Vinson v. O'berry

• Decision Date: 22 January 1936
• Docket Number: No. 242.,242.
• Parties: VINSON . v. O'BERRY et al.
• Court: North Carolina Supreme Court

183 S.E. 423

209 N.C. 287

VINSON .

v.O'BERRY et al.

No. 242.

Supreme Court of North Carolina.

Jan. 22, 1936.

Appeal from Superior Court, Wayne County; Walter L. Small, Judge.

Action by J. A. Vinson against Annie L. O'Berry and others. From an adverse judgment, plaintiff appeals.

Error, and cause remanded.

Civil action for injunction and to recover damages for breach of contract and tortious interference with plaintiff's contract rights.

The complaint alleges:

(1) That on July 6, 1934, the defendant North Carolina Emergency Relief Administration entered into an agreement with the city of Goldsboro and the county of Wayne whereby a stockyard was to be constructed on the old Wayne county fair grounds and used by the defendant in its relief work in caring for certain livestock, with the understanding that all the manure which should accumulate thereon while so used by the defendant would belong to the city and county; this in lieu of rent or other charge for the property.

(2) That on November 21, 1934, plaintiff purchased from the city of Goldsboro and Wayne county "all the manure now in the FERA stockyards in Wayne County or which may be there from time to time up to and including the 6th day of July, 1936."

(3) That the defendants, constituting the North Carolina Emergency Relief Ad ministration in this state, acquiesced in said purchase and agreed to furnish plaintiff two truck drivers in gathering bedding for the stock pen and removing the manure, etc.

(4) That the defendants, acting for and on behalf of the North Carolina Emergency Relief Administration, and in violation to plaintiff's rights, have wrongfully converted a portion of said property to the use of the Administration, and threaten to continue so to convert the remainder.

Wherefore, plaintiff prays for injunctive relief and for damages.

The defendants entered a special appearance and demurred or moved to dismiss the action for want of jurisdiction. Motion allowed, and plaintiff appeals.

Kenneth C. Royall and J. Faison Thomson, both of Goldsboro, for appellant.

J. S. Massenburg, of Tryon, and W. A. Dees and Langston, Allen & Taylor, all of Goldsboro, for appellees.

STACY, Chief Justice.

It is alleged in the complaint that the defendant North Carolina Emergency Relief Administration "is a State agency or association existing under the laws of the State of North Carolina." Our attention has not been called to any act of Assembly authorizing the creation of such "Administration" (it is doubtless a federal agency operating under the Federal Emergency Relief Act of 1933, 15 U.S.C.A. § 721 et seq.), but taking the allegation of the complaint at its face value, the "Administration" would seem to be immune from suit in the superior court. Carpenter v. R. R., 184 N.C. 400, 114 S.E. 693. The state is not subject to suit except as it has consented to be sued. Beers, Use of Platenius v. Arkansas, 20 How. 527, 15 L. Ed. 991.

It is true a suit against a state officer or a state agency is not necessarily a suit against the state. Bain v. State, 86 N. C. 49. But a suit against an agency which represents the state in action and liability, to control such action and liability, is in effect a suit...