Harvey H. Allen and Simona A. Allen v. State Board of Education of North Carolina

447 F.2d 960

Harvey H. ALLEN and Simona A. Allen, Appellants,
v.
STATE BOARD OF EDUCATION OF NORTH CAROLINA et al., Appellees.

No. 71-1563.

United States Court of Appeals, Fourth Circuit.

Argued Aug. 26, 1971.
Decided Sept. 9, 1971.

Norman B. Smith, Greensboro, N.C. (Smith & Patterson, Greensboro, N.C., on the brief), for appellants.

Paul Eugene Price, Jr., County Atty. for Forsyth County (Robert K. Leonard, Atty. for Board of County Commissioners of Forsyth County, on brief) and William F. Womble, (Womble, Carlyle, Sandridge & Rice, and John L. W. Garrow, Winston-Salem, N.C., on the brief), for appellees.

Before HAYNSWORTH, Chief Judge, and WINTER and RUSSELL, Circuit judges.

PER CURIAM:

1

In this school case the plaintiffs, among other relief, sought to restrain the issuance and sale of school bonds. They raised no question concerning the validity of the bond referendum or the authorization of the bond issue. The relief sought stems entirely from an expression of concern that the proceeds of the bond issue might be spent in such a way as to encourage a segregated school system.

2

The District Court granted a partial summary judgment, entering a final order in which it was held that any present or future controversy which may exist over the expenditure of the proceeds of the school bond issue does not affect their validity, the right of the county to issue them, or its obligation to pay the principal and interest as they become due. The District Court retained jurisdiction over the remainder of the case, and issuance and sale of the bonds will in no way impair its jurisdiction to pass upon the appropriateness of the School Board's construction plans when they are developed.

3

The District Court was entirely correct in acting as it did to remove the cloud which the pendency of this claim created on the sale and issuance of the school bonds.

4

This same school district is involved in another school desegregation case which was recently before this court. Scott v. Winston-Salem/Forsyth County Board of Education, 4 Cir., 444 F.2d 99 (1971). That case was remanded to the District Court for further proceedings for the final achievement of a unitary system. The Scott case involves some of the issues remaining in this case.

5

When this case was here before,1 we suggested a consolidation of this case with the Scott case. We are informed that the School Board moved for a consolidation of the two cases, but the plaintiffs in each of the cases objected. The plaintiffs' counsel in this case inform us, however, that they now would favor a consolidation. Such a step would seem appropriate if the interest of the plaintiffs in the Scott case would not be adversely affected by it. The change in position of the plaintiffs in this case would seem to warrant reconsideration of the matter of consolidation in the District Court.

6

Affirmed.

1

Atkins v. State Board of Education, 4 Cir., 418 F.2d 874