Lamb v. Board of Education of Randolph County

70 S.E.2d 201 (1952) 235 N.C. 377

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

No. 383.

Supreme Court of North Carolina.

April 9, 1952.

L. T. Hammond, Ottway Burton, Asheboro, for plaintiff-appellant.

Miller & Moser, Asheboro, for defendants-appellees.

DEVIN, Chief Justice.

In Kistler v. Board of Education, 233 N.C. 400, 64 S.E.2d 403, we considered a suit against the Board of Education of Randolph County and the individual members of that Board to enjoin them from acquiring the site on High Point Road selected by the Board for building the new high school for the Randleman School District. Demurrer to the complaint was sustained, and this Court affirmed. It was held in an opinion written for the Court by Justice Denny that this was a matter resting in the sound discretion of the County Board of Education and could not be controlled by the Court, in the absence of a showing of some violation of the provisions of law, or manifest abuse of discretion.

The present suit, instituted by a different plaintiff, is to enjoin the construction of the school building on the site selected, for the reason that the defendant Board of Education had failed to make plans for water and sewer service for the school, and that the cost of installing same would exceed the limitation fixed by Chapter 1075, Session Laws 1951 upon expenditures for this purpose without a vote of the people.

While the statute G.S. § 115-96 imposes the duty upon the County Board of Education to make provision for "a good supply of wholesome water", it appears from the complaint that at the time this suit was instituted the construction of the proposed building had progressed only to the stage where bids had been accepted. The complaint alleges in effect that at this time no plans have been made for this purpose. This is insufficient to warrant the court in restraining the defendants from doing any act toward the construction of the new school building. Presumably the defendants at the proper time will comply with the law. Branch v. Board of Education, 233 N.C. 623, 65 S.E.2d 124.

The question chiefly debated here was the applicability of Chap. 1075, Session Laws 1951, which purports to prohibit the County Board of Education of Randolph County from expending "in excess of two thousand dollars ($2,000.00) under any one project or contract for the purpose of extending any public or private water or sewer system so that such extended system will serve any public school in Randolph County", unless approved by the voters at a special election. It was alleged that the cost of installation of water and sewer system for the service of the students at this school would exceed the limit fixed by the statute.

The court below was of opinion that this statute was invalid because in conflict with the mandatory provisions of Art. II, sec. 29 of the Constitution of North Carolina. In this ruling we concur.

This section of the Constitution limits the power of the General Assembly to enact a local or special act "relating to health, sanitation, and the abatement of nuisances". The statute in question is a local or special act. It relates only to Randolph County, and in Randolph County affects only a single agency, the County Board of Education. State v. Dixon, 215 N.C. 161, 1 S.E.2d 521; Idol v. Street, 233 N.C. 730, 65 S.E.2d 313. It relates to health and sanitation, since its sole purpose is to prescribe provisions with respect to sewer and water service for local school children in Randolph County. It purports to limit the power of the County Board of Education to provide for sanitation and healthful conditions in the schools by means of a sewerage system and an adequate water supply. The decisions of this Court sustain the ruling of the trial judge. Drysdale v. Prudden, 195 N.C. 722, 143 S.E. 530; Sams v. Board of Commissioners of Madison County, 217 N.C. 284, 7 S.E.2d 540; Board of Health of Nash County v. Board of Commissioners, 220 N.C. 140, 16 S.E.2d 677; Idol v. Street, supra.

The plaintiff also prays that the restraining order issue for the additional reason that according to the budget submitted by the Board of Education, and approved by the Board of County Commissioners, $21,000 was set up for a garage building and equipment, and it is alleged this fund will be applied to the construction of the school building. There was no specific allegation that any plans have been made with respect to a garage building or to this fund, as no construction had yet begun. Hence, the matter still lay in the nebulous field of conjecture. In any event, the question would rest with the Board of County Commissioners and the Board of Education to determine whether this amount should be used for the particular purpose named or some other project in connection with the general purpose for which it was set aside. It is the duty of the Board of County Commissioners to provide the funds for school equipment. G.S. § 115-83; Johnson v. Marrow, 228 N.C. 58, 44 S.E.2d 468. Under the circumstances alleged we do not think the court would be warranted in enjoining the erection of a needed school building upon the allegation by the plaintiff, on information and belief, that this fund might be applied to other construction than the garage and equipment. Atkins v. McAden, 229 N.C. 752, 51 S.E.2d 484; Worley v. Johnston Co., 231 N.C. 592, 58 S.E.2d 99.

The demurrer ore tenus was sustained, the issuance of a restraining order was denied, and the action dismissed. The appellant assigns error in the ruling of the court sustaining the demurrer and signing the judgment. The sole purpose of the suit was to obtain a restraining order. The facts alleged were admitted by the demurrer, which was interposed on the ground that the complaint did not state facts sufficient to constitute a cause of action. Only questions of law were presented. Hence, upon the ruling of the court sustaining the demurrer and denying the injunctive relief prayed for, dismissal of the action was in order. Groves v. McDonald, 223 N.C. 150, 25 S.E.2d 387. The question of the timeliness of the judgment of dismissal is not presented. Dillingham v. Kligerman, N.C., 69 S.E.2d 500.

Judgment affirmed.