Key v. . Board of Education

Hoije, J.,

after stating the case: The statute authorizing the formation of these special school districts, Eevisal, 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, 64 N. C., 244; Atty.-Gen. v. Justices, 27 N. C., 315; Abbott on Mun. Corp., sec. 1108; High on Extr. Legal Eemedies, 2 Ed., sec. 24. In the citation to High on Extr. Legal Eemedies, quoted with approval in Board of Education v. Gomrs., 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 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 or 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, the 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 revoked unless tbe 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.

Eeversed.