Varity Builders, Inc. v. Polikoff

Supreme Court of Delaware

Varity Builders, Inc. v. Polikoff

305 A.2d 618, 1973 Del. LEXIS 336

CourtSupreme Court of Delaware

DecidedApril 30, 1973

StatusPublished

Cited by14 cases

This text of 305 A.2d 618 (Varity Builders, Inc. v. Polikoff) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Varity Builders, Inc. v. Polikoff, 305 A.2d 618, 1973 Del. LEXIS 336 (Del. 1973).

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Opinion

PER CURIAM:

The plaintiffs brought suit for a mandatory injunction and damages against New Castle County as well as against a corporate and individual defendant. The complaint against the County is that it failed to properly oversee and supervise the construction and installation of sewage facilities serving the plaintiffs’ home. The County moved to dismiss on the ground that it was immune from suit. The Court of Chancery denied the motion. The County appeals.

The State and its agencies are immune from suit unless sovereign immunity has been waived by the General Assembly. Wilmington Housing Authority v. Williamson, Del.Supr., 228 A.2d 782 (1967). Our Constitution authorizes the General Assembly to waive sovereign immunity. It provides that “[s]uits may be brought against the State, according to such regulations as shall be made by law.” Del.Const., Art. I, § 9, Del.C.Ann.

We agree with the Court below that 9 Del.C. § 1101 constitutes a waiver of the County’s sovereign immunity. That section provides that the County “shall assume and have all powers which, under the Constitution of State, it would be competent for the General Assembly to grant by specific enumeration, and which are not denied by statute. . . . ” Since the General Assembly has constitutional authority under Del. Const., Art. I, § 9 to waive the County’s sovereign immunity, the terms of 9 Del.C. § 1101 contain such a waiver.

The judgment below is affirmed.

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PER CURIAM:

The plaintiffs brought suit for a mandatory injunction and damages against New Castle County as well as against a corporate and individual defendant. The complaint against the County is that it failed to properly oversee and supervise the construction and installation of sewage facilities serving the plaintiffs’ home. The County moved to dismiss on the ground that it was immune from suit. The Court of Chancery denied the motion. The County appeals.

The State and its agencies are immune from suit unless sovereign immunity has been waived by the General Assembly. Wilmington Housing Authority v. Williamson, Del.Supr., 228 A.2d 782 (1967). Our Constitution authorizes the General Assembly to waive sovereign immunity. It provides that “[s]uits may be brought against the State, according to such regulations as shall be made by law.” Del.Const., Art. I, § 9, Del.C.Ann.

We agree with the Court below that 9 Del.C. § 1101 constitutes a waiver of the County’s sovereign immunity. That section provides that the County “shall assume and have all powers which, under the Constitution of State, it would be competent for the General Assembly to grant by specific enumeration, and which are not denied by statute. . . . ” Since the General Assembly has constitutional authority under Del. Const., Art. I, § 9 to waive the County’s sovereign immunity, the terms of 9 Del.C. § 1101 contain such a waiver.

The judgment below is affirmed.

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305 A.2d 618, 1973 Del. LEXIS 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/varity-builders-inc-v-polikoff-del-1973.

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