In re Smiling, 193 N.C. 448 (1927)

March 30, 1927 · Supreme Court of North Carolina

193 N.C. 448

In re SMILING.

(Filed 30 March, 1927.)

1. Indian Legislative Committee — Administrative Boards. ,

The legislative committee appointed to pass upon the admissibility of persons applying for permission to enter the Indian schools of Robeson County is an administrative board and not a court, and has the power to reinvestigate the matter of qualification of an applicant, and- reverse their former conclusion that he was eligible.

2. Judgments — Estoppel—Res Adjudicata — Courts.

The plea of res adjudicata must be raised and insisted upon in the proceedings before a board exercising judicial functions, or it will be deemed to have been waived.

Appeal by petitioners from Midyette, J., at October Term, 1926, of Robeson.

This appeal involves the right of the petitioners to attend the Indian Public Schools of Robeson County. The matter reached the Superior Court by appeal from a decision of tbe Legislative Committee for tbe Indian race in said county.

The facts are succinctly set out in tbe judgment of tbe Superior Court and are as follows:

“Upon tbe bearing, tbe petitioners having announced tbat all questions involved in this appeal from tbe Legislative Committee to tbe Superior Court are abandoned, except tbe plea of estoppel raised by tbe petitioners upon tbe record and evidence offered before tbe court upon sucb plea; and, upon sucb bearing, tbe court finds tbe following facts:

“1. Tbat, under an act of tbe Legislature of North Carolina, Public-Local Laws 1921, cb. 426, a committee was authorized to pass upon tbe admissibility of persons applying for permission to enter tbe Indian schools of Robeson County.

“2. Tbat, objection having been made to tbe admission of tbe petitioners to tbe Indian schools of Robeson County, tbe Legislative Committee, after notice to all parties, proceeded to bold a bearing to pass upon tbe rights of tbe petitioners to enter tbe said Indian schools of Robeson County, said bearing having been held on 11 April, 1925. -At sucb bearing tbe Legislative Committee admitted said children to tbe Indian schools of Robeson County.

“3. Thereafter, upon further information, tbe committee notified tbe petitioners and respondents tbat a further bearing would be held to pass upon tbe rights of the petitioners to attend tbe Indian schools of Robeson County, and sucb bearing would be held 18 April, 1925. On 18 April, 1925, at the appointed time, in response to.tbe notice given, tbe petitioners and tbe respondents appeared before tbe committee.

“4. Both petitioners and respondents appeared before tbe committee on 18 April, 1925, at tbe place named, and both announced their readiness for a bearing. The respondents and petitioners both offered evidence as to tbe rights of tbe said petitioners to enter tbe Indian schools of Robeson County. No plea of res ad judicata was made by tbe petitioners at tbe second bearing, but they appeared before tbe committee, recognized tbe rights of tbe committee to bear tbe matter and offered evidence upon their contention as to tbe right of petitioners to enter tbe Indian schools of Robeson County.

“5. At sucb bearing bad on 18 April, 1925, after bearing tbe evidence of petitioners and respondents, tbe committee found, as a fact, tbat tbe said petitioners were not Indians and were not entitled to enter tbe Indian schools of Robeson County, and, by unanimous vote, ordered tbat tbe said petitioners be not admitted to tbe said Indian schools of Robeson County.

“Erom tbe judgment of 18 April, 1925, tbe petitioners appealed to tbe Superior Court of Robeson County.

“Upon the foregoing facts, the court being of the opinion that the plea of estoppel now raised by the petitioners cannot be sustained, it is thereupon ordered, adjudged and decreed that the action of the Legislative Committee, debarring the said petitioners from the Indian schools of Robeson County, be affirmed and ratified, and it is ordered that the said petitioners are not entitled to the benefits of the Indian schools of Robeson County.”

From this judgment the petitioners appeal, assigning error.

John B. McLeod, W. Y. Floyd and J ohnson & J ohnson for petitioners.

Dickson McLean, H. B. Stacy, C. W. Pridgen, Jr., T. A. McNeill and W. S. Britt for respondents.

Stacy, C. J.

It is the position of the petitioners, appellants, that when the Legislative Committee decided to admit them to the Indian schools of Robeson County on 11 April, 1925, the said committee was thereafter functus officio and without authority to reopen the matter, and that the contrary decision rendered on a subsequent hearing is a nullity.

The trial court correctly held that the plea of res adjudícala was not available to the petitioners. In the first place, the Legislative Committee, created by chapter 426, Public-Local Laws 1921, is an administrative board and not a court; and, in the second place, even if said committee were clothed with judicial powers, the plea of res adjudicaba, not having been insisted upon before the committee, is deemed to have been waived. Blackwell v. Dibbrell, 103 N. C., 270.

The judgment will be upheld.

Affirmed.