School Com'rs of City of Charlotte v. Board of Aldermen of City of Charlotte

• Decision Date: 28 February 1912
• Citation: 73 S.E. 905,158 N.C. 191
• Parties: SCHOOL COM'RS OF CITY OF CHARLOTTE v. BOARD OF ALDERMEN OF CITY OF CHARLOTTE et al.
• Court: North Carolina Supreme Court

73 S.E. 905

158 N.C. 191

SCHOOL COM'RS OF CITY OF CHARLOTTE v. BOARD OF ALDERMEN OF CITY OF CHARLOTTE et al.

Supreme Court of North Carolina

February 28, 1912

Appeal from Superior Court, Mecklenburg County; Lyon, Judge.

Mandamus by the School Commissioners of the City of Charlotte against the Board of Aldermen and Treasurer of the City of Charlotte to compel the turning over to the treasurer of the school board proceeds of the sale of school bonds. From a judgment awarding the writ, defendants appeal. Affirmed.

Where a statute expresses a general intention and also a particular intention incompatible with it, the particular intention may be deemed an exception to the general one.

Civil action, instituted by the school commissioners of the city of Charlotte to compel the board of aldermen and treasurer of said city to turn over to treasurer of the school board the proceeds arising from the sale of certain schools bonds issued by the city of Charlotte, under and by virtue of chapter 317, Priv. Laws 1911, heard before his honor Judge C C. Lyon, at January term, 1912, superior court, Mecklenburg county. On the hearing, judgment was rendered in manner and form as follows: "This cause coming on to be heard pursuant to the summons issued therein, and the court having heard and considered the pleadings in the cause and argument of counsel: Now, therefore, upon motion of Burwell & Cansler and Tillett & Guthrie, attorneys for the plaintiff, it is adjudged that the plaintiff is entitled to have the proceeds of the school bonds referred to in the pleadings paid over to its treasurer as soon as the said treasurer shall give bond in proper form and in the amount required by the statute; and the said defendants and each of them are hereby commanded to turn over and deliver to the treasurer of the plaintiff all of the proceeds of the said school bonds now under their custody and control as soon as the treasurer of the plaintiff shall give a bond approved by the plaintiff. It is further adjudged that the plaintiff recover the costs of this action to be taxed by the clerk of this court. Heard, considered, and decided upon this 24th day of January, 1912. C. C. Lyon, Judge Presiding." Defendants having duly excepted, appealed to Supreme Court.

Chase Brenizer, for appellants.

Burwell & Cansler and Tillett & Guthrie, for appellees.

HOKE J.

Chapter 317, Private Laws 1911, conferred upon the board of aldermen of the city of Charlotte the power, on approval of the popular vote, to issue bonds for various purposes, not to exceed in the aggregate the sum of $1,065,000, and specified that a portion of these bonds, not to exceed in amount the sum of $100,000, should be known as "school bonds," and to be used for the purpose of purchasing lands for schools and of building schoolhouses for the graded schools of the city. The act also providing "that moneys arising from the sale of the bonds" should be used for no other purpose than that for which they were authorized to be issued. In taking the sense of the qualified voters, the different purposes were to be submitted as separate propositions, and the votes taken in five different ballot boxes, and, in reference to the effect of the election, the act in question further provides: "If a majority of such qualified voters shall vote 'issue' on any one or more of the five propositions submitted for issuing bonds for the purposes aforesaid, then it shall be deemed and held that the proposition receiving a majority of such votes is favored and approved by a majority of the qualified voters of the city of Charlotte, and the board of aldermen shall cause bonds to be prepared and issued for the purposes so approved of by a majority of qualified voters of the city, and levy a tax in accordance with the provisions of this act." The measure having been approved by the popular vote, the bonds in question were issued and sold, and the proceeds are now held by defendants, subject to the provisions of the law and the judgment of the court on the questions presented.

It further appears that the plaintiffs, the school board of the city of Charlotte, having made selection of certain sites for school purposes, have made demand on defendants that the fund in question be turned over to their treasurer, and defendant the board of aldermen, professing a willingness to turn over $80,000 of said fund, the amount apportioned for four of the school sites, has refused to turn over the remaining $20,000, the amount apportioned for the public school of North Charlotte, contending that the site selected for school purposes in that section of the city is not a suitable or proper one, and that, under the charter of the city of Charlotte and other acts relevant to the inquiry, and by reason of the powers conferred in said acts on the board of aldermen of the city, said body must of necessity have a discretionary supervision of these matters and the ultimate power of determining whether the moneys in question shall or shall not be expended in the purchase of the site selected. If defendants are correct in their position that they are possessed of discretionary power in the premises, the present action must fail; for it is familiar doctrine that mandamus does not lie to enforce the exercise of discretionary power in any given or specified way. Board of Education v. Board of Commissioners, 150 N.C. 116, 63 S.E. 724; Barnes v. Commissioners, 135 N.C. 27, 47 S.E. 737; Ewbanks v. Turner, 134 N.C. 77, 46 S.E. 508. Coming, then, to this, the principal question presented, the revised charter of the city of Charlotte, enacted by the General Assembly in 1907 (Priv. Laws 1907, c. 342), in reference to the public school system of the city and on matters more directly relevant to the inquiry, makes provision as follows:

"Sec. 193. That there shall be maintained in the city of Charlotte a system of public schools to be kept open not less than nine months in each year, without charge, for the education of the children of the said city within the ages of six and twenty-one years.

"Sec. 194. That said system of public schools shall be under the control of a board of school commissioners composed of seventeen members, who shall be elected biennially at the general election held for mayor and other city officers, and shall hold office for two years and until their successors are duly elected and qualified, and shall serve without compensation. Any vacancy in said board of school commissioners shall be filled by an election held by said board, and the person so elected shall hold office for the unexpired term.

"Sec. 195. Said board of school commissioners shall be a body corporate and politic under the name of 'The School Commissioners of the City of Charlotte,' with all rights and powers of the school committees of the respective townships in addition to the powers in this act granted.

"Sec. 196. That the mayor of the city of Charlotte shall be ex officio chairman of said board of school commissioners, and shall be entitled to vote in any of the meetings of said board only in the case of a tie; and in all meetings of said board a majority of the membership thereof shall constitute a quorum

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