Harris v. Board of Education of Vance County

• Decision Date: 20 September 1939
• Docket Number: 164.
• Parties: HARRIS et al. v. BOARD OF EDUCATION OF VANCE COUNTY et al.
• Court: North Carolina Supreme Court

4 S.E.2d 328

216 N.C. 147

HARRIS et al. v. BOARD OF EDUCATION OF VANCE COUNTY et al.

No. 164.

Supreme Court of North Carolina

September 20, 1939

[Copyrighted Material Omitted]

Application for writ of mandamus, heard on demurrer.

The school committee of Dabney School District in Vance County elected the plaintiff, B. A. Scott, as principal of the school for the 1939-1940 term. The defendants disapproved the election. Thereafter, on petition of citizens of the school district, the defendants refused to reconsider the action or to assign any reason therefor. Thereupon, certain of the plaintiffs instituted this proceeding in the nature of an application for a writ of mandamus "directing and commanding them (the defendants) to approve the re-election of the said B. A. Scott as principal of the Dabney High School for the ensuing school year."

When the cause came on to be heard before the Judge below the defendants demurred to the complaint filed upon eight several grounds set out in the demurrer. Before ruling on the demurrer the Court permitted the plaintiffs, J. B. Shotwell and F. H. Hicks, members of the Dabney School District Committee, and B. A. Scott, the principal elected by the local committee, to make themselves parties plaintiff and to adopt the complaint theretofore filed. The defendants likewise filed a plea in abatement for that the defendants acting under the provisions of Chapter 358, P.L.1939, have elected and contracted with one M. H. Randolph as a teacher-principal of said school.

The Court entered its order denying the plea in abatement and overruling the demurrer. The defendants excepted and appealed.

A. A Bunn and J. H. Bridgers, both of Henderson, for appellants.

Gholson & Gholson, of Henderson, and W. H. Yarborough, of Louisburg, for appellees.

BARNHILL Justice.

It is well established by the decisions of this Court that mandamus is available against a municipal corporation or public official to compel the performance of a ministerial duty. But those seeking the writ must have a clear legal right to demand it and the board must be under a legal obligation to perform the act sought to be required. Rollins v. Rogers, 204 N.C. 308, 168 S.E. 206; John v. Allen, 207 N.C. 520, 177 S.E. 634; Mears v. Board of Education, 214 N.C. 89, 197 S.E. 752. The writ will not be issued to enforce an alleged right which is in doubt. Hayes v. Benton, 193 N.C. 379, 137 S.E. 169; Cody v. Barrett, 200 N.C. 43, 156 S.E. 146; Powers v. Asheville, 203 N.C. 2, 164 S.E. 324. "The function of the writ is to compel the performance of a ministerial duty--not to establish a legal right, but to enforce one which has been established. The right sought to be enforced must be clear and complete." Wilkinson v. Board of Education, 199 N.C. 669, 155 S.E. 562, 564. The writ issues only when there is no other legal remedy. Hayes v. Benton, supra; Cody v. Barrett, supra; Mears v. Board of Education, supra; Powers v. Asheville, supra; Rogers v. Rollins, supra. The Court below will not and cannot undertake to control the discretionary power of the defendants. Hayes v. Benton, supra. The allegation that the defendants acted "wrongfully, unlawfully, unjustly, arbitrarily and without just cause or reason" is not sufficient to support an application for a writ of mandamus. Ewbank v. Turner, 134 N.C. 77, 46 S.E. 508.

While the plaintiffs, other than B. A. Scott, no doubt, are vitally concerned about the school of their district and the personnel of the teachers therein, they possess no legal right in connection with the election and approval of a principal such as would entitle them to maintain an action against the defendants (hereinafter referred to as county authorities) to compel them to approve the election of a principal by the district school committee (hereinafter referred to as district authorities). It, therefore, clearly appears that there was error in the judgment of the Court below in overruling the demurrer as to the plaintiffs who are private citizens of the district.

When the school committee elects a principal their duty is fully performed in respect thereto unless the election is disapproved by the county authorities, in which event it is the duty of the district authorities to proceed to elect another principal. Likewise, therefore, the demurrer should have been sustained as to the plaintiffs who are members of the local committee, who, incidentally, are plaintiffs as individuals and not in their official capacity.

Was there error in overruling the demurrer as to B. A. Scott (hereinafter referred to as plaintiff)?

Before the plaintiff becomes entitled to the position to which he was elected by the district authorities his election must be approved by the county authorities. The election has been disapproved. The plaintiff's right to the office does not now exist and depends upon proof by him that the action of the county authorities in disapproving his election was void for want of good faith. The allegations in the complaint do not disclose that he has a clear legal right to the remedy sought. This right is in doubt and remains in doubt until he establishes, by competent proof, the allegations contained in his complaint. Ewbank v. Turner, supra, is almost directly in point. There the Dentistry Board declined to approve the examination of the plaintiff and to issue license. The allegations as to the arbitrariness of the action of the board are almost identical with those contained in the complaint of the plaintiff and the writ was denied.

The writ of mandamus compels action--it does not determine how the defendant shall...