Opinion
(February Term, 1894.)
State Board of Education, Powers of — Apportionment of School Funds — Writ of Mandamus.
It is the province of the General Assembly, and not of the State Board of Education, to establish a uniform system of public schools (Const., Art. IX, sec. 2) and while it is the duty of the board, under section 10 of Article IX of the Constitution, to make needful rules and regulations concerning the educational fund, it has no power and cannot be compelled by mandamus to apportion money raised by taxation in the different counties for school purposes and held in the treasuries of such counties for expenditure according to the apportionment made by the General Assembly.
APPLICATION for a mandamus, heard before Brown, J., at Chambers in Clinton, DUPLIN County, at February Term, 1894.
After hearing the argument the court, being of opinion against (317) the plaintiff, refused the writ prayed for, and adjudged that the defendants go without day and recover costs, and plaintiff appealed.
W. T. Faircloth for plaintiff.
Allen Dortch and Busbee Busbee for defendant.
The State Board of Education by virtue of section 10, Article IX of the Constitution, "shall succeed to all the powers and trusts of the president and directors of the literary funds of North Carolina, and shall have full power to legislate and make all needful rules and regulations in relation to free public schools and the educational fund of the State; but all acts, rules and regulations of said board may be altered, amended or repealed by the General Assembly, and when so altered, amended or repealed they shall not be reenacted by the board." The powers and duties of the president and directors of the literary fund are fully set forth in chapter 66, Revised Code of 1854. The "literary fund" embraced the swamp lands of the State and a (318) large amount of shares of bank stock, stock in railroad companies, dividends accruing upon certain navigation and canal company stock, the proceeds of certain taxes upon licenses, moneys paid for entries of vacant lands, certain bonds due and owing by railroad companies, individuals, corporations and the State. These or the income thereof were vested in the president and directors of the literary fund, to which corporation large powers were granted for its administration, and its net income was required to be annually distributed among the several counties of the State in the ratio of their federal population, and paid over to the chairmen of the county boards of education. This large and extremely valuable fund, set apart many years ago for the education of the youth of the State, has no longer an existence, except as to that portion of the swamp lands which has not been disposed of, and about $150,000 of State bonds bearing four per cent interest, and $27,000 otherwise invested. It will readily be seen that the income arising from this permanent fund, even if there were no expenses of the educational departments to be paid out of it, would go a very little way toward the keeping up of the public schools. The sum necessary for this purpose has now to be raised annually by taxation upon polls and property, and from fines and forfeitures and other resources named in section 5 of Article IX of the Constitution, comprising the county school funds.
There was no provision of law for the apportionment by the president and directors of the literary fund of any except the net annual income of the literary fund as stated above. The Courts of Pleas and Quarter Sessions were required by law to levy an annual tax for school purposes, which was collected in each county and paid over to the chairman of the county superintendents. By the present system, chapter 15, Volume II of The Code, as amended from time to time, the State Board of Education, succeeding to the powers of the president (319) and directors of the literary fund, are not to make investments of the funds coming into their hands, but are required on the first Monday in August of every year to apportion, on the basis of school population, among the several counties of the State all the school funds which may then be in their treasury. The Code, sec. 2535.
The plaintiff's complaint is to the effect that the State Board of Education, by their rules and regulations, do allow, permit and authorize each county to retain all the public school money raised within that county, and apply it, with such funds as are received from the State and other sources, exclusively to the support of the schools in said county; and it is alleged that this is at variance with the constitutional requirement that there shall be provided by the General Assembly "a general and uniform system of public schools in the State." The plaintiff seeks to require the State Board of Education to apportion and divide the public school fund of the State per capita among all the school children of the State, especially those of Duplin County. The defendant denies that it has any of the school funds in its treasury, or that it is its duty to make the apportionment of the school fund, and it avers that the General assembly has by appropriate legislation provided the necessary means to be raised by taxation in the several counties and there apportioned and used.
It was stated by the learned counsel for the plaintiff upon the argument that the main question intended to be presented is whether the school children are entitled to an equal distribution per capita of the school fund; an interpretation of Article IX of the Constitution that all of the fund raised in the State for common school purposes should be distributed per capita among the beneficiaries and not be (320) retained in the counties where it is raised, and there expended. And in order to raise this question the plaintiff demands that a mandamus issue to the State Board of Education requiring it to make an apportionment and division of all the educational funds under its control, per capita, among the school children of the State, and apportion to each county its share of said fund in proportion to the said number of school children.
We see nothing in the Constitution which imposes upon the defendant the duty of apportioning the money raised by taxation for the support of the public schools; it is the General Assembly and not the State Board of Education which is required to establish a uniform system of public schools. Art. IX, sec. 2. The funds coming into the treasury of the State Board of Education, and which it is required to apportion, are a very small portion of the money to be expended for the support of the schools. The needful rules and regulations which it may make concerning the educational fund do not extend to the apportionment of that which has already been apportioned by act of Assembly.
The writ of mandamus, once called a high prerogative writ, will never be issued except where its propriety is plain and beyond doubt. If there were funds in the treasury of defendant which it ought to apportion among the counties according to law, and which it refused so to appropriate, the remedy have invoked would be the proper one; but in the absence of any allegation to that to the effect, and in the absence of any provision in the Constitution or in the statutes requiring the defendant to make the apportionment of the money raised by taxes in the different counties and retained in their several treasuries, the defendant cannot be compelled to do that which is not required of it by law.
We do not feel at liberty to consider any abstract question involving the construction of the Constitution not necessary to be (321) decided in the disposition of the matter before us.
Judgment affirmed.