Hyde County Board of Education v. Mann , 250 N.C. 493 ( 1959 )

109 S.E.2d 175 (1959) 250 N.C. 493

HYDE COUNTY BOARD OF EDUCATION, Petitioner,
v.
Eugene D. MANN and wife, Beatrice L. Mann, and Carroll D. Mann and wife, Geneva F. Mann, Respondents.

No. 23.

Supreme Court of North Carolina.

June 12, 1959.

O. L. Williams, Swan Quarter, White & Aycock, Kinston, for petitioner.

Bryan Grimes, LeRoy Scott, Wilkinson & Ward, Washington, for respondents.

DENNY, Justice.

The respondents' first three exceptions brought forward as assignments of error Nos. 1, 2 and 3, relate to the court having sustained the objections of the petitioner to certain questions propounded by the respondents' attorneys to the respondents. These exceptions are without merit for the reason that the respondents failed to insert in the record what the response of the respective respondents would have been had they been permitted to answer. North Carolina State Highway and Public Works Commission v. Privett, 246 N.C. 501, 99 S.E.2d 61; Hatcher v. Clayton, 242 N.C. 450, 88 S.E.2d 104; Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 86 S.E.2d 745; State v. Poolos, 241 N.C. 382, 85 S.E.2d 342.

Assignment of error No. 4 is directed to the court's finding of fact to the effect "* * * that the purpose and intent and requirement of said judgment was that the school site to be selected by the Board of Education be within a radius of one-half mile from the juncture of said Lake Road with U. S. Highway 264 at either the western or eastern prong of said Lake Road."

In our opinion, based on the evidence with respect to the juncture of Highway 94 with Highway 264 by an eastern and western prong, and the further evidence showing that 12.32 acres of the site selected for the location of the consolidated high school is within one-half mile of the western prong of the juncture with Highway 264, the court was correct in its interpretation of the consent judgment with respect to the location of the site, and the finding of fact and the conclusion of law with respect thereto will be upheld.

Moreover, where the language of a statute, ordinance, or judgment, is ambiguous, the courts will take into consideration all the facts and circumstances existing at the time of and leading up to the enactment of the statute, the ordinance, or the entry of judgment, and in the interpretation of such statute, ordinance, or judgment, the courts will take into consideration the objective or objectives to be accomplished thereby. 82 C.J.S. Statutes § 352, page 739, et seq.; 49 C.J.S. Judgments § 436, page 862, et seq.

What do we have as a basis for the validity of this assignment of error? We have a site selected in good faith by the proper authorities, as provided by law and in compliance with the compromise agreed upon in the consent judgment, except it has been determined after some two years of litigation and after the contract for the construction of the consolidated high school has been let and construction partially completed that three acres of the 15.32 acre site is not within a one-half mile radius of the western prong of Highway 94 where it enters Highway 264.

This proposed centrally located high school is to serve the areas heretofore served by East Hyde High School at Englehard and West Hyde High School at Swan Quarter; the combined area to be served is more than 22 miles across from east to west.

A map prepared on 16 February 1959 by Meriwether Lewis, a registered surveyor, was used by him as a witness for the petitioner to illustrate his testimony. According to said map, the portions of the respondents' lands condemned in this proceeding, together with the 3.04 acre tract owned in fee simple by the Hyde County Board of Education, have a combined frontage on the south side of Highway 264 of 1,000 feet; that all of this frontage except 150 feet of the condemned land of Carroll D. Mann lies within one-half mile of the juncture of the western prong of Highway 94 and Highway 264. In light of the objective to be accomplished by the construction of a consolidated high school to serve the area contemplated, no useful or beneficial purpose could possibly be served by shifting this site 150 feet or even 1,000 feet eastward so that it would be within one-half mile of where the eastern prong of Highway 94 enters Highway 264.

It appears in the consent judgment entered on 12 September 1957, which was made a part of the record in a former appeal involving this controversy, that East Hyde High School at Englehard at that time had only 74 pupils enrolled. The records in this litigation further reveal that the Mattamuskeet High School building when completed will contain only six classrooms. Therefore, the consolidated school in all probability will have fewer than 200 pupils enrolled therein. Moreover, practically all, if not all, of these pupils will be transported in school busses operated and maintained by the county. It cannot be said in good faith that it is unfair or unjust for the pupils residing in the eastern portion of the area to be served to be required to ride 150 feet farther west on a school bus than they would be required to do if the site were moved eastwardly to that extent so that the entire site would be within a radius of one-half mile from the juncture with Lake Road. Such a contention would be indefensible.

In the case of Ralls v. Parrish, 105 Tex. 253, 147 S.W. 564, 567, it was provided by statute that no county seat situate within five miles of the geographical center of a county was to be removed except by a two-thirds vote of the electors of the county voting thereon. An election was held to determine whether the county seat of Crosby County would remain at Emma or be removed to Crosbyton. The election returns showed that 199 votes were cast for Crosbyton as the county seat, while 120 voted for Emma being continued as the county seat. All of Crosbyton was within five miles of the geographical center of the county, while all of Emma was not within five miles of said geographical center. Therefore, it was contended that since all of the town of Emma was not within five miles of the geographical center of the county, a two-thirds vote in favor of the removal of the county seat to Crosbyton was not necessary. The Supreme Court of Texas said: "If any portion of the town of Emma as that town was known and recognized at the time the proposed change of the county seat was ordered to be voted upon and as the voters intended it should constitute the county seat, * * * is located within a radius of five miles of the geographical center of Crosby County, then the town of Emma in contemplation of article 811, Sayles' Civil Statutes, is within such radius. Bradford v. Robison, Tex., 141 S.W. 769. Differently stated, it is not necessary that a county seat should be wholly within the radius of five miles of the geographical center of the county, but only partially so, in order to make applicable the two-thirds rule in removing such county seat."

This assignment of error is feckless and is therefore overruled.

The respondents' fifth assignment of error is based on their exception to the court's finding that prior to the institution of this proceeding for the condemnation of land described in the petition, the petitioner through its duly authorized agent negotiated in good faith as hereinabove set out in the statement of facts.

The court's finding of fact in this respect is supported by ample and competent evidence and no useful purpose would be served by its inclusion herein. Therefore, this assignment of error is likewise without merit and is overruled.

The charge of the trial court was not included in the record on appeal. Consequently, it is presumed that the jury was instructed correctly on every principle of law applicable to the facts. Hatcher v. Clayton, supra.

We have carefully examined all the exceptions and assignments of error, and no prejudicial error has been shown.

The findings of fact, the conclusions of law, the verdict and the judgment of the court below, will be upheld.

No error.

MOORE, J., not sitting.