211 N.C. 213
N.C.
1937
ClabksoN, J.

The prayer of the complaint indicates the controversy: “Plaintiffs pray that a writ of mandamus be issued against the counties of Alamance and Orange, and the boards of education of said counties, demanding them to forthwith assume the payment of the school building and equipment indebtedness of the plaintiffs, and requiring the defendants, counties of Alamance and Orange, to levy such county-wide ad valorem tax upon the taxable properties within the counties as may be necessary to pay such indebtedness and interest thereon when the same becomes due and payable, and further requiring the defendants, counties of Alamance and Orange, to proceed to collect through its authorities the said taxes so levied, . . . and such other and further relief as they are entitled in law and equity.”

The defendants denied the material allegations of the complaint, and contended they acted in good faith and in their discretion, and mandamus *222 would not lie. The defendants, county of Orange and tbe board of education of Orange County, were both, duly served with summons and copies of the complaint, but neither filed an answer or other pleadings. Therefore, there is no controversy as to the judgment against them. This appeal alone concerns the county of Alamance and the board of education of Alamance County.

The defendants, at the close of plaintiffs’ evidence and at the close of all the evidence, made motions in the court below for dismissal of the action and for judgment as in case of nonsuit. O. S., 567. The court below refused these motions and in this we see no error.

The defendants, in their question one, ask: “Did the court err in overruling defendants’ motion to dismiss this action, and in overruling their motions for judgment as of nonsuit, for the reason that the question as to whether or not the board of commissioners may include in the debt service fund in the budget the indebtedness of the Mebane School District is within the discretion of the board of commissioners of the defendant Alamance County, and mandamus is not the proper remedy and will not lie without the allegations and proof of abuse of such discretion?” On this record, we cannot agree with the contention of defendants.

In Person v. Doughton, 186 N. C., 723 (724), it is said: “Mandamus lies only to compel a party to do that which it is his duty to do without it. It confers no new authority. The party seeking the writ must have a clear legal right to demand it, and the party to be coerced must be under a legal obligation to perform the act sought to be enforced. Missouri v. Murphy, 170 U. S., 78; Withers v. Comrs., 163 N. C., 341; Edgerton v. Kirby, 156 N. C., 347; Betts v. Raleigh, 142 N. C., 229.” Umstead v. Board of Elections, 192 N. C., 139; Braddy v. Winston Salem, 201 N. C., 301; Hammond v. Charlotte, 206 N. C., 604; Stone v. Comrs., 210 N. C., 226; Allen v. Carr, 210 N. C., 513 (519).

This action was instituted by Mebane Graded School District and the town of Mebane, for the purpose of obtaining a writ of mandamus requiring the defendants to assume the payment of the bonded indebtedness of the Mebane Graded School District, alleged to have been incurred by it for the purpose of providing school buildings, sites, and equipment within the said special charter district necessary for the operation of the six months school term.

In Julian v. Ward, 198 N. C., 480 (482), is the following: “Under Article IX, ‘Education,’ in the Constitution of North Carolina, we find the following sections: ‘Section 1. Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. Sec. 2. The General Assembly, at its first session under this Constitution, shall provide by taxation and otherwise for a general and uniform system of *223 public schools, wherein tuition shall be free of charge to all the children of the State between the ages of six and twenty-one years. And the children of the white race and the children of the colored race shall be taught in separate public schools; but there shall be no discrimination in favor of, or to the prejudice of, either race. Sec. 3. 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.’ Under these and other pertinent sections of the Constitution, it has been held in this jurisdiction that these provisions are mandatory. It is the duty of the State to provide a general and uniform State system of public schools of at least six months in every year wherein tuition shall be free of charge to all the children of the State between the ages of six and twenty-one. It is a necessary expense and a vote of the people is not required to make effective these and other constitutional provisions in relation to the public school system of the State. Under the mandatory provision in relation to the public school system of the State, the financing of the public school system of the State is in the discretion of the General Assembly by appropriate legislation, either by State appropriation or through the county acting as an administrative agency of the State. Lacy v. Bank, 183 N. C., 373; Lovelace v. Pratt, 187 N. C., 686; Frazier v. Commissioners, 194 N. C., 49; Hall v. Commissioners of Duplin, 194 N. C., 768.” Castevens v. Stanly County, 209 N. C., 75.

The duty imposed on the State, under Art. IX of the Constitution of North Carolina, is mandatory. This sacred duty was neglected by the State for long years, for various reasons, chiefly on account of the lack of means — the State having been crushed and impoverished by four years of war. In different parts of the State, as they became more prosperous, patriotic men and women obtained acts from the General Assembly by which schools could be established for the education of the children of their communities — these communities being taxed for the upkeep and bonds issued to build schoolhouses, as was done in this case.

On this record it appears that “The county of Alamance has assumed every school debt of every school district in the county except the debts of the special charter districts of Mebane, Haw River, Graham, and Burlington.” Having assumed some, we think it mandatory on the county commissioners to assume all, if the Mebane District building, site, and equipment are necessary for the conduct of the constitutional school term.

In Reeves v. Board of Education, 204 N. C., 74 (77), it was said: “The maintenance and construction of school buildings for the six *224 months public school term being prescribed by the Constitution, the county commissioners could have been compelled to have provided the school buildings in Buncombe County as a county-wide charge, and could have been compelled to have provided the money therefor by the issuance of county-wide bonds; therefore, it would follow that if the various buildings in the various school districts are a county charge, it is proper for the county to assume this obligation which has heretofore been attempted by the districts. There is no sound reason why a school district should have to pay out of its own taxable property a debt which the Constitution and laws of the State impose upon the county,” etc.

We think the whole matter has been threshed out, and against defendants’ contentions, in Hickory v. Catawba County, 206 N. C., 165 (173-4). We find there the following: “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 buildings were qualified to speak, the exceptions addressed to the admissibility of their testimony cannot be sustained. . . . 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 everyone 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. IX, sec. 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. *225 Schaffer v. Wilkins, 19 A. L. R., 1379, and annotation.” Greensboro v. Guilford County, 209 N. C., 655; Marshburn v. Brown, 210 N. C., 331 (338); chapter 455, Public Laws 1935, sec. 5.

The first issue submitted to the jury and their response thereto is as follows: “Have the counties of Orange and Alamance, or either of them, provided necessary school buildings and equipment for the conduct of the constitutional six months school term for the children of the Mebane Graded School District? Ans.: ‘RTo.’”

Seventh issue: “Were the sites, buildings, and equipment acquired, constructed, and used by the plaintiff Mebane Special Charter or Graded School District reasonably essential and necessary for the conduct and operation of the six months school term at the time the said sites, buildings, and equipment were acquired and constructed, as contemplated by Article IX, section 3, of the Constitution of the State of RTorth Carolina, and the statutes enacted pursuant thereto ? Ans.: ‘Yes.’ ”

We think there was ample and plenary competent evidence to support the finding of facts on the above issues, but defendants say that on the trial the court below erred in admitting and excluding evidence, as follows: “(a) In admitting opinion evidence of witnesses for plaintiffs. (b) In excluding opinion evidence of witnesses for defendants.” RTone of these contentions of defendants can be sustained. The question of what is and what is not opinion evidence is too well settled to be restated here. Yates v. Chair Co., ante, 200; Keith v. Gregg, 210 N. C., 802. As to the exclusion of certain alleged opinion evidence of witnesses for defendants, we think this evidence vague, uncertain, and immaterial, and it had little or no probative force or value on the issues. (c) “In excluding all of defendants’ evidence with reference to schools and school buildings other than Mebane Special Charter School District.” We think this kind of evidence not germane to the issue. It was comparative evidence and its exclusion on this record is not prejudicial error. As to (d) “In admitting secondary evidence to show that the debt of Mebane Graded School District was lawfully incurred” — in the admission of this evidence there was no error. We think from the evidence the foundation was sufficiently laid for the admission of secondary evidence. Chair Co. v. Crawford, 193 N. C., 531 (532), controlling principle 4.

Beginning with the year 1933, the records of the county show that all the debt service requirements of all the local tax districts in Alamance County, other than the four charter districts of Mebane, Burlington, Haw River, and Graham, have been paid out of the county’s general school fund, and that the special charter districts have, since said time, received the per capita allotment of the county-wide levy for debt service. In the refunding plan prepared by the county commissioners in 1933, *226 it was stated therein that the school district indebtedness assumed by the county amounted to $247,650, and that Mebane Graded School indebtedness was $59,000. (The judgment in this case states a less amount.)

The defendants contend that “the court erred in its failure to charge the jury in accordance with the provisions of Consolidated Statutes, section 564.” We cannot so hold.

The principle is laid down in S. v. Merrick, 171 N. C., 788 (793) : “And further, the authorities are at one in holding that, both in criminal and civil causes, a judge in his charge to the jury should present every substantial and essential feature of the case embraced within the issue and arising on the evidence, and this without any special prayer for instructions to that effect. Charged with the duty of seeing that impartial right is administered, it is a requirement naturally incident to the great office he holds and made imperative with us by statute law. Revisal, 545 (C. S., 564) : 'He shall state in a plain and correct manner the evidence in the case and explain the law arising thereon,’ and a failure to do so, when properly presented, shall be held for error. When a judge has done this, charged generally on the essential features of the case, if a litigant desires that some subordinate feature of the cause or some particular phase of the testimony shall be more fully explained, he should call the attention of the court to it by prayers for instructions or other proper procedure; but, as stated, on the substantive features of the case arising on the evidence, the judge is required to give correct charge concerning it. S. v. Foster, 130 U. C., 666; S. v. Barham, 82 Mo., 67; Carleton v. State, 43 Neb., 373; Simmons v. Davenport, 140 N. C., 407.”

The above is well settled law in this jurisdiction. The court below, in an elaborate and carefully prepared charge of some 24 pages, gave the contentions fairly for both sides, set forth the law applicable to the facts, and did not impinge C. S., 564.

The plaintiffs contend: “That the judgment of the Superior Court should be affirmed, first, because as a matter of law arising upon the whole record the plaintiffs are entitled to the relief prayed for; and, secondly, because there is no reversible error appearing in the record.”

The evidence excluded by the court below, complained of by defendants, had little, if any,' probative force. All the evidence was to the effect that the school building and equipment of the Mebane District, when built, was then, and we may say now, necessary for the six months school term under the Constitution. The evidence shows unusual care in the selection of plans and economy in the Mebane District project. The progressive, intelligent, and patriotic men and women wanted to educate the children of the Mebane community. They established the school and operated same especially with efficiency since the bonds were issued in 1922. Under legal authority, the county of Alamance has assumed *227 almost every school debt of every school district except the Mebane District. Having assumed part, it is the duty, under the facts in this case, to assume the indebtedness of the Mebane District, and from the findings of the jury mandamus will lie to compel them to do so. Technicalities and refinements should not be seriously considered in a case like this involving a constitutional mandate, but the record should be so interpreted that substantial justice should be done. Under the facts in this case and the findings of the jury, it would be inequitable and unconscionable for defendants to assume part and not all of the indebtedness of the school districts of Alamance and not assume the plaintiffs’ indebtedness and give them the relief demanded. It is well settled that defendants are not entitled to be heard on their appeal unless the errors complained of are prejudicial or material.

Eor the reasons given, we see in the judgment below, no prejudicial or reversible error.

RTo error.