Schloss v. State Highway & Public Works Commission

53 S.E.2d 517, 230 N.C. 489, 1949 N.C. LEXIS 362

Opinion

BaeNHIll, J.

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. S. v. R. R., 145 N.C. 495; Bennett v. R. R., 170 N.C. 389, 87 S.E. 133; Carpenter v. R. R., 184 N.C. 400, 114 S.E. 693; Dredging Co. v. State, 191 N.C. 243, 131 S.E. 665; Rotan v. State, 195 N.C. 291, 141 S.E. 743; Vinson v. O’Berry, 209 N.C. 287, 183 S.E. 423; Insurance Co. v. Unemployment Compensation Com., 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. Highway Com., 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. GLS. 136-19; Carpenter v. R. R., supra; Dalton v. Highway Com., supra; McKinney v. Highway Commission, 192 N.C. 670, 135 S.E. 772; Latham v. Highway Commission, 191 N.C. 141, 131 S.E. 385; Milling Co. v. Highway Commission, 190 N.C. 692, 130 S.E. 724; Reed v. Highway Com., 209 N.C. 648, 184 S.E. 513; Yancey v. Highway Commission, 222 N.C. 106, 22 S.E. 2d 256.

It is an inanimate, artificial creature of statute. Its form, shape, and authority are defined by the Act by which it was created. It is as powerless to exceed its authority as is a robot to act beyond the limitations imposed by its own mechanism. It can commit no actionable wrong. Hence the owner of property cannot maintain an action against it in tort for damages to property. McKinney v. Highway Commission, supra; Carpenter v. R. R., supra. It follows, as of course, he cannot maintain an action against it to restrain the commission of a tort. As against the defendant, his remedy is that, and that only, provided by statute' — -a proceeding in condemnation for the assessment of compensation for property taken for a public use. Yancey v. Highway Commission, supra.

It must not be understood that we hold that plaintiffs are without a remedy. When public officers whose duty it is to supervise and direct a State agency attempt to enforce an invalid ordinance or regulation, or invade or threaten to invade the personal or property rights of a citizen in disregard of law, they are not relieved from responsibility by the immunity of the State from suit, even though they act or assume to act under the authority and pursuant to the directions of the State. Rue v. Hood, 222 N.C. 310, 22 S.E. 2d 896; Carpenter v. R. R., supra; Vinson v. O’Berry, supra; S. v. Curtis, 230 N.C. 169; 49 A.J. 310, 28 A.J. pp. 355, 450, 453; Anno. 43 A.L.R. 408. The courts are open to the injured party, and he may there obtain prompt and adequate relief. Rue v. Hood, supra. If the officers seek to defend on the ground of sovereign immunity, they must show their authority. Vinson v. O’Berry, supra.

But the members of the State Highway & Public Works Commission are not parties defendant. Summons was served only on the chairman as the process agent of the defendant. Hence, neither the validity of the pleaded ordinance nor the tortious nature of the alleged threatened act is presented for discussion or decision.

On this record the demurrer was well advised. Hence, the order sustaining the same must be

Affirmed.