SMITH
v.
HEFNER et al.
No. 602.
Supreme Court of North Carolina.
February 1, 1952.*786 George S. Steele, Rockingham and Gavin, Jackson & Gavin, Sanford, for plaintiff, appellant.
Bynum & Bynum, Rockingham, for defendants, appellees.
JOHNSON, Justice.
The statutory machinery for the operation of the public school system of this State is codified in Chapter 115 of the General Statutes of North Carolina.
G.S. § 115-8 sets up two coordinate classes of local administrative units: (1) county units and (2) city administrative units. By the provisions of this statute each county of the State is designated a county administrative unit, the schools of which, except in city administrative units, are placed under the general supervision and control of a county board of education with a county superintendent as the administrative officer. The statute defines a city administrative unit as an area, within a county, comprising a school population of 1,000 or more, which has been or may be approved by the State Board of Education as such unit for the purposes of school administration. The statute also places the general administration and supervision of a city administrative unit under the control of a board of trustees or school commissioners with a city superintendent as the administrative officer.
G.S. § 115-56 confers upon county boards of education, subject to paramount powers vested in the State Board of Education or other authorized agencies, general powers of control and supervision over the operation of the public schools in their respective *787 counties, except in respect to city administrative units which by the provisions of G.S. § 115-352, as amended, 1951 Cumulative Supplement, are required to be dealt with by the state school authorities in all matters of school administration independent of and in the same manner as are county administrative units. See also G.S. §§ 115-352, 115-353, 115-77, 115-81, and 11582.
By the provisions of G.S. § 115-45 the board of education of each county is constituted a body corporate and made "capable of * * * prosecuting and defending suits for or against the corporation."
However, our examination of the statutory machinery governing the operation of the public school system of the State, G.S. §§ 115-1 through 115-394 and the amendments thereto, reveals no reference to any statutory right to sue the trustees of a city administrative school unit.
It is an established principle of jurisprudence, resting on grounds of sound public policy, that a state may not be sued in its own courts or elsewhere unless by statute it has consented to be sued or has otherwise waived its immunity from suit. Schloss v. State Highway and Public Works Commission, 230 N.C. 489, 53 S.E.2d 517; Dalton v. State Highway and Public Works Commission, 223 N.C. 406, 27 S.E.2d 1; Prudential Insurance Co. v. Powell, 217 N.C. 495, 8 S.E.2d 619; Rotan v. State, 195 N.C. 291, 141 S.E. 733; Calkins Dredging Co. v. State, 191 N.C. 243, 131 S.E. 665; Carpenter v. Atlanta & C. A. L. Railway Co., 184 N.C. 400, 114 S.E. 693; 49 Am.Jur., States, Territories, and Dependencies, Sec. 91; Annotations: 42 A.L.R. 1464, 50 A.L.R. 1408.
By application of this principle, a subordinate division of the state, or agency exercising statutory governmental functions like a city administrative school unit, may be sued only when and as authorized by statute. Kirby v. Stokes County Board of Education, 230 N.C. 619, 55 S.E.2d 322; Wallace v. Board of Trustees, 84 N.C. 164; Smith v. School Trustees, 141 N.C. 143, mid. p. 153, 53 S.E. 524; Burgin v. Smith, 151 N.C. 561, mid. page 567, 66 S.E. 607; Jones v. Commissioners of Franklin County, 130 N.C. 451, mid. page 452, 42 S.E. 144; Moody v. State's Prison, 128 N.C. 12, 38 S.E. 131, 53 L.R.A. 855. See also McIntosh, North Carolina Practice and Procedure, p. 229.
It follows, therefore, that since there has been no statutory removal of the common law immunity from suit of the Trustees of the Hamlet City School Administrative Unit, the demurrer interposed by them as such trustees was properly sustained by Judge Clement.
Accordingly, we do not reach for decision the question, discussed in the briefs, as to whether, assuming the existence of general authority to sue a local agency of government like a city administrative school unit, such authority would extend only to such actions as are essentially incidental to the operation of the agency, and exclude causes of action sounding in tort. Suffice it to say, the decided weight of authority supports the view that an administrative school unit or school district may not be held liable for torts committed by its trustees or employees. Benton v. Board of Education, 201 N.C. 653, 161 S.E. 96; 47 Am.Jur., Schools, Sec. 56; Annotation: 160 A.L.R. 7, pages 17, 37, 38 and 40.
We come now to review the action of the court below in sustaining the demurrer interposed by the School Trustees and Park Commissioners as individuals.
It is settled law in this jurisdiction that a public official, engaged in the performance of governmental duties involving the exercise of judgment and discretion, may not be held personally liable for mere negligence in respect thereto. The rule in such cases is that an official may not be held liable unless it be alleged and proved that his act, or failure to act, was corrupt or malicious, Miller v. Jones, 224 N.C. 783, 32 S.E.2d 594; Hipp v. Ferrall, 173 N.C. 167, 91 S.E. 831; Templeton v. Beard, 159 N.C. 63, 74 S.E. 735, or that he acted outside of and beyond the scope of his duties. Gurganious v. Simpson, 213 N.C. 613, 197 S.E. 163. And, while an employee of an agency of government, *788 as distinguished from a public official, is generally held individually liable for negligence in the performance of his duties, nevertheless such negligence may not be imputed to the employer on the principle of respondeat superior, when such employer is clothed with governmental immunity. Miller v. Jones, supra. See also 23 NCLR, p. 270 et seq.
In the instant case the School Trustees and Park Commissioners were engaged in official, administrative acts involving the exercise of discretion at the times laid in the complaint. It is not alleged that their conduct was either corrupt or malicious. Nor does it appear that they were acting beyond the scope of their duties as such trustees and commissioners. Under the modern concept of public education, which recognizes the necessity of ministering to the physical as well as the mental needs of school children, an athletic field for games and exhibitions, with grandstand or other seating facility, is an essential part of the physical plant of a well integrated school unit. This being so, the action of the School Trustees and Park Commissioners in providing for the erection of a grandstand may not be treated as an activity beyond the scope of their duties as such public officials. Nor is their position rendered less immune from liability by reason of the fact that the athletic field had been leased "for a monetary consideration and for profit and gain." Here, it is observed (as part of the allegations of the complaint), that in leasing the field to the League Baseball Club, the parties "reserved for the benefit of the Hamlet City School Administrative Unit * * * the use of said park and first-refusal to its use, and it was agreed that the * * * Baseball Club should check with the parties * * and work out a schedule to avoid a conflict in games, plays and exhibitions." See Boney v. Board of Trustees of Kinston Graded Schools, 229 N.C. 136, 48 S.E.2d 56.
It thus appears that in leasing the athletic field to the League Baseball Club so as to provide monetary benefits for the City Administrative School Unit, the School Trustees and Park Commissioners nevertheless reserved the primary use of the field for the school children and their sports activities. Accordingly, the action of these officials in so leasing the athletic field may not be interpreted as abridging their ordinary governmental immunity from suit.
It follows, therefore, that the court below properly sustained the demurrer interposed by the School Trustees and Park Commissioners in their individual capacities.
The judgment below is affirmed.