*1 TERM, FALL 1915. N.C.]

Key v. Board of Education. granted should injunction in matter of this kind an but davit, on such conflict. of tbe

If on account just bad cause plaintiff for his side- selecting excessive or discrimination him in cost, or for he paving, cause, walks want of other notice, should have under paid treasury protest the assessment into the town brought and his forbids action to same. Revisal, 2855, recover the of an injunction issuance to restrain the collection taxes assess- ments. Besides, having had plaintiff estopped object now, put notice to down did not sidewalk, and notice later that he do so the town would him charge the sidewalk and the cost to lay (to neither of which notices further his responded), acquiescence he in standing by while the work was no being making objection done either before the town authorities or otherwise, taking part laying out the work and even promising pay.

The restraining order was improvidently granted and must be set aside.

Reversed. concurs

HoKE, J., in result.

"Walkes, J., dissents. FRANK KEY et al. v. BOARD OF EDUCATION OF GRANVILLE COUNTY.

(Filed November, 1915.) Discretionary 1. School Powers —Mandamus. Districts — may compel The courts upon hoard of education to act dis- cretionary powers hy Legislature, conferred on them hut cannot tell them how must act. Elections—Abolishing' 2. Approval District —Endorsement and Same— —Inter- pretation of Statutes. Revisal, 4115, hy chapter 524, 1909, chapter sec. amended Laws 135, 1911, requires Laws that where school districts have heen estab- lished, the tax and the district shall upon petition he submitted to the electorate of the district of two-thirds therein, approved hy of county when endorsed and Held, requirement board of education: the endorsement of the hoard of education shall first he had confers on this judicial discretionary power necessarily exercise of a hoard the plied im- “approved,” from the of the word use where it acted unarhitrary power in the exercise of the to order has refused authority hy compel election, are without courts them proposed. “endorse and the election mandamus IN THE SUPREME COURT. Boaed of Education. *2 Prerequisites—Statutory Requirements.

8. Same — county prerequisite by ordering It is a to the valid of an election the revoking question commissioners a the the tax and district, requirements met, statutory e., school that that the be first i. petition signed by county approved the board of be and endorsed and the specified by statutes; education as dered election otherwise or- the such county the ineffectual. commissioners will be J., dissenting; J., concurring dissenting opinion. in the Allen, Brown, Appeal Cooke, from February, 1915, from J9 defendants G-RAN- VILLE. board, compelling Civil on defendant action to obtain mandamus to the board of commissioners approve” tbem to a petition “endorse an election on the of the County, Granville that order annulment of a school district in said and known as county tax “Stovall Tax No. heard on demurrer. Special District, 2,” complaint alleged that the said district was established duly

The 4115, Revisal, and had continued under the section operate law, until present signed by quali- the when two-thirds of the year, petition, fied voters of said order district, county commissioners to requesting an election on district, said was pre- sented to defendants, County, the board of -education Granville with the request that said “endorse said board petition. complaint then contains further averment as follows: “That board education considered the said matter after some hesitation and delay, declined and and approve refused to said petition endorse does still decline and refuse to approve same, contrary endorse the express requirement of the mentioned,” statute above and further:

“6. Your that commis- petitioners county are informed and believe sioners without to order the demanded unless the authority are election of edu- therefor endorsed and petition such endorsement cation, defendant, and that the absence aqd .of approval by education, your petitioners said board of if said remedy against to; whereas, peti- the tax referred levy tion should endorsed and said defendant approved by your petitioners be might be relieved of the same. speedily has no your

“7. And aré advised that the defendant petitioners petition, withhold endorsement and said authority its but is same. bound, upon showing made, approve to endorse and of said The defendant did not its endorsement and approval refuse petition on numbers account defect lack of petition signers.” in terms as follows: complaint board demurred to

Defendant in this complaint plaintiffs stated in “For the declarations that in manner and form out, appearing set and the matters therein action, TEEM, FALL 19'15. N. O.]

Key v. BOARDof Education. said and maintain plaintiffs are not sufficient tbe bave abov,e, as said said defendant and that against board, their aforesaid action as set out petition defendant board of declined to endorse education discretion, in said in the of a sound and reasonable complaint exercise it be dismissed. demur to the said and ask that “Wherefore, behalf, want of a sufficient declaration plaintiffs said defendant board said prays from having barred maintaining the aforesaid action board, defendant and that herein named be plaintiffs required to costs pay the of this proceeding.” the demurrer and judgment overruling commanding

There was de- approve prayed fendant board to endorse and for in the complaint, whereupon defendants, having duly excepted, appealed. *3 T. T. Hicks plaintiffs.

B. 8. Royster and B. K. Lassiter for defendant. statute forma stating authorizing after case: Hoije, J., sec. so districts, Eevisal, of these 4115, tion chapter 135, Laws Laws by chapter 524, 1909, 1911, amended residing of two-thirds of the any special on petition “endorsed and board of educa taxing district, approved by commissioners shall order an election in said tion,” the board of county submitting district for of said tax and an etc. It has been held essential district,” that, requirement to a valid must be election, preliminary petition preferred properly Comrs., v. 160 N. (Gill C., 176), whether, and the is presented alleged the facts as complaint, of education compelled mandamus to “endorse may petition. and with recognized principle us, upheld It is the in numer Court, of this that where con discretionary powers ous decisions are boards, ministerial the court not undertake to on these ferred how such powers given as to shall be exercised in a case. direct them such a board to act in the may compel premises, but cannot tell They Edgerton Kirby, v. 156 how must act. N. they C., 347-351; them Comrs., Comrs., v. C., Board Education 150 N. 116-123; Ward v. of Furman, 115 Groom, Burton v. 166; N. C., 534; C., N. Broadnax v. Justices, Atty.-Gen. v. 244; 64 N. 27 N. C., C., 315; Abbott on Mun. Legal on Extr. 1108; High Eemedies, sec. Corp., Ed., sec. 24. In the Legal High Eemedies, citation to on Extr. quoted with approval Gomrs., Board Education supra, v. principle correctly stated of important as follows: “But the most principle be observed in the mandamus, of jurisdiction by exercise and one which lies at the very of foundation of the entire rules and system principles regulating the THE COURT. IN SUPREME Boabd of Education. which of this is that fixes the extraordinary remedy, use distinction which duties nature and those between of a peremptory mandatory degree of some involving are in their the exercise discretionary character, whom the man- judgment the officer or part body damus is . such vested sought. . . And whenever officers or bodies are with duty required as to the discretionary powers performance at their hands, they when in result of official action reaching given are obliged discretion, necessarily degree judgment use some mandamus while will lie to them in motion and to compel set action upon the matters in will in no manner interfere with the controversy, it exercise such discretion control or or decision dictate which shall be reached.” And in section 34: “An dis- again, important tinction to be observed in outset, will more fully appear is that duties which hereafter, absolute, between peremptory and hence ministerial in their which involve merely nature, those discretion degree exercise of some of official judgment upon part the officers with charged performance. regards their As latter of duties, class which the officer is with concerning vested discre- tionary powers, while may properly the writ command him to act or may set him in it will not control or motion, further with this interfere nor will action, him specific direct to act manner.” In the present alleged case it that the board education has refused to act on the nor question presented, even that have acted arbitrarily. On the contrary, the averment in relevant to the point is that the board of education and, “considered the matter after some hesitation and delay,’ refused to endorse and approve petition,” from a perusal subsequent *4 allega- and-additional tions the will complaint, appear it that suit proceeds the the upon idea that the duties of the education are merely ministerial, being confined to if ascertaining signers of the petition are resident within the district and whether they constitute two-thirds in number of the resident voters. in our But, opinion, such a position cannot be sustained. In a case like present, primary controlling sig- nificance of the word “approve” imports the exercise of judgment. linguistic a matter of definition and, This true as reason as well a hold in as authority, that, requiring we must preliminary essential shall be “endorsed and approved” that board, the to statute conferred and intended confer that body power or withhold their as their give may dictate, having- Co., community (Lane to the best interest affected v. Ins. regard Smith, S. 142 v. 23 Costner C., 55; Montana, 44; County, N. v. Calusa Cal., 274-275), purpose evidently being that, when of these one districts should taxing formally established, had it not be revoked N. FALL TEEM, 1915. 0.] Boabd of Education.

unless two tbe interests more directly involved acquainted and best with, conditions should concur in the movement to have the same an- nulled.

The authorities cited in learned brief of for counsel were appellee cases where the conferred powers were held to be ministerial and purely to mandamus clearly was very established. in was error the demurrer overruling record,

There there should be judgment go day. that defendant

Eeversed. I in dissenting: general concur in

AlleN, J., principles stated but I think opinion Court, application have no to the statute before us. for elections in Assembly provided General at first to be held

The if school to ascertain the voters would consent districts, upon petition, for school purposes. to the a tax levy object stimulate interest in education and to afford an oppor- statute was to who desired better school facilities them; to those to obtain but tunity was found many unwilling soon that were vote the tax if they get could not rid of dissatisfied or it, they became reached the con- longer clusion and the necessary, original that it was no act was amended in 1909 adding following: thereto the of two-thirds of

“Upon petition residing special tax district established under this endorsed section, board of education, the board of commissioners shall order another election in said district for submitting the of revoking said tax and abolishing said district, be held under the provisions this section prescribed holding other Pro- elections: vided, that no election for special tax in tas any special district shall be ordered and held said district within less than two years from the date of the election which at tax was voted and the district nor established, at within time less than two years after the date the last election on in said district; and no peti- tion revoking such tax shall approved by the county board of educa- tion oftener than once in two years.” The dominant and controlling purpose the act as'amended people of district may by popular vote for them- determine

selves wisdom expediency levying, the first instance, of discontinuing the I tax, and cannot think it was the intention of the General Assembly invest the board of education, a nonelective body, *5 with authority, as a supervising guardian, to thwart this purpose. The people right to have a vote—the says statute but, under so—

the construction placed the statute by Court, the of board educa- COUNT. THE SUPKEME IN

Renn R. R. “You them, to action, say for its reason giving any may, tion been com- statute have of the requirements vote,” although not shall with. plied was meant if what give hold election an Why misleading and less simpler would been Legislature? It have so ordered when tax should be discontinued that the provided have education. the board of “endorsed and approved meaning language of the

What, then, charge board of education”? The board patrons and knows the boundaries and county, schools of the knows It also when body. than other official districts better that some one should necessary It was where been held. elections have if in fact two-thirds of scrutinize the see examine and if a school signed and also to ascertain it, voters the district had election had held within two years. been of education,

These duties are the statute on board imposed by com- performed, can, opinion, and when they my have pur- make effective real pelled approve, endorse and thereby it. pose statute, defeat for a

Did the General intend to to the “Vote Assembly say people, if years tax for have tried two schools, you you after longer you may dissatisfied think the tax no hold another necessary if you election board education that two- satisfy the it,” tax, thirds desire “Vote for the and after have or, you tried it years you two hold another election educa- will tion the election held” ? permit to be I think the first construction the better. J., concurs in

BeowN, dissenting opinion. LINE J. RENN v. SEABOARD AIR RAILWAY COMPANY. T. (Filed November, 1915.) Employers’ liability and Servant —Federal Act—Exclusive Provi- 1. Master Court. sions—State Liability supersedes Employers’ Act and is exclusive The Federal subject-matter. upon the same statutes State Employer’s liability Pleadings— and Servant —Federal 2. Master Act— Courts. Amendments —State brought an action to the State amendment An Employers’ Liability provisions of the Federal as- Act so under court to thereunder, presents pleading allege a matter of and. cause action will not review. practice courts Federal