Brown v. Candler, 236 N.C. 576 (1952)

Dec. 10, 1952 · Supreme Court of North Carolina

236 N.C. 576

TROY BROWN, MRS. R. F. YOUNG, H. YOUNG, D. W. BEAUCHAMP and J. P. ROBINSON, in Behalf of Themselves and All Other Citizens and Residents and Taxpayers of Buncombe County Who Wish to Make Themselves Parties, Plaintiffs, v. COKE CANDLER, GEORGE YOUNG, JOHN VANCE, Constituting the BOARD OF COUNTY COMMISSIONERS OP BUNCOMBE COUNTY; DR. B. E. MORGAN, C. C. BELL, R. C. TORIAN, GLENN WEST and JOHN M. JAMES, Constituting the BOARD OF EDUCATION OP BUNCOMBE COUNTY, and T. C. ROBERSON, Superintendent of Schools of Buncombe County, Defendants.

(Filed 10 December, 1952.)

1. Appeal and Error § 40c—

While the court’s findings of fact upon the hearing for an interlocutory or preliminary injunction are reviewable on appeal, they will not be disturbed when the evidence justifies and requires such findings.

3. Schools § 6a—

While school authorities have the discretionary power to select sites for new schools and to change the location of existing schools, G.S. 116-85, their action in this regard may be enjoined when it is without authority of law, or when the selection of a proposed site is so clearly unreasonable as to amount to a manifest abuse of their discretion.

3. Same—

A “school district” is the equivalent of a “township” within the meaning of G.S. 116-61, and therefore the selection of a site by the school authorities for the sole high school within a school district is not forbidden by the statute even though it result in two high schools within the township.

4. Same—

Even though a county home be construed a county building within the purview of G.S. 153-9 (9), the statute refers to a change in the location of a county building, which embraces the space occupied by the building and such adjacent land as is reasonably required for its convenient use, and not to changes in the use of a part of the site of a county building, and therefore the statute does not preclude school authorities from selecting, without advertising, a part of the grounds of a county home for the site of a high school when its use would not interfere with the use of the remainder of the site for a county home.

5. Same-—

The fact that the site for a high school selected by the school authorities in a mountainous section of the State may be approached only by a crooked; highway and over a narrow bridge, and that there may be other satisfactory sites for such school, does not compel or support the conclusion that the school authorities abused their discretion in selecting the site.

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

Appeal by plaintiffs from Bobbitt, J., at March Term, 1952, of BUNCOMBE.

Suit by taxpaying electors for permanent injunction enjoining conveyance of county land by board of county commissioners to county board of education for use as site of new high school building heard on application of plaintiffs for an interlocutory or preliminary injunction to restrain such conveyance until the final trial of the suit.

The evidence presented to the judge on the hearing of the application was sufficient to establish the matters recited in the numbered paragraphs set forth below.

1. The Buncombe County Administrative Unit includes the Leicester School District and the West Buncombe School District. Each of these districts lies within the bounds of Leicester Township, which is one of the larger townships of Buncombe County, and contains a union school, i.e., a school embracing both elementary and high school grades, which has been in continuous operation for a period of time antedating the year 1923.

2. The high school department of the West Buncombe School serves a portion of:Leicester Township, and the high school department of the Leicester School serves the remainder of Leicester Township and the adjacent Township of Sandy Mush. Each of these high school departments is a standard high school.

3. In 1950, the Board of Education of Buncombe County, acting with the approval of the State Board- of Education, adopted a comprehensive plan of organization covering the entire school system in the portion of Buncombe County committed to its charge. This plan of organization was devised by the Board of Education of Buncombe County upon a consideration of all relevant factors, and was based in large measure upon recommendations made to it by the State School Survey Panel and an independent advisory group of citizens of Buncombe County who surveyed and studied the educational needs of the school population of the Buncombe County Administrative Unit. The voters of Buncombe County have approved the issuance of county bonds to defray the expense of erection of the new school buildings required for the consummation of the plan of organization.

4. Tbe plan of organization calls for tbe continued operation of tbe elementary school and bigb school departments of tbe union school in tbe Leicester School District; tbe use of all tbe existing buildings in tbe West Buncombe School District for elementary school purposes; and tbe erection of a new bigb school building at a new site in tbe West Buncombe School District to serve tbe bigb school children residing in tbe West Buncombe School District and portions of three other school districts lying outside tbe bounds of Leicester Township. Under tbe plan of organization, tbe new bigb school building to be erected in tbe West Buncombe School District is to bouse a consolidated standard bigb school to be known as tbe West Buncombe Consolidated High School.

5. Subsequent to tbe adoption of tbe plan of organization covering all of tbe schools in tbe Buncombe County Administrative Unit, 'the Board of Education of Buncombe County, acting with tbe approval of tbe State Board of Education, selected approximately 30 acres of land lying within tbe bounds of tbe West Buncombe School District as tbe site for tbe West Buncombe Consolidated High School building. In making tbe selection, tbe Board of Education of Buncombe County accepted a recommendation made to it by an advisory committee composed of residents of all tbe areas to be served by tbe West Buncombe Consolidated High School, who bad been requested "to suggest the most suitable location for tbe site of tbe new consolidated bigb school.”

6. Tbe 30 acres chosen as tbe site for tbe West Buncombe Consolidated High School building are a part of a tract of 177 acres owned by Buncombe County in fee simple and known as tbe “Old County Home Property.” Subsequent to tbe event described in paragraph 5, tbe Board of Commissioners of Buncombe County and tbe Board of Education of Buncombe County entered into a contract whereby tbe board of county commissioners has agreed to convey tbe 30 acres to tbe county board of education in fee simple for use as tbe site for tbe new bigb school building, and whereby tbe county board of education has promised to pay tbe board of county commissioners a stipulated price for them. These boards will forthwith carry out their contract unless they are enjoined by tbe court from so doing. No publication of any notice of tbe proposed conveyance has been made.

7. Tbe Buncombe County Home for tbe Aged and Infirm was located on tbe 177-acre tract until 1946, when tbe old county home building was condemned by tbe State Commissioner of Insurance and razed to tbe ground by tbe board of county commissioners. Since that time tbe Board of Commissioners of Buncombe County has maintained tbe county home for tbe aged and infirm in a building of modern brick construction commonly called tbe Boys’ Reformatory Building on account of its former use. This structure is half a mile distant from tbe spot occupied in times past by tbe old county borne building, and stands on a tract of 100 acres owned by Buneombe County in fee simple and known as tbe Brookshire Land. Tbe 177-acre tract and a portion of tbe Brookshire Land are now used as a county farm to produce food for tbe inmates of tbe county home and tbe county jail. Tbe county borne is under tbe direction of a county borne superintendent, and tbe county farm is under tbe management of a county farm supervisor. Tbe operations are separate in all respects. Tbe 30 acres do not embrace tbe spot formerly occupied by tbe old county borne building, and their “sale and conveyance will not affect tbe desirability or usefulness of tbe present county borne site.”

On 23 February, 1952, tbe plaintiffs, who are taxpaying citizens and residents of Buncombe County, brought this action against tbe defendants Coke Candler, George Young, and John Yance, constituting tbe Board of Commissioners of Buncombe County, and Dr. B. E. Morgan, C. C. Bell, R. C. Torian, Glenn West, and John M. James, constituting- tbe Board of Education of Buncombe County, and T. C. Robprson, Superintendent of Public Instruction of Buncombe County, to obtain a permanent injunction enjoining tbe conveyance of tbe 30 acres by tbe board of county commissioners to tbe county board of education for use as tbe site of a building to bouse tbe West Buncombe Consolidated High School.

Tbe complaint lays claim to tbe injunction sought on these alternative grounds: (1) That tbe statutes incorporated in-.G.S. 115-61 and subdivision 9 of G.S. 153-9 deny to tbe defendants the legal power- to select and use tbe 30 acres as tbe site for tbe West Buncombe Consolidated High School; (2) that tbe location of tbe West Buncombe Consolidated High School on-the 30 acres would be so clearly unreasonable as to amount to a manifest abuse of any discretionary power, lodged in tbe school authorities to select a site for such school because tbe approach to tbe 30 acres is “over a narrow bridge . . . and a crooked highway” and because a satisfactory site for such school can be found in “tbe Beaverdam Ward of Asheville • Township” or elsewhere in “that part of Buncombe County north of tbe French Broad River.” Tbe answers controvert tbe validity of each of these claims.

Tbe plaintiffs applied to Judge Bobbitt for an interlocutory or preliminary injunction staying tbe proposed conveyance until tbe trial of tbe suit on its merits. After bearing tbe evidence presented to him by tbe parties, Judge Bobbitt found facts conforming to those stated in tbe seven numbered paragraphs set out above; concluded as matters of law upon such findings that tbe statutory provisions invoked by tbe plaintiffs do -not deny to tbe defendants tbe legal power to select and use tbe 30 acres as tbe site for tbe West Buncombe Consolidated High School, and that tbe school authorities have not abused their discretion in selecting tbe 30 acres as tbe site for tbe West Buncombe Consolidated High School; and entered an order refusing to grant the interlocutory or preliminary injunction sought by the plaintiffs. The plaintiffs excepted and appealed. They assert by their assignments of error that the facts found by the judge are contrary to the evidence; and that the conclusions of the judge and his resultant denial of the interlocutory or preliminary injunction are contrary to law.

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

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

Attorney-General McMullan and Assistant Attorney-General Love for the State Board of Education, Amicus Curiae.

EbviN, J.

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; 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, 195 S.E. 376; McInnish v. Board of Education, 187 N.C. 494, 122 S.E. 182.

Tbe statute now codified as G.S. 115-85 undoubtedly confers upon scbool authorities tbe general discretionary power to select sites for new schools and to change the locations of existing schools. Feezor v. Siceloff, supra,; Board of Education v. Lewis, supra; Atkins v. McAden, 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 Us 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 YII 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 Greek Tp., Butler County, 109 Neb. 202, 190 N.W. 586. 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 tbis definition and tbe evidence, it is obvious tbat tbe 30 acres do not constitute a part of tbe site of tbe county borne.

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

Tbe order refusing tbe interlocutory or preliminary injunction is

Affirmed.

PaeiceR, J., took no part in tbe consideration or decision of tbis case.