Chapter 179, Code of Iowa, 1950, provides for tbe creation of Iowa Dairy Industry Commission and specifies its various powers and duties with reference to dairy products and their promotion. Code section 179.5, as amended by Acts 1951 (54th G. A.) chapter 79, section 2, provides in part:
“Excise tax.
“1. There is hereby levied and imposed an excise tax of one cent per pound or fraction thereof upon all butterfat sold in the state during the period beginning May 1 and terminating June 30 inclusive, annually; * * ®. * * *
“All taxes levied and imposed under this chapter, shall be paid to and collected by the secretary of the commission who shall remit to the treasurer of the state, quarterly, and at the same time render to the state comptroller an itemized and verified report showing the source from which said taxes were obtained. All such taxes collected and remitted shall be placed in a special fund by the treasurer of state, and the state comptroller, to be known as the ‘Dairy Industry Fund’, to be used by the Iowa dairy industry commission for the purposes set out in this chapter and to administer and enforce the laws relative thereto.”
Chapter 79, 54th G. A., section 4, provides: “Any person from whom the excise tax provided in this chapter is collected may, by application filed with this commission within thirty (30) days after the collection from him of said tax, have said tax remitted to him by the commission.”
*1379 Tbe only defendant named in this case is Iowa Dairy Industry Commission, and the personal liability of the individual members of the commission is not involved.
Plaintiffs pleaded that: during the period May 1 to June 30, 1952, they produced and sold certain dairy products; dealers who purchased the same withheld $25.32 for butterfat tax under Code section 179.5, which tax such dealers paid to the secretary of defendant-commission; August 19, plaintiffs demanded that defendant remit to them the amount of the tax and defendant refused so to do; the tax was invalid because in violation of Article I, sections 1, 6 and 9, Article III, section 31, and Article VII, sections 1 and 7, Constitution of Iowa, and section 1 of the Fourteenth Amendment to the Constitution of the United States. They prayed judgment declaring their right to the remittance of the $25.32 and declaring the tax invalid and unconstitutional. By way of auxiliary relief they also prayed a writ of mandamus against defendant to compel such remittance.
Defendant filed a special appearance asserting the suit, although nominally against the commission, was, in substance, a suit against State of Iowa, itself, and setting up the immunity of the State and commission from the suit. Plaintiffs contended the suit wrns not against the State but was against the defendant-commission which had wrongfully collected and withheld the money under an unconstitutional statute. The trial court sustained defendant’s special appearance. Hence, this appeal.
The general rule governing cases of this nature is thus stated in boldface in 81 C. J. S., States, section 216b (1), page 1311:
“Where a suit is brought against an officer or agency with relation to some matter in which defendant represents the state in action and liability and the state is the real party against which relief is sought so that a judgment for plaintiff will operate to control the action of the state or subject it to liability, the suit is in effect one against the state and cannot be maintained without its consent.”
To the same effect is 49 Am. Jur., States, Territories and Dependencies, sections 92, 93 and 94, page 304 et seq..
*1380
In Bachman v. Iowa State Highway Comm.,
“The doctrine ‘that a sovereign state may not be coerced by the exercise of judicial power’ is fundamental and is well stated by Justice Evans in Hollingshead Co. v. Board of Control,196 Iowa 841 , 842,195 N.W. 577 . See also De Votie v. Iowa State Fair Board,216 Iowa 281 ,249 N.W. 429 . * * *.
“Not every suit against a state agency is held to be against the state within the meaning of the immunity doctrine. See, e.g., Hoover v. Iowa State Highway Comm.,
“In the Hoover case just cited plaintiff sought to enjoin defendants from establishing a road through his. orchard. In denying the plea of immunity, we said:
“ ‘Appellant does not attempt to obtain money from the state, or interfere with its sovereignty or the administration of its affairs through proper agencies.’
“This language is quoted with approval in Pierce v. Green, supra,
“The case of Wilson v. Louisiana Purchase Exposition Comm.,
“ ‘It is fundamental that a State cannot be sued in its own courts without its consent, and it is a further rule that a *1381 litigant will not be permitted to evade the general rule by bringing action against the servants or agents of the State to enforce satisfaction for claims.’
“In Pierce v. Green, supra,229 Iowa 22 , 32,294 N.W. 237 , 245, 131 A. L. R. 335, referring to this Wilson case and others, it was pointed out:
“ ‘In none of these civil eases was the state or its arm, board, or agency suable. The suits were for money demands and no one can seriously contend that action could be brought against the state or any arm or agency of the state.’ ”
Great Northern Life Ins. Co. v. Read,
“The right of petitioner to maintain this suit in a federal court depends, first, upon whether the action is against an individual or against the State of Oklahoma. * * *.
“In Smith v. Reeves,
“As the suit was against a state official as such, through proceedings which were authorized by statute, to compel him to carry out with the state’s funds the state’s agreement to reimburse moneys illegally exacted under color of the tax power, this Court held, page 439 of 178 U. S., page 920 of
Antrim Lumber Co. v. Sneed,
“Admitting, without deciding, the contention of the plaintiff regarding the unconstitutionality of the statute in question and the involuntary character of the payment made, we are of the opinion that these questions are not properly involved in this_ appeal and are unnecessary to a decision herein. The case of Atchison, T. & S. F. Ry. Co. v. O’Connor, supra [223 U. S. 280 ,32 S. Ct. 216 ,56 L. Ed. 436 , Ann. Cas. 1913C, 1050], together with Erskine v. Van Arsdale,15 Wall. 75 ,21 L. Ed. 63 , and the Virginia Coupon Cases (Poindexter v. Greenhow),114 U. S. 270 ,5 S. Ct. 903 , 962,29 L. Ed. 185 , are authority for the individual liability of a treasurer to repay taxes paid to him involuntarily and under protest when the tax is exacted under an unconstitutional statute, but are inapplicable where the suit is against the treasurer in his official capacity and thus is in effect a suit against the state. As has been said in Smith v. Reeves,178 U. S. 436 ,20 S. Ct. 919 ,44 L. Ed. 1140 : ‘An action against a State Treasurer in his official capacity, which is in effect to *1383 compel the state, through him, to perform its promise to return to taxpayers money that may be adjudged to have been taken under an illegal assessment, is in substance an action against the state itself, within the meaning of U. S. Const. 11th Amend.’ ”
Kleban v. Morris,
Ford Motor Co. v. Department of Treasury of State of Indiana,
“The petitioner’s claim is for a ‘refund’, not for the imposition of personal liability on individual defendants for sums illegally exacted. We have previously held that the nature of a suit as one against the state is to be determined by the essential nature and effect of the proceeding. Ex parte Ayers,123 U. S. 443 , 490, 499,8 S. Ct. 164 , 174, 175,31 L. Ed. 216 ; Ex parte State of New York,256 U. S. 490 , 500,41 S. Ct. 588 , 590,65 L. Ed. 1057 ; Worcester County Trust Co. v. Riley,302 U. S. 292 , 296, 298,58 S. Ct. 185 , 186, 187,82 L. Ed. 268 . And when the action is in essence one for the recovery .of money from the state, the state is the real, substantial party in interest and is entitled' to invoke its sovereign immunity from suit even though individual officials are nominal defendants.”
In Kennecott Copper Corp. v. State Tax Commission,
Some other decisions are: Tyler v. Dane County, District Court, W. D. Wis., 1923,
Plaintiffs rely upon Scottish Union & National Ins. Co. v. Herriott, state treasurer,
However, what this division of the Ilerriott case holds has been the subject of considerable disagreement. For example, in Bow v. Plummer, 79 N. H. 23, 26,
*1385 “If under such circumstances it lias been held that a defendant, although a party only in his official capacity, was liable individually to repay the money (Scottish Ins. Co. v. Herriott,109 Iowa 606 ,80 N.W. 665 ,77 Am. St. Rep. 548 ), the decision cannot be followed. The language of the court in Smith v. Reeves, supra (178 U. S. 439 , 20 Sup. Ct. 920,44 L. Ed. 1140 ), in holding under a somewhat similar state of facts that the cause of action was against the state and that an order for judgment against the treasurer was error, is applicable to the case at bar:
“ ‘In the present case [Smith v. Reeves] the action is not to recover specific moneys in the hands of the state treasurer nor to compel him to perform a plain ministerial duty. It is to enforce the liability of the state to pay a certain amount of money on account of the payment of taxes alleged to have been wrongfully exacted by the state from the plaintiffs. Nor is it a suit to enjoin the defendant from doing some positive or affirmative act to the injury of the plaintiffs in their persons or property, but one in effect to compel the state, through its officer, to perform its promise to return to taxpayers such alnount as may be adjudged to have been taken from them under an illegal assessment.’ ”
Another appraisal of the Herriott case is found in Oakley Country Club v. Long,
Seaboard Air Line Ry. Co. v. Allen,
In Board of Comrs. of Boone County v. Adler,
*1386
In a note in 1 L. R. A., N. S., 727, 728, the author states: “A ease that seems dose to the line, but is nevertheless distinguishable, is that of Scottish Union & Nat. Ins. Co. v. Herriott,
A note in 14 A. L. R.2d 383, 401, states: “A state treasurer to whom a taxpayer pays under duress and protest a tax for business done in the state, imposed by an unconstitutional law, is personally liable to the taxpayer for the amount of the tax, although such treasurer has placed the money to the credit of the state. Scottish Union & Nat. Ins. Co. v. Herriott (1899)
Plaintiff argues Kittredge v. Boyd,
“While the proceeding [in the Barker case] was nominally against the highway commission, it was in effect one against the state itself. In cases where the officer of the state acts in his individual or private capacity, and where the money sued for is not public funds subject to disposition by the Legislature, a different rule applies. Compare Kittredge et al. v. Boyd,136 Kan. 691 ,18 P. (2d) 563 , just decided.”
Frick v. State,
Thus it appears the factual basis for the Kittredge decision was nonexistent in the Herriott case.
In the case at bar we are satisfied the order of the trial court sustaining defendant’s special appearance was correct. Bachman v. Iowa State Highway Comm.,