Jenkins Bros. Shoe Co. v. Travis , 168 N.C. 599 ( 1915 )

This case, but for a defect of parties, would present some very important and serious questions as to the proper procedure for reducing excessive valuations and refunding any amount due the taxpayer by reason thereof, and as to the jurisdiction and supervisory powers of the State Tax Commission, which body was created by chapter 203 of the Public Laws of 1913, known as the Machinery Act, with certain well-defined powers and capabilities. The duty of acting in regard to the refund of taxes overpaid is conferred, by sections 78 and 79 of the said act, upon it as a body, in its corporate capacity, and not upon its individual members, and any action or proceeding to compel that body to perform its ministerial duties must be brought against it in that capacity, and not against its members, for this function is not individual or personal, but corporate. It is the same in the case of this body as it is with respect to the board of county commissioners, and we have held that, in the latter case, all actions or proceedings by or against a county should be brought in the name of the board of county commissioners as a corporate body, and not against the individuals composing the board, who can be proceeded against only when there has been disobedience of the process issued to the board by the court. Askew v. Pollock, 66 N.C. 49. It was expressly held inThomas v. Comrs., 66 N.C. 522, that a writ of mandamus against commissioners of a county should run against them as "a board," and not against the individual members of the board. It is called a body (602) politic and corporate because all the persons are merged or made into a body and, as such alone, have the capacity to take, grant, sue and be sued, by and in the corporate name, which is a means of identification of the body and an essential incident to the corporate life and action. Bacon Abr., title "Corporations" C.; 1 Blackstone Com., 474-5; 10 Coke Rep., 28; 28 Cyc., 120. Speaking of the corporation, its nature and character, as a distinct entity and creation of the law, and as something having an existence separate and apart from that of its members, Blackstone, vol. 1, at p. 468, gives the familiar illustration: "For all the individual members that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law — a person that never dies — in like manner as the river Thames is still the same river though the parts which compose it are changing every instant." So it comes to this, that the plaintiff, if it desired to enforce its right, if it has any, should have proceeded against the corporate entity or governmental agency charged with the duty, as it alleges, of affording relief, and not against the persons, or a part of them, composing it. There is a very interesting discussion of the duties, powers, and supervisory jurisdiction of the State Tax Commission, in regard to all matters of taxation, to be found in the defendants' brief, but having decided that the action was improperly brought, it is not necessary to make any further reference to it. There was no error in the judgment of the court.

Affirmed.