Kistler v. Board of Education of Randolph County , 233 N.C. 400 ( 1951 )

64 S.E.2d 403 (1951) 233 N.C. 400

KISTLER
v.
BOARD OF EDUCATION OF RANDOLPH COUNTY et al.

No. 377.

Supreme Court of North Carolina.

April 11, 1951.

L. T. Hammond and Ottway Burton, Asheboro, for plaintiff.

Miller & Moser, Asheboro, for defendants.

DENNY, Justice.

The selection of sites for schoolhouses in local school districts in a county, except in city administrative units, is vested in the sound discretion of the county board of education, and its action cannot be restrained by the courts, unless in violation of some provision of law, or there has been a manifest abuse of discretion. G.S. § 115-85; Feezor v. Siceloff, 232 N.C. 563, 61 S.E.2d 714; Atkins v. McAden, 229 N.C. 752, 51 S.E.2d 484; Board of Education of Wake County v. Pegram, 197 N.C. 33, 147 S.E. 622; Board of Education of Orange County v. Forrest, 190 N.C. 753, 130 S.E. 621; McInnish v. Board of Education of Hoke County, 187 N.C. 494, 122 S.E. 182; School Committee of Seventy-First Consol. School Dist. v. Board of Education of Cumberland County, 186 N.C. 643, 120 S.E. 202; Davenport v. Board of Education of McDowell County, 183 N.C. 570, 112 S.E. 246; School Commissioners of City of Charlotte v. Board of Aldermen, 158 N.C. 191, 73 S.E. 905; Venable v. School Committee of Pilot Mountain, 149 N.C. 120, 62 S.E. 902; Pickler v. County Board of Education, 149 N.C. 221, 62 S.E. 902.

The Board of Education of Randolph County is a body corporate and by that name it shall hold all school property belonging to Randolph County, and it is authorized to purchase and hold real and personal property, to build and repair schoolhouses and to prosecute and defend suits for or against it in its corporate capacity. G.S. § 115-45.

The demurrer ore tenus to the complaint by the individual defendants was properly sustained. These defendants as individuals possess no authority to exercise any of the powers the plaintiff seeks to enjoin. Board of Education of Sampson County v. Board of Commissioners, 192 N.C. 274, 134 S.E. 852.

The plaintiff takes an anomalous position with respect to the defendant Board of Education. In his complaint he alleges that the individuals purporting to be members of this board are not legally qualified to serve as members thereof, because they have not "properly qualified themselves, in accordance with the General Statutes of North Carolina." In his brief, however, he argues and contends that the individuals named as board members are de facto officials and that their acts are the acts of the Board of Education; that no other person or persons are claiming the offices or contesting the right of these individuals to their respective offices, and that this action is not a quo warranto proceeding to remove them therefrom.

There being no allegation in the complaint to the effect that the members of the defendant Board of Education were not duly appointed to their respective positions as required by law, the legality of the acts of these appointees is not open to attack in this proceeding. Crabtree v. Board of Education of Durham County, 199 N.C. 645, 155 S.E. 550.

It appears from the allegations of the complaint that this is an unfortunate local fight, waged originally by persons primarily interested in having the new high school located on the present site of the Randleman High School, and presently by a small group who appears to be primarily interested in having the school located on the Bostic site.

It is well to keep in mind, however, that the Board of Education of Randolph County was charged with the legal duty to select a suitable site for a new high school, not only for the Town of Randleman but for the whole district, of which the Town of Randleman constitutes but a part. And it will be noted the complaint does not allege that the site chosen is an improper one from the standpoint of the local district as a whole. Moreover, the petition signed by the 988 citizens and patrons of the school, and filed with the defendant Board of Education, merely requested that approval of the High Point Street site be withheld until further investigation. This request was granted and the State Superintendent of Public Instruction, at the request of the protestants, inspected each proposed site and recommended the selection of the High Point Street property or the Swaim property. The present site of the Randleman High School, recommended in the petition referred to herein, not having been approved by the State Superintendent of Public Instruction, a new site was then proposed, which the Board considered and stated the reasons for its rejection.

The plaintiff is relying upon the following allegations to show bad faith and abuse of discretion: (1) That on 3 March, 1950, the defendant Board held a secret meeting and voted unanimously to purchase the High Point Street property as a site for the new high school; (2) that a member of the County Board of Education, Guy F. Lane, promised to call another public mass meeting to discuss and consider the selection of a site for the new high school, which he later refused to do; (3) that Earl Johnson, a member of the defendant Board, owns a large tract of land in the immediate vicinity of the High Point Street property which will be greatly enhanced in value if the high school is built on that site; and (4) that the Bostic offer was rejected at a meeting which the public was not permitted to attend.

These allegations will be discussed in the order above set forth. (1) The meeting on 3 March, 1950, is designated a secret meeting because it was not held on a first Monday in the month. Such an allegation has no bearing on the question of bad faith or abuse of discretion, in light of the provisions of G.S. § 115-48, which read as follows: "The county board of education shall meet on the first Monday in January, April, July and October. It may elect to hold regular monthly meetings, and to meet in special sessions as often as the school business of the county may require."

(2). A county board of education has no authority to transact business except at a regular or special meeting, and statements or promises made by the individual members thereof have no binding effect on the board unless it expressly authorized them. Tuttle v. Junior Building Corp., 228 N.C. 507, 46 S.E.2d 313, and cited cases. "As a rule authorized meetings are prerequisite to corporate action based upon deliberate conference and intelligent discussion of proposed measures. * * * The principle applies to corporations generally, and by the express terms of our statute * * * every county is a corporate body." O'Neal v. Wake County, 196 N.C. 184, 145 S.E. 28, 29; Hill v. Atlantic & N. C. R. Co., 143 N.C. 539, 55 S.E. 854, 9 L.R.A.,N.S., 606.

(3). The courts are alert to impeach any transaction where a public official has any pecuniary interest in a matter decided by him. Venable v. School Committee of Pilot Mountain, supra. But where a member of a county board of education has no financial interest in property selected as a school site, the mere allegation that he owns property in the neighborhood or immediate vicinity of such site, is not sufficient to support a finding of bad faith on the part of the board, in the absence of an allegation that in the selection of such site he exercised an improper or corrupt influence over other members of the board.

(4). While it may not be wise or expedient for boards such as the defendant Board of Education to hold executive sessions and exclude the public therefrom, we know of no statute or decision which prohibits the holding of such sessions.

In the final analysis, the plaintiff is simply seeking to eliminate the High Point Street property from the list of available sites for the new high school, by having the defendant Board permanently enjoined from procuring the property; and, to require the Board to call a mass meeting to discuss other available sites.

The law does not require a County Board of Education to hold a mass meeting in connection with the selection of a school site, and the courts have no authority to direct it to do so. The responsibility for the selection of schoolhouse sites, as heretofore pointed out, has been committed by the Legislature to the sound discretion of the respective local boards of education or to the respective boards of trustees in city administrative units; and the courts may not interfere with the exercise of discretionary powers conferred upon such boards, "unless their action is so clearly unreasonable as to amount to an oppressive and manifest abuse of discretion." Newton v. School Committee of City of Charlotte, 158 N.C. 186, 73 S.E. 886, 887.

The complaint contains numerous allegations against the individual defendants, who are not necessary or proper parties and whose demurrer ore tenus was sustained in the court below, as well as many allegations which are conclusions of the pleader, but in our opinion the complaint does not state a cause of action against the defendant Board of Education.

The ruling of the court below, in sustaining the demurrer ore tenus interposed by the defendant Board and by the individual defendants, will be upheld.

Affirmed.