School Committee of Seventy-First Consolidated School District v. Board of Education

Adams, J. The cardinal question presented in the argument here is whether the board of education had the legal right to change the site of the proposed schoolhouse from Clifton to Glendale. His Honor found as a fact that in making the change the board was actuated by no improper motive, but he held as a legal inference that upon the facts in the case the change was ultra vires, or if not, that it amounted to an oppressive and manifest abuse of discretion. This conclusion, we presume, was based chiefly on the finding that the potential factor in the election of 17 November, 1921, was the board’s assurance that the building should be erected at or near the geographical center of the district, and that a majority of the qualified voters would not have voted for the bonds if such assurance had not been given. If the record showed nothing more in regard to the change of site these facts would raise the serious question whether approval of the bond issue had not been submitted as a conditional proposition by which the defendants are bound (McGrachen v. R. R., 168 N. C., 62); but there are other, facts which must be considered. It appears from the record in the Owen suit that there was serious objection to Clifton as a site for the school, and the board of education endeavored to allay the dissatisfaction. On 30 April, 1923, certain citizens of Seventy-first District filed with the board of education a petition requesting that the Galatia District be included in the Seventy-first School District and that the selection of a site for the building be reconsidered. The school com *647 mittee of tbe Seventy-first District recommended such consolidation. Tbe board of education tben decided tbat a referendum or test vote should be taken on 18 May to ascertain tbe wishes of tbe qualified voters of tbe two districts as to tbe location of tbe school building; and tbe returns made by tbe judges of election show tbat 201 voters favored Glendale and three favored Clifton. It is true tbat a new registration was not required, and tbe three pollholders or a majority of them were authorized to decide who were qualified to vote; but tbe names of tbe voters were preserved and there is no suggestion tbat any one voted who was not qualified or tbat any qualified voter was rejected. His Honor found tbat a large proportion of tbe voters of the Seventy-first District did not take part in tbe referendum for tbe reason tbat they' considered tbe location settled; tbat Galatia at tbat time was not a part of tbe consolidated district, and tbat tbe referendum was not authorized by law. But we are not now dealing with tbe legal efficacy of tbe test vote as a binding obligation, but with the question whether the board of education grossly abused its discretion or whether it intended primarily to subserve tbe educational interests of tbe two districts. Moreover, tbe defendants contend- tbat in tbe bond 'election tbe total registered vote of Seventy-first District was 199, tbe total registered vote of tbe Galatia territory 63, making a total combined registration of 262, and tbat a majority of tbe qualified voters residing in tbe original Seventy-first District favored tbe proposed change of site. "While bis Honor’s findings of fact are comprehensive aiid in tbe main supported by tbe evidence, they are subject to review in a suit of this character (Lee v. Waynesville, 184 N. C., 565), and our understanding of tbe facts precludes approval of tbe ruling tbat changing the schoolhouse site from Clifton to Glendale was beyond tbe power vested in tbe board of education or was so unreasonable as to amount to an oppressive and manifest abuse of discretion. If, as we have intimated, tbe doctrine in McCraclceris case is not applicable to tbe facts here presented tbe board of education was remitted to tbe exercise of its sound discretion in determining tbe matter of a change in tbe location of tbe building (P. L. 1923, cb. ..., sec. 60 et seq.), and tbe familiar principle (recognized by bis Honor) is firmly established, tbat in tbe absence of gross abuse tbe courts will not undertake to supervise or control tbe discretion conferred by law upon public officers in tbe discharge of their duties. In Venable v. School Committee, 149 N. C., 120, tbe Chief Justice said: “Tbe rebuilding of tbe school and tbe change of site are matters vested by tbe statute in tbe sound discretion of tbe school committee, and is not to be -restrained by tbe courts unless in violation of some provision of law or tbe committee is influenced by improper motives or there is misconduct on their part.” Peters v. *648 Highway Com., 184 N. C., 30; Person v. Watts, 184 N. C., 506; Davenport v. Board of Education, 183 N. C., 570; Dula v. School Trustees, 177 N. C., 426; Newton v. School Committee, 158 N. C., 187; Brodnax v. Groom, 64 N. C., 244. His Honor adjudged that tbe bonds wben issued will be a valid obligation upon tbe Seventy-first Consolidated School District as described in tbe order and notice of election, and tbat tbe subjects of taxation therein shall be taxed for tbe payment of tbe bonds and interest. To this extent tbe judgment is correct; but if at an election duly held a majority of tbe qualified voters in tbe Galatia District pledged tbe faith and loaned tbe credit of tbe district for their proportionate part of tbe tax necessary to pay tbe bonds and interest, as provided in tbe Constitution, Art. VII, sec. 7, tbe bonds when issued will be a valid obligation upon tbe Seventy-first Consolidated School District, including Galatia. In substance, tbe plaintiffs have also applied for a mandatory injunction to compel tbe immediate issuance of tbe bonds, and a question has arisen as to tbe body by whom they are to be issued. It is admitted tbat tbe election upon tbe bond issue was held under tbe provisions of chapter 87 of tbe Public Laws of tbe Extra Session of 1920. In tbe second section of tbat act it was provided tbat bonds authorized for a school district should be issued in tbe corporate name of tbe school district as provided by chapters 143 and 308 of tbe Public Laws of 1919. At tbe session of 1923 tbe General Assembly repealed chapter 87 of tbe Public Laws of 1920 (Extra Session) and made tbe following provision for bonds previously authorized: “If bonds or indebtedness have heretofore been voted under any act, and have not yet been issued or incurred, they may be issued or incurred pursuant to tbe provisions of tbe act under which they were voted.” P. L. 1923, cb. 136, sec. 265. This section seems to be controlling. His Honor’s judgment as it appears of record is set out in tbe statement of facts. Tbe first section thereof is modified to tbe extent of including Galatia District since its consolidation with Seventy-first Consolidated District, and as thus modified is affirmed. Tbe second, third, and fifth sections are reversed, and tbe fourth section is reversed as to tbe corporate name in which tbe bonds are to be issued and sold and as to tbe direction tbat tbe scboolbouse be. erected at Clifton; but tbe bonds should be issued and tbe proceeds applied as provided by law. In part reversed. In part modified and affirmed.