Varity Builders, Inc. v. Polikoff

305 A.2d 618 (1973)

VARITY BUILDERS, INC., a Delaware Corporation, et al., Appellants, v. William POLIKOFF and Dorothy Polikoff, his wife, Appellees.

Supreme Court of Delaware.

April 30, 1973.

William H. Uffelman Jr., Wilmington, for New Castle County.

Elwyn Evans, Jr. and Alfred J. Lindh, Wilmington, for appellees.

Before WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.

*619 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.