Henderson daily dispatch., 1939-09-21

electlon is disapproved by the courn-
! W authorities, in which event if is
the duty of the district authorities to
proceed to elect another principal
Likewise, therefore, the demurrer
! should have been sustained as to the
! PLAINTIFFS who are members of the
local committee, who, incidentally.
are plaintiffs as individuals and not
in their official capacity.
Was there error in overruling the
demurrer as to B. A. Scott (herein-
after referred to as plaintiff)?
Before the plaintiff becomes en-
Titled to the position to which he was
elected by the district authorities his
election must be approved by the
county authorities. The election has
been disapproved. The plaintiffs
right to the office does not now exist
and depends upon proof by him that
the action OF the county authorities
IN disappearing his election was void
Tor want OF good faith. The allega-
tons in the complaint do not disclose
that he has clear legal right to the
remedy sought. This right is in doubt
and remains in doubt until he es-
tabllshes, by competent proof the
allegations contained in his COM
plant. Ewbank V. Turner, supra, is
almost directly in point There the
Dentistry Board declined to approve
the examination of the plaintiff and
to issue license. The allegations as
to the arbltrarineSS of the action of
the board are almost identical with
those contained in the complaint of
the plaintiff and the writ was de-
MED.
The writ of mandamus compels ac-
tion-it does not determine how the
defendant. shall act. Key V. Board,
ITO N. c. 1913; Board V. Board, $50
N. c. 116. Nor does it undertake to
control the discretion vested in the
defendant as a governmental agency
or official. And the provision in the
statute that the election of a prin-
cipal by the district authorities is
subject to the approval Of the county
authorities imposes upon the county
authorities the discharge of a discre-
tiOnary duty. The primary and con-
trolling significance of the word zap
prove imposes the exercise of dis
cretiOn and judgment. The require
ment that the election of a principal
by the local authorities is subject to
the approval of the county author
tiles was intended to and does con-
fer upon the latter the power to give
or withhold their approval as their
judgment may dictate, having regard
to the best interest of the community
affected. Lane V. Insurance Company,
40 NJ c. 55; Key v. Board Oh EuU-
cation, supra.
The allegations Of the complaint,
if accepted as true, do not disclose
that the plaintiff has a clear legal
right to the office or position of prin-
cipal of Dabney High School. The
county authorities have acted ad
versely to his claim. His right is in
doubt and depends upon his ability
to show that the action of the county
authorities was void for want Of good
faith. Furthermore, the board has
acted and the Court may not, by writ
of mandamus, direct them to reverse
their action.
An approval of the election by
them under compulsion of a court
order would not constitute the ap
proval contemplated by the statute
See Hayes V. Benton, supra.
The plaintiff has an adequate
remedy. He may sue for damages.
Ewbank V. Turner, supra. He may,
upon proper pleadings and upon a
finding by the Court, upon "a hear
ing, that the action of the county
authorities was in fact arbitrary and
capricious and actuated by selfish
and personal motives, apply for and
obtain. mandatory injunction COM
pelling the defendants to proceed to
act upon the election and to grant or
! withhold their approval in good faith,
uninfluenced by selfish or personal
motives. This is as far as the Courts
may go in controlling the action Of
administrative units or governmental
agencies. When a public official fails
to act in accord with the wishes of
the majority of those whom he SER
YES, the relief is usually through the
! ballot box.
Controversies such as this between
agencies created to conduct and con-
troll the public schools of the State
and who are supposed to cooperate
to that end should be adjusted around
the council table and not in the
Courts.
The school law provides that Gin
the event the local school authorities
herein provided for are unable to
agree upon the nomination and cleo
ton of teachers, the County Board
of Education shall select the teacher
or teachers, which selection shall be
final for the ensuing term" 1t does
! not appear that the local school au-
thorities are in disagreement as to
the election of a principal SO as to
vest the County Board of Education
with authority to elect a principal
to this office. Therefore, there is no
error in so much of the judgment as
overrules the plea in abatement.
The action need not be dismissed
The Court below may in its discre-
ton permit the filing of additional
or amended pleadings to the end thai
the plaintiff may seek to establish
such rights as he may have. While
the summons was returnable before
the Judge, in Chambers, in county
other than it's issuance, the cause may
be transferred to the civil issue
docket of Vance County. This does nj
one any detriment, saves time anc
costs and avoids the unseemly coun,
b IL @I<