Edwards v. Board of Education of Yancey County ( 1952 )

70 S.E.2d 170 (1952) 235 N.C. 345

EDWARDS et al.
v.
BOARD OF EDUCATION OF YANCEY COUNTY et al.

No. 164.

Supreme Court of North Carolina.

April 9, 1952.

Bill Atkins and R. W. Wilson, Burnsville, for plaintiffs, appellees.

C. P. Randolph and W. E. Anglin, Burnsville, for defendants, appellants.

ERVIN, Justice.

The legal questions arising on this appeal have been unduly complicated and obscured by the manner in which the action has been brought and developed. The issues involved appear in simpler guise if the judicial gaze is focused on certain significant matters at the outset.

The plaintiffs seek the aid of equity. They ask an injunction requiring the defendants to refrain from doing a particular thing. There are only two defendants. They are the Board of Education of Yancey County, and Frank W. Howell, the Superintendent of Public Instruction of Yancey County. The Board of Education of Yancey County is a body corporate which acts through three members. G.S. § 115-37; G.S. § 115-45; 1951 Session Laws, Ch. 256, Sec. 1. Howell is not a member of the board, and is not in control of the act sought to be enjoined. He is simply secretary of the board. G.S. § 115-105.

Since the county board of education is a corporate body, it necessarily has a legal existence separate and apart from its members. Crabtree v. Board of Education, 199 N.C. 645, 155 S.E. 550. But the board can exercise the powers conferred upon it by law only at a regular or special meeting attended by at least a quorum of its de jure or de. facto members. Kistler v. Board of Education, 233 N.C. 400, 64 S.E.2d 403; Crabtree v. Board of Education, supra. The statute creating the county board of education does not specify in terms the number of members competent to transact its corporate business in the absence of other members. As a consequence, the common law rule that a majority of the whole membership is necessary to constitute a quorum applies. Hill v. Ponder, 221 N.C. 58, 19 S.E.2d 5. The county board of education becomes incapable of performing its corporate functions whenever vacancies reduce its membership below the number required to constitute a quorum. 56 C.J., Schools and School Districts, section 209. In order to obviate the legal paralysis incident to such an eventuality and to maintain the county board of education at its full membership, the legislature has expressly authorized county executive committees of political parties and the State Board of Education to fill vacancies occurring in the membership of the board. G.S. § 115-42.

The complaint in the instant case endeavors to state two grounds for injunctive relief.

It asserts initially that the plaintiffs are taxpaying citizens and residents of Yancey County; that they sue on behalf of all taxpayers of Yancey County; that the Board of Education of Yancey County is about to make a contract for the construction of a consolidated high school building at Burnsville; that the Board of Commissioners of Yancey County has refused to provide funds for the construction of the building, and by reason thereof no public money whatever is available for its erection; and that the proposed contract, if made, will offend G.S. § 115-84, which provides, in essence, that a county board of education has no authority to contract for the construction of a new schoolhouse costing more than the "money * * * available for its erection." It prays an injunction restraining the county board of education and the county superintendent of public instruction from making the proposed contract for the construction of the consolidated high school.

Manifestly these allegations are designed by the plaintiffs to state facts entitling them as taxpayers of Yancey County to maintain an action to enjoin the county board of education as a corporate body from entering into an unauthorized and illegal contract for a public improvement. Sessions v. Columbus County, 214 N.C. 634, 200 S.E. 418; Palmer v. Haywood County, 212 N.C. 284, 193 S.E. 668, 113 A.L.R. 1195; 52 Am.Jur., Taxpayers' Actions, section 17; 43 C.J.S., Injunctions, § 112.

When the plaintiffs are put to their proof, it appears that their allegata and their probata, like Maud Muller's verbs and nouns, do not agree.

The evidence and the findings establish these propositions: That the county board of education consolidated the five existing high schools into one county-wide high school with the approval of the State Board of Education in conformity with G.S. § 115-99. That the plans for the new school building to house the consolidated high school have been approved by the State Superintendent of Public Instruction. That public moneys are available for the erection of the new consolidated high school building in accordance with those plans. That such moneys were not furnished by the county commissioners or the taxpayers of Yancey County, but, on the contrary, they were allocated to the county board of education from a State fund known as the "School Plant Construction, Improvement and Repair Fund", which was appropriated by chapters 1020, 1249, and 1295 of the 1949 Session Laws of North Carolina for expenditure and disbursement "under the direction and supervision of the State Board of Education for the construction, improvement, and repair of school plant facilities." That the State Board of Education has consented for the county board of education to use the moneys thus allocated to it for the erection of the new consolidated high school building.

These things being true, the county board of education is vested with plenary power by G.S. § 115-84 to contract for the erection of the consolidated high school building. Consequently the plaintiffs have failed to prove the first ground invoked by them as a basis for injunctive relief. Equity will not enjoin a county board of education from exercising its governmental functions in a manner authorized by a valid law. Kistler v. Board of Education, supra; Messer v. Smathers, 213 N.C. 183, 195 S.E. 376; Clark v. McQueen, 195 N.C. 714, 143 S.E. 528; McInnish v. Board of Education, 187 N.C. 494, 122 S.E. 182; Davenport v. Board of Education, 183 N.C. 570, 112 S.E. 246; Pemberton v. Board of Education, 172 N.C. 552, 90 S.E. 578; Newton v. School Committee, 158 N.C. 186, 73 S.E. 886; Pickler v. Board of Education, 149 N. C. 221, 62 S.E. 902; Venable v. School Committee, 149 N.C. 120, 62 S.E. 902; Smith v. School Trustees, 141 N.C. 143, 53 S.E. 524, 8 Ann.Cas. 529.

We deem it advisable to note at this juncture that the plaintiffs have not shown any interest entitling them to maintain an action to enjoin the expenditure of State moneys. They neither allege nor prove that they are taxpayers of the State. Branch v. Board of Education, 233 N.C. 623, 65 S.E.2d 124; Huges v. Teaster, 203 N.C. 651, 166 S.E. 745. We ignore this objection, however, in reaching our conclusion on the present phase of the case because it could undoubtedly be removed by additional allegation and evidence.

The complaint alleges these things as a second ground for the injunctive relief sought:

That Jobe Thomas, Mark W. Bennett, and R. A. Radford are undertaking to exercise the functions of members of the county board of education, and to bind the board by the proposed contract, whose execution the plaintiffs seek to enjoin. That on the first Monday in April, 1951, Bennett duly qualified as a member of the county board of education for a term of two years; that on July 5, 1951, he accepted the post of mayor of the Town of Burnsville without relinquishing his membership on the county board of education; and that ever since he has been discharging the duties of the mayoralty as well as those of a member of the county board of education. That on or about August 31, 1951, Radford, who was then United States Postmaster at Cane River, North Carolina, was appointed a member of the county board of education for an unexpired term lasting until the next regular session of the General Assembly; that he forthwith undertook to qualify as a member of the county board of education for such unexpired term without surrendering the postmastership; and that ever since he has been discharging the duties of a member of the county board of education as well as those of postmaster.

The evidence and the findings establish the truth of these allegations.

The plaintiffs and the defendants take different legal positions on this aspect of the case. The plaintiffs assert that Bennett and Radford are mere usurpers in law, and by reason thereof are not members of the county board of education at all or for any purpose. State v. Shuford, 128 N.C. 588, 38 S.E. 808; Van Amringe v. Taylor, 108 N.C. 196, 12 S.E. 1005, 12 L.R.A. 202, 23 Am. St. Rep. 51; Norfleet v. Staton, 73 N.C. 546. The defendants insist that they are at least de facto members of the county board of education, and in consequence can not be prevented by injunction from exercising the functions of such offices pending direct proceedings in the nature of quo warranto to determine their titles thereto. In re Wingler, infra; Crabtree v. Board of Education, supra; Rogers v. Powell, 174 N.C. 388, 93 S.E. 917; Patterson v. Hubbs, 65 N.C. 119.

A member of the county board of education holds a public office under the State. Greene v. Owen, 125 N.C. 212, 34 S.E. 424; Barnhill v. Thompson, 122 N.C. 493, 29 S.E. 720. The like observation applies to the mayor of a municipality, for he is the official head of a political subdivision of the State and performs duties under State Laws. State v. Thomas, 141 N.C. 791, 53 S.E. 522. A postmaster holds an office under the United States. McGregor v. Balch, 14 Vt. 428, 39 Am.Dec. 231. It appears, therefore, that recourse must be had to the rules of law governing double office holding for the determination of the relationships which Bennett and Radford sustain to the county board of education.

The holding of more than one office is expressly prohibited by Article XIV, section 7, of the North Carolina Constitution, which makes this declaration: "No person who shall hold any office or place of trust or profit under the United States, or any department thereof, or under this State, or under any other state or government, shall hold or exercise any other office or place of trust or profit under the authority of this State, or be eligible to a seat in either house of the General Assembly: Provided, that nothing herein contained shall extend to officers in the militia, justices of the peace, commissioners of public charities, or commissioners for special purposes."

This constitutional inhibition against double office holding is enforced in alternative ways, depending on whether the first office is a state or a federal office.

1. Where one holding a first office under the State violates Article XIV, section 7, of the North Carolina Constitution by accepting a second office under either the State or the United States without surrendering the first office, he automatically and instantly vacates the first office, and he does not thereafter act as either a de jure or a de facto officer in performing functions of the first office because he has neither right nor color of right to it. State ex rel. McIntosh v. Long, 186 N.C. 516, 120 S.E. 87; Whitehead v. Pittman, 165 N.C. 89, 80 S.E. 976. See, also, in this connection: In re Advisory Opinion (In re Phillips), 226 N.C. 772, 777, 39 S.E.2d 217; Hill v. Ponder, supra; In re Barnes, 212 N.C. 735, 194 S.E. 499; Harris v. Watson, 201 N.C. 661, 161 S.E. 215, 79 A.L.R. 441; State v. Wood, 175 N.C. 809, 95 S.E. 1050; Midgett v. Gray, 158 N.C. 133, 135, 73 S.E. 791; Id., 159 N.C. 443, 445, 74 S.E. 1050; Barnhill v. Thompson, supra.

2. Where one holding a first office under the United States violates Article XIV, section 7, of the North Carolina Constitution by accepting a second office under the State without surrendering the first office, his attempt to qualify for the second office is absolutely void, and he does not act as either a de jure or a de facto officer in performing functions of the second office because he has neither right nor color of right to it. State ex rel. Wimberly v. Barham, 173 La. 488, 137 So. 862, affirming State ex rel. White v. Mason, 17 La. App. 504, 133 So. 809; State ex rel. Wimberly v. Barham, 17 La.App. 527, 133 So. 812, and State ex rel. Gray v. Pipes, 17 La.App. 502, 133 So. 812.

The necessity for the alternative ways of enforcing the constitutional prohibition of dual office holding is revealed by these remarks of the Supreme Court of Indiana: "It is doubtless the general rule that where a man accepts an office held under the state, he vacates another held under the same sovereignty. * * * There is reason for the rule where the offices emanate from the same government, but none where the offices are created by different governments. * * * Where, as here, a man elected to a state office persists in retaining a federal office, actually remains in it, enjoying its emoluments, and discharging its duties, he does not, in legal contemplation, and certainly not in fact, vacate it by entering into an office existing under the law of the state, and for this plain reason: the laws of the state do not operate upon federal offices. Our laws do not extend to offices created by the general government, and no act that an officer acting under our laws can do can vacate an office upon which our laws do not operate." Foltz v. Kerlin, 105 Ind. 221, 4 N.E. 439, 441, 5 N.E. 672. See, also, 67 C.J.S., Officers, § 23.

Our conclusions do not conflict with the decision in Re Wingler, 231 N.C. 560, 58 S.E.2d 372, 376. But the general observation in the opinion in that case that one may be "a judge de facto * * * although he holds incompatible offices" is too broad, and is modified so as to conform to the views here expressed. The case at bar is distinguishable from Berry v. Payne, 219 N.C. 171, 13 S.E.2d 217, where the plaintiffs were estopped by their conduct from asserting that the occupants of the municipal officers were mere usurpers.

We are aware that our conclusions on the present phase of the controversy are not in harmony with those reached by some courts in other jurisdictions in somewhat similar cases. 100 A.L.R. 1187-1189. We can not abandon them, however, without disavowing State ex rel. McIntosh v. Long, supra, and Whitehead v. Pittman, supra. Besides, they are calculated to prevent the nullification of the constitutional ban on double office holding.

What has been said impels the adjudication that Bennett and Radford are neither de jure nor de facto members of the county board of education. They are mere usurpers, and their acts are utterly void, both as to the public and as to individuals. In re Wingler, supra.

Notwithstanding this, the judge erred in continuing the restraining order to the final hearing. Undoubtedly an injunction will lie in a properly constituted case to prevent a waste of public funds by usurpers. But this is not such a case. The plaintiffs have the wrong sow by the ear. They do not sue the usurpers to enjoin them from doing an illegal act. They sue the county board of education to restrain it from doing a lawful act. As ground for the relief prayed by them, they show that vacancies exist in two of the three posts on the board, and that as a result the board is totally incapacitated to do the act which they seek to prevent it from doing.

The law affords a sure and speedy cure for the legal paralysis inflicted upon a county board of education by vacancies which reduce its membership below the number required to constitute a quorum. The vacancies can be filled in the summary manner prescribed by G.S. § 115-42. Moreover, usurpers can be removed from public offices by judgments of ouster in direct proceedings in the nature of quo warranto. G.S. §§ 1-515 to 1-530; Barnhill v. Thompson, supra.

The order continuing the restraining order to the final hearing is reversed.