Fogle v. GASTON CTY. BD. OF ED.

224 S.E.2d 677 (1976) 29 N.C. App. 423

Woodrow W. FOGLE et al.
v.
The GASTON COUNTY BOARD OF EDUCATION.

No. 7627SC328.

Court of Appeals of North Carolina.

May 14, 1976.

Gaston, Smith & Gaston by Willis C. Smith, Belmont, for plaintiffs.

Garland & Alala by James B. Garland, Gastonia, for defendant.

BROCK, Chief Judge.

Appellant argues that the trial court had no statutory or constitutional authority to order that the existing vacancy on The Gaston County Board of Education be filled by election. We agree.

By the clear and unambiguous language of Chapter 906, Session Laws of 1967 (applicable only to Gaston County), the legislature provided: "All vacancies in the membership of the Gaston County Board of Education by reason of death, resignation or removal from area or district from which elected shall be filled by the remaining members of said Board from the area of residence in which the vacancy occurs for the complete unexpired term and within 30 days after the vacancy occurs." The act makes no provision for an alternative method of filling the vacancy except upon expiration of the term of office in which the vacancy exists.General Statute 115-24, under which the trial court purported to order the vacancy filled by election, is a general statute of Statewide application. This section by its express terms is applicable only to boards of education whose members are elected pursuant to the provisions of G.S. 115-19. In turn, G.S. 115-19 provides: "The members of the County Board of Education in each county that does not on the effective date of this Act elect its members by a vote of the people, shall be elected in one of the following ways: . . ." The special statute applicable to Gaston County (Chapter 906, Session Laws of 1967) was in effect on the effective date of G.S. 115-19. Therefore, by its express terms, G.S. 115-19 is not applicable to Gaston County.

A public local law applicable to a particular county or municipality is not repealed by a subsequently enacted public law, statewide in its application, on the same subject matter, unless repeal is expressly provided for or arises by necessary implication. Rogers v. Davis, 212 N.C. 35, 192 S.E. 872 (1937). "The general law will not be so construed as to repeal an existing particular or special law, unless it is plainly manifest from the terms of the general law that such was the intention of the lawmaking body. A general later affirmative law does not abrogate an earlier special one by mere implication. Having already given its attention to the particular subject, and provided for it, the Legislature is reasonably presumed not to intend to alter the special provision by a subsequent general enactment, unless that intention is manifested in explicit language, or there be something which shows that the attention of the Legislature had been turned to the special act, and that the general one was intended to embrace the special cases within the previous one, or something in the nature of the general one making it unlikely that an exception was intended as regards the special act. The general statute is read as silently excluding from its operation the cases which have been provided for by the special one. The fact that the general act contains a clause repealing acts inconsistent with it does not diminish the force of this rule of construction." Charlotte v. Kavanaugh, 221 N.C. 259, 20 S.E.2d 97 (1942).

Where the language of a statute is clear and unambiguous, there is no room for judicial construction; the courts must give it its plain and definite meaning and are without power to interpolate or superimpose provisions and limitations not contained therein. State v. Camp, 286 N.C. 148, 209 S.E.2d 754 (1974). When the intention of the legislature as expressed in a statute is ascertained, the courts cannot refuse to enforce it because the facts of some particular case present a seeming hardship. Morris v. Chevrolet Co., 217 N.C. 428, 8 S.E.2d 484 (1940).

Although the members of the Board of Education have been deadlocked in a four-to-four tie vote on each occasion they have tried to fill the vacancy created by Mr. Traenkner's death, there is no statutory or constitutional provision for an alternative method of filling the vacancy. In the enactment of Chapter 906, Session Laws of 1967, it must be presumed that the legislature knew that a voting deadlock could occur in the attempt by the remaining members of the Board of Education to fill a vacancy on the Board. Had the legislature desired an alternative method of filling a vacancy, it would have provided for one. It follows that the legislative intent was that the remaining members of the Board, and only the remaining members of the Board, shall fill the vacancy for the unexpired term. Absent a provision for an alternative method of filling the vacancy, the authority of the remaining members of the Board to fill the vacancy is not lost by their failure to have done so within thirty days after the vacancy occurred. See In re Westlund, 427 Pa. 358, 236 A.2d 120 (1967); 78 C.J.S. Schools and School Districts § 117.

Although the remaining members of The Gaston County Board of Education have failed to perform their statutory duty to fill the vacancy on the Board within thirty days after it occurred, it was error for the trial court to order an election under G.S. 115-24 to fill the vacancy. Plaintiffs may wish to consider the propriety of an action for writ of mandamus to compel the remaining members of the Board to perform their statutory duty to fill the vacancy on the Board. The judgment appealed from is reversed, and the cause is remanded to the Superior Court, Gaston County.

Reversed and remanded.

BRITT and CLARK, JJ., concur.