Before MARIS, MAGRUDER and WOODBURY, Circuit Judges.
The plaintiff in these cases alleged that while walking along Trumpeter Gade in the town of Charlotte Amalie, on the island of St. Thomas, on the evening of September 19, 1952, she was injured as a result of tripping over a loose steel plate designed to cover a street opening surrounding the access pipe to a salt water main pipeline.To recover damages for the injuries thus occasioned she brought suit in the District Court of the Virgin Islands against the Municipality of St. Thomas and St. John, Donald S. Boreham, who was the Superintendent of Public Works of the municipality, Ella Blanche Barbel, who was the owner of adjacent property, and John Doe, an unknown property owner alleged also to be liable. The municipality thereupon moved to dismiss the complaint as to it on the ground that it was immune from suit on a tort claim without its consent, which motion was granted by the district court. Harris v. Municipality of St. Thomas and St. John, 111 F.Supp. 63. Upon appeal the order of the district court dismissing the complaint as against the municipality was affirmed by this court. Harris v. Municipality of St. Thomas & St. John, 3 Cir., 1954, 212 F.2d 323.
Following dismissal of her complaint as against the municipality, the plaintiff brought suit against the United States under the Federal Tort Claims Act for damages for her injuries. A motion by the United States to dismiss this suit for want of jurisdiction was denied by the district court. 125 F.Supp. 536. The plaintiff's suit against the United States and her prior suit against Boreham, Barbel and John Doe were then consolidated for trial and were tried in the district court. During the course of the trial the suit was dismissed as to Barbel on the plaintiff's motion and it was not pressed as to John Doe, who was not further identified. At the close of the plaintiff's case the United States again moved for dismissal for want of jurisdiction but the district court adhered to its previous ruling on this question.The trial resulted in the dismissal on the merits of the complaints against both the United States and Boreham, D.C., 130 F.Supp. 533. The appeals by the plaintiff which are now before us followed.
We will consider first the case against the United States. The plaintiff's claim is predicated upon the theory that the public streets of the town of Charlotte Amalie, in the Municipality of St. Thomas and St. John,*fn1 are the property of the United States, that the plaintiff was making legitimate use of those streets as a member of the public at the time of her injury, that Boreham was an employee of the United States engaged in the business of the United States in maintaining those streets and as such was guilty of negligence imputable to the United States in failing to maintain Trumpeter Gade in a safe condition for the use of pedestrains.
The Federal Tort Claims Act imposes liability upon the United States only for those injuries which are "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment."*fn2 This means that for the United States to be liable the federal employee must at the time of his negligent or wrongful act or omission be acting in the line of his federal duties.*fn3 We accordingly must decide whether the streets of Charlotte Amalie are property of the United States and whether Boreham was an employee of the Government of the United States acting with respect to those streets within the scope of his office or employment as such. Only if those questions are decided in the affirmative need we consider in the case against the United States whether Boreham was guilty of a negligent or wrongful act or omission in carrying out his duties with respect to those streets.
It is settled that Congress has sovereignty over the territories of the United States and accordingly has power to legislate for a territory with respect to all subjects upon which the legislature of a state might legislate within the state. Simms v. Simms, 1899, 175 U.S. 162, 168, 20 S. Ct. 58, 44 L. Ed. 115. It is also settled that Congress may delegate to a territory such of these powers as it sees fit. Binns v. United States, 1904, 194 U.S. 486, 491-492, 24 S. Ct. 816, 48 L. Ed. 1087; Christianson v. King County, 1915, 239 U.S. 356, 364-366, 36 S. Ct. 114, 60 L. Ed. 327. And the right of Congress to revise, alter and revoke these delegated powers does not diminish the powers while they reside in the territory. Hornbuckle v. Toombs, 1873, 18 Wall. 648, 85 U.S. 648, 655-656, 21 L. Ed. 966; District of Columbia v. John R. Thompson Co., 1953, 346 U.S. 100, 106, 73 S. Ct. 1007, 97 L. Ed. 1480. The aim of Congress is to give the territory full power of local self-determination. The local laws enacted under the legislative power granted by Congress are accordingly territorial laws, not laws of the United States. People of Puerto Rico v. Shell Co., 1937, 302 U.S. 253, 58 S. Ct. 167, 82 L. Ed. 235; People of Puerto Rico v. Rubert Hermanos, Inc., 1940, 309 U.S. 543, 60 S. Ct. 699, 84 L. Ed. 916; Arroyo v. Puerto Rico Transp. Authority, 1 Cir., 1947, 164 F.2d 748.*fn4
These principles apply to the unincorporated territories, such as the Virgin Islands. For it has been held that Congress may create a territorial government for an unincorporated territory and may confer upon it an autonomy similar to that of the states. Gromer v. Standard Dredging Co., 1912, 224 U.S. 362, 370, 32 S. Ct. 499, 56 L. Ed. 801; People of Puerto Rico v. Shell Co., 1937, 302 U.S. 253, 260-262, 58 S. Ct. 167, 82 L. Ed. 235. And the territorial body politic thus created may be endowed with attributes of sovereignty, such as nonliability to suit without its consent. People of Porto Rico v. Rosaly Y. Castillo, 1913, 227 U.S. 270, 33 S. Ct. 352, 57 L. Ed. 507. In the Rosaly case the Supreme Court held that Congress by the Foraker Act of 1900, had conferred such sovereignty upon what was then the unincorporated territory of Puerto Rico.
We think it clear that by the Organic Act of June 22, 1936,*fn5 Congress did the same with respect to the two municipalities which then constituted the Virgin Islands.*fn6 That Act constituted each municipality into a body politic and juridic with perpetual succession and with power to acquire property, to possess, administer, and govern such property and to alienate or encumber it. It provided for a municipal council in each municipality with local legislative powers, a Legislative Assembly with legislative powers for the Virgin Islands as a whole, a Governor to act as chief executive of the Virgin Islands as a whole and of each of the two municipalities, and a district court to exercise the judicial power of the Islands. As the Supreme Court said with respect to the Organic Act of Puerto Rico, "the purpose of Congress * * * was to follow the plan applied from the beginning to the organized territories by creating a government conforming to the American system with defined and divided powers, - legislative, executive and judicial * * *." People of Porto Rico v. Rosaly y Castillo, 1913, 227 U.S. 270, 276-277, 33 S. Ct. 352, 354.
Moreover by section 4(a) of the Organic Act of 1936*fn7 all the property which was acquired by the United States from Denmark under the treaty of cession and which was not reserved by the United States for public purposes within one year after the passage of the Act, was placed under the control of the Government of the Virgin Islands which by definition included the two municipalities. The property thus acquired undoubtedly included the streets in the town of Charlotte Amalie and, since they were not reserved by the United States, they thus became the property of the Municipality of St. Thomas and St. John.
It is thus clear that the Municipality of St. Thomas and St. John in the unincorporated territory of the Virgin Islands was a body politic quite distinct from the Government of the United States and that it had attributes of sovereignty which had been delegated to it by the Government of the United States but which were distinct from the powers of that government. It is equally clear that the municipality was endowed by Congress with the sovereign power to acquire, administer, govern and alienate property and that such property must be regarded as belonging to the municipality rather than the United States.
That Congress had this distinction in mind is indicated not only by the Organic Act itself but by later enactments. Thus, by the Act of December 20, 1944, which authorized public works projects to assist in the internal development of the Virgin Islands, the Federal Public Works Administrator (afterwards the Secretary of the Interior) was authorized to acquire land for such projects and upon the completion of projects on land acquired under that authorization, the Secretary of the Interior was directed to "transfer all rights and title of the United States therein to the government of the Virgin Islands or the municipality of Saint Thomas and Saint John, or the municipality of Saint Croix, except those projects constructed for Federal agencies."*fn8 We conclude that the streets in the town of Charlotte Amalie were on September 19, 1952 the property of the Municipality of St. Thomas and St. John rather than the property of the United States.
In constituting the government for the unincorporated territory of the Virgin Islands and its municipalities Congress in the Organic Act of 1936 followed the traditional pattern of providing for the appointment of the principal executive officers of the territorial government by the federal executive.*fn9 Thus the President was authorized to appoint the Governor and the Government Secretary, and the Secretary of the Interior was authorized to appoint the other executive and administrative officers, such as the Superintendent of Public Works, whose salaries were to be paid from federal funds appropriated for the government of the Virgin Islands.
The Organic Act provided that the executive power of the Virgin Islands and of the municipalities thereof should be vested in the Governor, that he should have general supervision and control of all executive and administrative departments, bureaus and offices of the Government of the Virgin Islands and should appoint, with the advice and consent of the municipal council concerned, all salaried officers and employees of the municipal governments whose salaries were provided for in the budgets of the municipal governments. The Act provided that the Government Secretary should act as Governor in the absence of that official, should have custody of the seal of the Virgin Islands, should promulgate all proclamations and orders of ...