Jordan v. Board of Commissioners

DeNNy, J. No question has been raised as to the form or substance of the petition, the endorsement of it by the Durham City School Board, or the validity of the signatures or the fact that such signatures are [292] those of a majority of the qualified voters who resided in the affected area for the required length of time. The sole issue in this case is whether the Board of Commissioners of Durham County had authority to call an election in the affected area in spite of the fact that the petition had not been endorsed by the Durham County Board of Education. The pertinent parts of the relevant statutes read as follows: “To Enlarge City .Administrative Units and Districts. Elections may be called in any district or districts, or other school areas, of a county administrative unit to ascertain the will of the voters in such areas as to whether there shall be levied a special tax of the same rate as that voted in an adj oining city administrative unit or district with which unit or district such territory is to be consolidated.” G.S. 115-116(3). “The board of education to whom the petition requesting an election is addressed shall receive the petition and give it due consideration. If, in the discretion of the board of education, the petition for an election shall be approved, it shall be endorsed by the chairman and the secretary of the board and a record of the endorsement shall be made in the minutes of the board. Petitions for an election to enlarge a city administrative unit shall be subject to the approval and endorsement of both county and city board of education which are therein affected: Provided, that when such 'petition is endorsed by the city board of education and signed by a majority of the voters in the affected area, the election shall be called.” G.S. 115-120. (Emphasis added.) “Petitions requesting special school elections and bearing the approval of the board of education of the unit shall be presented to the board of county commissioners, and it shall be the duty of said board of county commissioners to call an election and fix the date for the same.” G.S. 115-121. G.S. 115-118 sets out various ways by which such petitions may be presented to the county board of commissioners, to wit: “County and city boards of education may petition the board of county commissioners for an election in their respective administrative units or for any school area or areas therein. “In county administrative units, for any of the purposes enumerated in G.S. 115-116, the school committee of a district or a majority of the committees in an area including a number of districts, or a majority of the qualified voters who have resided for the preceding twelve months in a school area less than a district, and which area is adjacent to a city unit or a district to which it is desired to be annexed and which can be included in a common boundary with said unit or district. . . .” It would seem necessary to have the petition for an election approved by both the county and the city board of education in order to authorize the county board of commissioners to call the election as requested in [293] the petition, except where “a majority of the qualified voters who have resided for the preceding twelve months in a school area, less than a district, and which area is adjacent to a city unit or district to which it is desired to be annexed and which can be included in a common boundary with said unit or district,” it is only necessary that the city board of education endorse the petition. G.S. 115-120. In our opinion, upon the facts disclosed on this record, the duty imposed on the Board of Commissioners of Durham County, under G.S. 115-121, to call the election, is purely ministerial and might be enforced, in the event of a refusal to do so, by mandamus, and we so hold. Board of Education v. Commissioners, 189 N.C. 650, 127 S.E. 692. The court below committed error in granting the temporary restraining order in this action, as well as in ordering the continuance of such order until the final hearing. The restraining order is hereby dissolved and the action will be dismissed. Reversed. JOHNSON, J., not sitting.