Before MARIS, MAGRUDER and HASTIE, Circuit Judges.
This is an appeal from an order of the District Court of the Virgin Islands, 111 F.Supp. 63, dismissing a complaint against the Municipality of St. Thomas and St. John seeking damages for personal injuries. It was alleged that the plaintiff, in Charlotte Amalie, V.I., on the evening of September 19, 1952, while walking with all due care along a dark street completely lacking in proper illumination for safe travel, suffered the injuries in question 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. While so far the complaint sounded like a routine tort action for negligence, the plaintiff, to overcome a legal obstacle the nature of which we shall indicate shortly, sought to give her cause of action a contractual coloration by alleging in the final paragraph of her complaint against the Municipality that "plaintiff's injury aforesaid was occasioned through the failure of defendant Municipality to discharge its implied contractual obligation to maintain said public way in a safe condition for the protection of pedestrians making legitimate use of same."
The district court dismissed the complaint for lack of jurisdiction over the defendant Municipality of St. Thomas and St. John. We think the order of the district court should be affirmed.
The present division of the Virgin Islands into the Municipality of St. Thomas and St. John and the Municipality of St. Croix goes back to the time when the Islands were under the jurisdiction of the Kingdom of Denmark. Under § 10 of the Colonial Law for the Danish West Indies, issued November 27, 1863, the Islands were divided into two districts of administration, viz., the island of St. Thomas with St. John and their adjacent islets, and the island of St. Croix with its adjacent islets. Section 13 of this law provided:
"Each of the two Districts of Administration shall form a separate Municipality. For each municipality a Colonial Council shall be established, which Council, besides exercising that part of the Legislative Authority vested therein, shall also, in the manner hereinafter prescribed, partake in the administration of the economical affairs of the Municipality."
The same provisions were continued in §§ 10 and 13, respectively, of the revised Colonial Law for the Danish West Indies (No. 124, issued April 6, 1906). The word "municipality" is the accepted English rendition of the Danish word "Commune" as used in § 13.*fn*
There are authorities indicating that the Danish "Commune", or "Kommune", is subject to suit for damages for injuries resulting from negligence in the maintenance of the public streets. See Poul Andersen, Offentligretligt Erstatnings Ansvar (Copenhagen 1938) pp. 92, 102, and cases cited therein. Since § 67 of the Danish Colonial Law aforesaid provided that the common and statute law of Denmark should as hitherto be applicable in the colonies, it may be that under Danish law the Municipality of St. Thomas and St. John was subject to such tort liability. If that was so, then § 2 of the Act of Congress of March 3, 1917, 39 Stat. 1132, passed to provide a temporary government for the Islands upon their acquisition from Denmark, had the effect of continuing in force this liability of the Municipality. We have, however, been referred to no litigated case in which this liability was actually adjudicated.
When finally in 1936 Congress came to pass an Organic Act, 49 Stat. 1807, for the former Danish West Indies, it did not provide that the people of the Virgin Islands should constitute a single body politic. Instead, it continued the long-existing administrative division of the Islands. Section 2 of the Organic Act provided:
"The insular possession which is the Virgin Islands shall be divided into two municipalities, namely, (1) the municipality of Saint Croix and (2) the municipality of Saint Thomas and Saint John. The boundaries of said municipalities shall be the same as at present established in accordance with laws in force on the date of enactment of this Act, and the capital and seat of the central government shall be Saint Thomas. * * *"
"The inhabitants of the municipality of Saint Croix and of the municipality of Saint Thomas and Saint John are hereby constituted into bodies politic and juridic, under the present name of each such municipality, and as such bodies they shall have perpetual succession and power (a) to adopt and use an official seal; (b) to sue and in cases arising out of contract to be sued; (c) to demand the fulfillment of obligations under the law and to defend and prosecute all actions at law; (d) to acquire property by purchase, exchange, donation or bequest, by virtue of proceedings for the collection of taxes, by eminent-domain proceedings, or by any other means provided by law, and to possess, administer, and govern such property; and (e) to alienate or encumber any of their property, subject to the provisions of this Act."
Following the pattern of the colonial councils established by the Danes, it was provided that each municipality should have its own "municipal council" in which local legislative powers were vested. The two municipal councils meeting in joint assembly became the "'Legislative Assembly of the Virgin Islands'", with power to enact legislation applicable to the Virgin Islands as a whole, § 7. The executive power of the Virgin Islands and of the two municipalities was vested in a governor appointed by the President, § 20.
S. 4524 of the 74th Congress, which as amended became the Organic Act, was drafted in the office of the Secretary of the Interior. In an earlier version of the bill, as introduced in the 72d Congress, § 3 read as follows (see Joint Hearings before the Committee on Territories and Insular Affairs, United States Senate, and Committee on Insular ...