Kirby v. Stokes County Bd. Of Educ.

• Decision Date: 28 September 1949
• Docket Number: No. 20.,20.
• Citation: 230 N.C. 619,55 S.E.2d 322
• Court: North Carolina Supreme Court
• Parties: KIRBY. v. STOKES COUNTY BOARD OF EDUCATION.

55 S.E.2d 322

230 N.C. 619

KIRBY.

v.STOKES COUNTY BOARD OF EDUCATION.

No. 20.

Supreme Court of North Carolina.

Sept. 28, 1949.

Isla M. Kirby sued the Stokes County Board of Education for the breach of an alleged contract to teach in the Danbury school of the Stokes County Administrative Unit.

The Superior Court, Stokes County, H. Hoyle Sink, J., gave judgment to the defendant and the plaintiff appealed.

The Supreme Court, Winborne, J., held that plaintiff failed to show that she had a contract to teach exclusively in the Danbury school and that plaintiff failed to give notice of her acceptance of extension of her teaching contract within prescribed time and affirmed the judgment Civil action to recover for alleged breach of alleged contract to teach in the Danbury school of the Stokes County Administrative Unit, heard upon demurrer ore tenus to the complaint entered by defendant.

The plaintiff's complaint is based upon the following series of events:

1.On April 18, 1945, R. M. Green, Principal of the Danbury school nominated plaintiff"for the position of elementary teacher in this school".

2.On April 18, 1945, the Committee of District 1, through its chairman and secretary notified plaintiff by certificate that "at a meeting of the Committee, held on April 18, 1945", she"was elected to teacher in the public school, for the white race, of this district for the ensuing year".On May 11, 1945, this was approved by J. C. Carson, Superintendent.

3.On May 16, 1945, plaintiff, as teacher, entered into a written "Contract for Instructional Service", which reads as follows:

"Contract for Instructional Service "State of North Carolina "Stokes County

"This agreement entered into between the governing authority of the Stokes County Administrative Unit and Isla M. Kirby, Principal, holding a--Certificate, No. --, now in force, in accordance with the provisions of the school law applicable thereto, which are hereby made a part of this contract,

"Witnesseth:

"That said teacher, having been selected by the Public School Committee of District No. -- in said administrative unit, agrees to teach in the public schools of said district for the ensuing school term, and to discharge faithfully all the duties imposed on teachers by the Public Laws of North Carolina.In consideration of this agreement, said governing authority promises to pay said person the sum of $-- for each month of service.Of this amount the sum of--dollars per month for a period not exceeding eight months shall be paid from State funds, subject to the conditions that said amount paid from Statefunds shall not exceed the maximum set in the State Standard Salary Schedule fixed by the State Board of Education and the State School Commission, and within the allotment of funds as made to said administrative unit for instructional service.

"That said governing authority has authorized, in a regular or in a called meeting, its Secretary to execute this contract when such employment is approved in accordance with the provisions of the law.

"Isla M. Kirby, Teacher

"May 16, 1945

"Stokes Administrative Unit

"By: J. C. Carson, Secretary"

4.Later plaintiff was designated as principal of Danbury school, a position she held until the end of the school term in May 1947.

5.On May 14, 1947, in accordance with the general school law of the State of North Carolina, the Superintendent of Public Instruction for the Stokes County notified plaintiff in writing that "in compliance with Section 115-35A(should be 115-354) of the General Statutes of North Carolina, as amended * * * your contract for employment in the Stokes Administrative Unit has been extended for another year following the close of the present school term".

6.On May 30, 1947, plaintiff, in reply to the notice last above set out, gave to "Supt.J. C. Green of the Stokes Administrative Unit", "Notice of Acceptance" reading as follows: "In compliance with the law, Chapter 358, Public Laws of 1939, as amended, I hereby accept employment in the Danbury public school of Stokes Administrative Unit for the year 1947-1948 at a salary in accordance with State Standard Salary Schedule * * * etc."

7.On August 26, 1947, C. E. Davis, Chairman Local School Committee, sent to plaintiff a written communication reading as follows:

"In view of the fact that we have succeeded in securing a man for Principal of the Danbury school, which is in accord with the request and wishes of the local patrons, it has become necessary, since Danbury is only entitled to five teachers, to assign you to teaching duty in Walnut Cove School * * * etc."The complaint alleges that there was no official authority for this notice.

8.Also on August 26, 1947, plaintiff, through her husband, in person, notified R. M. Green, then Superintendent of Public Instruction for Stokes County, "that she would not teach in Walnut Cove in accordance with the letter signed by C. E. Davis, but would insist on the terms of her contract to teach in Danbury and that she was ready, able and willing to report for duty in accordance with said contract above set forth if and when they decided to allow her to do so".

9.On August 25, plaintiff received a notice from R. M. Green, Superintendent of Public Instruction for Stokes County, "that the Stokes County schools will open for classes on Wednesday, September 3", and that she would be expected to report to her school on Tuesday morning, September 2nd, at 9:00 o'clock for a local faculty meeting with her Principal, etc.

10.Thereupon on September 2, 1947, plaintiff caused a letter to be addressed to R. M. Green, in which, among other things, she stated that she had given notice that she would not teach in Walnut Cove, and reiterated that she stood ready, able and willing to perform her part of the contract to teach in Danbury, etc.

Upon the foregoing, plaintiff alleges "that the failure to allow her to teach in Danbury as provided in her contract and as she has been doing for past three years is a breach on the part of the defendant of the contract above set out and to her great damage * * *", in the amount of salary she would have received had she taught in the Danbury school.

Defendant, Stokes County Board of Education, answered, and also entered in writing demurrer ore tenus to the complaint on the grounds:

"1.To the jurisdiction of the court for that it appears on the face of the complaint that this is an action against the State of North Carolina or an administrative agency of the State.

"2.For that the complaint fails to allege a cause of action."

Upon hearing on the demurrer, the Presiding Judge of Superior Court, being of opinion that demurrer should be sustained on both grounds, entered order to this effect on April 12, 1949.

Plaintiff appeals therefrom to Supreme Court, and assigns error.

Woltz & Barber, Mount Airy, for plaintiff-appellant.

R. J. Scott, Danbury, for defendant-appellee.

WINBORNE, Justice.

This appeal presents for decision two questions:

1.May a teacher in the public schools of North Carolina maintain an action against a county board of education for alleged breach of her contract to teach in a county administrative unit?

2.If so, does the complaint of plaintiff state a cause of action for breach of contract to teach in a particular school in a district in which there are two or more schools?

I.The first question arises upon the ruling of the court below in sustaining the first ground of the demurrer, that is, that this is an action against the State of North Carolina, or one of its administrative agencies, and therefore is not maintainable.Exception to the ruling is well taken.

It is a well settled principle of law that the sovereign may not be sued, either in its own courts or elsewhere, without its consent, and that "in the absence of consent or waiver, this immunity against suit is absolute and unqualified."SeeSchloss v. State Highway & Public Works Comm., 230 N.C. 489, 53 S.E.2d 517, 518, where decisions of this Court on the subject are assembled in opinion by Barnhill, J.

And it may be conceded that a county board of education is an agency of the State in the operation and administration of the uniform public school system at State expense.Chapter 115 of the General Statutes of North Carolina entitled "Education".But as a part of the statute per taining thereto the General Assembly has declared that "The board of education shall be a body corporate by the name and style of 'The Board of Education of -- County.'By that name it shall hold all school property belonging to the county, and it shall be capable of purchasing and holding real and personal property, of building and repairing school houses, of selling and transferring the same for school purposes, and of prosecuting and defending suits for or against the corporation."(Italics ours.)G.S. § 115-45.Thus it appears that the General Assembly not only has given corporate existence to the county board of education, but has consented that it, as a corporate entity, may sue and be sued.

It is contended, however, by appellee that this statute, G.S. § 115-45, was enacted long before the enactment of Chapter 562 of Public Laws of 1933, by which a uniform statewide school system was established, and that under this act the county board of education was shorn of all administrative authority other than that which it gets under the School Machinery Act.P.L. 1939, Chapter 358.

In this connection it is true that an act in wording, substantially the same as that of G.S. § 115-45, was enacted in 1901, P.L. 1901, Ch. 4, Section 13, and re-enacted in 1903, P.L.1903, Ch. 435, Section 4, and as so enacted it has been brought forward as a part of the school law in subsequent codifications adopted by the General Assembly as Section 4121 of the Revisal of 1905, as Section 5402 of the Consolidated Statutes of 1919, and as Section 19 of Chapter 136 of Public Laws of 1923.

And while the General Assembly of 1933 in providing for the operation of...