Rollins v. . Rogers ( 1933 )

Application for writ of mandamus, heard upon demurrer.

Plaintiff is superintendent of public instruction for Vance County. He alleges that he was also elected superintendent of the schools of Henderson Township, special-charter district, for a term beginning 1 July, 1932, and ending 30 June, 1933, at a salary of $600 in addition to his salary as county superintendent. When the school budgets were presented to the defendant board of county commissioners, they declined to approve the item of $600, here in dispute, on the ground that the county was already paying the plaintiff for his full time.

There was no joint meeting of the county board of education and the board of county commissioners in an effort to adjust the difference between them, nor was the clerk of the Superior Court called upon to arbitrate the matter as provided by 3 C. S., 5608.

Plaintiff's application for mandamus to compel the defendants to levy sufficient tax to cover the salary item in dispute was allowed, from which ruling the defendants appeal. Mandamus is available against a board of county commissioners only to compel the board to do something which it is its duty to do without it. The writ confers no new authority. The party seeking it 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 enforced. Neither of these prerequisites has been shown in the instant case. Powers v. Asheville, 203 N.C. 2,164 S.E. 324; Person v. Doughton, 186 N.C. 723, 120 S.E. 481. The writ was improvidently granted.

Reversed.