City of Hickory v. Catawba County

173 S.E. 56, 206 N.C. 165, 1934 N.C. LEXIS 134

• Court: Supreme Court of North Carolina
• Decided: February 28, 1934
• Status: Published

Opinion

Adams, J.

The defendants entered a general exception to the judgment and to the judge’s findings of fact. As to the judgment, the exception points out no specific error and we find no irregularity on the face of the record (Dixon v. Osborne, 201 N. C., 489); and as to the facts, the exception is too indefinite to bring up for review the findings of the trial court. Boyer v. Jarrell, 180 N. C., 419; Sturtevant v. Cotton Mills, 171 N. C., 119; Riddick v. Farmers’ Assn., 132 N. C., 118.

Tbe appellants excepted to the court’s refusal to find certain additional facts, but in this respect, also, the ruling is correct. Some of the requested findings embody conclusions of law; others, in substance at least, were adopted by the court; a few are incidental to the main controversy. Those which are more relevant are based upon the following circumstances: The charter of the city of Hickory provides that all the territory within the corporate limits of the city shall constitute a public school district to be known as the “Hickory School District” and that the city council shall be charged with the duty of maintaining within the district an adequate system of public schools and of constructing and maintaining buildings suitable for this purpose. Private Laws, 1913, chap. 68, Art. 15, sec. 1. The charter of the town of Newton likewise provides that all the territory within the corporate limits and all the territory without the corporate limits and within the boundaries of the Newton Special Tax School District shall constitute a public school district to be known as “Newton Graded School District” and to be under the exclusive control of a board of trustees. Private Laws, 1907, chap. 39, see. 104, et seq.

It is contended by the defendants that to these respective districts, in which taxes may be levied and for which bonds may be issued, we should apply the principle that when a new governmental instrumentality is established it takes control of the territory and affairs over which it is given authority to the exclusion of other governmental instrumentalities. We have applied this principle in holding that the extension of a public highway through a city or town, or the inclusion within the corporate limits of additional territory, does not deprive the municipality of its exclusive control over its streets. Gunter v. Sanford, 186 N. C., 452; Michaux v. Rocky Mount, 193 N. C., 550; Pickett v. R. R., 200 N. C., 750; Cf. Hailey v. Winston-Salem, 196 N. C., 17. But the doctrine is not allowed to prevail when the governmental instrumentality, as in this case, may be inconsistent with the organic law or with statutes subsequently enacted in contravention of its purpose. The trial judge was correct in declining to approve such of the requested findings of fact as do not appear in the judgment, and his refusal was equivalent to saying that the proposed findings are not supported by the evidence. In re Trust Co., ante, 12. The result is that we are concluded by the facts as found by the court. Colvard v. Dicus, 198 N. C., 270; In the Matter of Assessment v. R. R., 196 N. C., 756; Abbitt v. Gregory, 195 N. C., 203.

It is incumbent upon the General Assembly to authorize the levy of taxes for the support of the public schools of the State (Greensboro v. Hodgin, 106 N. C., 182), and when this is done the duty of providing for the maintenance of public schools in a county devolves primarily upon the board of county commissioners. “Each county of the State 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 if the commissioners of any county shall fail to comply with the aforesaid requirements of this section, they shall be liable to indictment.” Constitution, Art. IX, sec. 3. This section is mandatory, but the mode of performance is prescribed by statute. Elliott v. Board of Equalization, 203 N. C., 749; Julian v. Ward, 198 N. C., 480. Section 5467 of the Consolidated Statutes requires the county commissioners to provide funds for school buildings which shall be lighted and equipped with suitable desks for children and with suitable tables and chairs for teachers — such as are necessary for the maintenance of schools for a term of six months. Section 5596(c) defines the debt service fund and directs its application, and section 5599 provides that the county board of education, with the approval of the board of commissioners, may include in the debt service fund in the budget the indebtedness of all districts, including special charter districts, lawfully incurred in erecting and equipping school buildings necessary for the six months school term.

Partly in consequence of the foregoing statute this Court has recently approved the assumption by a county of the payment of bonds previously issued by school districts for the purpose of building and equipping such schoolhouses as were necessary for the maintenance of schools for the constitutional period (Maxwell v. Trust Co., 203 N. C., 143) ; and in elucidation of the proposition the Court subsequently said that there is no sound reason why a school district should be required to pay out of its own taxable property a debt which the Constitution imposes upon a county. Reeves v. Board of Education, 204 N. C., 74.

This is the principle underlying the present case. It is recognized by the defendants who, according to the sixth finding of the facts, are willing to assume payment of the district bonds upon surrender by the plaintiffs of their special charter rights and upon conveyance of their school property to the county board of education. This situation raises the question whether the condition imposed by the defendants is a valid defense to the plaintiffs’ actions.

It will be observed that the last paragraph of section 5599 is not restricted to districts of any special character; it applies to “all districts, including special charter districts.” The limitation is to indebtedness lawfully incurred in the erection and equipment of necessary buildings. The release of special charter rights is not a necessary condition precedent to the defendants’ assumption of the debt.

Nor is it prerequisite to convey the school property in the affected districts -to the county board of education. Under the law in force when the present actions were instituted the title to the property of special charter districts was vested in the trustees of the districts (0. S., 5419, 5472, 5490(1), and the act of 1933, of which we take judicial notice, seems to contemplate continuance of this policy. Public Laws, 1933, chap. 562, sec. 4. The determinative question involves not so much the title to property as the uniformity of taxation, and under the decisions we have cited the latter point has been resolved against the contention of the appellants. Constitution, Art. V, sec. 3. The asserted discrimination is emphasized by the fact that the board of county commissioners has assumed the payment of bonds in the sum of $179,000 issued on behalf of five special charter districts for necessary school buildings, leaving the Hickory and Newton districts with the dual burden of maintaining their own schools and materially contributing to the support of all other public schools in the county. When the indebtedness of “all the districts” lawfully incurred for the necessary buildings and equipment is taken over for payment by the county as a whole, the local districts are relieved of their annual payments. Sec. 5599.

This is not a problem to be solved by the defendants in the exercise of their discretion, or one in the solution of which the courts are shorn of jurisdiction. The exercise of jurisdiction implies the right to hear evidence on the question whether buildings and equipment of certain types are essential to the operation of the schools, and as the witnesses who testified as to these things were qualified to speak, the exceptions addressed to the admissibility of their testimony cannot be sustained. To the admission of evidence there are other exceptions which upon inspection we find to be untenable; and this is true, likewise, with respect to the appellant’s exceptions to the court’s refusal to strike certain allegations from each of the complaints. In denying the motion for nonsuit there was no error.

It is suggested that relief cannot be obtained by mandamus. The writ, issuing from a court of competent jurisdiction, is directed to a person, officer, corporation, or inferior court commanding the performance of a particular duty which results from the official station of the party to whom it is directed or from operation of law. It is a writ of right to which every one is entitled when it is appropriate process for enforcing a demand. Burton v. Furman, 115 N. C., 166; Lowery v. School Trustees, 140 N. C., 33. The defendants are public agencies charged with the performance of duties imposed by the Constitution and by statutes and upon their failure or -refusal to discharge the required duties resort may be had to the courts to compel performance by the writ of mandamus. It is contended that the plaintiffs’ remedy is by indictment (Const., Art. IS, see. 3) and not by mandamus. There are decisions in which the writ was denied on the ground that -the complaining party had a remedy by indictment; but the weight of authority sustains the position that to supersede the remedy by mandamus a party must not only have an adequate legal remedy but one competent to afford relief on the particular subject-matter of his complaint. Punishment of the defendants would not provide the relief to which the plaintiffs are entitled. 38 C. J., 565, sec. 35; Fremont v. Crippen, 70 A. D., 711; Com. ex rel. Schaffer v. Wilkins, 19 A. L. R., 1379 and annotation. Judgment

Affirmed.