BENVENUE PARENT-TEACH. ASS'N v. Nash Co. Bd. of Ed.

167 S.E.2d 538 (1969) 4 N.C. App. 617

BENVENUE PARENT-TEACHER ASSOCIATION and Charles L. Johnson
v.
The NASH COUNTY BOARD OF EDUCATION and Nash County.

No. 697SC248.

Court of Appeals of North Carolina.

May 28, 1969.

Don Evans, Rocky Mount, for plaintiffs appellants.

I. T. Valentine, Jr., Nashville, for defendant appellee, Nash County Board of Education.

James W. Keel, Jr., Rocky Mount, for defendant appellee Nash County.

BRITT, Judge.

The first question posed is whether the Nash Technical Institute is a part of the public school system of North Carolina.

Although the educational unit discussed is referred to in the record and briefs by several names—Nash Technical Institute, Nash Technical Institute Extension Unit, etc.—the pleadings and evidence indicate that it is actually an extension unit of the Wilson Technical Institute. Nevertheless, we will refer to the unit by the name that defendants, for obvious reasons, choose to call it.

Plaintiffs contend that the lease of the facility formerly occupied by Benvenue High School to the State Board of Education for adult education and vocational training, and the expenditure of funds by the Nash County Board of Education for this purpose, violates Article IX, § 5 of the North Carolina Constitution, which provides in pertinent part: "All moneys, stocks, bonds, and other property belonging to a county school fund * * * shall belong to and remain in the several counties, and shall be faithfully appropriated for establishing and maintaining free public schools in the several counties of this State * * *." Plaintiffs contend that the Nash Technical Institute is not a "public school."

"A school the court holds to be an institution consisting of a teacher and pupils, irrespective of age, gathered together for instruction in any branch of learning, the arts or the sciences." Weisse v. Board of Education of City of New York, 178 Misc. 118, 32 N.Y.S.2d 258. A school is public when it is open and public to all in the locality. 78 C.J.S. Schools and School Districts § 1, p. 606. It is true that the "public schools" are normally envisioned as institutions for the instruction of the young, and that institutions for education beyond the high school level are not usually thought of as part of the "public schools"; however, this mode of thought does not amount to a constitutional prohibition of use of the terms "public schools" to include adult or technical education.

The expenditure of funds by Nash County for maintenance of the building used by Nash Technical Institute is fully authorized by statutes (G.S. § 115-234 et seq.) and is not at odds with the meaning or purpose of Article IX, § 5 of the North Carolina Constitution. Harris v. Board of Commissioners, 274 N.C. 343, 163 S.E.2d 387.

Plaintiffs introduced in evidence certain stipulations entered into between counsel for plaintiffs and counsel for defendants; among these were the following:

14. "The aforesaid adult educational unit provides vocational, technical, and general adult training for persons 18 years old or older. Persons are now enrolled in that school who are over 21 years of age.

15. There are 730 students enrolled at Nash Technical Institute Extension Unit. Of that number, 93 pay tuition of $32.00 per quarter. The others pay only a nominal ``supplies fee,' or nothing at all."

The record contains other evidence as to persons served or proposed to be served by the unit.

We conclude from the record before us that the Nash Technical Institute is a part of the public school system of North Carolina.

Plaintiffs next contend that the expenditure of funds by defendant county for operation of the Nash Technical Institute without a vote of the people violates North Carolina Constitution Article VII, § 6. We disagree.

Though not determinative of legal necessity, a glance at the appropriations of practically all governmental units indicates the understanding by the general public of the practical necessity of educational expenditures.

Necessity in this case is within the purview of the discussion in Harris v. Board of Commissioners, supra. The Constitution of North Carolina requires the General Assembly to provide for a general and uniform system of public instruction. Article IX, § 2. In fulfilling this purpose, the General Assembly may act through the agency of the county. When the county acts as agent of the State in carrying out legislative enactments, its actions fall within the authority granted by Article IX, § 2 of the Constitution. Moreover, operation of the public school system has been held to be a necessary expense, not requiring a vote of the people. Mebane Graded School District v. Alamance County, 211 N.C. 213, 189 S.E. 873. As noted above, adult and technical education may reasonably be considered a part of the public school system.

Plaintiffs contend that the superior court erred in dismissing the Benvenue Parent-Teacher Association from the action. This contention is overruled. It is a well-established principle that a party must demonstrate that an enactment will prejudice his rights before the party can question its constitutionality. 2 Strong, N.C. Index 2d, Constitutional Law, § 4, p. 186. 16 Am.Jur.2d, Constitutional Law, § 119, p. 310. The Parent-Teacher Association made no showing of a direct injury in this case.

Finally, plaintiffs contend that the trial court erred in granting defendants' motion for judgment of involuntary nonsuit.

The burden was on plaintiffs to prove that the acts of defendants complained of in the complaint and amendments thereto were wrongful or unlawful. When the parties had rested their cases, the evidence of plaintiffs, together with the evidence of defendants not in conflict therewith but which tended to make clear or explain plaintiffs' evidence, showed that defendants in assisting with the creation and support of Nash Technical Institute carefully followed procedures provided by the statutes, which statutes do not offend the State Constitution. Therefore, we hold that the allowance of the motion was proper and the judgment appealed from is

Affirmed.

MALLARD, C. J., and FRANK M. PARKER, J., concur.