Russ v. Board of Education of Brunswick County

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59 S.E.2d 589 (1950)

232 N.C. 128


No. 600.

Supreme Court of North Carolina.

May 24, 1950.

*590 E. J. Prevatte, Frink & Herring, Southport, and Stevens, Burgwin, & Mintz, Wilmington, for defendant-appellant.

John D. Bellamy & Sons and Robert E. Calder, Wilmington, for plaintiff-appellee.

ERVIN, Justice.

Although his office is filled by appointment of the county board of education, a school committeeman does not hold at the pleasure of the board, and is not removable at the will or caprice of that body. He holds for a definite term of two years. G.S. § 115-354. Moreover, he can be removed only for cause in a proceeding conforming to G.S. § 115-74.

This statute provides that "in case the county superintendent or any member of the county board of education shall have sufficient evidence at any time that any member of any school committee is not capable of discharging, or is not discharging, the duties of his office, or is guilty of immoral or disreputable conduct, he shall bring the matter to the attention of the county board of education, which shall thoroughly investigate the charges, and shall remove such committeeman and appoint his successor if sufficient evidence shall be produced to warrant his removal and the best interests of the schools demand it."

The law clearly contemplates that any school committeeman against whom the statutory proceeding for removal is brought shall be given notice of the proceeding, and of the charges against him, and afforded an opportunity to be heard and to produce testimony in his defense, and that the county board of education shall not remove him from his office unless it determines after a full and fair hearing on the merits that one or more of the specified causes for removal has been established by the evidence. This being true, the statutory proceeding for the amotion of a school committeeman is judicial or quasi-judicial in character, and for that reason an ousted committeeman is entitled to have the action of the county board of education reviewed in the Superior Court. It is noted, in passing, that the board is required by law *591 to keep minutes of its meetings. G.S. § 115-44.

The question arises as to how an ousted school committeeman is to obtain the court review of the action of the county board of education in removing him from office. Although this court refrained from expressing any opinion on the point in Board of Education of Graham County v. Anderson, 200 N.C. 57, 156 S.E. 153, there is nothing in the statutory laws relating to schools and school districts providing that an appeal may be taken to the court from the decision of the county board of education ousting a school committeeman. Besides, these laws do not expressly or impliedly authorize the committeeman to seek a review of such proceeding by an independent action against the board under the provisions of G.S. § 115-45.

G.S. § 1-269 expressly stipulates that "writs of certiorari * * * are authorized as heretofore in use." It is well settled in this jurisdiction that certiorari is the appropriate process to review the proceedings of inferior courts and of bodies and officers exercising judicial or quasi-judicial functions in cases where no appeal is provided by law. Warren v. Maxwell, 223 N.C. 604, 27 S.E.2d 721; Belk's Department Store, Inc., v. Guilford County, 222 N.C. 441, 23 S.E.2d 897; McPherson Drug Co. v. Norfolk Southern R. R. Co., 173 N.C. 87, 91 S.E. 606; Hillsboro v. Smith, 110 N.C. 417, 14 S.E. 972; Thompson v. Floyd, 47 N.C. 313; Intendant & Commissioners of Raleigh v. Kane, 47 N.C. 288; Brooks v. Morgan, 27 N.C. 481; Collins' Heirs v. Haughton's Heirs, 26 N.C. 420; Matthews v. Matthews, 26 N.C. 155; Dougan v. Arnold, 15 N.C. 99; Allen v. Williams, 2 N.C. 17. Hence, we conclude that the Superior Court, which is the highest court of original jurisdiction in this State, has the power to review by certiorari the action of a county board of education in removing a school committeeman from his office.

This decision finds full support in well considered cases in other States holding that when a governmental agency has power to remove a public officer only for cause after a hearing, the ouster proceeding is judicial or quasi-judicial in its nature, and may be reviewed by certiorari. McCain v. Collins, 204 Ark. 521, 164 S.W.2d 448; Warren v. McRae, 165 Ark. 436, 264 S.W. 940; Hall v. Bledsoe, 126 Ark. 125, 189 S.W. 1041; Sweetman v. Board of Police Com'rs of City of Los Angeles, 56 Cal. App. 644, 206 P. 102; Board of Aldermen of Denver v. Darrow, 13 Colo. 460, 22 P. 784, 16 Am.St.Rep. 215; State ex rel. Hathaway v. Williams, 149 Fla. 48, 5 So. 2d 269; Blake v. Lindblom, 225 Ill. 555, 80 N.E. 252; City of Chicago v. Gillen, 222 Ill. 112, 78 N.E. 13; Kammann v. City of Chicago, 222 Ill. 63, 78 N.E. 16; Powell v. Bullis, 221 Ill. 379, 77 N.E. 575; People ex rel. Elmore v. Allman, 314 Ill.App. 194, 40 N.E.2d 812, affirmed in 382 Ill. 156, 46 N.E.2d 974; People ex rel. Blasi v. Burdett, 195 Ill.App. 255; City of Chicago v. Bullis, 124 Ill.App. 7; Merrick v. Arbela Township Board, 41 Mich. 630, 2 N.W. 922; McGregor v. Board of Sup'rs of Gladwin County, 37 Mich. 388; State ex rel. Bunting v. Board of Education of City of Duluth, 213 Minn. 550, 7 N.W.2d 544; In re Mason, 147 Minn. 383, 181 N.W. 570; State ex rel. Kinsella v. Eberhart, 116 Minn. 313, 133 N.W. 857, 39 L.R.A.,N.S., 788, Ann.Cas. 1913B, 785; State ex rel. v. Common Council of City of Duluth, 53 Minn. 238, 55 N.W. 118, 39 Am.St.Rep. 595; State ex rel. Davidson v. Caldwell, 310 Mo. 397, 276 S.W. 631; State ex rel. Flowers v. Morehead, 256 Mo. 683, 165 S.W. 746; State ex rel. Tedford v. Knott, 207 Mo. 167, 105 S.W. 1040; La Bonte v. Berlin, 85 N.H. 89, 154 A. 89; Loughran v. Jersey City, 86 N.J.L. 442, 92 A. 55; Daily v. Board of Chosen Freeholders of Essex County, 58 N.J.L. 319, 33 A. 739; State, Fitzgerald, Prosecutor v. Mayor, of City of New Brunswick, 47 N.J.L. 479, 1 A. 496, 54 Am.Rep. 182, affirmed in New Brunswick v. Fitzgerald, 48 N.J.L. 457, 8 A. 729; Bryan v. Town Board of Brighton, 133 Misc. 315, 232 N.Y.S. 18; State ex rel. Olson v. Welford, 65 N.D. 522, 260 N.W. 593; State ex rel. Ness v. Board of City Com'rs of City of Fargo, 63 N.D. 33, 245 N.W. 887; State ex rel. Wehe v. Frazier, 47 N.D. 314, 182 N.W. 545; Garvin v. *592 McCarthy, 39 R.I. 365, 97 A. 881; McCarthy v. Board of Aldermen of City of Central Falls, 38 R.I. 385, 95 A. 921; McKee v. Board of Elections, 173 Tenn. 276, 116 S.W.2d 1033, rehearing denied in 173 Tenn. 276, 117 S.W.2d 755; Gilbert v. Salt Lake City Board of Police, 11 Utah 378, 40 P. 264; Browne v. Gear, 21 Wash. 147, 57 P. 359; State ex rel. Board of Education of Williams Dist. v. Martin, 112 W.Va. 174, 163 S.E. 850; Helmick v. Tucker County Court, 65 W.Va. 231, 64 S.E. 17; State ex rel. Ballard v. Goodland, 159 Wis. 393, 150 N.W. 488; State ex rel. Loomis v. Dahlem, 37 Wyo. 498, 263 P. 708.

The verified application alleges facts sufficient to establish the right of the petitioner to have the Superior Court review on certiorari the action of the county board of education in ousting him from his office as school committeeman, and contains a general prayer for such remedy as the court shall deem meet and proper. Consequently, its validity as a pleading is not impaired by the fact that the petitioner does not specifically pray that the court issue a writ of certiorari commanding the county board of education to certify and return to it the record in the removal proceedings. City of Nashville v. Mason, 11 Tenn.App. 344; Town of Woodstock v. Gallup, 28 Vt. 587.

The ouster proceeding established by the statute codified as G.S. 155-74 calls to mind words spoken by the Supreme Court of Minnesota in State ex rel. Bunting v. Board of Education of City of Duluth, 213 Minn. 550, 7 N.W.2d 544, 553, supra: "Criticisms have often been made of the phenomenon which permits an administrative body to serve in the triple capacity of complainant, prosecutor, and judge * * *. As a result of this combination of roles, its final adjudication often lacks that stamp of impartiality and of disinterested justice which alone can give it weight and authority. This anomaly in procedure makes it vitally necessary that in reviewing administrative decisions courts zealously examine the record with a view to protecting the fundamental rights of the parties, lest the rule against arbitrariness and oppressiveness become a mere shibboleth. An appeal being denied, a review by certiorari or other prerogative writ must not be permitted to degenerate into a mock ceremony. The least that the courts can do is to hold high the torch of `fair play,' which the highest court of our land has made the guiding light to administrative justice. Morgan v. United States, 304 U.S. 1, 58 S. Ct. 999, 82 L. Ed. 1129."

For the reasons given, the judgment is