Key v. . Board of Education , 170 N.C. 123 ( 1915 )

ALLEN, J., dissenting; BROWN, J., concurring in the dissenting opinion. Civil action to obtain a mandamus on defendant board, compelling them to "endorse 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 "Stoval 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 defendants, the board of education of Granville of County, with the request that said board "endorse and approve" said petition.

The complaint then contains further averment as follows: "That the board of education considered said matter and, after some hesitation and delay, declined and refused to endorse and approve said petition and does still decline and refuse to endorse 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 education, the defendant, and that in the absence of such endorsement 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 endorsed 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 endorsement and approval of said petition, but is bound, upon the showing made, to endorse and approve the same. The defendant did not refuse its endorsement 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 (125) 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 endorse 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 to be required to pay the costs of this proceeding."

There was judgment overruling the demurrer and commanding defendant board to endorse and approve the petition as prayed for in the complaint, whereupon defendants, having duly expected, appealed. After stating the case: The statute authorizing the formation of these special school districts, Revisal, sec. 4115, has been so amended by chapter 524, Laws 1909, chapter 135, Laws 1911, that on petition of two-thirds of the qualified voters residing in any special taxing district, "endorsed 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.Comrs., 160 N.C. 176), 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 "endorse 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;Board of Education v. Comrs., 150 N.C. 116-123; Ward v. Comrs.,146 N.C. 534; Burton v. Furman, 115 N.C. 166; Broadnax v. Groom, Corp., sec. 1108; High on Extr. Legal Remedies, 2 Ed., sec. 24. In the citation to High on Extr. Legal Remedies, quoted with approval inBoard of Education v. Comrs., 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 (126) 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 as to the performance of any duty required at their hands, or when in reaching a given result of official action they are necessarily obliged to use some degree of judgment and discretion, while mandamus will lie to set them in motion and to compel action upon the matters in controversy, it will in no manner interfere with the exercise of such discretion of control or dictate the judgment or decision which shall be reached." And again, in section 34: "An important distinction to be observed in the outset, and which will more fully appear hereafter, is that between duties which are peremptory and absolute, and hence merely ministerial in their nature, and those which involve the exercise of some degree of official discretion and judgment upon the part of the officers charged with their performance. As regards the latter class of duties, concerning which the officer is vested with discretionary powers, while the writ may properly command him to act or may set him in motion, it will not further control or interfere with this action, nor will it direct him to act in any specific manner."

In the present case it is not alleged that the board of education has refused to act on the question presented, nor even that they have acted arbitrarily. On the contrary, the averment in the complaint relevant to the point is that the board of education "considered the matter and, after some hesitation and delay, refused to endorse and approve the petition," and, from a perusal of the subsequent and additional allegations of the complaint, it will appear that the suit proceeds upon the idea that the duties of the board of education are merely ministerial, being confined to ascertaining if the signers of the petition are resident within the district and whether they constitute two-thirds in number of the resident voters. But, in our opinion, such a position cannot be sustained. In a case like the present, the primary and controlling significance of the word "approve" imports the exercise of judgment. This is true as a matter of linguistic definition and, on reason as well as authority, we must hold that, in requiring as a preliminary essential that the petition shall be "endorsed and approved" by the board, and statute conferred and intended to confer upon that body the power to give or withhold their approval as their judgment may dictate, having regard to the best interest of the community affected (Lane v. Ins. Co.,142 N.C. 55; S v. Smith, 23 Montana, 44; Costner v. Calusa County, 58 Cal., 274-275), the purpose evidently being that, when one of these taxing districts had been formally established, it should not be (127) revoked unless the two interests more directly involved and best acquainted with conditions should concur in the movement to have the same annulled.

The authorities cited in the learned brief of counsel for appellee were cases where the powers conferred were held to be purely ministerial and the right to mandamus was very clearly established.

There was error in overruling the demurrer and, on the record, there should be judgment that defendant go without day.

Reversed.