Yoerg v. Iowa Dairy Industry Commission

• Decision Date: 20 October 1953
• Docket Number: No. 48357,48357
• Parties: YOERG et al. v. IOWA DAIRY INDUSTRY COMMISSION.
• Court: Iowa Supreme Court

Page 566

60 N.W.2d 566

244 Iowa 1377

YOERG et al. v. IOWA DAIRY INDUSTRY COMMISSION.

No. 48357.

Supreme Court of Iowa.

Oct. 20, 1953.

Prince & Guthrie, of Webster City, for appellants.

L. A. Hoegh, Atty. Gen., Clarence A. Kading, Asst. Atty. Gen., and Lehmann, Hurlburt, Blanchard & Cless, of Des Moines, for appellee.

OLIVER, Justice.

Chapter 179, Code of Iowa 1950, I.C.A., provides for the creation of Iowa Dairy Industry Commission and specifies its various powers and duties with reference to dairy products and their promotion. Code section 179.5, as amended by Acts 1951, 54th G.A., Ch. 79, section 2, provides in part:

'Excise tax.

'1. There is hereby levied and imposed an excise tax of one cent per pound or fraction thereof upon all butterfat sold in the state during the period beginning May 1 and terminating June 30 inclusive, annually; * * *.

'All taxes levied and imposed under this chapter, shall be paid to and collected by the secretary of the commission who shall remit to the treasurer of the state, quarterly, and at the same time render to the state comptroller an itemized and verified report showing the source from which said taxes were obtained. All such taxes collected and remitted shall be placed in a special fund by the treasurer of state, and the state comptroller, to be known as the 'Dairy Industry Fund', to be used by the Iowa dairy industry commission for the purposes set out in this chapter and to administer and enforce the laws relative thereto.'

Chapter 79, 54th G.A., section 4, provides:

'Any person from whom the excise tax provided in this chapter is collected may, by application filed with this commission within thirty days after the collection from him of said tax, have said tax remitted to him by the commission.'

The only defendant named in this case is Iowa Dairy Industry Commission, and the personal liability of the individual members of the commission is not involved.

Plaintiffs pleaded that: during the period May 1 to June 30, 1952, they produced and sold certain dairy products; dealers who purchased the same withheld $25.32 for butterfat tax under Code section 179.5, I.C.A., which tax such dealers paid to the secretary of defendant commission: August 19, plaintiffs demanded that defendant remit to them the amount of the tax and defendant refused so to do: the tax was invalid because in violation of Article I, sections 1, 6 and 9, Article III, section 31, and Article VII, sections 1 and 7, Constitution of Iowa, I.C.A., and section 1 of the fourteenth amendment to the Constitution of the United States. They prayed judgment declaring their right to the remittance of the $25.32 and declaring the tax invalid and unconstitutional. By way of auxiliary relief they also prayed a writ of mandamus against defendant to compel such remittance.

Defendant filed a special appearance asserting the suit, although nominally against the commission, was, in substance, a suit against State of Iowa, itself, and setting up the immunity of the state and commission from the suit. Plaintiffs contended the suit was not against the state but was against the defendant commission which had wrongfully collected and withheld the money under an unconstitutional statute. The trial court sustained defendant's special appearance. Hence, this appeal.

The general rule governing cases of this nature is thus stated in boldface in 81 C.J.S., States, § 216 b(1), p. 1311:

'Where a suit is brought against an officer or agency with relation to some matter in which defendant represents the state in action and liability and the state is the real party against which relief is sought so that a judgment for plaintiff will operate to control the action of the state or subject it to liability, the suit is in effect one against the state and cannot be maintained without its consent.'

To the same effect is 49 Am.Jur. 304 et seq., States, Territories and Dependencies, sections 92, 93 and 94.

In Bachman v. Iowa State Highway Commission, 236 Iowa 778, 783, 784, 785, 20 N.W.2d 18, 20, 21, a suit in the nature of mandamus to compel payment for crushed stone furnished the commission, the court, speaking through Smith, J., sustained the special appearance of defendants in their official capacities as collectively constituting an agency or arm of the state and stated:

'The doctrine 'that a sovereign state may not be coerced by judicial power' is fundamental and is well stated by Justice Evans in Hollingshead Co. v. Board of Control, 196 Iowa 841, , 195 N.W. 577. See also De Votie v. Iowa State Fair Board, 216 Iowa 281, 249 N.W. 429. * * *

'Not every suit against a state agency is held to be against the state within the meaning of the immunity doctrine. See, e. g. Hoover v. Iowa State Highway Comm., 207 Iowa 56 , 222 N.W. 438 ; Pierce v. Green, 229 Iowa 22, 294 N.W. 237 131 A.L.R. 335. But these are not cases in which it was sought to fasten liability upon the state.

'In the Hoover case just cited plaintiff sought to enjoin defendants from establishing a road through his orchard. In denying the plea of immunity, we said:

"Appellant does not attempt to obtain money from the state, or interfere with its sovereignty, or the administration of its affairs through proper agencies.' * * *

'This language is quoted with approval in Pierce v. Green, supra, 229 Iowa at page 33, 294 N.W. at page 245, 131 A.L.R. 335. It indicates one test, at least, by which to determine whether a suit against a state agency is in fact one against the state.

* * *

* * *

'The case of Wilson v. Louisiana Purchase Exposition Comm., 133 Iowa 586 , 110 N.W. 1045, 1046, 119 Am.St.Rep. 646, is conclusive here. In it plaintiff sought by mandamus to compel payment of his claim out of state funds by the same indirect method as is attempted here, i. e. by compelling defendants to audit and approve it and execute voucher for its payment. The opinion says: 'It is fundamental that a state cannot be sued in its own courts without its consent, and it is a further rule that a litigant will not be permitted to evade the general rule by bringing action against the servants or agents of the state to enforce satisfaction for claims.'

'In Pierce v. Green, supra, 229 Iowa , at page 32, 294 N.W. , at page 245, 131 A.L.R. 335, referring to this Wilson case and others, it was pointed out: 'In none of these civil cases was the State or its arm, board, or agency suable. The suits were for money demands and no one can seriously contend that action could be brought against the State or any arm or agency of the State.''

Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 49, 50, 51, 64 S.Ct. 873, 874, 875, 88 L.Ed. 1121, was an action to recover taxes collected by defendant insurance commissioner which were allegedly unconstitutional and discriminatory. The court stated:

'The right of petitioner to maintain this suit in a Federal court depends, first, upon whether the action is against an individual or against the state of Oklahoma.

* * *

* * *

'In Smith v. Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1140, an action was instituted in the Federal trial court by railroad receivers against the defendant 'as treasurer of the state of California' to recover taxes assessed against and paid by the railroad.'

* * *

* * *

'As the suit was against a state official as such, through proceedings which were authorized by statute, to compel him to carry out with the state's funds the state's agreement to reimburse moneys illegally exacted under color of the tax power, this Court held, [at] page 439 of 178 U.S., [at] page 920 of 20 S.Ct., 44 L.Ed. 1140, it was a suit against the state. The state would be required to pay. The case therefore is plainly distinguishable from those to recover personally from a tax collector money wrongfully exacted by him under color of state law, Atchinson, etc., Ry. Co. v. O'Connor, 223 U.S. 280, 32 S.Ct. 216, 56 L.Ed. 436, Ann.Cas.1913C, 1050; cf. Matthews v. Rodgers, 284 U.S. 521, 528, 52 S.Ct. 217, 220, 76 L.Ed. 447; to recover under general law possession of specific property likewise wrongfully obtained or held, Tindal v. Wesley, 167 U.S. 204, 221, 17 S.Ct. 770, 777, 42 L.Ed. 137; Virginia Coupon Cases, [Poindexter v. Greenhow] 114 U.S. 269, 285, 5 S.Ct. 903, 962, 29 L.Ed. 185, 207; United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171; to perform a plain ministerial duty, Board of Liquidation v. McComb, 92 U.S. 531, 541, 23 L.Ed. 623; Rolston v. Missouri Fund Com'rs, 120 U.S. 390, 411, 7 S.Ct. 599, 610, 30 L.Ed. 721, or to enjoin an affirmative act to the injury of plaintiff, Sterling v. Constantin, 287 U.S. 378, 393, 53 S.Ct. 190, 193, 77 L.Ed. 375; Tomlinson v. Branch, 15 Wall. 460, 21 L.Ed. 189; Davis v. Gray 16 Wall. 203, 220, 21 L.Ed. 447; in re Tyler, 149 U.S. 164, 190, 13 S.Ct. 785, 792, 37 L.Ed. 689. Only in Smith v. Reeves was the action authorized by statute against the officer in his official capacity. In the other instances relief was sought under general law from wrongful acts of officials. In such cases the immunity of the sovereign does not extend to wrongful individual action and the citizen is allowed a remedy against the wrongdoer personally.'

Antrim Lumber Co. v. Sneed, 175 Okl. 47, 52 P.2d 1040, 1042, 1043, was an action against the state treasurer for the recovery of a corporation license tax. The court stated:

'* * *. Admitting, without deciding the contention of the plaintiff regarding the unconstitutionality of the statute in question and the involuntary character of the payment made, we are of the opinion that these questions are not properly involved in this appeal and are unnecessary to a decision herein. The case of Atchison, T. & S. F. Ry. Co. v. O'Connor, supra, (223 U.S. 280, 32 S.Ct. 216, 56 L.Ed. 436, Ann.Cas.1913C, 1050) together with Erskine v. Van Arsdale, 15 Wall. 75, 21 L.Ed. 63, and the Virginia Coupon Cases (Poindexter v. Greenhow), 114 U.S. 270, 5 S.Ct. 903, 962, 29 L.Ed. 185,...