Crete Mills v. Nebraska State Bd. of Agriculture
| Decision Date | 26 February 1937 |
| Docket Number | 29766. |
| Citation | 271 N.W. 684,132 Neb. 244 |
| Parties | CRETE MILLS v. NEBRASKA STATE BOARD OF AGRICULTURE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
The Nebraska State Board of Agriculture is a corporation possessing no immunity from the enforcement of its honest debts and its just obligations by the ordinary processes of the courts.
Appeal from District Court, Lancaster County; Chappell, Judge.
Action by the Crete Mills against the Nebraska State Board of Agriculture. Judgment for plaintiff, and defendant appeals.
Affirmed.
Wm. H Wright, Atty. Gen., and George W. Ayres, Asst. Atty. Gen for appellant.
Geo I. Craven, of Lincoln, for appellee.
Heard before GOSS, C. J., and GOOD, EBERLY, DAY, and CARTER, JJ., and MESSMORE, District Judge.
This is an action at law by the Crete Mills, a corporation, against the Nebraska State Board of Agriculture as defendant. The plaintiff sues to recover from defendant for grain, feed, and mill products, which, the evidence discloses without question, were purchased by defendant, were shipped and delivered by plaintiff to defendant, and the latter in turn sold and disposed of the property thus received to exhibitors and holders of concessions at the Nebraska state fair, then being carried on by defendant; further, that the proceeds and profits of the sales thus made by defendant were appropriated by it to its own use, and that, in part settlement of the obligation thus incurred, defendant executed the note in suit by and through its duly authorized agent.
The defense in the district court was, in substance, that the Nebraska State Board of Agriculture, a corporation, is a public corporation, organized by act of the legislature of Nebraska as an instrumentality of the state, and as a part thereof is incapable of being sued without consent of the legislature, and that no such consent has been given.
In the trial had in the district court for Lancaster county, ultimately a jury was waived, and the issues were determined by the district judge in favor of plaintiff, and judgment was entered as prayed. The defendant appeals.
The crux of the situation presented by the appeal is the inherent nature of the defendant. Is it a public corporation constituting a governmental agency, within the protection of the principle that a sovereignty may not be sued without its consent?
The history of the legislation on the subject is suggestive. It appears that on October 14, 1858, there was duly approved by the then governor of the territory of Nebraska an act duly passed and enacted by the council and house of representatives of the territory of Nebraska, entitled, " An act to establish a territorial board of agriculture." Vol. 1, Complete Session Laws of Nebraska, 1855-1865, pp. 530, 531. It embraced twelve sections. The first three and the last five sections of this act were devoted to the subject of county agricultural societies, their organization and regulation.
Section 4 of the act provided that certain named persons were " hereby created a body corporate with perpetual succession * * * under the name and style of the Nebraska territorial board of agriculture."
Section 5 provided:
Section 6 contained the following: " There shall be held at some central point in the territory, to be agreed upon by the board at their session, an annual meeting of the board, together with the president of each county society or other delegate therefrom duly authorized, who shall for the time being be ex officio member of the territorial board of agriculture, for the purpose of deliberating and consulting as to the wants, prospects, and condition of the agricultural interests throughout the territory; and at such annual meeting the several reports from the subordinate societies shall be delivered to the president of the territorial board, and the said president and delegates shall at this meeting elect suitable persons to fill all vacancies in the territorial board of agriculture."
Section 7 provided for the making of an annual report, " so as to give a general view of the condition of agriculture throughout the territory, accompanied by such recommendations as they may deem important and useful."
The subject of the holding of a state fair does not appear to be covered by the terms of this act.
In 1866 there was enacted by the territorial legislature, " An act for revising, amending, consolidating, and reenacting the Civil and Criminal Codes, and the laws of a general nature, of the territory of Nebraska." Under " Part I, chapter 1, Agriculture," were substantially reenacted the provisions relative to county agricultural societies as originally adopted in 1858, and likewise substantially the provisions relative to the territorial board of agriculture. To the lat ter, however, the following provision was added: Vol. 2, Complete Session Laws of Nebraska, 1866-1877, p. 4.
The last-named enactment was in turn superseded by, " An Act For the government, support, and maintenance of the State Board of Agriculture and State Horticultural Society," and " Approved, February 25, A. D. 1879." This act, substantially a reenactment of previous legislation, accomplished the change of name from territorial board to state board, and the sum appropriated by the state for the payment of premiums was increased from $300 to $2,000. Laws 1879, p. 396.
In 1883 section 1 of the act of 1879 was amended, as appears by chapter 1, Laws 1883, by adding thereto these words: " The said board shall also have power at the annual meeting to locate the state fair for a period not exceeding five years at any one time or at any one place."
This section was again amended by chapter 1, Laws 1899, which substituted for the provision last quoted the following: " The State Fair shall be held annually at or near the City of Lincoln, in Lancaster County, under the direction and supervision of the State Board of Agriculture, and the state Board of Public Lands and Buildings is hereby authorized, empowered and directed to select a site for the same within a radius of three miles of the present State Capitol building and to purchase a suitable tract of land for such a site; Provided, however, that said Board of Public Lands and Buildings after selecting said site, shall pay not to exceed the sum of one dollar for a clear and sufficient title therefor."
In 1901 the legislature enacted chapter 1 of the session laws of that year, under the title: " An Act authorizing the purchase of land for state fair purposes and to appropriate the sum of thirty-five thousand ($35,000) dollars, or so much thereof as may be necessary, for the purchase and improvement thereof, and to amend section 1, article 1, chapter 2, Compiled Statutes of Nebraska for the year 1899, and to repeal said section as now existing." Laws 1901, c. 1. It appears, however, that this act contained no repealing clause. In Cobbey's Annotated Statutes of 1909, under section 3000 thereof, appears the following note:
The Revised Statutes of 1913, however, changed the language of the act of 1899, so that it now reads: " The state fair shall be held annually at or near the city of Lincoln, in Lancaster county, under the direction and supervision of the state board of agriculture, upon the site and tract of land, selected and now owned by the state for that purpose and known as the state fair grounds." Rev.St.1913, c. 1, § 1. This was continued in the Compiled Statutes of 1922, § 1, and the Compiled Statutes of 1929, § 2-101.
In this connection, section 2, art. 8, of the Constitution, provides:
It is obvious, under this provision, that the defendant does not secure exemption from taxation because of its character as a governmental agency, but solely because its property is owned and used exclusively by an agricultural society and not " for financial gain or profit to either the owner or user."
In 1919 there was enacted chapter 190 of the session laws of that year, which constituted the Civil Administrative Code of this state. However, the Nebraska state board of agriculture was neither...
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