Pickler v. County Board of Education ( 1908 )

Rev., sec. 4129, provides that the County Board (222) of Education, upon whom is placed the duty of dividing the townships into school districts, "shall establish no new school in any township within less than three miles, by the nearest traveled route, of some school already established in said township."

The public school district of Cherry Hill, Davie County, was laid off, site bought and building erected 50 or 60 years ago. It is now nearer than three miles to another public school. The building needing repairs, an effort was made to induce the defendant board to remove the site and build a new schoolhouse at another point a mile away. After hearing those in favor of and those opposed to the removal, the board decided not to change the site, and instead of repairing, to build a new school building on the old site. The plaintiffs obtained a temporary restraining order which, on affidavits filed, and, after hearing, was dissolved by Judge Long.

There was no error. The duty of dividing the townships into school districts and the erection and maintenance of school buildings is left to the judgment of the school board. Rev., secs. 4116, 4121, 4124. There being no allegation of misconduct, their action can not be supervised nor restrained by the courts unless in violation of some provision of the statutes. Smith v. School Trustees, 141 N.C. 160. It does not appear whether the other schoolhouse, "nearer than three miles," was erected before, or since, this was erected at Cherry Hill 50 or 60 years ago. But, at any rate, the prohibition that the board "shall establish no new school in any township within less than three miles, by the nearest traveled route, of some school already established in said township," cannot be construed to prohibit the board from repairing, or building a new schoolhouse, on the site where a school has long been established.

Pending the appeal the new schoolhouse has doubtless been (223) built. If that appeared, we would not decide an abstract question. In any event the judgment dissolving the restraining order should be

Affirmed.

Cited: Venable v. School Committee, ante, 121; Little v. Lenoir,151 N.C. 417; Wallace v. N. Wilkesboro, ib., 615; Moore v. Monument Co.,166 N.C. 212; Pemberton v. Board of Education, 172 N.C. 554.