consuls or vice-consuls of foreign governments. Börs v. Preston, 111 U.S. 252, 256-257, 4 S.Ct. 407, 28 L.Ed. 419 (1884).

The proposition that the Congress has the power to confer original jurisdiction upon inferior Federal courts, concurrent with that conferred by the Constitution upon the Supreme Court, was grounded largely upon this fact: that the First Congress, the leading members of which had recently come from the Constitutional convention, in effect assumed the prerogative by including in the first Judiciary Act the provision that the Supreme Court "shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. * * *" Judiciary Act of 1789, § 13, 1 Stat. 80 (1789); cf.: Williams v. United States, 289 U.S. 553, 573-574, 53 S.Ct. 751, 77 L.Ed. 1372 (1933); Ames v. Kansas, 111 U.S. 449, 464, 4 S.Ct. 437, 28 L.Ed. 482 (1884).

This Congressional pronouncement of 1789 was in substance re-enacted in the Judicial Code of 1911 36 Stat. 1156 (1911), and was retained in 28 U.S.C. § 341 until revision in 1948. See 28 U.S.C. § 1251.

Moreover, the First Congress, while declaring in § 13 that the Supreme Court generally had exclusive jurisdiction of all cases wherein a State was a party, at the same time expressly conferred upon the circuit (trial) courts of the United States original jurisdiction of "all suits of a civil nature * * * where * * * the United States are plaintiffs * * *." Judiciary Act of 1789, § 11, 1 Stat. 78 (1789).

Throughout their long history, the trial courts of the United States have retained this same "original jurisdiction" of all civil cases wherein "the United States are plaintiffs". See: Act of March 3, 1875 § 1, 18 Stat. 470, as amended, 24 Stat. 552 (1887) and 25 Stat. 434 (1888); Judicial Code of 1911, § 24, 36 Stat. 1091 (1911); 28 U.S.C. § 41(1), as amended, id. § 1345 (1948). So it is that § 1345 of Title 28 of the United States Code now stipulates that: "Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States * * *." Ibid.

The grant to Federal trial courts of "original jurisdiction of all civil action * * * commenced by the United States" has never been displaced, but has always existed concurrently with the grant to the Supreme Court of exclusive original jurisdiction of civil cases where a State is a party. And what appears gradually to have evolved is the view that the Supreme Court has always retained exclusive original jurisdiction of all civil actions commenced by the United States against a State, excepting only those cases wherein the Congress has, by grant within the ambit of Constitutional power, specifically conferred concurrent jurisdiction upon the Federal district courts. Cf.: Case v. Bowles, 327 U.S. 92, 97, 66 S.Ct. 438, 90 L.Ed. 552 (1946); United States v. California, 297 U.S. 175, 187-188, 56 S.Ct. 421, 80 L.Ed. 567 (1936); Alabama v....