Vinson v. . O'Berry

183 S.E. 423, 209 N.C. 287, 1936 N.C. LEXIS 457

Opinion

Stacy, C. J.

It is alleged in the complaint that the defendant North Carolina Emergency Relief Administration “is a State agency or association, existing under the laws of the State of North Carolina.” Our attention has not been called to any act of Assembly authorizing the creation of such “Administration” (it is doubtless a Federal agency operating under the Federal Emergency Relief Act of 1933), but taking the allegation of the complaint at its face value, the “Administration” would seem to be immune from suit in the Superior Court. Carpenter v. R. R., 184 N. C., 400, 114 S. E., 693. The State is not subject to suit except as it has consented to be sued. Beers v. Arkansas, 20 Howard, 527.

It is true a suit against a State officer or a State agency is not necessarily a suit against the State. Bain v. State, 86 N. C., 49. But a suit against an agency which represents the State in action and liability, to control such action and liability, is in effect a suit against the State. North Carolina v. Temple, 134 U. S., 22; Louisiana v. Steele, 134 U. S., 230; Smith v. Reeves, 178 U. S., 436.

Here, it would seem, the suit is against the State, taking the allegations of the complaint to be true that the “Administration” is a State agency engaged in relief work, or in the discharge of a governmental undertaking. Carpenter v. R. R., supra. The record consists of the complaint and demurrer, or motion to dismiss.

¥e conclude that the action was properly dismissed as to the North Carolina Emergency Eelief Administration. It does not follow, however, upon the showing presently made, that the plaintiff is without remedy as against the other defendants. Philadelphia Co. v. Stimson, 223 U. S., 605; State v. Wisconsin Telephone Co., 172 N. W. (Wis.), 225. One who seeks to defend on the ground of sovereign immunity must show his authority. Poindexter v. Greenhow, 114 U. S., 270; Kneedler v. Lane, 45 Pa., 238. It is observed the allegation with respect to the individual defendants is not the same in the present complaint as in the complaint filed in the proceeding originally instituted in this Court, Vinson v. O’Berry, post, 289.

Error and remanded.

Devin, J., took no part in the consideration or decision of this case.