Buchan v. Shaw

78 S.E.2d 317 (1953)

238 N.C. 522

BUCHAN et al. v. SHAW.

No. 235.

Supreme Court of North Carolina.

November 4, 1953.

W. H. McElwee, Jr., North Wilkesboro, for plaintiff appellant.

Atty. Gen. Harrey McMullan and Samuel Behrends, Jr., Raleigh, member of Staff, for defendant appellee.

BARNHILL, Justice.

An action against the Commissioner of Revenue, in essence, is an action against the State. Prudential Insurance Co. v. Powell, Unemployment Compensation Comm., 217 N.C. 495, 8 S.E.2d 619. Since the State has not waived its immunity against suit by one of its citizens under the Declaratory Judgment Act, G.S. § 1-253 et seq. to adjudicate his tax liability under the sales tax statute, the court properly sustained the demurrer. Insurance Co. v. Unemployment Compensation Com., supra. See also Bunn v. Maxwell, Com'r of Revenue, 199 N.C. 557, 155 S.E. 250; Rotan v. State, 195 N.C. 291, 141 S.E. 733.

Plaintiff's only remedy is provided by G.S. § 105-267. He must follow the procedure there prescribed.

In any event, the question the plaintiff seeks to have the court answer by declaratory judgment is put at rest in the opinion in Phillips v. Shaw, N.C., 78 S.E.2d 314.

The judgment entered in the court below is

Affirmed.