Howard v. . Board of Education

Varser, J. The appeal in this case is based on one exception only, and that to the continuance of the restraining order until the final hearing. The defendants asked this Court to disregard the findings of fact by the trial court and to examine all the evidence appearing in the record, and to find therefrom that the plaintiffs are not entitled to the relief sought. We recognize in such cases the jurisdiction of this Court to review the evidence and determine questions of fact as well as of law. Cameron v. Highway Commission, 188 N. C., 84; Mayo v. Comrs., 122 N. C., 5; Hooker v. Greenville, 130 N. C., 472; Hyatt v. DeHart, 140 N. C., 270; Lee v. Waynesville, 184 N. C., 565; School Committee v. Board of Education, 186 N. C., 643. However, there is a presumption always that the judgment and proceedings below are correct, and the burden is upon the appellant not only to assign, but to show, error. Hyatt v. DeHart, supra; and upon the instant record we do not feel justified in finding the facts to be other than set out in the order of the trial court. Defendants contend, however, that, from this record, it ought to be determined that a county-wide plan of organization has been adopted according to C. S., 5481, Public Laws 1923, ch. 136, sec. 73a, on authority of Scroggs v. Board of Education, ante, 110. The Scroggs case was an appeal from a judgment entered on a verdict of a jury. In that case the minutes of the Board of Education of Clay County were much fuller than in the instant record, and showed clearly the purpose and intent of the board of education to adopt the county-wide plan of organization for Clay County, and the order of 14 May, 1923 was, therefore, valid. In the instant case, the record, together with the finding of the trial court, are not sufficient to satisfy this Court that *678 the county-wide plan has been adopted. This is said, however, only with reference to the showing on the present record; the facts may be otherwise. Inasmuch as it is now required that the county board of education shall create no new district or divide or abolish a district or consolidate districts, or parts thereof, except in accordance with the county-wide plan of organization, we are of the opinion that the order entered by the board of education, “running an irregular line through the Balls Creek District, with a view to cutting off from said district about 80 of the voters therein and about $75,000 of taxable property and to that extent reducing the size and voting population of said district,” and the application of the board of education to the board of county commissioners to order an election in the territory which they intended to retain as the Balls Creek District, was not valid. Unless the order entered had the effect to create a new district comprising the territory in which the election was sought and ordered, then the election cannot be held. Jones v. Board of Education, 187 N. C., 557; Perry v. Comrs., 183 N. C., 387; Paschal v. Johnson, 183 N. C., 129; Hicks v. Comrs., 183 N. C., 394. While these latter authorities relate to- the laws applying prior to the adoption of chapter 136, Public Laws 1923, they present the difficulties in the way of the execution of the order of the board of education in the instant case, because such order does not comply with chapter 95, C. S., vol. 3, sec. 5480-5490, inclusive. This was intended by the Legislature to be a complete) recodification of the school law, and that the common school system of the State should' be, thereafter, conducted in accordance therewith. Since the order was entered by the board of education not in accordance with the county-wide plan of organization, and since it is not proved that the county-wide plan of organization has been adopted; and in the light of the positive prohibition contained in C. S., 5481, such order is void and of no effect, and the county board of education may proceed as it may be advised in reference to the adoption of the county-wide plan of organization (if the same has not, in fact, already been adopted), and if it has been, or when, adopted, it may proceed in accordance therewith to form such districts as it may determine are just and proper, provided, however, that no rights of-any creditor are illegally affected. We have not discussed the question of indebtedness of the Balls Creek School District, because it is not necessary upon the instant record to do so. Upon the order entered, and the facts contained therein by the trial court, we are forced to conclude that there is no error in continuing the restraining order until the final hearing, and it is, therefore, Affirmed.