Key v. Board of Education of Granville County

• Decision Date: 17 November 1915
• Docket Number: 324.
• Citation: 86 S.E. 1002,170 N.C. 123
• Parties: KEY ET AL. v. BOARD OF EDUCATION OF GRANVILLE COUNTY.
• Court: North Carolina Supreme Court

86 S.E. 1002

170 N.C. 123

KEY ET AL. v. BOARD OF EDUCATION OF GRANVILLE COUNTY.

No. 324.

Supreme Court of North Carolina

November 17, 1915

Appeal from Superior Court, Granville County; Cooke, Judge.

Mandamus by Frank Key and others against the Board of Education of Granville County. From a judgment granting relief, defendant appeals. Reversed, and judgment directed for defendant.

Allen and Brown, JJ., dissenting.

Civil action to obtain a mandamus on defendant board compelling them to "indorse and approve" a petition to the board of commissioners of Granville county; that they order an election on the question of the annulment of a special school tax district in said county and known as "Stovall special tax district No. 2." Heard on demurrer.

The complaint alleged that the said district was duly established in 1908, and had continued to operate under the law (section 4115, Revisal) until the present year, when a petition signed by two-thirds of the qualified voters of said district, requesting the county commissioners to order an election on the question of revoking said school district was presented to the defendant, the board of education of Granville county, with the request that said board "indorse and approve" said petition. The complaint then contains further averment as follows:

"That the board of education considered the said matter, and after some hesitation and delay, declined and refused to indorse and approve said petition, and does still decline and refuse to indorse and approve the same, contrary to the express requirement of the statute above mentioned."

And further:

"(6) Your petitioners are informed and believe that the county commissioners are without authority to order the election demanded, unless the petition therefor is indorsed and approved by the county board of education, the defendant and that, in the absence of such indorsement and approval by the said county board of education, your petitioners are without remedy against the tax levy referred to, whereas, if said petition should be indorsed and approved by said defendant, your petitioners might be speedily relieved of the same.

(7) And your petitioners are advised that the defendant has no right or authority to withhold its indorsement and approval of said petition, but is bound, upon the showing made, to indorse and approve the same. The defendant did not refuse its indorsement and approval of said petition on account of any defect in the petition or any lack of numbers of signers."

Defendant board demurred to the complaint in terms as follows:

"For that the declarations stated in complaint of the plaintiffs in this action, and the matters therein set out, in manner and form appearing as above, are not sufficient for the said plaintiffs to have and maintain their aforesaid action against said defendant board, and that the said defendant board of education declined to indorse the petition as set out in said complaint, in the exercise of a sound and reasonable discretion, and demur to the said complaint and ask that it be dismissed. Wherefore, for want of a sufficient declaration in this behalf, the said defendant board prays judgment that the said plaintiffs may be barred from having or maintaining the aforesaid action against said defendant board, and that the plaintiffs herein named be required to pay the costs of this proceeding."

There was judgment overruling the demurrer and commanding defendant board to indorse and approve the petition as prayed for in the complaint, whereupon defendant, having duly excepted, appealed.

B. S. Royster and B. K. Lassiter, both of Oxford, for appellant.

T. T. Hicks, of Henderson, for appellees.

HOKE, J. (after stating the facts as above).

The statute authorizing the formation of these special school districts (Revisal, § 4115) has been so amended by chapter 525, Laws 1909, and chapter 135, Laws 1911, that, on petition of two-thirds of the qualified voters residing in any special taxing district, "indorsed and approved by the county board of education," the board of county commissioners shall order an election in said district for submitting the question of revoking said tax and abolishing said district, etc. It has been held that, as an essential requirement to a valid election, this preliminary petition must be properly preferred. Gill v. Board of Commissioners, 160 N.C. 176, 76 S.E. 203, 43 L. R. A. (N. S.) 293, and the question presented is whether, on the facts as alleged in the complaint, the county board of education may be compelled by mandamus to "indorse and approve" the petition.

It is the recognized principle with us, upheld and approved in numerous decisions of this court, that, where discretionary powers are conferred on these ministerial boards, the court may not undertake to direct them as to how such powers shall be exercised in a given case. They may compel such a board to act in the premises, but cannot tell them how they must act. Edgerton v. Kirby, 156 N.C. 347-351, 72 S.E. 365; Board of Education v. Board of 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; Atty. Gen., etc., v. Justices Guilford County, 27 N.C. 315; Abbott on Municipal Corporations, § 1108; High on Extraordinary Legal Rems. (2d Ed.) § 24. In the citation to High on Extr. Legal Remedies, quoted with approval in Board of Education v. Commissioners, supra, the principle is correctly stated as follows:

"But the most important principle to be observed in the exercise of jurisdiction by mandamus, and one which lies at the very foundation of the entire system of rules and principles regulating the use of this extraordinary remedy, is that which fixes the distinction between duties of a peremptory or mandatory nature and those which are discretionary in their character, involving the exercise of some degree of judgment on the part of the officer or body against whom the mandamus is sought. * * * And whenever such officers or bodies are vested with discretionary powers

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