Benton v. Board of Education of Cumberland County

161 S.E. 96, 201 N.C. 653, 1931 N.C. LEXIS 60

• Court: Supreme Court of North Carolina
• Decided: November 18, 1931
• Status: Published

Opinion

CONNOR, J.

There was no error in the judgment in this action. No-cause of action is stated in the complaint against the defendant, Board of Education of Cumberland County, or against the defendants, J. E. Reaves and W. T. Reaves.

In Scales v. Winston-Salem, 189 N. C., 469, 127 S. E., 543, it is said r “Negligence cannot be imputed to the sovereign, and for this reason, in the absence of statute, no private action for tort can be maintained against the State. It follows that such action will not lie against a municipal corporation for damages resulting from the exercise of governmental functions as an agency of the sovereign power.” The Board of Education of Cumberland County is not a municipal corporation. It is, however, a governmental agency, created by statute, for the purpose of performing governmental functions. No action can therefore be maintained against said board to recover damages for a tort, alleged to have been committed by said board in the performance of its statutory duties.

The Constitution of this State provides that the General Assembly shall provide by taxation and otherwise for a general and uniform system of public schools wherein tuition shall be free of charge to all children of the State between the ages of six and twenty-one years; that each county shall be divided into a convenient number of districts in which one or more public schools shall be maintained at least six months in every year; and that the General Assembly may by statute require that each child of sufficient mental and physical ability shall attend a public school during the period between the ages of six and eighteen years, for a term of not less than sixteen months, unless educated by other means.

The county boards of education in this State are created by statute, O. S., 5410, and are required to provide an adequate school system for the benefit of all children of their respective counties, as directed by law, C. S., 5428. Where a county board of education, as authorized by statute, C. S., 5483, has consolidated two or more school districts into one, the said board is authorized and empowered to make provision for the transportation of pupils in the' consolidated district who reside too far from the schoolhouse to attend without transportation. O. S., 5489. In performing this statutory duty, the county board of education is exercising a governmental function, and is acting as an agency of the State. No action can therefore be maintained against a county board of education to recover damages for a tort alleged to have been committed by the board in the transportation of pupils to and from the school which they are required to attend or which they do attend. The principle of estoppel cannot be invoked against a county board of education, in order to hold the board liable in an action, which, in the absence of a statute, cannot be maintained against it. Both well settled principles of law and a sound public policy forbid this.

The bond on which the defendants, J. E. Eeaves and W. T. Eeaves, are sureties for the defendant, J. L. Eeaves, is payable to the defendant, Board of Education of Cumberland County. These sureties are not liable to the plaintiff under the terms of the bond or on the principle upon which Gorrell v. Water Supply Co., 124 N. C., 328, 32 S. E., 720, was decided. Plaintiff’s intestate was not a party or privy to said bond, nor was he a beneficiary of the bond. Plaintiff therefore cannot recover in this action of these defendants. There was no error in the judgment sustaining their demurrer.

The action was properly dismissed as to the defendant, Board of Education of Cumberland County, and as to the defendants, J. E. Eeaves and W. T. Eeaves. The order directing the separation of the action against the defendant, J. L. Eeaves, from the action against the defendant, Great National Insurance Company, is supported by the decision of this Court in Clark v. Bonsal, 157 N. C., 270, 72 S. E., 954.

Whether the defendant, Great National Insurance Company, upon the facts alleged in the complaint, is liable to the plaintiff, or may be held liable to the defendant, J. L. Eeaves, under the terms of its policy, is not presented or decided on this appeal. We find no error in the judgment. It is

Affirmed.