Brown v. Candler

73 S.E.2d 550 (1952) 236 N.C. 576

BROWN et al.
v.
CANDLER et al.

No. 111.

Supreme Court of North Carolina.

December 10, 1952.

Tom S. Garrison, Jr. and J. W. Haynes, Asheville, for plaintiffs, appellants.

Zebulon Weaver, Jr., Roy A. Taylor and Don C. Young, Asheville, for defendants, appellees.

Atty. Gen. Harry McMullan and Asst. Atty. Gen. Claude L. Love for the State Board of Education, Amicus Curiae.

ERVIN, Justice.

Since some of the assignments of error challenge the correctness of the findings of fact of the judge, we have reviewed these findings in conformity with the rule which obtains in such case on an appeal from an order granting or refusing an interlocutory or preliminary injunction. McIntosh: North Carolina Practice and Procedure in Civil Cases, section 876. The review convinces us that the evidence presented to the judge in the court below both justifies and requires his findings of fact. As a consequence, we disallow the exceptions to the findings of fact, and take up the assignments of error which question the validity of the conclusions of law and the resultant order refusing the temporary injunction sought by the plaintiffs.

When all is said, it is obvious that the real purpose of the instant suit is to prevent the school authorities from effectuating their selection of the 30 acres as the site for the proposed West Buncombe Consolidated High School.

These propositions are well settled:

1. The superior court may enjoin the action of school authorities in selecting a site for a new school, or in changing the location of an existing school, when their action is without authority of law. Kistler v. Board of Education, 233 N.C. 400, 64 S.E.2d 403; Atkins v. McAden, 229 N.C. 752, 51 S.E.2d 484; Davenport v. Board of Education, 183 N.C. 570, 112 S.E. 246.

2. Although the law may confer upon school authorities the discretionary power to select a site for a new school, or to change the location of an existing school, the superior court may enjoin the selection of a site for a new school or the change of location of an existing school by such authorities when their action is so clearly unreasonable as to amount to a manifest abuse of their discretion. Kistler v. Board of Education, supra; Feezor v. Siceloff, 232 N.C. 563, 61 S.E.2d 714; Wayne County Board of Education v. Lewis, 231 N.C. 661, 58 S.E.2d 725; Atkins v. McAden, supra; Messer v. Smathers, 213 N.C. 183, 19 S.E. 376; McInnish v. Board of Education, 187 N.C. 494, 122 S.E. 182.

The statute now codified as G.S. § 115-85 undoubtedly confers upon school authorities the general discretionary power to select sites for new schools and to change the locations of existing schools. Feezor v. Siceloff, supra; Wayne County Board of Education v. Lewis, supra; Atkins v. Mc-Aden, supra; Moore v. Board of Education, 212 N.C. 499, 193 S.E. 732. The plaintiffs assert, however, that this general discretionary power is subject to certain limitations embodied in G.S. § 115-61 and subdivision 9 of G.S. § 153-9, which preclude the selection and use of the 30 acres as the site for the proposed West Buncombe Consolidated High School.

G.S. § 115-61 is phrased as follows: "Since the cost of good high school instruction is too great to permit the location of small high schools close together, it shall be the duty of the county board, wherever the needs demand it, to locate not more than one standard high school in each township or its equivalent: Provided, it shall be discretionary with county boards of education to continue standard high schools in existence in 1923 contrary to the provisions of this section, and to establish such high schools in townships in which city schools are already located."

The plaintiffs lay hold on the fact that the plan of organization contemplates the continued operation of the standard high school constituting a part of the union school in the portion of Leicester Township lying within the bounds of the Leicester School District, and argue that the selection and utilization of the 30 acres as the site for the West Buncombe Consolidated High School will place "two * * * high schools in Leicester Township * * in violation of * * * G.S. § 115-61."

We will assume without so adjudging for the purpose of this particular controversy that G.S. § 115-61 forbids the county board of education "to locate * * more than one standard high school in each township or its equivalent." This question arises on this assumption: What is the equivalent of a township? The term "township" was brought into North Carolina law by Sections 3, 4, 5 and 6 of Article VII of the Constitution of 1868. A "township" is a territorial and political subdivision of a county, and is established for the convenient exercise of some of the elementary functions of government. Powers v. Thorn, 155 Kan. 758, 129 P.2d 254; State v. Bone Creek Tp., Butler County, 109 Neb. 202, 190 N.W. 586, 193 N.W.767. A school district is the equivalent of a township because it is a "convenient territorial division or subdivision of a county, created for the purpose of maintaining within its boundaries one or more public schools." G. S. § 115-9. Since the West Buncombe School District is the equivalent of a township and the West Buncombe Consolidated High School will be the only standard high school located within its boundaries, G.S. § 115-61 does not limit in any degree the discretionary power of the school authorities to select and use the 30 acres as the site for the West Buncombe Consolidated High School.

Subdivision 9 of G.S. § 153-9 grants to the board of commissioners of each county the power "To remove or designate a new site for any county building" subject to these limiting conditions: "But the site of any county building already located shall not be changed, unless by a unanimous vote of all the members of the board at any regular monthly meeting, and unless upon notice of the proposed change, specifying the new site. Such notice shall be published in a newspaper printed in the county, if there is one, and posted in one or more public places in every township in the county for three months, next immediately preceding the monthly meeting at which the final vote on the proposed change is to be taken. Such new site shall not be more than one mile distant from the old, except upon the special approval of the General Assembly."

The plaintiffs insist that the limiting conditions specified in this statute preclude the present selection and use of the 30 acres as a site for the new consolidated high school. They advance these arguments to support this position: That the county home for the aged and infirm is a county building within the purview of the statute; that the statute inhibits any change in the use of any part of the site of the county home until the limiting conditions, i. e., the three months' publication of notice of the proposed change and the ensuing vote of the board of county commissioners approving the change, have taken place; that the 30 acres constitute a part of the site of the county home, and cannot be devoted to any other use at this time because the limiting conditions applicable to them have not occurred; and that as a consequence of these things the board of county commissioners has no present legal power to convey the 30 acres to the county board of education for use as a site for the new consolidated high school.

The position of the plaintiffs is unsound even if the statutory provision embodied in subdivision 9 of G.S. § 153-9 be construed to cover county homes for the aged and infirm as well as county courthouses and county jails, the only county buildings in use in 1868, when the statutory provision was originally enacted. The plaintiffs have misinterpreted the statute. The limiting conditions incorporated in it are concerned with changes in the locations of the sites of county buildings, and not with changes in the uses of parts of the sites of county buildings. It necessarily follows that the statute has no application whatever to the proposed conveyance of the 30 acres. The legal standing of the plaintiffs would not be bettered a whit, however, if the construction which they put upon the statute were the correct one. The site of a county building embraces only the space occupied by the building and such adjacent land as is reasonably required for the convenient use of the building. Board of Education v. Forrest, 190 N.C. 753, 130 S.E. 621; State v. Jersey City, 36 N.J.L. 166. Under this definition and the evidence, it is obvious that the 30 acres do not constitute a part of the site of the county home.

The evidence and the findings of fact are in harmony with the conclusion that the school authorities did not abuse the discretion reposed in them by law in choosing the 30 acres as the site for the West Buncombe Consolidated High School. The circumstance that the approach to it may be "over a narrow bridge * * * and a crooked highway" neither compels nor supports the contrary conclusion. In the very nature of things, ways of travel are ofttimes imperfect in a region justly famed for the rugged grandeur of its mountains. The additional circumstance that there are satisfactory sites for the new schoolhouse at other places does not disprove the soundness of the decision on the present phase of the litigation. Indeed, it illustrates the necessity for the legislation vesting in the school authorities the discretionary power to determine which one of the various available sites is to be used.

The order refusing the interlocutory or preliminary injunction is

Affirmed.

PARKER, J., took no part in the consideration or decision of this case.