OPINION OF THE COURT IN RESPECT TO COSTS AND FEES
BIGGS, Circuit Judge.
I.
The present application is one for costs and fees
by the plaintiffs’ counsel, Vincent A. Theisen, Esquire.
The case at bar has a long history and is resuméd in the following opinions of this court: Sincock v. Terry, D.C., 207 F.Supp. 205; D.C., 210 F.Supp. 395; D.C., 210 F.Supp. 396 (1962); Sincock v. Duffy, D.C., 215 F.Supp. 169 (1963);. and Sincock v. Roman, D.C., 232 F.Supp. 844 (1964). More importantly, see the opinion of the Supreme Court in Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964), affirming the judgments entered following our opinion in Sincock v. Duffy,
supra,
215 F. Supp. 169. See also Sincock v. Roman, D.C., 233 F.Supp. 615 (1964), and finally Sincock v. Gately, D.C., 262 F.Supp. 739 (1967). If these opinions are read, we think we need add little more to make clear the nature and extent of the litigation. We do state, however, that the suit is a class action brought by certain citizens and residents of rural New Castle County and of the City of Wilmington on their own behalf and on behalf of all other persons similarly situated. It was successfully prosecuted by Mr. Theisen and his associates
to a conclusion on January 27,1968 when this three-judge court after a hearing in open court, no person appearing in opposition thereto, entered an order that House Bill 442, enacted by the General Assembly of the State of Delaware and signed into law on January 10, 1968 for the apportionment of the General Assembly complied with the provisions of the Equal Protection Clause of the Fourteenth Amendment and with the opinion of this court filed on January 10, 1967 in Sincock v. Gately,
supra,
and with the decree of this court filed January 24, 1967.
The order terminating the litigation provided in part as follows: “[I]t is Further Ordered that the jurisdiction retained by this Court by its decree of January 24, 1967 be and the same hereby is relinquished and jurisdiction will be retained for the sole purpose of fixing counsel fees, if any, and costs
herein and entering a judgment in respect thereto.”
A hearing was held on July 24, 1970 after notice to the parties. Mr. Theisen appeared with an associate, John Mulford, Esquire. Mrs. Ruth M. Ferrell, a Deputy Attorney General, appeared for the newly-created Department of Justice of the State of Delaware.
Frank O’Donnell, Esquire, who had represented the Department of Elections of New Castle County in the litigation also appeared. No other counsel for any of the parties were present. No person objected and in substance all persons conceded that the facts set out in Mr. Theisen’s affidavit in support of his application were correct. Mrs. Ferrell announced that the Department of Justice of Delaware did not oppose Mr. Theisen’s application, stating however: “[W]e assume that the petitioner will seek an appropriation through the Legislature. There are no other state funds available which could be used to pay counsel fees, and we cannot make any commitment as to payment, of course. But the Department of Justice does not oppose this application.”
The parties appealed from the judgment of this court following its opinion in Sincock v. Terry, 210 F.Supp. 395, to the Supreme Court of the United States and authorized a fund to engage distinguished counsel, a member of the bar of the Supreme Court, Frederick B. Weiner, Esquire, and by 54 Delaware Laws, Chapter 90,
appropriated $95,000
to pay the costs of the appeal, Mr. Weiner’s fee and the fees of certain counsel representing the defendants. The Senate of the 122nd General Assembly adopted Resolution No. 46 which purported to appropriate $200,000 for the purpose of having an adjudication of the issues made by the Supreme Court of the United States.
This court was informed, however, at the hearing of July 24, 1970 that this fund by reason of the provisions of Chapter 90 had reverted to the General Fund of the State. As indicated, no counsel present objected to the amount of Mr. Theisen’s application or any statement contained in his petition
or affidavit. Nor has there been objection from any other source.
We need not discuss at length the time consumed or the efforts expended by Mr. Theisen and his staff during the course of the litigation. The applicant’s affidavit, exhibits and pleading afford, we believe, a rather complete picture of the litigation and of the efforts of plaintiffs’ counsel. Mr. Theisen’s petition states that his records show that in the period from June 1, 1962 through January 28, 1968 he and “his firm devoted more than 3,784 hours to the litigation” and “ [t] his does not take into account the many, many hours spent in preparation, research and review which occurred in and out of Petitioner’s firm.” The petition further states: “While no time records are available for such additional time, Petitioner would estimate them to be in excess of 1,000 hours over the 6½ years of the litigation, making a total of approximately 4,784 hours. Petitioner and his partners, taking into account the items of expense connected with the firm’s practice of law which includes overhead involved in the maintenance of the office, salaries of associates, secretarial and other help, supplies, rent, maintenance of a law library, furnishings, repairs and reasonable compensation through attorney fees to members of the firm and associates, had his usual charge for attorney services established at $50 per hour for office work and $100 per hour for Court work.” The charges of Mr. Victor Battaglia, an associate, were fixed at the rate of $35 an hour for office work and $75 an hour for court work.
Mr. Theisen estimates that the amount of time devoted to the trial of this case was in excess of 600 hours, divided approximately equally between him and his associate, Victor Battaglia, Esquire, and that of the remaining 4,184 hours, petitioner estimated that 40% or 1,673 hours were devoted to the litigation by him and that 60% or 2,510 hours were devoted to the litigation by Mr. Battaglia.
We find that the foregoing uneontradicted statements contain facts that are fully supported by the evidence and we are of the opinion that the requested amount of compensation and out-of-pocket expenses are reasonable. We take judicial notice that the amount sought as compensation is in accord with fees of members of the Bar of Delaware of a standing like unto that of Mr. Theisen. We note also that Mr. Theisen took the case on a partial-contingent fee basis.
We point out that the result obtained by the petitioner and his associates was indeed excellent. The State of Delaware has been properly and lawfully reapportioned by the General Assembly in accordance with the law laid down by the Supreme Court of the United States. See Sincock v. Gately, 262 F.Supp. 739,
supra.
We observe that Mr. Theisen has received by way of compensation and costs the stun of $31,208.25. The balance requested, which includes out-of-pocket expenses in the amount of $4,376.16, is $197,167.91. To sum up, the petition for allowance of attorney fees and costs sets out the following:
Attorney fees $224,000.00
Out of Pocket Disbursements 4,376.16
$228,376.16
Less Payments by Reapportionment Committee
31,208.25
$197,167.91
There would appear to be no opposition to the allowances sought by Mr. Theisen but we must decide whether or not they are within the power of this court to grant, and if so who can or should be held liable therefor. We discuss these issues under the next heading.
II.
Assuming, as we have found here, that Mr. Theisen rendered valuable services to the State of Delaware and to its citizens for which he should be adequately compensated, does this court have the power to award him that compensation to be taxed as costs against the State of Delaware or against the individual defendants, all of whom are State or County officers, in their respective representative capacities, pursuant to Rule 54 of the Federal Rules of Civil Procedure, 28 U.S.C.?
The Department of Justice of the State of Delaware was represented, as we have said, by Mrs. Ferrell, a Deputy Attorney General. In her letter memorandum of law to this court, Mrs. Ferrell stated: “It has long been held that * * a suit [such as that at bar] to
restrain
unconstitutional action threatened by an individual who is a state officer is not a suit against the State and thus not barred by the Eleventh Amendment of the U. S. Constitution.”
(Emphasis added). See Georgia R. R. and Banking Co. v. Redwine, 342 U.S. 299, 304, 72 S.Ct. 321, 96 L.Ed. 335 (1952) (assessment and collection of taxes); Harrison v. St. Louis and San Francisco R. R. Co., 232 U.S. 318, 332, 34 S.Ct. 333, 58 L.Ed. 621 (1914) (revocation of corporate charter); Mann v. Davis, 213 F.Supp. 577, 579 (E.D.Va.1962) (legislative reapportionment), affirmed 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964) and Lisco v. McNichols, 208 F.Supp. 471, 476 (D.Colo.1962) (legislative reapportionment). But it will be observed that none of the decisions just cited granted a money judgment against a State or a state employee. We cannot find any decision supported by a reasoned opinion which gives such a result.
The closest
case to the position asserted by Mr. Theisen which we can find or which has been cited to us is State of Utah v. United States, 304 F.2d 23, 27 (10 Cir. 1962), cert. denied 371 U.S. 826, 83 S.Ct. 47, 9 L.Ed.2d 65 (1962). But there the taxing of costs against the State of Utah found support in the fact that the State of Utah was not only a party litigant as a defendant but also as a cross-complainant.
There have been, however, judgments against states or state officers for costs and several such cases are cited on Mr. Theisen’s brief or in the appendices accompanying it.
In other opinions cited in Mr. Theisen’s supplemental brief such as Griffin v. County School Board of Prince Edward, 363 F.2d 206 (4 Cir. 1966), cert. denied 385 U.S. 960, 87 S.Ct. 395, 17 L.Ed.2d 305 (1966); Bell v. School Board of Powhatan County, 321 F.2d 494 (4 Cir. 1963), and Pettaway v. County School Board of Surry County, 230 F.Supp. 480 (E.D.Va.1964), fees have been allowed under the Civil Rights Act of 1964 which provides for the payment of counsel fees. See 42 U.S.C. § 2000a-3(b).
As has been repeatedly stated it is the general rule that counsel fees will not be allowed in the absence of an authorizing statute, but we might be willing to go beyond this principle and apply the tests and doctrine enunciated by Mr. Justice Harlan in Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), if we could hold either the State of Delaware or the individual defendants liable in their representative capacities. There can be no doubt of the success of Mr. Theisen’s representation and we believe it to be a fact that reapportionment suits will not often be maintained by counsel working without compensation. We think it is clear that the real party in interest is the State of Delaware and not the defendants. As was so clearly stated in Briggs v. Sagers, 301 F.Supp. 1023 (D. Utah 1969), by Judge Christensen, “[T]he matter of jurisdiction is decisive before this court. Despite individual defendants named, the suit is wholly against the State of Utah in substance and would have direct impact upon the funds and fiscal management of the State. Under no theory can it be said that the sovereign immunity has been waived by the State.”
The suit was
one involving the Fair Labor Standards Act of 1938, 29 U.S.C. § 216(b) and jurisdiction was laid under 28 U.S.C. § 1337, but these facts are irrelevant in the context in which we cite and quote Judge Christensen’s opinion.
There is, however, one final string to Mr. Theisen’s bow which we hesitate to break but we must. It is clear that the General Assembly entered the lists in aid of the then existing apportionment provisions of the Delaware Constitution of 1897.
It is argued and we think it may be a sound argument that by appropriating money for counsel fees and other costs to defend the apportionment provisions of that Constitution, by setting up a Reapportionment Appeal Commission and a Reapportionment Legal Review Committee,
and by paying counsel fees and other costs, the sovereign State of Delaware waived any prohibitory application of the Eleventh Amendment. But we believe that such waiver, if waiver there was, extended only to costs, fees and other expenditures made by the Reapportionment Legal Review Committee, the unexpended balance of such funds having reverted to the General Fund.
This means that if Mr. Theisen is to be paid a fee the necessary additional funds will have to be created by a new legislative appropriation.
We conclude that Mr. Theisen’s petition must be dismissed for want of jurisdiction. We reiterate, however, that he has done fine and spendid work for the State of Delaware and its citizens. In the context of this case, however, thanks and praise cannot be deemed to be too valuable considerations. We hope that Mr. Theisen will be rewarded with just compensation by grace of the General Assembly.
The foregoing is deemed to constitute findings of fact and conclusions of law as required by Rule 52(a), Fed.R.Civ. Proc., 28 U.S.C.
APPENDIX
EXHIBIT A
United States District Court Western District of Wisconsin
State of Wisconsin,
Mrs. Elfrieda Wilson,
Dan Smith, Robert
E. Smith, Lyle Link
and Thomas Miglautsch,
Plaintiffs,
v.
Robert C. Zimmerman,
Secretary of State of the State of Wisconsin,
Defendant.
Civil Action
No. 3540
FINDINGS AND ORDER
The instant suit was brought by the State of Wisconsin which was represented by its chief law officer, the Attorney General. The complaint emphasized that the State of Wisconsin was appearing in the role of
parens patriae.
On objection filed by the defendant, this court ruled that the State of Wisconsin, as the sole plaintiff, did not have the capacity to sue and raise the federal question that citizens had been deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution of the United States. The suit was ordered dismissed unless there were joined with the State of Wisconsin as additional plaintiffs individual electors who had been adversely affected by the failure of the Wisconsin state legislature to redistrict and apportion following the 1960 federal census. Five electors, residents in Waukesha County, joined as coplaintiffs, and the suit was not dismissed. Thereafter, defendant moved that the State of Wisconsin be dismissed as a party plaintiff. This court denied said motion. Among the reasons for such denial were that the State of Wisconsin was acting in this suit in the role of
parens patriae
and had a real interest in seeing that the voting rights and privileges of all of its citizens were protected, and that under Wisconsin state court practice, State ex rel. Attorney General v. Cunningham, 81 Wis. 440, 51 N.W. 724 (1892), and State ex rel. Lamb v. Cunningham, 83 Wis. 90, 53 N.W. 35 (1892), it is only the Attorney General who had the right as well as the duty, on behalf of the State of Wisconsin, to bring a lawsuit to question the action or the lack of action of the state legislature to “district anew” after a federal census.
The Special Master, Emmert L. Wingert, having filed a statement for his services and disbursements, including statements for the obligations incurred by him for the Court Reporter, John R. Adams, and the expert witness, Dr. C. K. Alexander, and this court finding said fees to be reasonable in amount and the disbursements proper; and the court having notified the parties that any objection to the statement of fees and disbursements of the Special Master, including any obligations incurred by him, could be filed on or before August 18, 1962, and no objection having been filed thereto;
It is ordered that the statement of the Special Master, Emmert L. Wingert, for his services and disbursements and the statements for obligations incurred by him for the Court Reporter, John R. Adams, and the expert witness, Dr. C. K. Alexander, be and the same are hereby approved.
It is further ordered that the clerk of this court enter judgment dismissing the complaint without prejudice to the commencement of a new action after August 1, 1963, and against the plaintiffs, and each of them, for the services and disbursements of the Special Master, Emmert L. Wingert, including the obligations incurred by him for the Court Reporter, John R. Adams, and the expert witness, Dr. C. K. Alexander, in the total sum of $5,237.62, and upon such payment the clerk shall satisfy said judgment and disburse said funds to the said Special Master Court Reporter, and expert witness.
Dated this 22 day of August, 1962.
(s) F. Ryan Duffy
F. Ryan Duffy,
U. S. Circuit Judge
(s) Patrick T. Stone
Patrick T. Stone,
U. S. District Judge
(s) Kenneth P. Grubb
Kenneth P. Grubb,
In the District Court of the United States of America for the Western District of Wisconsin
State of Wisconsin, Mrs. Elfrieda Wilson, Dan Smith, Robert E. Smith, Lyle Link and Thomas Miglautsch, Plaintiffs,
-vs-
Robert C. Zimmerman, Secretary of State of the State of Wisconsin, Defendant.
Civil Action No. 3540
JUDGMENT
In accordance with the Findings and Order of the Honorable F. Ryan Duffy,
United States Circuit Judge, and the Honorable Patrick T. Stone and the Honorable Kenneth P. Grubb, United States District Judges, signed and filed on August 22, 1962,
Judgment is hereby entered dismissing the complaint in the above entitled action, without prejudice to the commencement of a new action after August 1, 1963.
Judgment is further entered against the plaintiffs, and each of them, for the services and disbursements of the Special Master, Emmert L. Wingert, including the obligations incurred by him for the Court Reporter, John R. Adams, and the expert witness, Dr. C. K. Alexander, in the total sum of $5,237.62.
Madison, Wisconsin, August 24, 1962.
Clerk, United States District Court Western District of Wiscon sin
EXHIBIT B
In the United States District Court for the Eastern District of Virginia
Richmond Division
Avis M. Pettaway, et al.
County School Board of Surry County, Virginia, et al.
Civil Action No. 3766
ORDER ON MANDATE
This cause having been remanded by the United States Court of Appeals for the Fourth Circuit for amendment of the order entered June 18, 1964, it is adjudged and ordered:
First: Paragraph 2 of the order of June 18, 1964 is ¿mended to read as follows:
2. The Board of Supervisors of Surry County, A. T. Sowder, Treasurer of Surry County, the State Board of Education, Woodrow W. Wilkerson,
Superintendent of Public Instruction, and their successors, officers, agents and employees, and those persons in active concert or participation with them who received actual notice of this order by personal service or otherwise are enjoined and restrained from processing or approving applications for, or paying, tuition grants to persons residing in Surry County for use in any school predominantly maintained by such tuition grants, including the school of the Surry County Educational Foundation, so long as such school refuses to accept pupils on account of their race or color.
Second: In all other respects the order entered June 18, 1964 remains unchanged.
Third: Counsel for the plaintiffs are allowed attorneys’ fees in the stipulated amount of $3,500 to be paid by the defendants.
Fourth: This cause is retained on the docket with leave to any party to petition for further relief.
Let the Clerk send copies of this order to counsel of record.
April 20, 1965
EXHIBIT C
In the United States District Court for the Eastern District of Virginia
Eva Allen, et al., Plaintiffs
County School Board of Prince Edward County, Virginia, et al., Defendants
Civil Action No. 1333
ORDER ON FINDINGS
This cause came on again the 23rd day of April, 1965 for further inquiry into the facts surrounding the [tuition grant] payments made August 4-5, 1964; for hearing upon the order entered February 8, 1965 directing that W. W. Vaughan, C. W. Gates, H. M. Jenkins, Charles B. Pickett, John C. Steck and H. E. Carwile, Jr. show cause, if any they could, why they should not be held in contempt of this Court for failure to comply with its order entered herein on the 9th day of July, 1964; and for hearing upon plaintiffs’ motion for an award of counsel fees.
All motions were consolidated for hearing.
The members of the Board of Supervisors appeared in person and by counsel. All parties in interest were fully heard and given the opportunity of presenting such evidence and introducing such exhibits as they deemed pertinent to the motions under consideration.
From the testimony and exhibits thus produced the Court finds that:
The appellants filed a motion to accelerate their appeal (in re the payment of these tuition grants) to the Fourth Circuit on or about July 28, 1964.
Mr. Frederick T. Gray, of counsel for the Superintendent of Public Instruction of Virginia, chanced to see Maurice Dean, Clerk of the United States Court of Appeals for the Fourth Circuit, at or near Tenth and Main Streets in Richmond on or about July 31, 1964, at which time Mr. Dean mentioned that Mr. Gray would very likely be back before the Court of Appeals since a motion to accelerate the appeal in the Prince Edward school case was in the offing.
Shortly thereafter Mr. Dean told Mr. Gray that Chief Judge Haynsworth wanted to know whether or not it was possible to get a stipulation from the State and County authorities that the tuition grant payments would not be paid pending the hearing on the appeal.
Mr. Gray immediately advised the Attorney General and counsel for the Board of Supervisors of this request. He was then informed that the Board of Supervisors would not agree to enter into the
suggested stipulation. Mr. Dean was so told during the late evening of August 4, 1964.
Mr. Dean again called Mr. Gray the following morning informing him that the stipulation desired was not that the tuition grants would not be paid until this case had been decided but rather that the grants would not be" paid prior to the normal date for the processing and payment of the grants.
While Mr. Gray was relaying this information to the Attorney General, he received a telephone call from the Commonwealth Attorney of Prince Edward County advising him that during the night of August 4, 1964 the Board of Supervisors had authorized the payment of the tuition grants and that the grants had in fact been made and actually paid to the citizens on the morning of August 5th. This took the State officials by complete surprise as there had been no discussion between the State and County officials concerning advancing the date for the payment of the grants.
Mr. Gray then called Mr. Dean and told him the grants had been paid that morning.
The Board of Supervisors of Prince Edward County held a meeting on the morning of August 4, 1964 at which time Warren Scott and four of the Negro citizens appeared and filed an unsigned petition bearing ten hundred four typewritten names requesting that the Board of Supervisors allocate additional funds to be used for the purpose of public education. No action was then taken.
Shortly after adjournment of the Board meeting, Supervisor Jenkins and Supervisor Steck met with a Mr. Taylor and other interested citizens for the purpose of finding a way to pay the ’64-’65 tuition grants prior to the time the Court of Appeals could enter an order staying these payments. [It was then known to Mr. Jenkins and to the other members of the group that there had been discussions between Mr. Gray and Mr. Dean in re the possibility of the County agreeing not to make any tuition grant payments during the pendency of the appeal.]
The Commonwealth Attorney and two other members of the Board of Supervisors were then called. Those assembled agreed that if the Board of Supervisors would increase the tuition grants to $810.00 for high school and $290.00 for elementary school and authorize the immediate payment thereof, this could be done before the Court of Appeals could do anything about it.
The four Board members and the Commonwealth Attorney then went to the home of the chairman of the Board of Supervisors to advise him of what they had in mind and to determine whether or not a special meeting of the Board of Supervisors could be called the next morning for the purpose of expediting the payment of the ’64-65 tuition grants. The chairman, after being advised by the Board’s special counsel and the Commonwealth Attorney that such a resolution on the part of the Board of Supervisors would be legal, called a special meeting of the Board for 8:00 a. m. August 5th. At that meeting the Board passed the resolution which provided that the grants should be paid half on or before September 1, 1964 and half on or before January 1, 1965.
In the interim, that is, between the meeting at Chairman Vaughan’s house and eight o’clock the next morning, Board Member Jenkins and other members of the citizens’ committee made arrangements to telephone the parents of the children then attending the Prince Edward School Foundation schools advising them if they came down that night and made application they could get half the tuition money that morning.
Some twenty or thirty volunteers assisted the secretary of the Board in processing the applications and making out the necessary cheeks. County bonds were sold in Richmond the next morning to raise the money necessary for the payment of these checks.
Twelve hundred seventeen tuition grant applications were filed during the night of August 4-5. All of these applications were' for the ’64-’65 school year. Each applicant was paid one-half
of the amount applied for. Most, if not all, of the applicants were children enrolled in the Prince Edward School Foundation schools for the year ’64-'65.
There being no evidence that the money thus paid covered school years prior to ’64-’65, the Court concludes that the payments made August 4-5, 1964 were not violative of the order entered herein July 9, 1964. The show cause order issued against the members of the Board of Supervisors February 8, 1965 will be dismissed, and it is so ordered.
Counsel for the plaintiffs seek counsel fees in the amount of $21,760.00 for legal services rendered since June 1960. (The public schools were closed in Prince Edward County at the end of the ’59-’60 school year.) Counsel for the defendants do not seriously question the correctness of the itemized account as filed herein; they question the propriety of awarding any counsel fees in a case of this kind.
It is clear the defendants caused the plaintiffs to incur extraordinary legal expenses in their endeavor to being admitted to the public schools on a non-discriminatory basis — especially so since the entry of the April 22, 1960 order of this Court.
Counsel fees will be awarded in the amount of $7,500.00; fifty per cent to be paid by the defendant Board of Supervisors of Prince Edward County, Virginia; twenty-five per cent to be paid by the defendant County School Board of Prince Edward County, Virginia; and twenty-five per cent to be paid by the defendant State Board of Education of the Commonwealth of Virginia, and it is so ordered.
The amount awarded shall be paid to S. W. Tucker, who is herewith directed to pro rate the same among associate counsel as he deems proper and just.
The Clerk will forward six attested copies of these findings to the Clerk of the United States Court of Appeals for the Fourth Circuit for such further consideration as that Court deems proper.
The Clerk will also mail copies to all counsel of record.
At Alexandria