Granville County Board of Education v. State Board of Education

• Decision Date: 04 March 1890
• Citation: 10 S.E. 1002,106 N.C. 81
• Parties: GRANVILLE COUNTY BOARD OF EDUCATION v. STATE BOARD OF EDUCATION.
• Court: North Carolina Supreme Court

10 S.E. 1002

106 N.C. 81

GRANVILLE COUNTY BOARD OF EDUCATION v. STATE BOARD OF EDUCATION.

Supreme Court of North Carolina

March 4, 1890

Appeal from superior court, Granville county; BYNUM, Judge.

Action by the Granville county board of education against the state board of education to compel defendant to issue its warrant on the state treasurer for the sum of $825.25 alleged to be due plaintiff on account of money withheld from it by defendant in 1886. After the pleadings were filed, defendant made a motion to have the cause removed to the superior court of Wake county for trial. The motion was refused, and defendants excepted and appealed.

An objection to the venue is waived by filing an answer to the merits of the action, though the answer is filed before the time allowed defendant to answer has expired.

Batchelor & Devereux, for appellant.

Graham & Winston, for appellee.

CLARK J.

The defendant moves to dismiss the action on the ground that the defendant is only an agency of the state, and the court has no jurisdiction to entertain the action, as the state does not consent to be sued. Code, § 2503, incorporates the defendant, and directs, among other things, that it "may sue and be sued" as such. This is sufficient consent, if such be necessary. In Bain v. State, 86 N.C. 49, the court expressly holds that the insane asylum can be sued. Actions against that institution, and against the other great state agency and charity, the Institute for the Deaf & Dumb & Blind, have been entertained by the courts. Ellis v Institution, 68 N.C. 423, and other cases.

Even were not this beyond question, as the proceeding is to compel public officers to discharge a mere ministerial duty not involving an official discretion, the action will lie. Railroad Co. v. Jenkins, 68 N.C. 502; Marbury v Madison, 1 Cranch, 149. The duties here sought to be enforced are purely ministerial. Code, §§ 2535, 2537.

The defendant was allowed 65 days to file answer. It filed its answer before the time was out. After answer filed, but within the 65 days, it made the motion to remove, and from the refusal thereof appealed. The plaintiff contends that the motion came too late. The point is an adjudicated one. In McMinn v. Hamilton, 77 N.C. 300, it is held "If the defendant pleads to the merits of the action, he will be taken to have waived the objection" to the venue. To same effect, Lafoon v. Shearin, 91 N.C 370, and Morgan v....