Bd. Of Educ. Of Yancey County v. Bd. Of Com'rs Of Yancey County

• Citation: 127 S.E. 692
• Decision Date: 13 May 1925
• Docket Number: (No. 533.)
• Court: North Carolina Supreme Court
• Parties: BOARD OF EDUCATION OF YANCEY COUNTY et al. v. BOARD OF COM'RS OF YANCEY COUNTY et al.

127 S.E. 692

(189 N.C. 650)

BOARD OF EDUCATION OF YANCEY COUNTY et al.

v.BOARD OF COM'RS OF YANCEY COUNTY et al.

(No. 533.)

Supreme Court of North Carolina.

May 13, 1925.

Appeal from Superior Court, Yancey County; Brown, Judge.

Mandamus by the Board of Education of Yancey County and others against the Board of Commissioners of Yancey County and others. From a judgment refusing relief prayed for, plaintiffs appeal. Reversed.

Action by plaintiffs board of education of Yancey county, and taxpayers and citizens of a school district in said county, to require, by mandamus, the defendants board of county commissioners, and its individual members, to order a special tax election in this school district. The trial court, upon a hearing, refused to issue the writ of mandamus, and plaintiffs appealed.

The appeal of plaintiffs presents only one question: Has the board of county commissioners any discretion in passing upon a properly executed and indorsed petition for a local tax election in a school district, when an election has already been held, but more than six months prior to the filing of such petition?

The trial court was of the opinion that this was within the sound discretion of the county commissioners and refused the writ, and plaintiffs appealed.

A. Hall Johnston, of Asheville, and Charles Hutchins, of Burnsville, for appellants.

Watson, Hudgins, Watson & Fouts, of Burnsville, for appellees.

VARSER, J. It is conceded, and we think properly so, that the duty of the county commissioners in considering the petition for the first election is not discretionary, but only ministerial, and that C. S. Supp. 1924, § 5640, is mandatory. The board of county commissioners, under C. S. Supp. 1924, § 5640, has the power to determine whether the petition complies with C. S. Supp. 1924, §§ 5639 and 5640; but when it is admitted that the petition for the first election does comply with these requirements, they have no discretion to refuse to order the election. Its language is plain:

"It shall be the duty of the board of county commissioners * * * to call an election and fix the date for the same."

Another question is presented, when one such election has been held resulting adversely to the local tax, and another election is sought by petition in due form. C. S. Supp. 1924, § 5645, provided:

"In the event that a majority of the qualified voters of a district do not at the election cast their votes for the local tax, another election or elections under the provisions of this article may be held after the lapse of six months in the same district."

The trial court was of the opinion that C. S. Supp. 1924, § 5645, vested in the county commissioners a "sound discretion" to order or not to order the election, although the six months since the prior election had elapsed. In our opinion, this construction of C. S. Supp. 1924, § 5645, must be held for error. This section only applies to the frequency of elections, as its headnote says. If the statute (C. S. Supp. 1924, § 5645), or some other similar provision, had not been provided, then only one election in a district could have been held under the terms of C. S. Supp. 1924, §§ 5639 and 5640. In order to provide machinery for recurring elections, it is provided in C. S. Supp. 1924, § 5645, that, after the lapse of six months from the election that resulted unfavorably, another election, or elections, may be held under the provisions of this article (article 23, c. 95, C. S. Supp. 1924, Education). This article provided in C. S. Supp. 1924, §§ 5639, 5640, 5641, the machinery for originating the petition for the election, the consideration thereof by the county board of education with full power and discretion to approve and indorse the same (Key v. Board of Education, 170 N. C. 125, S6 S. E. 1002), and the exercise of discretion by it, in determining whether it will indorse and approve. Mandamus only lies to compel action, and not to direct it, if the asserted powers are discretionary. Key v, Board of Education, supra; Edgerton v. Kirby, 156 N. C. 347, 351, 72 S. E. 365; Board of Education v. Commissioners, 150 N. C. 116, 123, 63 S. E. 724; Ward v. Commissioners, 146 N. C. 534, 60 S. E. 418, 125 Am. St. Rep. 489; Burton v. Furman, 115 N. C. 166, 20 S. E. 443; Brodnax v. Groom, 64 N. C. 244; Attorney General v. Justices, 27 N. C. 315; Abbott on Mun. Corp. § 1108; High on Extra Legal Remedies (2d Ed.) § 24; State v. Vanhook, 182 N. C. 834, 109 S. E. 65; Person v. Watts, 184 N. C. 499, 115 S. E. 336; Ward v. Commissioners, supra; School Commissioners V. Board, 158 N. C. 191, 73 S. E. 905; Muller & Co. v. Commissioners, 89 N. C. 171; Fisher v. Commissioners, 166 N. C. 238, 81 S. E. 1061; Granville County Board v. State Board, 106 N. C. 81, 10 S. E. 1002; County Board v. Board, 150 N. C. 116, 63 S. E. 724; Barnes v. Commissioners, 135 N. C. 27, 47 S. E. 737; Ewbank v. Turner, 134 N. C. 77, 46 S. E. 508; Russell v. Ayer, 120 N. C. 180, 27 S. E. 133, 37 L. R. A. 246; Battle v. Rocky Mount, 156 N. C. 329, 72 S. E. 354; McNeill v. Somers, 96 N. C. 467, 2 S. E 161; Worthy v. Barrett, 63 N. C. 199; Glenn v. Commissioners, 139 N. C. 412, 52 S. E. 58; Vineberg v. Day, 152 N. C. 355, 358, 67 S. E. 760; Boner v. Adams, 65 N. C. 639; Koonce v. Com'rs, 106 N. C. 192, 10 S. E. 1038; Gulf Refining Co. v. McKernan, 179 N. C. 314, 102 S. E. 505; Alexander v. Lowrance, 182 N. C. 642, 109 S. E. 639; Burke County Road Com'rs v. Commissioners, 184 N. C. 403, 115 S. E. 54; Britt v. Board, 172 N. C. 797, 90 S. E. 1005; Lucas v. Belhaven, 175 N. C. 124, 95 S. E. 41; Key v. Board, supra; Dula v. Board, 177 N. C. 426, 99 S. E. 193; Board v. Board, 178 N. C. 305, 100 S. E. 60S.

The interested citizen is entitled to compel the exercise of discretion by public officers, in such as the instant case; but he cannot direct its course.

In our opinion, C. S. Supp. 1924, § 5645, is an enabling statute, by which the interested citizens, pursuant to and in compliance with C. S. Supp. 1924, § 5639, may, after the lapse of six months, seek another election. If the county board of education "indorses and approves" the petition according to C. S. Supp. 1924, § 5640, then the county commissioners are limited to their mandatory duty "to call an election and fix the date for the same." "May, " in C. S. Supp. 1924, § 5645, enables, permits, and does not require,...