Vaughan v. McCartney

*104 GARDNER, J. .Complainants, appellants here, are résident taxpayers and patrons of school district No. 7 of Geneva county, and file this bill against the members of said county school board of education and one Fleming, a contractor, seeking injunctive relief against the erection of a junior high school building in said district at a point or location in said district other than what is referred to as the ¿Etna site. Answer was filed, and the application for temporary injunction set down on a named date for hearing by the chancellor, as provided by section 8304, Code of 1923. Upon due consideration of the bill and answer and evidence submitted by the respective parties to the suit, the chancellor denied the temporary writ, and from this order complainants have, within the time prescribed by section 8307, Code of 192,3, prosecuted this appeal. It is established, without dispute, that the county board of education in April, 1926, passed a resolution to divide the county into eighteen school tax districts, and requested ,the court of county commissioners to order an election for a special tax levy in the several tax districts. Bellwood, district No. 7, was one of the districts so established, and the commissioners’ court ordered the election as thus requested And the tax voted. This was in accordance with article 12 of the Act approved September 26, 1919, entitled in part “An act to provide a complete educational system for the state of Alabama.” Acts 1919, p. 567. Bellwood, or school tax district No. 7, . appears therefore to have been established in accordance with the provisions of the above-noted article 12 of the Act of 1919, supra, with particular reference to section 4 thereof. Shanks v. Winkler, 210 Ala. 101, 97 So. 142. Counsel for appellants refers to sections 1691 and' 1693, Code of 1907, and argues the invalidity of the proceeding for establishment of said school tax district' for a noncomplibnce therewith. The provisions of these Code sections have, however, been superseded by the act of 1919, supra, as in conflict therewith, and the latter act must therefore here control. Levy, etc., v. Jones, 208 Ala. 104, 93 So. 733. It appears that Bellwood is a municipal "corporation of less than 1,000 inhabitants, and that territory was not taken therefrom but added thereto in the establishment of district No. 7. The case of State ex rel. Milan v. Masters, 207 Ala. 324, 93 So. 14, cited by appellants, dealt, therefore, not only with a different situation, but also under section 1693 of the Code of 1907, which, as previously "noted, has been superseded and repealed by implication at least by the provisions of the act of 1919, supra. There is an inadvertent expression in the Masters’ Case that this act of 1919 did not/‘seem to embrace within its purview the subject of the formation and boundaries of school districts.” This was a dictum, doubtless based only on such portions of the act as were brought to attention in brief, and that it was considered as a mere inadvertence is disclosed by the decision in Shanks v. Winkler, supra, wherein the authority of the county board in this respect is fully recognized. Indeed as we read and understand the bill it is not charged that district No. 7 was illegally established. It further appears that the board of education at one time agreed upon and selected the site for the new building at ¿Etna and that a deed to 5 acres was executed to the state and recorded for that purpose and pursuant to an understanding with the local trustees and their consent obtained to the establishment of said tax district with the understanding the building was to be placed on the ¿Etna site. Counsel rely upon State ex rel. v. Campbell, 212 Ala. 493, 103 So. 471, in support.of the insistence that a subsequent change of deci- • sion on the part of the board and establishment of the site at Bellwood was unauthorized under the above-stated circumstances. But the Campbell Case concerned the matter of consolidation of schools .under section 10 of article 5 of the above-cited Act of 1919, which expressly requires the consent of the separate school district trustees. Here the board was acting under authority of section 4 of article' 12 of said act, wherein it is provided, among other matters, that the “county board of education of its own initiative shall fix the boundaries of any school district within its jurisdiction in which it is proposed to levy a local school tax.” Shanks v. Winkler, supra. Consent of the local trustees was therefore not necessary and the Campbell Case is without application. It follows, therefore, that the establishment of school tax district No. 7 was in accordance with the applicable statute and valid, and, as previously noted, we do not find in the bill any express averment attacking the validity of said district, but rather inferences to the contrary. The only remaining question, therefore, is whether or not-the county board of education, having once entered upon its minutes a selection of a site for the new building at ¿Etna, has the authority to reconsider its previous ruling and change the location to Bell-wood, in the same district, but eight-tenths of a mile distant from the first selection of ¿Etna, all of which appears in the minutes of said board. A reading of the above-noted act of 1919 suffices to demonstrate that the board is given very general and broad powers of executive, legislative, and judicial character. In the selection of a school building site, the board is in the exercise of a wide discretion, and, in the absence of fraud, corruption, ox-abuse of discretion, the courts will not interfere, and thus substitute their judgment for the judgment of the board. Board of Revenue v. Merrill, 193 Ala. 521, 68 So. 971. There is no indication in the record of *105 any fraud or abuse of discretion, but we think it clear the board, in abandoning the originally selected site and changing the same to Bell-wood, were actuated by their best judgment as to what they conceived to be for the public benefit, and by no improper motive. We think it was within the broad powers granted the board by the act to abandon the first selected site and designate another, and, no fraud or abuse of discretion appearing, their action'cannot be here disturbed. The subsequent selection of the site at Bellwood upon a reconsideration of the matter by the board was sufficient rescission of the former action, without any express rescission thereof. It may be added that under the provisions of the Acts of 1919, p. 187, it would seem, upon abandonment of the ¿Etna site, the 5 acres of land deeded to the state reverted to the grantors. We are in accord with the conclusion of the learned chancellor, and likewise with the reasoning found in his opinion copied in brief of counsel, but which we cannot here order set out in the report of the case as we do not find it copied into the transcript, as provided by chancery rule 84, vol. 4, Code of 1923, p. 933. The decretal order of the chancellor denying relief will he here affirmed. Affirmed. ANDERSON, O. J., and’ SAYRE and BOULDIN, JJ., concur.