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Attorney(S)

J. W. Haynes for plaintiffs, appellants. Claude L. Love for County Board of Education. Brandon P. Hodges and R. R. Williams for Board of County Commissioners.

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Opinion Summary: Leicester School District Taxpayers v. Board of Education and County Officials (Supreme Court of North Carolina, filed June 22, 1938)

Factual and Procedural Background

Certain citizens and taxpayers of the Leicester School District in Buncombe County filed an application for a writ of mandamus against the Buncombe County Board of Education and the Buncombe County Board of Commissioners (and named county officials). Plaintiffs alleged that the existing school building was inadequate, in disrepair, and unsafe with respect to fire protection; they asserted that a new school building of twenty-four or more rooms, properly equipped, was necessary. The complaint alleged that approximately five hundred school children were being taught on the first floor and in small outbuildings around the school grounds, while two hundred high school and other pupils were transported 14 miles to another school. Plaintiffs sought to compel the erection and equipment of adequate school facilities and to compel a county-wide ad valorem tax levy sufficient to fund construction and equipment.

At the superior court (January Term, 1938), the defendants demurred ore tenus, arguing that plaintiffs lacked a clear legal right to mandamus, had adequate alternative remedies, and that the duties alleged involved discretion. The trial court sustained the demurrer, concluding the complaint did not state a cause of action entitling plaintiffs to mandamus at the present status of the proceedings. Plaintiffs appealed. The Supreme Court of North Carolina, in an opinion by Justice Devin, affirmed the judgment of the court below (modified), and noted that Justices Clarkson, Barnhill, and Seawell dissented (their dissent is recorded but not elaborated in the provided opinion).

Legal Issues Presented

Whether a writ of mandamus may be used to compel the county board of education and the county board of commissioners to provide adequate school buildings and equipment and to compel the levy of an ad valorem tax to fund such construction.
Whether the plaintiffs possess a clear legal right to demand mandamus relief under the circumstances alleged.
Whether mandamus may be issued prior to the completion of the statutory procedures (including the filing of a capital outlay budget in June under ch. 394, Public Laws 1937) and before the defendants have had reasonable time, as provided by statute, to investigate and supply necessary funds.

Arguments of the Parties

Plaintiffs' Position

Plaintiffs alleged the existing school building was inadequate, unsafe, and insufficient to serve the district's needs (including overcrowding and inadequate facilities for fire protection).
They asserted that construction and proper equipment of a new large school building (24 or more rooms) was necessary and that the defendants had failed and refused to provide such facilities or funding.
On this factual showing, plaintiffs sought a writ of mandamus to compel the boards to act and to compel an ad valorem tax levy to fund the construction and equipment.

Defendants' Position

Defendants demurred ore tenus, contending that plaintiffs did not have a clear legal right to mandamus relief.
They argued plaintiffs had an adequate legal remedy (i.e., mandamus was not the appropriate or exclusive remedy asserted).
Defendants asserted that the duties alleged involved discretion on the part of the boards and thus were not the proper subject of mandamus at that time.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rollins v. Rogers, 204 N.C. 308, 168 S.E. 206	Establishes that mandamus is available against a board of county commissioners and county boards of education to compel ministerial duties; requires petitioners to have a clear legal right.	The Court relied on this case to confirm that mandamus is an available remedy in appropriate circumstances but only when petitioners possess a clear and established legal right.
John v. Allen, 207 N.C. 520, 177 S.E. 634	Same general principle: mandamus available against county officials for ministerial duties and requiring a clear legal right.	Used to support the proposition that petitioners must demonstrate a clear legal right and that the board must be under a legal obligation to act.
Hayes v. Benton, 193 N.C. 379, 137 S.E. 169	Makes clear the writ will not be issued to enforce a right that is in doubt.	Cited to support the Court's view that mandamus will not be granted where the asserted legal right is uncertain or not clearly established.
Cody v. Barrett, 200 N.C. 43, 156 S.E. 146	Also supports that mandamus will not be issued to enforce doubtful rights; cited regarding statutory procedure for school outlay budgeting.	Invoked both to show the caution in awarding mandamus where rights are doubtful and to reinforce the statutory budgetary procedure to be followed (filing capital outlay budgets in time for tax levies).
Powers v. Asheville, 203 N.C. 2, 164 S.E. 324	Reinforces that mandamus will not be used to enforce rights that are doubtful.	Used for the same limiting principle on the issuance of mandamus where the legal right is not clear.
Wilkinson v. Board of Education, 199 N.C. 669, 155 S.E. 562	Defines the function of mandamus: to compel performance of an already established ministerial duty, not to establish a new legal right; the right sought must be clear and complete.	The Court quoted this proposition to emphasize that plaintiffs must show an established, not merely asserted, right before mandamus may issue.
Board of Education v. Board of Commissioners, 178 N.C. 305, 100 S.E. 698	Cited in the context of the statutory procedure and timing for filing budgets and including capital outlay in ad valorem tax computations.	Relied upon to show existing precedent for the statutory timetable and procedural requirements (e.g., approval process and inclusion in tax computations).

Court's Reasoning and Analysis

The Court began by restating established legal principles: mandamus lies to compel ministerial duties of county boards (including county commissioners and county boards of education) but only when petitioners have a clear legal right and the duty to be enforced is a legal (not discretionary) obligation. The Court emphasized that mandamus is not a device to establish rights that are in doubt and quoted authority defining the writ as a means to enforce an already established ministerial duty.

The Court then turned to statutory procedure relevant to the relief sought. It observed that statutes in force prescribed the procedure for authorizing construction of school buildings and a corresponding tax levy: the county board of education must file a "capital outlay" budget (in addition to an "operating" budget) with the proper taxing authorities, and, when proceeding under chapter 394 of the Acts of 1937, the matter must be submitted to the State School Commission. This budgeting and approval process is required to be completed in June each year so that any necessary outlay can be included in the computation and levy of ad valorem taxes (citing ch. 394, Acts 1937, and prior decisions).

The Court concluded that, because the application for mandamus was presented in January Term, 1938, the record did not permit a determination that the defendants would fail to pursue the proper statutory course at the proper time. The statutes also provide that county commissioners shall be given reasonable time to investigate and supply necessary funds (C. S., 5467) and that the board of education may not invest money in any new building that is not built according to plans approved by the State Superintendent or for more funds than are available (C. S., 5468). These statutory limits and procedures made it inappropriate for the court to compel action by mandamus at that stage.

The Court further reasoned that if, at the proper time and after following prescribed procedures, the defendants refused to act or if funds and authority were presently available so that immediate relief could be compelled, the legal question might be different. But given the record, and the fact that local authorities are charged with exercising judgment about repair versus new construction, the matter fell within the scope of administrative discretion and/or the statutory process at that time.

The Court expressly left open plaintiffs' right to renew their application for mandamus if later circumstances warrant court intervention.

Holding and Implications

Holding: The judgment of the superior court sustaining the defendants' demurrer and refusing mandamus relief at that time was affirmed (as modified to allow plaintiffs to renew the application if circumstances later warrant).

Direct implications:

The plaintiffs' application for a writ of mandamus was denied at the present stage because they did not show a clear, presently enforceable legal right nor that statutory procedures had been exhausted or improperly refused.
The Court emphasized that statutory procedures (including filing a capital outlay budget in June under ch. 394, Acts 1937) and statutory safeguards (C. S., 5467 and C. S., 5468) must be observed before mandamus can be invoked to compel school construction and tax levies.
Plaintiffs remain free to renew their application for mandamus if, at the appropriate time and after statutory procedure has been afforded, circumstances demonstrate that the defendants refuse to comply or that immediate action is legally enforceable.

Broader implications: The Court applied existing precedent and statutory requirements; the opinion enforces the principle that mandamus is a remedy to compel established ministerial duties and is not available to bypass or preempt statutory procedures or to resolve questions that remain within the scope of local discretion. The opinion does not announce a new broad legal rule beyond these applications of established law.

Additional Notes

The opinion records a dissent by Justices Clarkson, Barnhill, and Seawell, but the provided opinion does not include the substance of their disagreement.

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S. M. MEARS, W. O. ROBERSON, P. J. MILLER, L. R. HAWKINS, M. C. SLUDER, D. M. SNELSON, S.C. TEAGUE, CLYDE SALES, O. M. MORGAN, L. M. DAVIS, ARTHUR BROWN, R. N. BROOKSHIRE, A. J. TEAGUE, C. C. GIBBS, H. M. MORGAN, L. C. JONES, C. D. WEST, J. W. HUTCHINSON, D. J. GADDY, W. A. COLE, MILLARD SHOOK, R. W. SHOOK, FLOYD SHOOK, L. A. SLUDER, L. L. WEST, W. F. ROBERSON, T. M. MARTIN, R. L. GILLESPIE, CLYDE MOSS, L. C. BROOKS, R. B. ROGERS, W. C. ROGERS, J. R. TEAGUE, P. V. REEVES, RED PENLAND, C. M. GILLESPIE, AND CHARLESTON COLE, FOR AND ON BEHALF OF THEMSELVES AND ALL OTHER TAXPAYERS OF LEICESTER SCHOOL DISTRICT OF BUNCOMBE COUNTY, NORTH CAROLINA, THAT WISH TO MAKE THEMSELVES PARTIES TO THIS ACTION, v. THE BOARD OF EDUCATION OF BUNCOMBE COUNTY, NORTH CAROLINA, A BODY CORPORATE; AND C. J. EBBS, B. E. MORGAN, J. C. RICH, WORTH McKINNEY, JAMES S. HOWELL, T. L. MANEY, AND A. O. MOONEYHAM, MEMBERS OF SAID BOARD OF EDUCATION; AND THE COUNTY OF BUNCOMBE, AND H. GRADY REAGAN, CHAIRMAN AND COMMISSIONER OF FINANCE; H. L. PARKER, COMMISSIONER OF PUBLIC INSTITUTIONS; AND JOHN C. VANCE, COMMISSIONER OF HIGHWAYS.

1. Mandamus § 1 —

Mandamus will lie against a board of county commissioners, as well as a board of county education, but the writ will lie only to compel the performance of an established legal duty at the instance of those having a clear legal right to demand performance.

2. Mandamus § 2c —

Mandamus will lie to compel the performance of a legal duty only in accordance with the procedure therefor established by law.

3. Schools § 26 — Procedure for obtaining appropriation and tax levy for adequate school buildings.

In order to provide new necessary school buildings it is required that the county board of education file a "capital outlay" budget in addition to the "operating" budget, and have same approved in accordance with the statutory procedure in June of the year in time for the inclusion of the necessary outlay in the computation and levy of ad valorem taxes, ch. 394, Public Laws of 1937, and it is provided that the county commissioners shall be given reasonable time to investigate and provide the necessary funds, C. S., 5467, and that the board of education shall not be authorized to erect any building that is not in accordance with plans approved by the State Superintendent, nor invest more money therein than is made available for its erection. C. S., 5468.

4. Same: Mandamus § 2c — Mandamus will not lie to compel performance of legal duty prior to time statutes require such duty to be performed.

An application for writ of mandamus against the board of county commissioners and the county board of education to compel the erection of necessary school buildings, is properly dismissed at the January Term of the Superior Court, since it may not then be determined that defendants will not pursue the proper statutory procedure at the proper time to provide the necessary buildings, but plaintiffs should not be precluded from renewing their application for the writ if circumstances should later appear to warrant the relief.

CLARKSON, BARNHILL, and SEAWELL, JJ., dissent.

This was an application for writ of mandamus by certain citizens and taxpayers of Leicester School District to compel the board of education and the board of county commissioners of Buncombe County to provide adequate school building and equipment in said school district, and to compel the levy of an ad valorem tax on all property in the county sufficient to provide funds for the construction and equipment of said building. It is alleged that the present building is inadequate, out of repair, and unsafe from the standpoint of fire protection, and that a school building to contain twenty-four or more rooms, properly equipped, is necessary. It is also alleged that some five hundred school children of said district are being taught on the first floor of said building and in smaller buildings in and around the school grounds, while two hundred high school and other pupils are transported fourteen miles to another school, and that the defendants have failed and refused to provide for the construction and equipment of adequate school buildings for said district.

The defendants demurred ore tenus, on the ground that the petitioners do not have a clear legal right to mandamus in this case, that petitioners have adequate legal remedy, and that the duties alleged in the complaint are in the discretion of defendants.

The following judgment was rendered: "Upon a careful study and consideration of the pleadings, the oral arguments of counsel, the briefs filed and authorities cited, the court being of opinion that the complaint does not state such a cause of action as would at the present status of the proceedings entitle plaintiffs to a remedy by mandamus, it is therefore considered and adjudged that the said demurrer ore tenus be and it is sustained."

Plaintiffs appealed.

DEVIN, J.

It has been established by the decisions of this Court that mandamus is available against a board of county commissioners, as well as a county board of education, to compel the performance of a ministerial duty obligatory upon the board. 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. 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.

Likewise, the court may not be called upon to issue the writ of mandamus to require public officials to perform an act otherwise than in accordance with the procedure therefor established by law. The statutes now in force prescribe the procedure by which the construction of adequate school buildings and the levy of tax therefor may be authorized, that is, by the filing by the board of education of a "capital outlay" budget, as well as an "operating" budget, with the proper taxing authorities, and, upon approval, submission to the State School Commission when proceeding under ch. 394, Public Laws 1937. This is required to be done in June each year, in time for the inclusion of the necessary outlay in the computation and levy of ad valorem taxes. Ch. 394, Acts 1937; Board of Education v. Board of Commissioners, 178 N.C. 305, 100 S.E. 698; Cody v. Barrett, supra. The Court cannot now determine that this course will not be pursued at the proper time by the defendants, and adequate provision made to supply the needs of the school district. 38 C.J., 581. The court below ruled "that the complaint does not state such a cause of action as would at the present status of the proceedings entitle plaintiffs to the remedy by mandamus." The application for the writ of mandamus was presented to the court at January Term, 1938, and the judgment appealed from was rendered at that time. On the record before us, we think the ruling of the judge below must be upheld.

While school buildings and their proper equipment are declared by statute to be necessary for the maintenance of the six months' school term, it is provided that the county commissioners shall be given reasonable time to supply the funds found upon investigation to be necessary (C. S., 5467), and it is further provided that "the board (of education) shall not be authorized to invest any money in any new house that is not built in accordance with plans approved by the State Superintendent, nor for more money than is made available for its erection." C. S., 5468.

If it appeared that the building was necessary and that the board of education and the board of commissioners of Buncombe County, at the proper time and in accord with the procedure prescribed by law, had refused to take any action, and that the desired result could be accomplished by means presently available to these defendants, a different question would be presented. If the defendants are proceeding in the most expeditious manner, in good faith, to supply the needs of the school, the present status would not present a case for the interference of the courts. Whether, under the circumstances, as stated in the argument, it would be wiser to repair the present building or construct a new one, becomes a matter for the exercise of sound judgment on the part of the local authorities who are charged with responsibility to provide adequate facilities for public education in this district.

To this end, the plaintiffs should not be precluded from further proceeding in the matter, if the circumstances should appear to warrant renewal of the application for the exercise of the mandatory power of the court.

As thus modified, the judgment of the court below is

Affirmed.