Wynn v. TRUSTEES OF CHARLOTTE COMMUNITY COLLEGE SYS.

122 S.E.2d 404 (1961) 255 N.C. 594

Roy S. WYNN and James D. Martin, on behalf of themselves and all other taxpayers of the County of Mecklenburg, State of North Carolina,
v.
TRUSTEES OF CHARLOTTE COMMUNITY COLLEGE SYSTEM, a body corporate, J. Murrey Atkins, Chairman; Thomas M. Belk, C. A. McKnight, John A. McRae, Dr. E. A. Beaty, Sheldon P. Smith, Dr. Thomas Watkins, Sr., J. Murrey Atkins, R. L. Taylor, John Paul Lucas, Addison H. Reese, Linn D. Garibaldi, and Oliver Rowe, Trustees of Charlotte Community College, a body corporate; J. N. Pease & Company, Inc., a North Carolina corporation, and Dickerson, Inc., a North Carolina Corporation.

No. 236.

Supreme Court of North Carolina.

November 8, 1961.

J. Charles Morris, Charlotte, for plaintiffs, appellants.

Helms, Mulliss, McMillan & Johnston, E. Osborne Ayscue, Jr., and McCleneghan, Miller & Creasy, Charlotte, for defendants, appellees.

BOBBITT, Justice.

The demurrer tests the sufficiency of the complaint. The rules applicable have been often stated and are well settled. Pressly v. Walker, 238 N.C. 732, 78 S.E.2d 920, and cases cited; Glover v. Brotherhood, 250 N.C. 35, 108 S.E.2d 78, and cases cited. Our task is to determine whether plaintiffs, upon the facts alleged, liberally construed in their favor, have a cause of action.

The remedy of injunction is available to a taxpayer when a tax levy or assessment, or some part thereof, is challenged on the ground (1) the tax or assessment is itself illegal or invalid, or (2) for an illegal or unauthorized purpose. Barbee v. Board of Com'rs of Wake, 210 N.C. 717, 719, 188 S.E. 314, and cases cited; G.S. § 105-406.

Plaintiffs allege ad valorem taxes levied by Mecklenburg County will be specifically increased in the amount required to pay the principal and interest on the "Charlotte Community College Bonds." They do not challenge the validity of the bonds or of the tax levied for the payment thereof. Indeed, they allege, clearly and positively, that the bonds and tax were duly authorized, "with the proceeds to be used by the Charlotte Community College System for construction of new campuses for Charlotte College and Carver College."

Plaintiffs allege they will suffer irreparable injury unless injunctive relief is granted. They base this allegation solely on their status as taxpayers of Mecklenburg County. Thus, the question presented is whether plaintiffs, as taxpayers, may enjoin the use of any portion of the bond proceeds for the construction of Carver College.

"The Community College Act" of 1957 (S.L.1957, c. 1098) is now codified as G.S. Chapter 116, Article 3, §§ 116-47 through 116-62. A "community college," as defined therein, is an educational institution dedicated primarily to the particular needs of a community or an area, offering the freshman and sophomore courses of a college of arts and sciences and/or the first or first and second year courses of a two-year technical institute of college grade, with authority to offer (in addition thereto) a variety of occupational, vocational, avocational and recreational training programs. "Such college may consist of one or more units operating within the boundaries of one county." G.S. § 116-49.

The body corporate, "The Trustees of the Charlotte Community College System," as directed by its governing body, the board of trustees, established two units. The statute expressly authorized it to do so.

Plaintiffs do not challenge the use of the bond proceeds for the construction of Charlotte College of the 267-acre tract. Indeed, by asserting the College System should be limited to one unit, namely, Charlotte College, they imply all proceeds from the sale of the duly authorized bonds should be used solely for the construction of Charlotte College. Clearly, it makes no difference, in respect of the amount of taxes plaintiffs will be required to pay, whether the bond proceeds are used in part for the construction of Carver College or solely for the construction of Charlotte College.

Whether the College System should consist of one or more units was for determination by the board of trustees. Its primary responsibility was to provide educational facilities, at junior college level, to serve the particular needs of the community. It was well within the authority of the board of trustees, in the exercise of its discretion and judgment, to determine that a greater number of prospective students would be afforded and take advantage of the educational opportunities offered by the College System by establishing Charlotte College and Carver College at different locations and as separate units. The board of trustees made its determination prior to the bond election; and, as plaintiffs allege, voters duly authorized (1) the issuance of the bonds, (2) the levy of the tax, and (3) the use of the bond proceeds "for construction of new campuses for Charlotte College and Carver College."

Plaintiffs allege the construction of Carver College will result in a duplication of college facilities and services and that such duplication is wasteful. In view of our decision that the board of trustees had full authority to establish Charlotte College and Carver College in different locations and as separate units, it is sufficient to say that the expenditure of public funds to provide necessary facilities and services at each unit is not an expenditure for an illegal or unauthorized purpose.

Plaintiffs, in their prayer for relief, sought to enjoin defendants "from proceeding with the construction of Carver College" and "from the payment of public money for such construction of Carver College." For the reasons stated, plaintiffs, on the facts alleged, are not entitled to such injunctive relief.

True, plaintiffs allege the use of bond proceeds for the construction of Carver College is for an illegal and unauthorized purpose on the ground Carver College will be operated as "a racially segregated public college facility in violation of the Fourteenth Amendment of the Constitution of the United States." They contend such operation would be in violation of the 1954 and 1955 decisions of the Supreme Court of the United States in Brown v. Board of Education of Topeka, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686, 38 A.L.R. 2d 1180, and 349 U.S. 294, 99 L. Ed. 1083, 75 S. Ct. 753. The decisions in the Brown case were considered and discussed by this Court in 1956 in Constantian v. Anson County, 244 N.C. 221, 93 S.E.2d 163. On this appeal, no further discussion of the significance of the Brown decisions is deemed necessary or appropriate.

Plaintiffs and all other property owners are subject to the ad valorem tax levied to provide funds for the payment of the bonds. No fact alleged indicates plaintiffs will be otherwise affected by the construction and operation of Carver College. Upon the facts alleged, no constitutional right of plaintiffs has been denied. "A constitutional question may not be raised by one whose rights are not directly and certainly affected." 16 C.J.S. Constitutional Law § 76, p. 233. The numerous decisions cited fully support this statement.

It is noted that plaintiffs do not allege that any qualified prospective student has been or will be excluded from attending either Charlotte College or Carver College solely on the basis of race. Suffice to say, if and when the constitutional rights of any person, white or Negro, are denied, a remedy is available to such person for the vindication and enforcement of such rights. Neither Charlotte College nor Carver College may be operated in such manner as to deny to any person rights guaranteed to such person by the Fourteenth Amendment to the Constitution of the United States.

Having reached the conclusion that, for the reasons stated, the facts alleged disclose plaintiffs are not entitled to injunctive relief, it is unnecessary to discuss the additional and separate grounds of demurrer asserted (1) by J. N. Pease & Company, Inc., and Dickerson, Inc., and (2) by the individual defendants. Suffice to say, the judgment of the court below, as to all defendants, is affirmed.

Affirmed.