DISSENTING OPINION OP
KING, CIRCUIT JUDGE IN WHICH LEVINSON, J. CONCURS.I would reverse the lower court. Admittedly under the circumstances of this case a private respondent would have no defense. The state relies upon a claim of sovereign immunity.
If the doctrine is applicable, a fair reading of the statute under which the state land in question was developed would find ample support for a waiver of immunity. The improvements for which a mechanics’ and materialmen’s lien is sought were constructed as part of a government requirement in connection with the sale of the land at public auction. The work was done in accordance with plans approved by the appropriate government authority. The development statute specifically grants priority to certain mortgages. I can see no essential difference between a mortgage lien for a bank’s money and a mechanics’ lien for a contractor’s work and materials. A narrow reading of the statute produces an unfair result which is unnecessary.
*94But the extension of the doctrine of sovereign immunity to this type of situation is itself unnecessary. There is no magic in the phrase apart from its historical justification. To pay automatic homage to this abracadabra whenever the state is an unwilling party to a legal action is to abandon reason for obeisance.
Sovereign immunity as a principle of the common law should be limited to actions which could threaten the operation of the government and should not be a shield behind which the government can engage in conduct which it forbids to its own citizens.