of the laws of Virginia are unable to take under the will and hence that the residuum of the estate consisting of personal property located in the District of Columbia passes to her as the niece and sole heir at law of Mary E. Maxwell, deceased.
The matter now before the Court is a motion to dismiss by The Virginia Military Institute on the ground that the action against it is in effect one against the State of Virginia and barred in this Court by the 11th Amendment to the United States Constitution providing: '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 * * * '.
It is undisputed that The Virginia Military Institute is a state institution and an agency of the commonwealth of Virginia.
The Supreme Court has held that whether a state is the actual party in the sense of the 11th Amendment to the Constitution is determined 'by a consideration of the nature of the case as presented on the whole record.' In re Ayers, 123 U.S. 433, 492, 8 S. Ct. 164, 176, 31 L. Ed. 216. The question raised by the complaint herein is the power of the State of Virginia, through its agent, the Virginia Military Institute, to accept funds bequeathed to it under a will duly admitted to probate. This Court is of the opinion that such an action is a suit against the State of Virginia and is prohibited by the 11th Amendment to the Federal Constitution unless Virginia has waived its immunity from suit. Ford Motor Co. v. Dept. of Treas., 323 U.S. 459, 65 S. Ct. 347, 89 L. Ed. 389; O'Connor v. Slaker, 8 Cir., 22 F.2d 147. State of Missouri v. Fiske, 290 U.S. 18, 54 S. Ct. 18, 78 L. Ed. 145.
Virginia has granted to The Virginia Military Institute the power to sue and be sued. But the Court in which such actions may be brought is limited to the Circuit Court of the City of Richmond. Title 8, Sections 38-40, Code of Virginia, 1950. The suability of a state depends upon the terms of the consent as to persons, courts and procedures. Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 53, 64 S. Ct. 873, 88 L. Ed. 1121. The State of Virginia has not consented to be sued in this Court and this action must be dismissed as to The Virginia Military Institute.
Counsel will please present an appropriate order.
© 1992-2004 VersusLaw Inc.