*1 401 OF App.] COUET N.C. v. Board [2] Dеfendant also assigns error charge in that specific court did not in include instruction on self-defense jury. his final mandate to the decision As a result Supreme 815, 158, Dooley, Court State v. 2d N.C. 203 S.E. given an
such instruction must be in the final mandate. Dooley judge explained In self- law as it related to explained defense and what must shown in order to excuse ground. Supreme Court, defendant’s conduct on that never theless, granted a new trial because failure of “[t]he judge guilty by trial to include reason of self-defense as a possible added.) (Emphasis verdict in his mandate . . . .” final Dooley, supra. State v. is The final mandate in the bar case at required almost identical the one 388, v. reversal in State Girley, App. 301, den., 27 N.C. 219 S.E. 2d cert. N.C. compliance 220 S.E. 2d In 799. decision Supreme Dooley, required Court this to also order Hunt, new trial App. 486, State v. 2d 28 N.C. 221 S.E. case, here, guilty 720. In that the Court failed to include not by reason of self-defense his final mandate. questions assignments raised defendant’s other
error recur at next trial and will not be considered appeal. on this must new
There be a trial for the reasons stated.
New trial. Judge Judge
Chief concur. Brock Martin LEONARD K. THOMPSON BOARD v. WAKE COUNTY EDUCATION
No. 7610SC290 (Filed 1976) 17 November — participa- 1. 13— Schools dismissal career teacher school board’s § — process tion in initial and final decisions due Participation by county board of in both the initial education suspеnd decision a career and the final decision as to dis- teacher missal of teacher does not constitute denial teacher’s right process. due G.S. 116-142. COURT OF APPEALS *2 — participation by 2. § 13— attor- dismissal school board Schools teacher — process ney— involving exchanges due board members process A career was not denied due in a dismissal hear- teacher by ing county participation in the before a board of education attorney attorney hearing for the of the board’s rather than an su- exchanges permitted by (j) (3), by perintendent 115-142 at G.S. hearing of board. which members involved — superior in court 3. 13— teacher dismissal review § Schools novo not entitled to trial de in A dismissed teacher is school validity question superior of the truth or the charges against him, court on of the board of education will and the action superior court finds one of the errors in the court stand unless of (now 150A-51). in 143-315 G.S. law enumerated former G.S. — proceeding 4; 13— teacher dismissal 4. Law Schools § § Administrative exemption from rules evidence acting specifically pursuant 115 were to G.S. Ch. School boards general excepted by 143-317(1) rule from former G.S. proceedings. must be administrative rules of evidence followed in — — superior proceeding court review 13— teacher dismissаl § 5. Schools proceedings in other of evidence inadmissible consideration acting cases were not in teacher dismissal Since school boards by reviewing superior court, strictly evidence, a the rules of bound supported determining a board’s determination was in whether required by competent, former material and substantial evidence as testimony 143-315(5), from could not exclude its consideration G.S. merely rule of evidence. it violated a because — contrary accepted to insubordination acts be- 13— teacher § 6. Schools havior standards against in not counsel teachers advance school boards need Local possible types those can be found of misconduct before teachers all guilty insubordination, repeated acts of teacher misconduct and obviously contrary accepted standards of behavior in the to which are community general profession teaching in and the constitute in- conduct. subordinate — — profanity 13— teacher 7. insubordination — use § dismissal Schools — kicking, sanctioning games study slapping, etc. of card students — before teacher admonished acts hall at times in “damn” and “hell” various A career teacher’s use of hair-pulling activities, kicking, “frogg- slapping, his and his classroоm ing” sanctioning games study students, his hall did of card there no evidence that such insubordination where not constitute was admonished or counselled after the teacher acts were continued differently. (l)c. 115-142(e) G.S. act — — immorality obscene characteriza- 13— dismissal 8. teacher § Schools tion of female student of a female student as a A teacher’s characterization career immorality purview of within the G.S. whore did not constitute 115-142(e) (l)b. — — allowing neg- fight 9. § Schools 13— teacher dismissal students duty lect supported The evidence a board of education’s permitted teacher on occasion two of his students to one settle dis- pute fighting other, finding supported each such duty relating neglect board’s dismissal of the teacher encouragement discipline. 115-142(e) (l)d. of order and G.S. — 10. Schools 13— teacher dismissal § conduct insufficient to show lack capacity of mental using profanity Conduct a school teacher in classroom ac- tivities, slapping, kicking, pulling students, the hair of sanction- ing games study hall, allowing dispute card students settle a entering *3 fighting, girls’ seizing and bathroom and a student capacity purview therein not indicate a lack of did mental within the 115-142(e) (l)e. of G.S. Judge dissenting. Clakk
Appeal by respondent Alvis, Special Judge. from order of Order Court, entеred out of 8 session December 1974 County. August Appeals Heard in the Court of
Wake 1976. During year, Thompson 1973-74 school Leonard K. (hereinafter “petitioner”) employed by called Wake
County (hereinafter Board of board”) called “the public as Apex a Elementary school teacher in the At School. time, petitioner had attained status as a as career teacher 1974, defined 115-142. G.S. On 11 March the board unani- suspended petitioner mous resolution pay without without and hearing grounds a (1) (2) on the immorality, insubordina- (3) neglect tion, duty, (4) physical incapacity. and or mental (h) petitioner requested Pursuant (3), G.S. 115-142 an investigation charges against Pro- panel him fessional Review panel Committee. The board submitted to the Specifications” a suspension justification list “Grounds and of its petitioner. charges specific were as follows: Thompson “Leonard K. IV Grounds: Charge: Physical Incapacity or Mental Specification 1: engaged Thompson conduct,
In that Leonard K. has in such preceding charges specifications, set in the as forth and willful, if said conduct be not the said Leonard K. COURT OF APPEALS physical Thompson’s condition must be or mental such incapable him of himself and about render control others him, including- students, and therefore condition both). incaрacity (or physical mental or Thompson I K. Grounds: Leonard Charge: Immorality
Specification 1: Thompson
In that Leonard K. (a) February 21, to Lorna on or about communicated age Mann, years, inde- J. a female child under the language, calling cent, insulting her whore obscene making her; gesture an obscene February 21, 1974, (b) and on other occasions vocally persons respect J. female to Lorna Mann and other amounting charge conduct, of incontinent used a term to a he called them ‘little whores.’ to wit: Specification 2: during habitually the 1973-74
In that Leonard K. *4 Apex year presence in the at school has used students gen- vulgar language Elementary obscene School and teaching community erally accepted he in the which was immoral con- community to constitute and considered duct.
Specification 3: Thompson on various has Leonard K. occasions
In that Smith and other Johnnette fondled and otherwise assaulted Apex during duty Ele- children hours at female and male mentary School. Thompson II Grounds: K.
Leonard Charge: Insubordination
Specification 1: during Thompson the 1973-74 school Leonard K.
In that year comply the central with instructions from failed 405 County principal office with and his Wake Schools from respect to: Refraining
(a) assaulting school; from children (b) Refraining vulgar profane, from obsсene, use language presence students; in the Attacking (c) Elementary Apex without cause students at School.
Specification 2:
In that Thompson Leonard discipline K. failed to maintain in his classes and classroom in accordance with instructions superiors. from his Thompson
Leonard K. III Grounds: Charge: Neglect Duty
Specification 1:
In Thompson encourage good that Leonard K. failed to discipline Apex Elementary order and School, re- quired by 115-146, in NCGS 1973-1974. Specification 2:
In during discharge duty that Leonard K. failed to his year Apex Elementary the 1973-74 school at the encouragement School insofar as temperance and moral- ity against concerned, (NCGS form of the statute 115-146).” panel May May met on 6 to investi-
gate report May the matter and issued on 28 In re- 1974. its port, panel findings grounds made of fact that petitioner’s dismissal were unsubstantiated the evidence. report recommended, alia, petitioner also inter re- be tenure, petitioner paid period instated with for the suspension, school, his that he be transferred to a new *5 he be counseled to refrain from certain activities which had charges against in the resulted him.
Upon receipt report panel, Superintendent the the County of the Schools submitted to board his writ- Wake board, petitioner. ten recommendation for dismissal of (i) Super- pursuant (6), petitioner to notified G.S. 115-142
Thompson v. Board of July hearing and for 15 recommendation a intendent’s scheduled 1974, petitioner matter. in the event wished to be heard (6). hearing (i) requested pursuant G.S. 115-142 Petitioner began through sessions, five end- It ing as scheduled and continued August Twenty were and ex-
on 21 1974. called witnesses testimony August 1974, the board tensive was taken. On containing findings and a of fact conclu- issued “Resolution” by ordering “that Leon- of law. The resolution concluded sions ard in the hereby a K. he is dismissed as teacher be and grounds County im- Public Schools on Wake neglect insubordination, duty, and mental inca- morality, pacity.” (n), petitioner appealed 115-142 from
Pursuant to G.S. County Superior Court. this order the board Wake reviewing evidence, Special Judge, Alvis, entered an Upon 1975, reversed the resolution on 8 December which order petitioner be reinstated as career the board and ordered County Schools. It further ordered teacher Wake pay petitioner as all sums he would have received board discharged compensation had been and had continued if he appeals' the order employment a teacher. The board from as Superior Court. opinion facts set below. Other relevant are out Chambers, Stein, Ferguson Becton, by Bee- and Charles L. appellee. ton, petitioner for Boyce, Mitchell, Smith, by Eugene Boyce, Burns for appellant.
respondent
MORRIS, Judge. found In the order of 8 December County of law” that “the Wake Board as of “factual conclusion Education, against investigated, Thompson, which was biased him, judged against all in violation of prosecuted and cause interpreting required the current decisions process due court n guarantees.” appears impugn Thus constitutional impartiality of the decision as well as the statu- the procedures board’s both tory which the decision was reached. We do rights petitioner’s agree constitutional were violated separately aspect each our discuss shall ’ disagreement. grounds *6 OF 407 COURT APPEALS
Thompson v. of Board aspect The more fundamental of unconstitu tionality procedures involves the set forth in 115-142. G.S. G.S. legislative represents attempt provide public 115-142 a greater job security school teachers of this State amount of Taylor previously Crisp, 359, than had App. existed. v. 21 N.C. (1974), aff'd., 205 102 S.E. 2d 286 N.C. modified (1975). 2d S.E. statute creates status of “career rights privileges teacher” to which various are attached. Perhaps rights important the most of these is that a career upon except specified teacher grounds or dismissed dеmoted statutory procedures pro accordance vided. portions pertinent G.S. 115-142 which are to this
appeal are as follows:
“(e) Grounds Dismissal or Demotion of Career Teacher.—
(1) No career teacher shall be dismissed or demoted employed part-time or except basis for: Inadequate performance;
a. Immorality;
b. Insubordination;
c. Neglect duty;
d. Physical e. incapacity; mental f. Habitual or excessive use alcohol or non-
medical use of a controlled substance as defined Chapter Article 5 90 of the Stat- .General utes.
g. felony involving Conviction of a or a crime turpitude;
moral Advocating h. government overthrow the United States of the State of North or. by force, violence, Carolina or other unlawful means; i. Failure to responsibilities fulfill the duties and
imposed upon teachers the General Statutes of this State.
j. comply require- reasonable Failure to such may prescribe; the
ments as board grounds Any k. the cause which constitutes for teaching revocation of such teacher’s career certificate; or justifiable positions
l. A of decrease the number reorganization en- due to district or decreased (2) provided is rollment, subdivision complied with.
m. Failure to maintain certificate a cur- one’s rent status. (f) Suspension Pay. without a board believes —If dismissing probationary a or career teaсher cause exists for through any (l)b specified 115-142(e)
for reason in G.S. suspension (e) (l)h the 115-142 and that of immediate may suspend necessary, by teacher is him the resolution board giving pay hear- without and without notice a ing ... .
(h) Procedure for Dismissal [*] [*] [*] or Demotion of Career Teacher.— dismissed,
(1) may A demoted career not be teacher part-time except upon employment the or reduced to superintendent’s recommendation. recommending
(2) a the dismissal Before board teacher, superintendent shall demotion of career give certified notice to teacher written the career make such recommendation mail his intention to part forth as of his recommendation and shall set justi- grounds upon which he believes dismissal such a to the effect fied. notice statement shall include days date of if within 15 after the the teacher review, requests he shall receipt a notice proposed have recommendations entitled to panel the Commit- superintendent reviewed . . . tee. 15-day receipt no- period after (3) Within superintend- with the
tice, the teacher file career (i) a request either review a written for ent COURT OF APPEALS superintendent’s proposed panel recommendation of (ii) Professional Review Committee or a hear- ing before days. the board within 10 .. . (4) request If a made, fоr superintend- review is ent, days within filing five request review, such notify shall who, Superintendent of Public Instruction days within seven from receipt the time of of such notice, designate shall panel of five members (at Committee least lay two of whom per- shall be sons) employed who shall not be in or be residents county request in which the made, for review is *8 to proposed review the super- recommendations of the purpose intendent for determining the whether opinion grounds its the for the recommendation are true and substantiated. . . .
(i)Investigation by Panel of Professional Review Commit- ; Report; tee Superintendent; Action by Review Board.— (1) The superintendent career teacher and will each right designate
have the to not more than 30 of the members of the Professional Review Committee as not acceptable to the superintendent teacher respec- or tively. person designated No so appointed shall be to panel. the . . .
(2) possible designa- As soon as after the time of its tion, panel the shall elect a chairman and shall conduct investigation such necessary as it consider for the purpose determining grounds whether the for the recommendation are true and substantiated. . . . (3) superintendent The career teacher and involved right shall panel each have the to meet with the accom- by panied person counsel or other of his choice and any present arguments
to evidence and con- which he pertinent panel siders of the considerations to cross-examine witnesses.
(4) panel completed investigation, the has When its prepare report it shall a written and send it to the superintendent report and teacher. The shall contain scope investigation an outline of the of its and its find- ing grounds as to whether or not the for the recom- and sub- superintendent are true of the
mendation . . . stantiated. days superintendent receives
(5) after five the Within report panel, written he shall submit his copy with a for dismissal to the board recommendation charges against teacher, drop or shall to grounds shall His recommendation state teacher. accompanied shall the recommendation and be for panel copy report of the of the Committee. receiving days superintend- (6) seven after Within taking any formal recommendation and before ent’s action, notify certified shall the teacher board superintendent’s recom- mail that it has received report panel. . . . mendation and following Hearing prоvisions (j) shall Procedure. —The any hearing pursuant to G.S. applicable conducted be (k) (1). 115-142 or shall (3) represented At have the hearing right counsel to be [*] [*] teacher and and to present [*] present and to superintendent through be heard, wit- testimony any competent the issue relevant
nesses grounds exist dismissal or demotion of whether *9 have procedures 115-142 set forth in G.S. whether the followed. been
(1) Panel Does Not Find That [*] [*] [*] the Grounds for Superin- Are True and Substantiated.— tendent’s Recommendation grounds for the (1) panel find that the If the does not superintendent and are true recommendation of the substantiated, hearing the board determine at the shall grounds the recommendation of the for the whether superintendent upon the substantiated are true and hearing by competent at the evidence adduced basis witnesses testify oath or affirmation who under shall by any the or secre- administered board member to be tary the board. hearing to (2) procedure at shall be such as The hearing orderly full, and
permit secure a fair and and Thompson v. of Education Board permit competent to all relevant to be re- evidence report panel ceived therein. The the com- competent mittee shall be deemed A to be evidence. kept full record all shall be evidence taken or offered hearing. system at such Both counsel аnd the right career teacher or his counsel shall have cross-examine witnesses.
(4) At the conclusion [*] [*] [*] hearing provided in this section, the shall on' board render decision the evi- its hearing dence at such submitted and not otherwise.” may except Thus a career teacher dismissed for the only grounds (e), upon enumerated in subsection and then superintendent recommendation of the The the board. teacher superintendent’s must be notified of the recommendation and given request opportunity hearing a before board panel or a of the Professional Review If the Committee. board believes cause exists for dismissal under certain grounds (e) (1), may listed in subsection the teacher be sus- pended hearing. pay without and and without notice hearing teacher’s recourse is then means of a before the panel board or a of the Review where the teacher Committee may present counsel, have and witnesses. evidence cross-examine requests hearing If panel the teacher it finds before the superintendent’s charges substantiated, that the are not true superintendent charges may again drop either suspension Only recommend to the board. if the recommenda- superintendent tion point is renewed at this does the again board, matter come before the which schedules a hear- ing. given opportunity is teacher notified and an to be present, heard, represented by to be pre- to be counsel and to testimony. given by sent The final is decision then solely presented. the board on the basis of the evidence [1] Thus, when a teacher is suspended without pay and with hearing, out steps notice board involved two process: (1) in the determination that “cause exists” for (2) decision, immediate dismissal and in the final either where *10 immediately requested teacher, by review is superintendent by the where the or
renews his recommendation after exoneration case, panel. suspend the In either both the initial decision to disposition and final the rest with the board. Peti case contends, judge found, participation tioner trial and the that
412 v. Board stages suspension procedure consti- board in both right process. dis- due We tutes a denial agree. the teacher’s course, in a tribunal is a basic re- Of fair trial fair “[a] 133, 136, process.” quirement Murchison, of due In re 349 U.S. 942, applies 946, 623, (1955). rule 99 L.Ed. equally 625 This 75 S.Ct. agencies adjudicatory which have to administrative Berryhill, 411 as well Gibson v. U.S. functions as the courts. 564, 488, (1973). However, famili- 36 L.Ed. 2d 93 mere S.Ct. 1689 arity gained by agency per- with the in the facts of case an statutory disquаlify formance of its it duties as does 683, Institute, In 92 decisionmaker. v. 333 U.S. FTC Cement 1010, (1948), L.Ed. investigated 68 S.Ct. 793 Federal Trade Commission pricing system reported respondent of the the findings Congress its President. Certain members pricing expressed opinion of the Commission had that illegal. system subsequently was insti- When Commission proceedings, respondent formal tuted insisted that the Com- assumption disqualify missioners “. . . themselves opinion membership an formed such had been the entire investiga- prior result of its official of the Commission as a 700, 1034, at at at In 333 U.S. 92 L.Ed. 65 S.Ct. 803. tions.” rejecting contention, Supreme that the this held fact Court opinions prior of its Commission formed as result investigations irrevocably did not their mean minds were subject. on the also closed The Court stated: require decision of this would us to hold that “[No] procedural process it would be a violation due for a judge opinion expressed to sit after he had a case an types prohibited to whether certain of conduct were law. fact, judges try frequently In more than the same case although time, once and decide identical issues these each Certainly, questions issues involve both and fact. law possibly be under Federal Trade Commission cannot stronger compulsions respect in this than constitutional 1035, 702-03, at Id. at 92 L.Ed. 68 S.Ct. 804. a court.” at 712, Larkin, v. 2d Withrow U.S. 43 L.Ed. S.Ct. licensing Wiscоnsin, (1975), medical board of involved the empowered reprimand statute to warn and which license, begin temporarily suspend physician, his criminal against began proceedings suspension the board him. When *11 413 COURT Thompson v. Board of Education investigating brought enjoin plaintiff-physician, he suit to investigation conducting and a sub- the board from both an hearing sequent investigation. Supreme on the The Court based procedure reaffirmed its rule and held that which FTC licensing investigated adjudicated physician’s board process. case did violate due case, find the Joint District
We
recent
Hortonville
School
1,
Assoc.,
482,
v. Hortonville
2d
Educational
49 L.Ed.
U.S.
analogous
(1976),
particularly
“Respondents
decision
have failed to demonstrate that
the
by
employment
to terminate their
the sort
was infected
disqualify
of bias that we have held to
other decision-
showing
process. A
makers as a matter of federal due
preceding
this
the Board was ‘involved’ in the events
decision,
light
important
leaving
interest
with
power given
legislature,
the Board the
state
is
enough
honesty
presumption
and in-
to overcome the
power.”
tegrity
policymakers
decisionary
426 U.S.
(Emphasis
496-97,
11-12,
2316.
at
Appellee contends, however, is the board required make it the same find- biased because effect suspension ing disagree. authorizing immediate In twice. We pay, (f) requires only teacher without G.S. 115-142 *12 suspension find “that exists” board cause under one of the grounds. matter, disposition enumerated Before final of the however, provide the board must the teаcher with a full and hearing process pro- formal in accordance with traditional due Clearly, by applied tections. the standard the in each board stage Initially, board, investigation, is different. the after need only guilty that find cause exists to believe the of teacher is misconduct; analogous proba- this is somewhat the- ble cause in a criminal case. The board does not reach the merits hearing of the until it case holds its formal where the teacher right present, represented by counsel, put the has to be Thus, per- evidence and cross-examine witnesses. the board is forming separate pursuant two Ac- functions to G.S. 115-142. cordingly, believe, hold, procedures by provided we and so that process guarantees 115-142 G.S. do not violate the the due United States Constitution.
[2] Petitioner further argues that, even if the procedures arq per followed special se, the board are not unconstitutional there process facts and circumstances which amount to a due order, agreed violation Superior in this case. In its attorney participation and cited the of the in the hear board’s ing exchanges hearing place and certain which took at the petitioner. circumstances which mittedly, in Ad resulted bias toward (j) (3) superintendent, G.S. 115-142 entitles the board, hearing. represented not the to be Yet counsel at the specify participation prejudiced order does not how this petitioner. recites, course, In fact the order it would “Of say [attorney] defeat, unfair to Thompson’s Davis worked especially in consideration of a record shows that in volume his examination of witnesses on behalf of the Board is exceeded that of the Board’s members’ examination of find witnesses.” We have studied the entire record and no support participation evidence to contention that attorney biasing prejudicing board’s petitioner resulted in board or any exchanges manner. As for the which occurred hearing, any hearing recognize at the the trier of we may opinions presented; fact form certain on the far facts thus pointed questions necessary Also, this to his function. are often given truth on have examined these reach the issue. We hearing any of the full and do not find remarks the context any members of the board. Since evidence actual bias resulting petitioner prejudice either from the there was no procedures provided in G.S. 115-142 or from the which events transpired hearing, at the order’s “factual conclusion of relating prоcess law” to a denial of due is overruled.
order, [3] Before we must first determine the considering specific proper scope findings of review Judge Alvis’ proceeding. Court of a teacher At dismissal petitioner’s hearing, judicial scope time of review of ad 113-315, repealed ministrative decisions was set out in G.S. Laws, (now 150A-51) pro Session c. s. G.S. which vides : may may agency
“The court affirm the decision or proceedings remand the case for further or it reverse modify rights peti- the decision if the substantial *13 may prejudiced tioners have been because the administra- findings, inferences, conclusions, tive or decisions are:
(1) provisions; In violation of constitutional or (2) statutory authority jurisdiction In excess of the or agency; or (3) upon procedure; Made unlawful or (4) by law; Affected other error of or (5) by material, Unsupported competent, and sub-
stantial evidence in view of the entire record as submitted; or
(6) Arbitrary capricious.” or Clearly, petitioner on the was not entitled to a trial de novo question charges against validity him. of the truth or un- The action of the board will stand in the less it finds that errors of one of the enumerated law occurred. (5) conclusively Petitioner contends that subsection determines superior may that the if it court reverse finds thе school board’s supported by material, competent, decision is not substan- believe, however, tial evidence the record as whole. We 143-315(5) conjunction with G.S. must be read in the rules re- garding hear- the admission of evidence at teacher dismissal ings.
ministrative [4] Generally, proceedings. the rules G.S. evidence must be 143-318, repealed 1973 followed Session ad 150A-29). However, Laws, 1331, (now 2 boards s. G.S. school c. 416
acting pursuant Chapter 115 of the General Statutes are specifically general excepted from this rule virtue G.S. 143-317(1), repealed Laws, 1973 2. Session c. s. Instead 115-142(j) (2) applicable governing G.S. sets out rules proceedings. teacher dismissal hearing
*14 “The shall conducted in with such accordance regulations may adopt reasonable rules and as the board 115-142, with consistent adopted, G.S. or if no rules have been regula- accordance reasonable rules and adopted by govern tions the State Board of Education to hearings.” such regulations had As the board petitioner’s no such rules and at the time of guided hearings, we are the rules of the State adopted proposed Board of Education as in its resolution of April (effective July 1972) : “(4) any hearing pur- Rides Evidence. —At conducted (k) suant G.S. 115-142 115-142(1), G.S. boards may any may give education probative admit evidence and commonly effect to evidence that is of a kind relied on by reasonably prudent men in the conduct of serious incompetent, affairs. Boards discretion their exclude irrelevant, immaterial, unduly repetitious evidence.” Thus, board, agencies, unlike other most administrative strictly evidence, although bound the rules of certain types of evidence could be excluded in the board’s discretion. [5] We believe general guidelines judicial review con 143-315(5) evidentiary tained in G.S. are modified rules proceedings. Although of teacher reviewing dismissal su perior must court still look for substantial evidence in the material, record a whole which it not testimony merely exclude from it its consideration because would otherwise of ex violate a rule evidence. We shall now amine the board’s resolution and the Court’s order light. in that board, August 1974, in of The its resolution made findings
following of fact: During year Keck, the the 1973-74 school D. Charles “[1] principal Apex Elementary School, directed Leon- Thompson corporal punishment to ard K. not administer
Thompson Board of Education v. any faculty to student without another member of the or being present. of staff the school Mr. Keck also admon- Thompson ished Mr. to use the terms ‘damn’ and ‘hell’ in instruction of and conversation with at his students general against principal school. The ing play- had a directive school, being cards at and confiscated cards he found games used card at school.
[2] On January 24, 1974, Leonard K. Thompson, while on duty Elementary Apex School, Kathryn s]apped at Elaine Novick, student, understanding a female in the face after say During to up, Thompson!’ her to him: ‘Shut Mr. episode Thompson puhed Tracy Byrd, same Mr. the hair of faculty another No female student. other member of the or Apex Elementary present staff of School was at time slapping hair-pulling. principal of assistant Elementary Apex ately Thompson School observed Mr. immedi ‘hollering yelling
after the incident . . . about Complaints have Thompson to a fit.’ were and Mr. made apologized parents girls, the two but recited that slap again he would the Novick child if she told him up. shut
[3] At various times during 1973-74 school year Mr. weighs Thompson, pounds, who about 190 administered corporal punishment by per to male and female students forming ‘frogging,’ resulting he what described as in one 9, 1973, (sic) injury case October and bruises to Rob Joseph Jungers, weighing ert a male student about pounds. ‘frogging’ Jungers and other students was accomplished presence any other member faculty Apex Elementary or staff of Schоol. students checkers, [4] During chess, study the 1973-74 school and various card halls over which year he had games including Mr. supervision Thompson allowed black play jack.
[5] On many occasions during school year 1973-74 Leonard K. used the words ‘damn’ and ‘hell’ as vocabulary part of his instruction and conversation Elementary Apex with his students at School. The use *15 by a teacher such terms under such is con circumstances by members, majority, Apex sidered community if not the some immoral
as conduct.
Thompson v. Board of Leonard other School, [6] students On numerous member of including February K. by Thompson kicking them, occasions faculty administered during the 1973-74 school or staff not 1974, in the corporal punishment when he Apex presence Elementary went year into any gymnasium, pulled Lorna girls’ out school toilet During student, a discus Mann, and kicked her. a female Thompson called Lorna Mann Mr. of her conduct with sion year during Mr. 1973-74 school Earlier her a whore. Brown, had char with Morris Thompson, in a conference ‘little whores.’ group his female students as acterized putes son [7] allowed students On by fighting occasion during among under the 1973-74 school themselves, his supervision to year one occasion Mr. settle Thomp dis exchange engage slapping in a allowed himself Cindy Yarborough, of his students.” one findings follows: reviewed the as The any by “Finding supported Fact numbered is not ‘[1]’ cоmpetent evidence of record. supporting Finding evidence of Fact numbered has ‘[2]’ ‘During the If the second
for the first sentence. sentence — Tracy Byrd, episode pulled the hair of Mr. same only a result read to ascertain another female student.’ —is by evidence, supported if is read to ascertain but it it is intent any by competent The supported evidence. it is not faculty sentence, member was that no or staff fourth present, fifth supported not evidence. is observed, in- principal is an sentence, what assistant conclusory hearsay evi- corporation inadmissible question. proper responsive to a which was not dence evidentiary concluding support in the record. finds sentence Robert Finding it relates to of Fact numbered ‘[3]’ Jungers supported evidence, otherwise Joseph is conclusory. finding is itself by competent supported Finding numbered is of Fact ‘[4]’ sentence, ‘[5],’ Finding numbered first of Fact
evidence. conclusory ‘many,’ supported word is exclusive sentence, exclusive competent evidence. The second by any majority,’ supported com- phrase ‘if not majority’ phrase ‘if The excluded petent evidence. *16 Thompson v. Board legitimate arising
could have been found as a inference competent subject. from a lack of on evidence Finding ‘[6],’ sentence, of Fact no numbered first finds evidentiary support conclusory for the word ‘numerous’ ‘kicking’ and the words and ‘kicked’ were contested at length hearing by on that end the acts shown complete description evidence warranted rather than char- testify Mann, student, acterization. The witness Lorna did gym that ran Thompson she out pursued of a class and girls’ brought bathroom, her into her back and kicked Thompson testified her. She also that called her a ‘whore.’ Thompson Morris Brown testified in a conversation be- tween the two in Brown’s office characterized some stu- testimony clearly dents as ‘little whores.’ Lorna Mann’s was competent. Brown’s less so.
Finding allowing ‘[7],’ Fact numbered as it relates to disputes fighting students to supported settle not is competent appears product evidence —rather it to be the an erroneous deduction from some an related evidence: illegitimate Cindy Yar- inference. As the incident to with borough, testimony Johnette Smith’s that to effect they Yarborough] [Thompson she ‘didn’t know whether ” playing were or not.’ separately findings We shall now treat each of in the Keck, order. Examination of the record D. reveals that Charles Principal Apex Elementary School, he met with testified that year рetitioner throughout at times various the 1973-74 school concerning petitioner’s performance. is unclear as The record transpired precisely discussions, to what Keck in these but testified that he “. . did about . counsel Mr. vulgar language.” his use he also obscene Keck stated any Apex “. . . use had authorized teacher at School games games. disap- [study] periods those I for chess or card thing prove of that kind of and I full of have drawer cards undisputed now I would were take.” These facts support peti- record. are unable to in the corporal punishment We find record that tioner directed was administer
any faculty present. student unless member another How- ever, sup- finding remainder the board’s first of fact is ported substantial evidence which is both material. COURT OF APPEALS supports agree judge that the record with the trial
We petitioner slapped female stu- one board’s second January 1974. The pulled on 24 dent and the hair of another virtually Peti- uncontroverted. incidents was evidence these *17 deny that he would and recited tioner did not the incidents girl again circumstances. The order’s slap the in similar Novick hearsay finding portion on of the of based criticism properly which is erroneous in view of the evidence evidence is agreе hearing (supra). at a dismissal We admissible teacher finding support there is no in the record for the board’s that that no faculty slapping incident present member was when is, however, other- place. error in what took This a minor finding supported evidence. substantial wise findings agree Superior 3 and of Court We supported are the evidence. the board finding disagree fact 5. of We with the order’s review of students, hearing, Jungers, petitioner’s testi- At the Joe one of language [petitioner] profane that “I have heard him use fied ,1 say would use those in class. heard him ‘Damn’ and ‘Hell.’ He get during mad expressions he would there sometimes class when that, upon discover- testified at one or two of the kids.” He also ing fight students, petitioner instructed one between two Cathy Regan, beat the hell out of them to . . [the other].” Thomp- occasionally student, heard Mr. testified “I have another in the ‘damn’ and word ‘hell’ classroom.” son use the word Smith, student, onliest words stated that “the A third Johnette say ‘hell,’ he would ‘damn’ and sometimes I heard him use was Mann, “I stated have another student when he mad.” Lorna was I have Thompson use the word ‘Damn’ in a class. heard Mr. heard him use the word ‘hell’ in a class. ... heard I have during couple in class him the word ‘Damn’ a of occasions use study question im- what constitutes hall.” On the class community, Apex the board profane conduct in the moral or Booth, testimony Chairman heard Apex from Mr. J. William Council, body Advisory a link between which serves as questions response re- In the citizens. the school board and classroom, Booth lating “damn” in the of “hell” and to the use say community, knowledge I would testified, my “To Apex language (sic) used in the classroom type these recognize ‘damn’ the word ... I immoral. would be considered in re- ‘hell’ other than use the word profanity. ... As to as ligious type above, I referring the below and courses and Board of v. say say profanity. would this is I would is the it senti- say all, people ment lot of I I for a but to for ... feel cannot. general Taking testimony community concept.” this is this account, supported into we believe the No. 5 was board’s by the record. regarding finding
Most the order’s comments of fact pertinent No. 6 not Superior are true function of reviewing correctly Court the board’s decision. The order kicking states that there no evidence of inci- was “numerous” although petitioner dents Lorna Mann testified that kicked her However, at least two different occasions. the other remarks credibility in the court’s order are more to the addressed sufficiency witnesses before the board than to the testi- mony suрport finding. clearly This function weigh Superior Court. The evidence and In substitute its evaluation that of the board. *18 doing right so Equipment it exceeds its Co. v. John- of review. son, 261 (1964). N.C. 134 2d believe the S.E. 327 We finding supported by board’s No. the record. disagree We with the order’s board’s find- review ing Jungers No. 7. Joe testified “I know Novick and Mike fight they Eddie Barker. I an recall occasion when had with Thompson fight. each stop other. Mr. it. saw the He did not fighting Mike Thompson and Eddie were and Mr. called Mike and as he turned around he ‘beat hell out of said Eddie’ and Eddie hit and Mike turned around and bashed similarly peti- mess out of Eddie.” Johnette testified that Smith “ said, tioner ahead ‘Go and beat the hell out of each other!’ Therefore, He didn’t care. It was in a that class.” we believe supported competent the board’s No. 7 evidence not, Judge found, product and was as “the of an errone- Alvis illegitimate ous deduction from some related an in- evidence: ference.”
Consequently following are with which we left facts supported petitioner are in that words the record: used the activities; “damn” and “hell” times in his at various classroom whore; that he called one of his female students a that such language vulgar by many profane was considered and members community; study Apex in that he allowed his students сheckers, play blackjack, despite princi- halls to pal’s and his chess general against school; policy playing that card on 24 Board of Education v. pulled January slapped and 1974, petitioner student one anger; on another; that that action was taken in
hair of this corporal punishment 1973, petitioner 9 October upon administered as to in the record a male student what is referred by engaging “frogging,” petitioner “frogging”; bruised February 1974, student; petitioner injured on girl’s kicked pulled her; out of the bathroom a female student permitted petitioner his stu- had on one occasion and that only by fighting dispute each other. With dents to settle variations, incorporated find- into the these facts were minor except discrepancies which ings by Therefore, for the the board. Judge did, rule, he above, it was error for Alvis we noted they evidence. were based conclusions of law shall now examine the board’s We Superior following review of them. The resolution contained Court’s conclusions: using Thompson’s ‘damn’ the words That Mr. action “[1] and ‘hell’ in instruction with his stu- of and conversation Elementary disapproved Apex at School is dents County not constitute of Education but does Board Wake beyond part; on his doubt immoral conduct a reasonable counseling after did these terms that his continued use of insubordination. constitute
toilet and [2] That Mr. seizing Thompson’s Lorna Mann on action February 21, 1974, entering girls’ con necessarily immoral conduct. stituted indiscreet but and other female students [3] That Mr. *19 Thompson’s under his characterization supervision of Lorna Mann whores imputation and lack of to them of incontinence was an knowledge incon chastity and, of such in the absence of act, chastity, immoral an or lack of constituted tinence contrary accepted public and to stand inimical to welfare ards.
punishment without [4] That Mr. Thompson’s presence actions in of another administering corporal member of children, pulling hair, faculty staff, slapping and or kicking students, with ‘frogging’ punishment, and them as against their authority superiors stated and from his out insubordination. policy, constituted Thompson v. Board
to [5] fight That Mr. with each other Thompson’s and actions him constituted allowing his students neglect duty encouragement discipline good insofar as and order in accordance with NCGS 115-146 is concerned. [6] That Mr. Thompson’s allowing cards and other games study halls, played permission in his without of his against principal policy, stated school constituted an act of insubordination.
ing [7] the 1973-74 school That language year actions Mr. demonstrated his lack of ca dur pacity speech conduct, to control his and constitutes incapacity.” mental reviewing Judge
In conclusions, the board’s found Alvis that “Conclusion of supported Law numbered is not ‘[1]’ competent
facts found from evidence because there is ab- solutely record, competent no incompetent, evidence of Thompson’s any conduct was su- contravention perior’s contrary. directive to Thompson’s legal Conclusion Law numbered is in ‘[2]’ favor. ‘[3],’ solely Conclusion of Law numbered as to Lorna Mann, supported testimony (which is her alone em- is
phatically by Thompson), denied but the remainder of support. conclusion is without totally
Conclusion of Law numbered evi- is without ‘[4]’ dentiary support speaks insofar as it contravention of policy,’ ‘stated and insubordination from not result authority authority lack of unless action without has been prohibited which not this is case. supported Conclusion of Law numbered is ‘[5]’ According based on evidence. competent evidence, Thompson say did two students on they dispute one IF occasion could not their settle they fight; fight they he otherwise should did not — fight. did not allow a lacking totally Conclusion Law numbered ‘[6]’ *20 support he evidence. One is not insubordinate unless know,
knows, or has reason to thаt his actions are in viola- superior’s guess specu- tion of his directives. He need not superior. late as to the of his attitudes policy. Keck, principal, There was no stated school did testify contrary. Thompson he had directed Law supported Conclusion of numbered is not a ‘[7]’ finding competent product based on It clear evidence. is a overlooking predisposition nonsequitur. Therefore, single upon by not a Conclusion of Law relied dismissing finding Thompson supported by Board in of is evidence, finding competent except fact based that he called Lorna in- Mann a whore which the Board extricably finding combined with a from Brown’s testi- mony concerning (denied private had conversation he by Thompson) in which the referred latter group to some unidentified little whores. students as From this combined the Board concluded that immorally Thompson acted and in a fashion ‘inimical to contrary public accepted welfare and standards.’ Such solely upon a conclusion could not rest evidence of con- Nor determine how versation with Brown. much of the conclusion can this court
gained solely support from that finding. Therefore the entire conclusion is tainted and can- not stand.” Judge
The board contends that the erred ruling suрported were not find- the board’s conclusions ings It claims that the court should based on evidence. reweighed not have the evidence and that if the board’s con- evidence, they supported sufficient should clusions were review, provision judicial provided no other of G.S. withstand agree. 143-315 violated. We
[6, 7] first, and sixth conclusions relate The board’s fourth together. Specifi and we discuss them insubordination shall petitioner’s cally, continued the board concluded that use kicking, “hell,” slapping, hair-pulling, “damn” and his sanctioning games “frogging” students, of card and his contrary study policy to school and thus constituted hall was Judge conclusions due Alvis overturned these insubordination. these acts were contravention of a of evidence lack agree. policy” “Insubordination im- the board. We “stated *21 425 COURT Thompson v. Board of Education disregard ports express implied the of or of a willful directions obey Dis- employer and a to orders.” School refusal reasonable 478, 28, Superior Court, 433 P. 2d trict v. Ariz. require (1967). appears It to us it be unrealistic to that would against pos- in all local boards to counsel teachers advance school types of could be found sible guilty misconduct before those teachers insubordination, repeated acts of teaсher
of and that obviously contrary accepted misconduct which are to standards teaching community profession of in in behavior the the general we should Further constitute insubordinate conduct. know, petitioner find it to believe did not difficult known, implied not have should that his behavior violated the express Nevertheless, if policies the of the the board. while petitioner’s highly ques- record shows that conduct was often circumstances, the under tionable the there is no evidence that objected petitioner here to were was ad- acts continued after differently. Therefore, peti- or counselled to behave monished tioner’s conduct did constitute insubordination within Judge meaning correctly (c), of G.S. 115-142 Alvis over- these conclusions of board. ruled conclusion, petitioner’s The second which involved board’s
entering girls’ seizing therein, bathroom and a student from petitioner free in the incident. found of immoral conduct finding support This has sufficient the record.
[8] board’s third conclusion found petitioner’s characteri act, zation of a female student as a whore an immoral to be contrary community Judge accepted Alvis found standards. although competent evidence of fact there manner, petitioner . the did “. . refer student this аgree. support.” without remainder of the conclusion is We language presence deplore petitioner’s in the we use of While language students, in this used of we do not think that his finding immorality contemplated G.S. warrants case 115-142(e) (l)b. Therefore, properly
this conclusion of law was Superior overturned Court.
[9] The board’s fifth conclusion found petitioner’s allowance neglect duty relating fighting encour constituted citing Court, agement discipline. order fighting incident, this petitioner’s overturned version supported . not because it was “. . conclusion the board disagree. It was competent evidence.” We based judge weigh credibility not the function of the trial only sufficiency. previously the evidence but to test its We have sufficiency testimony concerning fight discussed the incident and tirety, that when believe in its en- record is viewed supports
there is this evidence it which Therefore, of law. conclusion this should not have conclusion *22 Superior been overturned in the Court.
that overturned The board’s [10] petitioner’s acts showed mental Superior seventh and final Court. Petitioner’s conduct was not incapacity, conclusion, was which found correctly such as would capacity indicate lack mental of that term as has legally been applied. defined and that, are mindful of reversing We fact the order of Superior Court, petitioner’s we reinstate based dismissal solely nеglect duty arising his of from his main- failure to good discipline tain and order. While there who be those argue would the breakdown of classroom order and dis- cipline remedy should form the basis for so drastic a dismissal, again teacher we must state this Court the role of reviewing proceeding. a dismissal It is our function to ex- amine the whole record to determine whether sub- there is findings stantial evidence on which the of the school board are based and whether the conclusions are based on such facts contrary findings and are not If law. the school board’s manner, conclusions are substantiated be this order its should regardless affirmed, number nature of the offenses charged. Further, clearly the record in this case reveals involving petitioner charges grouped other incidents under other specifications could have also been included the board neglect specifications duty charge. under the its We, therefore, petitioner reinstate the dismissal as or- August dered in the resolution of board’s The 1974. order of Court is
Reversed.
Judge Vaughn concurs.
Judge dissents. Clark
Thompson Board Education v.
Judge dissenting. Clark regret agree majority
I I am unable to with thorough obviously analysis opinion It in this case. on a based forebodings extravagant I do voice but evidence. majority mildly opinion includes seek refute error. Since the listing unproved allegations find- and irrelevant a detailed ings, fact, comparison between some between innuendo and charged upholds, majority is in order. what was and that the charges Superintendent preferred four Schools against petitioner justify suspension without the immediate incapacity, (1) pay and recommendation to mental fire: duty. (2) immorality, (3) insubordination, (4) neglect charged “inadequate performance” not (e) (l)a. Mr. under G.S. 115-142 Superintendent eight specifications listed under charges. hearings
four The Board of held on three *23 hearings transcript occasions and the of to over these amounts findings pages. 500 The Board made of and reached seven fact fire seven of law. It sufficient evidence to conclusions found grounds. Mr. obviously on all four Much and effort were time charges attempting against spent in to establish the petitioner. After all said and all un- done after the remotely the founded and evidence not relevant accusations firing charges disregarded, majority been the the have sustains telling single incident, petitioner on the basis of whose of approximately appeal pages out 177 takes three of the record on testimony. pages of only majority upon reversal the one
Since the rests law, myself I of will fact and one conclusion of concern only parts Superior I of the Court. those order might sympatheti- I treat note that would be inclined to more reviewing cally Superior parts of order of other Court germane they majority findings fact were hold- of other ing. correctly majority scope re- proper has of
The stated Superior that extent it holds Court view reweigh the in a trial appellate do not sit to evidence courts majority interpretation application in its novo. errs de 428 143-315) (then the revelant statute. G.S. 150A-51 review G.S.
provides if the decision the school board be reversed rights petitioners may substantial have been “[T]he prejudiced inferences, findings, because the administrative conclusions, or decisions are:
[*] sfc [*] [*]
(5) material, Unsupported competent, and substantial submitted;
evidence ...” view entire record as (Emphasis added.) Supreme clearly Our Court has stated that under G.S. (then 143-315) 150A-51 applica- G.S. “the ‘whole record’ test distinguished . . . ble. The ‘whole record’ test must be from ‘any competent evidence’ Board standard.” Underwood v. Control, 623, 1, 629, (1971). Alcoholic 278 N.C. 181 5 S.E. 2d determining In substantiality supporting of evidence Board, a ing test, decision of the under the whole a review- record fairly court must take into account whatever in the record weight detracts from the the evidence. A decision upheld merely Board cannot be on the basis which evidence justifies action, taking and of itself without into account contradictory conflicting evidence or evidence which infer- Corp. could be NLRB, ences drawn. Universal Camera v. 456, (1951). U.S. 71 S.Ct. L.Ed. majority feels the order of the upon unduly
was based an “competent” restrictive definition of evidence and that ap- because some evidence was disregarded parently coui't, its review of the record vio- statutory lated focusing supposed standard. While on the *24 evidentiary reviewing court, majority errors of the the over- the “competent” looks fact that even with the inclusion of this evidence, the entire support record as submitted does not the firing petitioner. action of the Board in majority may Thus the properly sustain decision “any competent of the Board port there sup- because is evidence” to it. the “whole applied, When record” test is it becomes Superior not, by majority, clear Court did as stated credibility weigh properly of the evidence but reviewed “entire record as submitted.” reviewing
Using the decision the “whole record” test for agency appropri- it under G.S. 150A-51 is of an administrative Board and the ate to evalute the decision of the order por- majority upon the The bases its reversal Court. finding conclusion fact and fifth tions of the Board’s seventh fight Eddie pertain Mike Novick and of law that to the between Thompson students allowed Barker. The Board found that “Mr. among by fighting disputes them- supervision under his to settle duty. neglect of and concluded that this constituted selves” testimony upon the of two The of the Board rested opinion Jungers majority students, Joe Johnette Smith. testimony proof quoted only portions of their has relevant Judge ignored. “competent” evidence which Alvis When emerges. surveyed, picture Joe “whole record” Jungers a different is vicinity that he was not in the immediate also testified why the fight position know not in a and that he was sitting fight (“I I in the a bit late. was had started. came class fighting they some playing over there chess and started Thompson.entered reason.”) Nor did he know when Mr. deny Thomp- playing did not Mr.
room he was chess. He because he had was sure of the incident or state that he son’s version merely said everything He heard that Mr. said. short, added.) Joe (Emphasis In all I heard said.” “That’s Jungers testify complete position content not in a record Thompson’s whole At the least of Mr. remarks. single witness be requires that all the evidence of standard Corp., be and, in the of Universal Camera terms considerеd “taking conflict- evidence on which into account evaluated the state- ing drawn.” It is consistent inferences could be Jungers was drawn his attention to conclude that game of Joe ments fight the noise away and to the chess from his Thompson and only did he see Mr. then commotion saying. hear what he was testimony majority of Johnette quotation similarly fully that testified more She selective. Smith they would probably room and be out would “He likely would he fighting. in and more than would come He than probably more tell them at them and he would look hell of each other!’ say out likely, ahead and beat ‘Go added.) (Emphasis . . .” *25 COURT OF APPEALS Thompson v. Board I do not believe that an such unclear and inconclusive statement uphold firing. Applying is whole record the sufficient basis to a man’s test, testimony I do not believe that of Joe the Jungers, which opportunity itself revealed an insufficient Smith, testimony observe the entire incident and Johnette manifestly which unclear and inconclusive are “substantial in view of the entire record as submitted.”
Finally, although testimony I the two believe “substantial,” students alone does rise level I be- peti- lieve apparent this conclusion becomes even more when considered, tioner’s version is as Underwood clear is makes proper. case, Suрreme Superior In that our Court held that the properly had Court considered review- the licensee’s evidence in ing explicitly an administrative decision to the extent it did not contradict that of Board. There the Board had revoked liquor license on the basis evidence which showed there had fight premises. been a on the licensee’s Petitioner did not dis- fight pute place, that the complementary had taken but offered showing properly evidence he had acted in the circumstances. charges Superior On two other properly also Court con- petitioner’s testimony sidered the extent it did not ex- plicitly contradict the Board’s evidence. petitioner’s boys
Here version is that he admonished the by telling disputes by fighting them that animals settled their sarcastically they disputes and added that if couldn’t settle their they go with their brains then out of each other. This should ahead beat the hell testimony explicitly does not contradict Rather, Underwood, that of complements the students. as in it agency. presented by provides preface the version the It for Jungers heard remarks Joe when his attention was fight. finally properly drawn to It considered Superior under the Court “whole record” standard. judge legislature We do sit to the wisdom of the
еxtending concept secondary of tenure to schoolteachers. procedures grounds firing and. have been set body. proper constitutional Under G.S. 150A-51 the may reverse decision of the school board is not which supported by “material, competent and substantial evidence majority view the entire record as submitted.” The has erroneously “any applied evidence” test. For already reasons I stated do not believe that the few lines of *26 v. West
State peti- testimony by the two students are “substantial.” When considered, proper the “whole is also as is under tioner’s version standard, apparent. even record” this conclusion is more I Because would affirm the order of
statutory grounds, I not need to reach constitutional would question express opinion on that and therefore no issue. WEST,
STATE OF NORTH v. B. C. JR. CAROLINA No. 761SC288 (Filed 1976) November — requirement permanent statutory 1. 2.1— bills of indictment § State retention regain by and to In an action to be declared owner State possession by and held of two bills of issued 1767 and 1768 indictment defendant, proving the State burden of that the indict- met its by permanently by required virtue of were law to be retained ments requirement in G.S. 14-76. — government property passage according to stat- 2. 2.1— title § State ute only principle government prop- It a well settled of law that title to only duly erty may pass prescribed by constituted in the manner body any property may legislative such not be for- title to carelessness, through oversight, negligence even inten- feited government. any agents of the conduct of tional — duty indictments in 10— to maintain court records § 3. of Court Clerks — duty performed presumption private individual clerk hands of overcome regain by to be declared owner and to In an action the State possession held required provisions bills issued in 1767 and 1768 and of two of indictment defendant, were evidence that the clerks of court State’s statutory of the court and that law to maintain records one court to were made for the transfer of records from years through were made as various court reforms another sufficient properly public presumption had officers to overcome the performed duty, the documents were in defend- their since ant’s hands. — charged in court clerk 10— indictments records § 4. of Court Clerks with safe — sufficiency proof improper keeping removal regain be declared the owner and the State to In an action held and 1768 and possession by bills indictment issued in 1767 of two tending defendant, the indict- evidence show that the State’s Salisbury Jus- Court of one time the records were at ments