Lord & Polk Chem. Co v. State Bd. Of Agriculture

• Decision Date: 01 November 1892
• Citation: 111 N.C. 135,15 S.E. 1032
• Court: North Carolina Supreme Court
• Parties: Lord & Polk Chemical Co. v. State Board of Agriculture.

15 S.E. 1032

111 N.C. 135

Lord & Polk Chemical Co.

v.State Board of Agriculture.

Supreme Court of North Carolina.

Nov. 1, 1892.

Action against a State Board of Agriculture.

The hoard of agriculture, being a department of the state government under the constitution and the statutes, and not a corporation, cannot be sued, without consent of the state, to recover back a license tax exacted under a public act, and paid into the treasury, for sale of fertilizers. North Carolina v. Temple, 10 Sup. Ct. Rep. 509, 134 U. S. 22, followed. County Board of Ed. v. State Board of Ed., 10 S. E. Rep. 1002, 106 N. O. 81, distinguished.

Appeal from superior court, Franklin county; Henry R. Bryan, Judge.

Action by the Lord & Polk Chemical Company against the state board of agriculture to recover back money paid into the state treasury by virtue of an act levying a license tax on the sale of fertilizers. The complaint, among other things, alleged that the said board was a corporation. There was a demurrer to the complaint, which was sustained, and plaintiff appeals. Affirmed.

F. S. Spruill, for appellant.

Battle & Mordecai, for appellee.

Clark, J. The demurrer was properly sustained. The board of agriculture is a department of the state government. Const, art. 3, § 17, and article 9, §14; Code, § 2184 et seq.; Acts 1889, c. 431; Acts 1891, cc. 9, 555. This tax was collected as a license tax, and was receipted for by the state treasurer as such. Theaction, being against a department of the state government—the state treasurer and the state commissioner of agriculture—to recover this money, is, in effect, an action against the state, and cannot be maintained without the consent of the state. If the subject ever required discussion, it is needless since the full consideration of the question in the United States supreme court in the late cases. North Carolina v. Temple, 134 U.. 22, 10 Sup. Ct. Rep. 509, and Hans v. Louisiana, 134 U. S. 1, 10 Sup. Ct. Rep. 504. This case differs from that of an action against agencies of the state which the legislature has incorporated and expressly authorized to "sue and be sued." as in County Board of Ed. v. State Board of Ed., 106 N. C. 81, 10 S. E. Rep. 1002, and cases there cited, since, as to them, this state gave its consent, by the terms of the act of incorporation, to their being sued. But here there is neither act of incorporation nor authority conferred to be sued. There is simply the department of agriculture, with acommissioner and board of directors for its government.

The complaint alleges the public act under which the tax was laid, and has appended as exhibits the receipts given to the plaintiff by the state treasurer for the taxes paid by virtue of such law into the state treasury. It is useless, therefore, to consider the plaintiff's contention that the demurrer admits the board of agriculture to be a corporation,...