Dilday v. Beaufort County Bd. of Ed., 38

• Decision Date: 16 June 1966
• Docket Number: No. 38,38
• Citation: 267 N.C. 438,148 S.E.2d 513
• Court: North Carolina Supreme Court
• Parties: Marion DILDAY, Berl B. Respess and Robert E. Moore v. BEAUFORT COUNTY BOARD OF EDUCATION, a body corporate, et al.

Page 513

148 S.E.2d 513

267 N.C. 438

Marion DILDAY, Berl B. Respess and Robert E. Moore v. BEAUFORT COUNTY BOARD OF EDUCATION, a body corporate, et al.

No. 38.

Supreme Court of North Carolina.

June 16, 1966.

John A. Wilkinson, Washington, for plaintiff appellants.

William P. Mayo, Washington, for Beaufort County Board of Education, defendant appellee.

L. H. Ross, Washington, for Beaufort County Commissioners and Jay M. Hodges, Beaufort County Treasurer and Auditor, defendant appellees.

SHARP, Justice.

Plaintiffs' case on appeal contains no exceptions. The appeal, however, is an exception to the judgment, and raises the question whether the facts found support it. Cratch v. Taylor, 256 N.C. 462, 124 S.E.2d 124. Exceptions to the failure of the judge to make certain detailed findings with reference to preelection publicity given the bond referendum by defendant School Board--as well as a statement of the findings allegedly requested--appear for the first time in the first assignment of error. Such an exception, as we have repeatedly pointed out, is worthless. Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118; 1 Strong, N.C. Index, Appeal and Error § 19 (1957).

Since this case affects the public interest, we advanced it upon our calendar under Rule 13, at the request of the parties. In order that our purpose in doing so be not defeated, we must, in spite of a poor record, consider whether the court below erred in dissolving the preliminary injunction. To that end, we find the facts to be as set out in our preceding statement. 'Upon an appeal from an order granting or refusing an interlocutory injunction, the findings of fact, as well as the conclusions of law, are reviewable by this Court.' Deal v. Enon Sanitary District, 245 N.C. 74, 76--77, 95 S.E.2d 362, 364. Accord, Turner Coffee Co. v. Thompson, 248 N.C. 207, 102 S.E.2d 783; Clinard v. Lambeth, 234 N.C. 410, 67 S.E.2d 452.

Plaintiffs, as counsel emphasized upon the argument, do not attack the validity of the bonds which defendant Commissioners have heretofore issued, or which they may hereafter issue, pursuant to the bond ordinance approved at the November 3, 1964 election. They do, however, deny the authority of defendants to expend any of the proceeds from the bonds for the purpose of consolidating the Beaufort County and Belhaven high schools with the Bath, Pantego, and Wilkinson high schools. Plaintiffs' contentions are these:

(1) There has been no valid order of consolidation. Under G.S. § 115--76(1), concurrent action by the County Board of Education and the State Board of Education After the required public hearing is essential in order to consolidate any two high schools with an average daily attendance of 60 or more pupils. The State Board approved the consolidation of the five schools in question on November 4, 1965--two months In advance of the public hearing on January 5, 1966. After the public hearing, an order of consolidation made by the County Board alone was ineffectual.

(2) Defendant Boards are without authority to divert to Central High School funds allotted to the Beaufort County and Belhaven high schools prior to the bond referendum.

(3) Even if defendant Boards are legally empowered to transfer the funds in question from one educational purpose to another, unilateral action by defendant School Board cannot effect the transfer, since such a reallocation requires certain specific findings and the approval by defendant Commissioners. These findings have not been made nor has approval been given in the manner required by law.

Plaintiffs' first contention, originally valid, is now moot. It appears from a stipulation signed by counsel for all parties and filed with this Court on June 13, 1966, that at its meeting on May 6, 1966, the State Board of Education formally approved the consolidation of the five high schools in District III into one central high school by the following resolution:

'The Superintendent of Beaufort County Board of Education having communicated with the Secretary of the State Board of Education relative to the questions raised regarding the action of the State Board of Education upon the proposed long-range building plans of Beaufort County, and it appearing to the Board that a public hearing has heretofore been held by the Beaufort County Board of Education, at which the State Board of Education was represented as required by G.S. 115--76; and it further appearing to the Board that the Beaufort County Board of Education has approved the plans for consolidation of the proposed schools in Beaufort County, and the State Board of Education upon considering the same finds that the proposed long-range building plan will promote and enhance educational advantages in the proposed area to be consolidated: Thereupon, the State Board of Education concurs with the Beaufort County Board of Education and approves the plans for the consolidation of high schools at Bath, Beaufort County, Belhaven, J. A. Wilkinson, and Pantego into one consolidated high school as described in the long-range plan submitted to the Board, this action to be effective as of January 6, 1966.'

This action by the State Board related back to January 6, 1966, and constitutes a sufficient compliance with G.S. § 115--76(1). Burney v. Board of Comrs., 184 N.C. 274, 114 S.E. 298.

Plaintiffs' second and third contentions require a consideration of the relative duties of county commissioners and county boards of education with reference to the public schools.

The authority and duty to operate county schools is vested in the county board of education, which is required to provide adequate school buildings, suitably equipped. G.S. § 115--35; G.S. § 115--129. The board of education determines, in the first instance, what buildings require repairs, remodeling, or enlarging; whether new school houses are needed; and if so, where they shall be located. Such decisions are vested in the sound discretion of the board of education, and its actions with reference thereto cannot be restrained by the courts absent a manifest abuse of discretion or a disregard of law. 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; Waldrop v. Hodges, 230 N.C. 370, 53 S.E.2d 263; Atkins v. McAden, 229 N.C. 752, 51 S.E.2d 484.

Each year the board of education surveys the needs of its school system with reference to buildings and equipment. By resolution it presents these needs, together with their costs, to the commissioners, who are 'given a reasonable time to provide the funds which they, upon investigation, shall find to be necessary for providing their respective units with buildings suitably equipped * * *.' G.S. § 115--129. It is the board of commissioners, therefore, which is charged with the duty of determining what expenditures shall be made for the erection, repairs, and equipment of school buildings in the county. Johnson v. Marrow, 228 N.C. 58, 44 S.E.2d 468. However, as pointed out in Atkins v. McAden, supra, the commissioners' control over the expenditure of funds for the erection, repair, and equipment of school buildings does not interfere with the exclusive control of the schools which is vested in the county board of education or in the trustees of administrative units. Having determined what expenditures are necessary and possible, and having provided the funds, the jurisdiction of the commissioners ends. The authority to execute the plans is in the board of education. Parker v. Anson County, 237 N.C. 78, 74 S.E.2d 338.

This dual responsibility obviously requires the utmost cooperation between the two boards and the full assumption of responsibility by each, if the educational needs of the children of the county are to be met.

G.S. § 153--107 provides, Inter alia, that '(t)he proceeds of the sale of bonds and bond anticipation notes * * * shall be used only for the purposes specified in the order authorizing said bonds, and for the payment of the principal and interest of such notes issued in anticipation of the sale of bonds * * *.' In construing this section, this Court has said:

'But G.S. § 153--107, in our opinion, does not place a limitation upon the legal right to transfer or allocate funds from one project to another within the general purpose for which bonds were issued. The inhibition contained in the statute is to prevent funds obtained for one general purpose being transferred and used for another general purpose. For example, the statute prohibits the use of funds derived from the sale of bonds to erect, repair and equip school buildings, from being used to erect or repair a courthouse or a county home, or similar project.' Atkins v. McAden, supra, 229 N.C. at 756, 51 S.E.2d at 487.

To effectuate such a transfer of funds from one project to another, however, certain facts must appear, and certain preliminary steps must be taken.

1. The board of education must, by resolution, request the reallocation of funds and apprise the county commissioners of the conditions which bring about the needs for the transfer.

2. The commissioners must then investigate the facts upon which the School Board's request is made.

3. After making their investigation, the commissioners must, by resolution, record their findings upon their official minutes and authorize or reject the proposed reallocation of funds.

If the commissioners find (1) that since the bonds were authorized, conditions have so changed that the funds...