Schloss v. State Highway & Public Works Commission

• Decision Date: 25 May 1949
• Docket Number: 455
• Citation: Schloss v. State Highway & Public Works Commission, 53 S.E.2d 517, 230 N.C. 489 (N.C. 1949)
• Parties: SCHLOSS et al. v. STATE HIGHWAY & PUBLIC WORKS COMMISSION.
• Court: North Carolina Supreme Court

53 S.E.2d 517

230 N.C. 489

SCHLOSS et al. v. STATE HIGHWAY & PUBLIC WORKS COMMISSION.

No. 455

Supreme Court of North Carolina

May 25, 1949

Civil action for injunctive relief.

Plaintiffs are each engaged in the business of outdoor advertising, and in the course of their business, construct and now maintain advertising signs on privately owned, leased lands adjacent to State highways throughout the State of North Carolina.

The defendant Commission has adopted the following ordinance:

'Section No. 41. That Whereas, in the opinion of the State Highway & Public Works Commission a multiplicity of signs in close proximity to the State highways tend to obscure and distract the attention of the motorist from the necessary warning and traffic signs;

'Now Therefore, It Is Ordered from and after the effective date of this ordinance (November 1, 1941) no advertising signs shall be erected along any of the State highways of the State closer than 50 feet to the center of the paved section of the said highway; provided, this restriction shall not apply to signs beyond the limits of the State highway right-of-way erected at the place of business advertising such business, or signs erected on any premises advertising such premise for sale or advertising for sale the products produced thereon; and provided further that where signs have been lawfully erected on any leased property, the owner of such signs shall have twelve months from the effective date of this ordinance to relocate or readjust the said sign in accordance with this ordinance.'

It has also adopted an ordinance which prohibits the maintenance of structures carrying advertising signs closer than 300 feet to the intersection of any highway.

Plaintiffs have been advised through the chairman of the defendant Commission that on and after January 1, 1949 no structures bearing advertising signs will be permitted to stand which are closer than 50 feet to the center of the paved section of any highway, and instructions and directions have been issued to agents, servants, and employees of the defendant Commission to demolish and remove, on and after January 1, 1949, all structures which are being maintained in violation of the terms of said ordinances, which instructions would apply to signs maintained by each of the plaintiffs.

The plaintiffs allege that (1) said ordinances are in excess of the authority vested in the defendant Commission and are invalid and void, (2) said ordinances are unreasonable, discriminatory, and not uniform in their application and in effect confiscate and destroy private rights, (3) said ordinances in effect amount to the taking of property without due process of law, (4) unless defendant is restrained and enjoined from so doing, it will, through its agents, servants and employees, demolish, remove and destroy the structures owned by plaintiffs containing advertising signs and which structures are standing on privately owned lands but within 50 feet of the center line of paved sections of the highways or closer than 300 feet to the intersection of highways, and (5) if said signs are destroyed, the plaintiffs and each of them will suffer irreparable damage. They pray that defendant be enjoined and restrained from demolishing and removing or in any wise interfering with said advertising structures.

A temporary restraining order was issued and upon the return of the rule to show cause why said restraining order should not be made permanent, the defendant appeared and demurred for that (1) the court is without jurisdiction to entertain an action against the defendant Commission, an agency of the State, and (2) the court is without jurisdiction of the alleged cause of action set out in the complaint. The demurrer was sustained and plaintiffs appealed.

Brassfield & Maupin, Raleigh, for plaintiff-appellants.

R. Brookes Peters Jr., Raleigh, and Kenneth F. Wooten, Raleigh, for defendant-appellee.

BARNHILL Justice

That the sovereign may not be sued, either in its own courts or elsewhere, without its consent, is an established principle of jurisprudence in all civilized nations. State v. Southern R. Co., 145 N.C. 495, 59 S.E. 570, 13 L.R.A.,N.S., 966; Bennett v. Winston-Salem Southbound R. Co., 170 N.C. 389, 87 S.E. 133, L.R.A.1916D, 1074; Carpenter v. Atlanta & C. A. L. R. Co., 184 N.C. 400, 114 S.E. 693; Calkins Dredging Co. v. State, 191 N.C. 243, 131 S.E. 665; Rotan v. State, 195 N.C. 291, 141 S.E. 733; Vinson v. O'Berry, 209 N.C. 287, 183 S.E. 423; Prudential Insurance Co. v. Powell, 217 N.C. 495, 8 S.E.2d 619; 49 A.J. 301, and citations in note; Anno. 42 A.L.R. 1465, 50 A.L.R. 1408. In the absence of consent or waiver, this immunity against suit is absolute and unqualified. Dalton v. State Highway and Public Works Commission 223 N.C. 406, 27 S.E.2d 1; 40 A.J. 304.

The State Highway & Public Works Commission is an agency of the State and as such is not subject to suit save in the manner expressly provided by statute. G.S. s 136-19; Carpenter v. Atlanta & C....