Etheridge v. Graham

188 S.E.2d 551 (1972) 14 N.C. App. 551

Thomas L. ETHERIDGE et al.
v.
James A. GRAHAM, Commissioner of Agriculture, State of North Carolina.

No. 712SC567.

Court of Appeals of North Carolina.

May 24, 1972.

Thorp & Etheridge by William D. Etheridge, Rocky Mount, for plaintiffs appellants.

Atty. Gen. Robert Morgan by Associate Attys. Gen. William Lewis Sauls and Christine A. Witcover, for defendant appellee.

BRITT, Judge.

It is not clear from the complaint whether plaintiffs are seeking to recover damages from James A. Graham, individually, occupying the office of Commissioner of Agriculture, or whether plaintiffs are seeking to recover from the State, i. e., the office of the Commissioner of Agriculture occupied by James A. Graham.

Assuming plaintiffs are proceeding against James A. Graham individually, in North Carolina a public officer cannot be held liable for a breach of a ministerial statutory duty unless the statute expressly provides for liability. Langley v. Taylor, 245 N.C. 59, 95 S.E.2d 115 (1956); Wilkins v. Burton, 220 N.C. 13, 16 S.E.2d 406 (1941). There is no such liability provision in G.S. § 106-496 et seq. The Commissioner's authority under the pertinent statutes appears to be expressed in permissive language such as "may require" in G.S. § 106-497 and "(t)he Commissioner may withhold his approval in his discretion" in G.S. § 106-499. In no section of the Article as worded prior to the 1971 amendment do we find language placing a mandatory affirmative duty on the Commissioner to actively require permits or bonds. Since the acts complained of occurred prior to 1971 the pre 1971 amended statutes are controlling in this instance. Therefore, if this legislation is deemed permissive as far as the Commissioner is concerned, it would be within his discretion to require a bond based on the financial condition. Absent a showing of abuse of that discretion, the court will not consider it. Burton v. Reidsville, 243 N.C. 405, 90 S.E.2d 700 (1956). However, assuming arguendo the Commissioner had a mandatory duty to act in this instance, he would not be personally liable for his failure to act. Langley v. Taylor, supra.

Assuming plaintiffs are proceeding against the State or its agency, the Board of Agriculture, it is settled law in this jurisdiction that neither the State nor any of its institutions or agencies can be sued in the courts of the State without its permission. Prudential Insurance Co. v. Unemployment Compensation Com., 217 N.C. 495, 8 S.E.2d 619 (1940), Atlantic Microfilm Corp. v. Turner, 7 N.C.App. 258, 172 S.E.2d 259 (1970), cert. den. 276 N.C. 497 (1970). The complaint alleges a cause of action in tort. Unless plaintiffs proceed under the Tort Claims Act the doctrine of sovereign immunity would apply.

G.S. § 143-291 provides in part: "The North Carolina Industrial Commission is hereby constituted a court for the purpose of hearing and passing upon tort claims against the State Board of Education, the State Highway Commission, and all other departments, institutions and agencies of the State."

In Floyd v. Highway Commission, 241 N.C. 461, 85 S.E.2d 703 (1955) the court held that since the Tort Claims Act is in derogation of sovereign immunity it must be strictly construed and the terms must be strictly adhered to. See also, Lincoln Construction Co. v. Dept. of Administration, 3 N.C.App. 551, 165 S.E.2d 338 (1969). Therefore, jurisdiction of tort claims against the State, its agencies and departments having been vested in the industrial commission the superior court has no jurisdiction over this proceeding and was correct in dismissing it. Plaintiffs can find no relief under the Tort Claims Act, however, as it is applicable only to negligent acts of State employees and is not applicable to negligent omissions. G.S. § 143-291; Flynn v. Highway Commission, 244 N.C. 617, 94 S.E.2d 571 (1956).

The judgment appealed from is

Affirmed.

PARKER and HEDRICK, JJ., concur.