Branch v. Board of Education of Robeson County , 233 N.C. 623 ( 1951 )

65 S.E.2d 124 (1951) 233 N.C. 623

BRANCH et al.
v.
BOARD OF EDUCATION OF ROBESON COUNTY et al.

No. 670.

Supreme Court of North Carolina.

May 23, 1951.

Malcolm McQueen, Fayetteville, Frank McNeill, Frank D. Hackett, Jr., and Hector McLean, all of Lumberton, for plaintiffs, appellants.

McKinnon & McKinnon and McLean & Stacy, all of Lumberton, for defendants, Robeson County; W. D. Reynolds, County Manager of Robeson County; and L. McK. Parker, Tax Collector of Robeson County, appellees.

E. M. Johnson, Lumberton, for defendant Board of Education of Robeson County, appellee.

Ozmer L. Henry, Lumberton, for defendants Board of Trustees of Lumberton City Administrative Unit and Board of Trustees of Red Springs City Administrative Unit, appellees.

F. W. Floyd, Fairmont, for defendant Board of Trustees of Fairmont City Administrative Unit, appellee.

ERVIN, Justice.

Under the statutes regulating the public school system, city administrative units and county administrative units constitute separate and distinct governmental agencies. General Statutes, sections 115-8, 115-11, 115-56, 115-77, 115-83, 115-128, 115-129, 115-352. The county board of education, as the governing board of the county administrative unit, has control of the school funds of the county administrative unit, and the board of trustees, as the governing board of the city administrative unit, has management of the school funds of the city administrative unit. General Statutes, sections 115-11, 115-128, 115-129, 115-165. This being so, the right to sue for the protection or recovery of the school funds of a particular school administrative unit belongs by necessary implication to the governing board of that unit. 56 C.J., Schools and School Districts, section 894. Indeed, a relevant statute confers upon the county board of education in explicit terms the power to sue for the preservation and recovery of the money or property of the county administrative unit. G.S. § 115-49.

The law is heedful of realities when it fashions rules to regulate the affairs of men. It knows that public officers are sometimes derelict in the performance of official duties. As a consequence, it permits a taxpayer to bring a taxpayer's action on behalf of a public agency or political subdivision for the protection or recovery of the money or property of the agency or subdivision in instances where the proper authorities neglect or refuse to act. The law takes cognizance, however, of the disruptive tendency of officious intermeddling by taxpayers in matters committed to the decision of public officers. Consequently, it decrees that a taxpayer can not bring an action on behalf of a public agency or political subdivision where the proper authorities have not wrongfully neglected or refused to act, after a proper demand to do so, unless the circumstances are such as to indicate affirmatively that such a demand would be unavailing. Hughes v. Teaster, 203 N.C. 651, 166 S.E. 745; Murphy v. City of Greensboro, 190 N.C. 268, 129 S.E. 614; Waddill v. Masten, 172 N.C. 582, 90 S.E. 694; Merrimon v. Southern Paving Company, 142 N.C. 539, 55 S.E. 366, 8 L.R.A., N.S., 574; 20 C.J.S., Counties, § 287; 64 C.J.S., Municipal Corporations, § 2138; 56 C.J., Schools and School Districts, section 913.

It necessarily follows that where a plaintiff undertakes to bring a taxpayer's suit on behalf of a public agency or political subdivision, his complaint must disclose that he is a taxpayer of the agency or subdivision. Hughes v. Teaster, supra; Michigan City v. Marwick, 67 Ind.App. 294, 116 N.E. 434, 119 N.E. 154; Price v. Flannery, 225 Ky. 186, 7 S.W.2d 1067. Moreover, it must allege facts sufficient to establish the existence of one or the other of these alternative requirements: (a) That there has been a demand on and refusal by the proper authorities to institute proceedings for the protection of the interests of the public agency or political subdivision, Hughes v. Teaster, supra; Merrimon v. Paving Company, supra; or (b) that such a demand on such authorities would be useless. Murphy v. City of Greensboro, supra. See, also, in this connection: 52 Am.Jur., Taxpayers' Actions, section 35; 64 C.J.S., Municipal Corporations, § 2164.

The plaintiffs in the case at bar do not sue to protect their individual rights. They attempt to bring a taxpayer's action for the benefit of four separate and distinct school administrative units located in Robeson County. Their complaint does not even allege that they are taxpayers of the three city administrative units. Consequently, it does not appear that they have any interest in the premises entitling them to sue on behalf of the Board of Trustees of the Fairmont City Administrative Unit, the Board of Trustees of the Lumberton City Administrative Unit, or the Board of Trustees of the Red Springs City Administrative Unit. Furthermore, the complaint does not aver that the governing boards of the several school administrative units have ever been requested to take the steps necessary for the proper protection of the interests of such units, and have neglected or refused to do so. Besides, the pleading does not allege facts showing that such a request would be a mere idle ceremony. These things being true, the complaint does not state facts sufficient to constitute a cause of action.

The complaint could not survive the demurrers, however, even if it contained the omitted allegations mentioned in the preceding paragraph. In such event, it would be demurrable for misjoinder of four independent causes of action belonging to four separate governmental agencies, to-wit, the Board of Education of Robeson County, the Board of Trustees of the Fairmont City Administrative Unit, the Board of Trustees of the Lumberton City Administrative Unit, and the Board of Trustees of the Red Springs City Administrative Unit. Lillian Knitting Mills Co. v. Earle, 233 N.C. 74, 62 S.E.2d 492. The complaint does not intimate that there is any controversy in regard to the respective shares of the several school administrative units in the capital reserve fund.

For the reasons given, the judgment sustaining the demurrers and dismissing the action is

Affirmed.