In Re Reassignment of Hayes , 261 N.C. 616 ( 1964 )

Higgins, J.

This controversy arises under the Pupil Assignment Law now codified as Article 21, General Statutes of North Carolina. Section 115-176 requires each county and city board of education “to provide for the assignment to a public school of each child residing within the administrative unit who is qualified ... for admission to a public school. Except as otherwise provided in this article, the authority of each board in the matter of assignment . . . shall be final. A child residing in one administrative unit may be assigned ... to a public school located in another administrative unit upon such terms and conditions as may be agreed in writing between the boards of the administrative units involved . . .” This section provides for assignment en masse upon the basis of residence and without hearing. Assignment may be made to a school outside the administrative unit if the boards agree in writing. The section authorizes assignment without notice, or the approval of the child, or its parents, and without hearing. No child shall be enrolled in or permitted to attend any other public school.

The foregoing is the rule for assignment in the first instance. The Legislature, however, recognized that the exact enforcement of any hard and fast rule may work hardship in individual cases. Hence, Section 115-178 provides that any parent who is dissatisfied with the assignment of his child may apply to the board in writing for a hearing “on the question of reassignment of such child to a different school.” . . . “If, at the hearing, the board shall find that the child is entitled to be reassigned to such school, or if the board shall find that the reassignment of the child to such school will be for the best interests of the child, and will not interfere with the proper administration of the school, or with the proper instruction of the pupils there enrolled, and will not endanger the health or safety of the children there enrolled, the board shall direct that the child be reassigned to and admitted to such school.”

It is worthy of note that the statute places all emphasis on the welfare of the child and the effect upon the school to which reassignment is requested.

When the Fremont City Board refused to make the requested reassignment to the Aycock High School, the parents appealed to the Superior Court as authorized by G.S. 115-179. “Upon such appeal, the matter shall be heard de novo in the superior court before a jury in the same manner as civil actions are tried and disposed of therein.” The appeal in this de novo hearing vests the superior court with full power to make the requested reassignment if permitted by law. “The word ‘de novo’ means fresh or anew; for a second time; and a de novo trial in appellate court is a trial had as if no action whatever had been instituted in the court below.” In Re Farlin, 350 Ill. App. 328, 112 N.E. 2d 736. “Power to try a ease de novo vests a court with full power to determine the issues and rights of all parties involved, and to try the case as if the suit had been filed originally in that court.” Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W. 2d 681. “The language of the statute is mandatory. It provides that on appeal from the action of the Board the circuit court ‘shall hear the matter de novo.’ This means that the court must hear or try the case on its merits from beginning to end as if no trial or hearing had been held by the Board and without any presumption in favor of the Board’s decision.” Hiner v. Wenger, 197 Va. 869, 91 S.E. 2d 637. “The provision that on appeal the trial shall be 'under the same rules and regulations as are prescribed for the trial of other civil causes,’ has been interpreted to mean that the trial shall be de novo.” Utilities Comm. v. Trucking Co., 223 N.C. 687, 28 S.E. 2d 201. “A trial de novo in an appellate tribunal commonly designates a trial had as though no action whatever had been instituted in the court below.” 5 C.J.S., Appeal and Error, § 1524.

While the statute provides for the de novo hearing before a jury, nevertheless, the parties by consenting to the reference waived the jury trial and substituted therefor the hearing before the referee. In Re Parker, 209 N.C. 693, 184 S.E. 532. However, upon exceptions to the referee’s findings, the trial judge had power to affirm in whole or in part, modify, set aside, make additional findings, etc. This he may do only in passing on exceptions. Coburn v. Land & Timber Corp., 257 N.C. 222, 125 S.E. 2d 593. However, when the record comes here, we are bound by the findings if they are supported by competent evidence. Anderson v. McRae, 211 N.C. 197, 189 S.E. 639. The referee found facts and Judge Cowper approved and affirmed them.

Inasmuch as reassignment is in the nature of a special case and to be made on an individual student basis, upon the request of the parent, the referee properly excluded evidence relating to other applicants for transfer. The assignment of error based on the exclusion is not sustained. The inquiry was limited to the question whether Suzanne Perry Hayes was entitled to reassignment to the school she had attended the previous year and which was only three miles from her home, though in a different administrative unit. The reassignment was entirely satisfactory to the authorities of the Aycock High School. It was admitted on the argument that the parents would take care of her transportation to that school.

A careful review of the record convinces us the findings made by the Referee and reviewed by the Court on exception, are fully supported by competent and substantial evidence. Likewise, the conclusions of law and order based thereon are in accordance with the provisions made by the Legislature; and that the reassignment should be sustained.

The judgment of the Superior Court of Wayne County is

Affirmed.