In Re Carter

137 S.E.2d 150 (1964) 262 N.C. 360

In the Matter of Anne Royal CARTER.

No. 457.

Supreme Court of North Carolina.

July 10, 1964.

John T. Manning, Chapel Hill, for petitioner appellant.

T. W. Bruton, Atty. Gen., and Ralph Moody, Deputy Atty. Gen., for respondent appellee.

PARKER, Justice.

Petitioner assigns as error Judge Williams' order in that it is broader than the show cause order, and includes "a re-examination of questions and issues of fact and law on which Judge Clark's order was based, and it modifies, reverses, and sets aside in part the lawful final order of Judge Clark duly entered on December 28, 1962, and to which latter order neither petitioner nor respondent objected, excepted or appealed."

Petitioner further assigns as error Judge Williams' order, in that it did not grant her the relief she sought in her motion and the show cause order based thereon.

The only question before Judge Williams at the hearing on the show cause order was for respondent to appear before him and show cause, if it can, "why the record in this matter should not be returned to the court, and an order, pursuant to G.S. § 143-315, be issued by the court reversing the Women's Honor Council and the suspension of the petitioner, Anne Royal Carter, and directing the correction of the University records accordingly and such other and further action as may be taken by the court in the premises." Williamson v. High Point, 214 N.C. 693, 200 S.E. 388; Carroll v. Warrenton Tobacco Board of Trade, 259 N.C. 692, 131 S.E.2d 483; Boyd v. Louisville & Jefferson County Planning and Zoning Com., 313 Ky. 196, 230 S.W.2d 444; 60 C.J.S. Motions and Orders §§ 20, 39b, 53; 37 Am.Jur., Motions, Rules and Orders, § 38.

Petitioner's motion for a show cause order asks for specific relief and that other appropriate relief should be taken by the court in the premises, and the show cause order commands respondent to appear before him and show cause, if it can, why the specific relief therein set forth should not be granted, "and such other and further action as may be taken by the court in the premises." The words in the show cause order for respondent to show cause, if it can, why general relief should not be granted do not mean that Judge Williams was empowered by the show cause order to grant movant if she prevailed, every possible relief, but only such as is necessarily incidental to, and not entirely distinct from, that specifically asked. Williamson v. High Point, supra; Carroll v. Warrenton Tobacco Board of Trade, supra; 60 C.J.S. Motions and Orders § 39b.

Petitioner in her brief uses language to this effect, except when quoted: Judge Williams' order should be vacated, and respondent "should be directed to comply with the provisions of the Judgment or Order of Judge Clark on December 28, 1962," in that "it dismissed the charge against the petitioner appellant as invalid, found that the evidence did not overcome her presumption of innocence, [and] directed that she be exonerated from the charge of cheating by proper ADMINISTRATIVE AUTHORITIES."

The real and sole question before Judge Williams on the hearing of his show cause order was whether Judge Clark's order of 28 December 1962 found petitioner not guilty and directed that she be exonerated from the charge of cheating by proper administrative authorities of the University of North Carolina at Chapel Hill, and if so, whether he should enter an order enforcing such a construction of Judge Clark's order. All of Judge Williams' order, other than his dismissal of petitioner's motion and the order to show cause, which we will discuss later, is broader than his order to show cause, grants relief not allied to, and entirely distinct from that specifically asked by movant, is erroneously incorporated in his order, and is ordered stricken from his order. Therefore, its correctness or incorrectness is not before us for determination.

The Attorney General in his brief raises the grave question as to whether Judge Clark had any jurisdiction under Art. 33, Ch. 143, of the General Statutes of North Carolina, "Judicial Review of Decisions of Certain Administrative Agencies," the statute on which he based his authority for decision. It is hornbook law that if the superior court acts without jurisdiction, on appeal the Supreme Court acquires no jurisdiction, and will ex mero motu dismiss the case or proceeding. Shepard v. Leonard, 223 N.C. 110, 25 S.E.2d 445.

G.S. § 143-307 provides:

"Any person who is aggrieved by a final administrative decision, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of such decision under this article, unless adequate procedure for judicial review is provided by some other statute, in which case the review shall be under such other statute. Nothing in this chapter shall prevent any person from invoking any judicial remedy available to him under the law to test the validity of any administrative action not made reviewable under this article."

G.S. § 143-306 is as follows:

"DEFINITIONS.—As used in this article the terms

"(1) `Administrative Agency' or `agency' shall mean any State officer, committee, authority, board, bureau, commission, or department authorized by law to make administrative decisions, except those agencies in the legislative or judicial branches of government, and except those whose procedures are governed by chapter 150 of the General Statutes, or whose administrative decisions are made subject to judicial review under some other statute or statutes containing adequate procedural provisions therefor.

"(2) `Administrative decision' or `decision' shall mean any decision, order, or determination rendered by an administrative agency in a proceeding in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an opportunity for agency hearing."

Article IX, § 6, of the North Carolina Constitution provides:

"The General Assembly shall have power to provide for the election of trustees of the University of North Carolina, in whom, when chosen, shall be vested all the privileges, rights, franchises and endowments thereof in anywise granted to or conferred upon the trustees of said University; and the General Assembly may make such provisions, laws, and regulations from time to time, as may be necessary and expedient for the maintenance and management of said University."

The General Assembly repeated this constitutional provision ipsissimis verbis in G.S. § 116-1. G.S. § 116-3 provides: "The trustees of the University shall be a body politic and corporate, to be known and distinguished by the name of the `University of North Carolina,' and by that name shall have perpetual succession and a common seal * * *." This statute then states in detail the powers vested in the Trustees of the University, among which is the ability to sue and be sued in all courts whatsoever. G.S. § 116-4 provides for the election of 100 Trustees of the University of North Carolina by the General Assembly. G.S. § 116-10 provides: "The trustees shall have power to make such rules and regulations for the management of the University as they may deem necessary and expedient, not inconsistent with the constitution and laws of the State." G.S. § 116-11 provides: "The trustees shall have power to appoint from their own number an executive committee which shall be clothed with such powers as the trustees may confer."

Under the constitution and statutes of this State, the management of the University of North Carolina is delegated to and vested in its Board of Trustees. Consequently, the Board of Trustees of the University of North Carolina may make all necessary and proper and reasonable rules and regulations for the orderly management and government of the University of North Carolina entrusted to its care and for the preservation of discipline of students therein in accordance with the rules and regulations made. Gott v. Berea College, 156 Ky. 376, 161 S.W. 204, 51 L.R.A.,N.S., 17; Tanton v. McKenney, 226 Mich. 245, 197 N.W. 510, 33 A.L.R. 1175; Board of Trustees of University of Mississippi v. Waugh, 105 Miss. 623, 62 So. 827, L.R.A.1915D, 588, Ann.Cas.1916E, 522 (This case was appealed to the Supreme Court of the United States, and the opinion of the Supreme Court of Mississippi was affirmed. Waugh v. Board of Trustees of the University of Mississippi, 237 U.S. 589, 35 S. Ct. 720, 59 L. Ed. 1131); McGinnis v. Walker, Ohio App., 40 N.E.2d 488; Foley v. Benedict, 122 Tex. 193, 55 S.W.2d 805, 86 A.L.R. 477; 55 Am.Jur., Universities and Colleges, § 19; 14 C.J.S. Colleges and Universities § 26.

We have set forth above in the statement of facts the delegation of authority by the Executive Committee of the Board of Trustees of the University of North Carolina to the faculty and Chancellor in each of the component institutions of said University to perform "the duty to exercise full and final authority in the regulation of student conduct and in matters of student discipline in that institution; and in the discharge of this duty, delegation of such authority may be made to established agencies of student government and to administrative or other officers of the institution in such manner and to such extent as may by the faculty and Chancellor be deemed necessary and expedient; provided, that in the discharge of this duty it shall be the duty of the faculty and Chancellor to secure to every student the right of due process and fair hearing, the presumption of innocence until found guilty, the right to know the evidence and to face witnesses testifying against him, and the right to such advice and assistance in his own defense as may be allowable under the regulations of the institution as approved by the Faculty and Chancellor."

Dr. William B. Aycock, Chancellor of the University of North Carolina at Chapel Hill, testified as a witness before Judge Clark in the hearing on 15 November 1962. It would seem from his testimony that the faculty and Chancellor of the University of North Carolina at Chapel Hill delegated authority in writing to established agencies of student government there in respect to student conduct and matters of student discipline, and that there is a written student constitution of the University of North Carolina at Chapel Hill. These written instruments were offered in evidence before Judge Clark, but are not set forth in the record. We are fortified in our opinion by the following stipulation made by the parties:

"It shall not be necessary to print as a part of the record on appeal the minutes and resolutions of the Board of Trustees of the University of North Carolina at Chapel Hill, or of the Executive Committee thereof, delegating limited authority to the faculty and administrative officers of the University of North Carolina at Chapel Hill to act in all matters and procedures pertaining to student discipline, so long as it retains final jurisdiction, nor shall it be necessary to print any regulations or procedures of said administrative officials nor the provisions of the Student Constitution pertaining to student government or student discipline; it is stipulated and agreed that cheating on an examination or quiz is adequate cause, if established, for expulsion or suspension from the University of North Carolina and that petitioner was aware of this at the time she was admitted to the University of North Carolina * * *."

It would seem that the above delegation of authority by the Executive Committee of the Board of Trustees of the University and by the Board of Trustees of the University was proper and constitutional. John B. Stetson University v. Hunt, 88 Fla. 510, 102 So. 637. See Teeter v. Horner Military School, 165 N.C. 564, 81 S.E. 767, 51 L.R.A.,N.S., 975.

In Tanton v. McKenney, supra, which was heard on certiorari to review a judgment denying a writ of mandamus to compel defendant to reinstate plaintiff in the state normal school after refusal to readmit her because of alleged improper conduct, the Supreme Court of Michigan said:

"Inherently the managing officers have the power to maintain such discipline as will effectuate the purposes of the institution. * * * The right to attend our public schools is beyond question. That such right is tempered by, and subject to, proper regulations in the furtherance of discipline is likewise beyond question. That, in the absence of an abuse of discretion, the school authorities and not the court shall prescribe proper disciplinary measures is, we think, settled by the text-writers and the adjudicated cases."

From a consideration of Article IX, § 6, of our State Constitution, and of G.S. §§ 116-1, 116-3 116-4, 116-10, and 116-11, it is beyond dispute that the State of North Carolina, both by Constitution and by statute, has clothed the Board of Trustees of the University with authority to make such rules and regulations as they deem necessary and expedient for the management of the institution and for the preservation of student discipline therein, and it follows that the administrative decision of the full Board of Trustees of the University of North Carolina on 28 May 1962 adopting the report of its Special Committee that "the Board of Trustees should take no action; that the question of the readmission of Miss Carter to the University at Chapel Hill should be left where it has been placed by the Trustees and where it properly belongs —with the Chancellor and faculty at Chapel Hill" was the administrative decision of a State board authorized by the Constitution and statutes of the State to make administrative decisions, and this was not an agency in the legislative or judicial branches of government, and not an agency governed by G.S. Ch. 150 (The Uniform Act for Licensing Agencies), and that there is no other applicable statute, other than G.S. Ch. 143, Art. 33, which contains adequate provisions for judicial review of petitioner's case. There can be no doubt that this decision of the full Board of Trustees on 28 May 1962 was rendered in a proceeding in which the legal rights of petitioner are affected; that the decision of the full Board of Trustees on 28 May 1962 in effect sustaining the action of the Women's Honor Council of Student Government of the University of North Carolina and of the Chancellor of the University at Chapel Hill and of the President of the University was required by law or constitutional right to be made after an opportunity for an agency hearing; and that petitioner had exhausted all administrative remedies made available by statute or the Board of Trustees before she applied for a judicial review pursuant to G.S. Ch. 143, Art. 33. In our opinion, and we so hold, G.S. Ch. 143, Art. 33, applies, and Judge Clark had jurisdiction to hear and determine petitioner's application for judicial review by virtue of this statute.

G.S. § 143-315 provides:

"Scope of review; power of court in disposing of case.—The court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

"(1) In violation of constitutional provisions; or

"(2) In excess of the statutory authority or jurisdiction of the agency; or

"(3) Made upon unlawful procedure; or

"(4) Affected by other error of law; or

"(5) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted; or

"(6) Arbitrary or capricious.

"If the court reverses or modifies the decision of the agency, the judge shall set out in writing, which writing shall become a part of the record, the reasons for such reversal or modification."

Petitioner has misconceived the effect of Judge Clark's order dated 28 December 1962. It is true Judge Clark's order states that in his opinion "all of the evidence offered against Miss Carter fails to rebut the presumption of innocence," and in addition "her conviction therefore was not in accordance with due process under the Resolution of the Board or provision of the Student Constitution," and "to deny her readmission solely on grounds of the suspension for cheating on the evidence in this case would, in the opinion of this Court, be arbitrary and capricious," but his order does not reverse the decision of the full Board of Trustees. Judge Clark's order is not a final order determinative of the rights of the parties, as contended by petitioner, because his order remands the case for further specific proceedings, as he was authorized to do by G.S. § 143-315. Consequently, Judge Williams properly dismissed petitioner's motion and the order to show cause theretofore issued by him

Whether Judge Clark exceeded the scope of review vested in him by G.S. § 143-315 is not before us for determination, because the parties neither excepted to nor appealed from his order, and the time for appeal has long passed. This part of Judge Clark's order stands in full force and effect:

"Following the hearing in this Court, the Chancellor, through the Assistant Attorney General representing the Trustees, suggested that this case be remanded for further consideration in view of the evidence not known on review. This procedure appears entirely appropriate.

"NOW, THEREFORE, this cause is remanded to the Board of Trustees of the University of North Carolina and the Board is directed to refer the matter to the proper administrative authority for a review of the proceeding, including the additional evidence disclosed in this Court and for such other and further administrative action as is appropriate."

This part of his order the Board of Trustees of the University of North Carolina will proceed with reasonable promptness to carry out. It appears from a recital in Judge Williams' order that at the time of his order the Board of Trustees had initiated proceedings to carry out Judge Clark's order.

Petitioner has two other assignments of error to Judge Williams' order, both in respect to the procedure to be followed upon his remand of petitioner's case for a rehearing. Both of these assignments of error present academic questions, because for the reasons stated above Judge Williams committed error in incorporating these matters in his order, and they will be stricken from his order.

The result is this: An order will be entered in the superior court of Wake County, when this opinion is certified down, striking from Judge Williams' order all it decrees and adjudges, except "that petitioner's motion and order to show cause heretofore issued in this cause be, and the same is hereby dismissed," which shall be affirmed. This leaves in effect and in force that part of Judge Clark's order quoted in the second paragraph of this opinion before this paragraph, to which there is neither exception to nor appeal from by the parties.

Modified and affirmed.