Brown v. Candler

• Decision Date: 10 December 1952
• Docket Number: No. 111,111
• Citation: 236 N.C. 576,73 S.E.2d 550
• Parties: BROWN et al. v. CANDLER et al.
• Court: North Carolina Supreme Court

Page 550

73 S.E.2d 550

236 N.C. 576

BROWN et al. v. CANDLER et al.

No. 111

Supreme Court of North Carolina.

Dec. 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. 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 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,...