Painter v. Wake County Bd. of Ed.

• Decision Date: 27 August 1975
• Docket Number: No. 114,114
• Citation: 288 N.C. 165,217 S.E.2d 650
• Parties: Walter PAINTER et al., Plaintiffs, v. WAKE COUNTY BOARD OF EDUCATION, a body corporate, et al., Defendants, v. Kenneth R. BALLENGER et al., Intervenors.
• Court: North Carolina Supreme Court

Page 650

217 S.E.2d 650

288 N.C. 165

Walter PAINTER et al., Plaintiffs, v. WAKE COUNTY BOARD OF EDUCATION, a body corporate, et al., Defendants, v. Kenneth R. BALLENGER et al., Intervenors.

No. 114.

Supreme Court of North Carolina.

Aug. 27, 1975.

Kirk & Ewell by George Hamrick and Clarence M. Kirk, Wendell, for plaintiff appellants.

Davis, Davis & Debnam by F. Leary Davis, Jr., Zebulon, for defendant appellee.

Hatch, Little, Bunn, Jones, Few & Berry by William T. Hatch and Harold W. Berry, Jr., Raleigh, for defendant intervenors.

MOORE, Justice.

We first consider whether the final judgment entered in Eggimann v. Board of Education, 22 N.C.App. 459, 206 S.E.2d 754 (1974), bars plaintiffs as to issues regarding defendant's selection of the Yancey farm site.

A judgment on the merits is conclusive not only as to matters actually litigated and determined but also as to all matters properly within the scope of the pleadings which could and should have been brought forward. In re Trucking Co., 285 N.C. 552, 206 S.E.2d 172 (1974); Wilson v. Hoyle, 263 N.C. 194, 139 S.E.2d 206 (1964); Hayes v. Ricard, 251 N.C. 485, 112 S.E.2d 123 (1960); Worthington v. Wooten, 242 N.C. 88, 86 S.E.2d 767 (1955).

As we said in Gibbs v. Higgins, 215 N.C. 201, 204--05, 1 S.E.2d 554, 557 (1939), ". . . The plea of Res adjudicata applies, except in special cases, not only to the points upon which the court was required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject in litigation and which the parties, Exercising reasonable diligence, might have brought forward at the time and determined respecting it.' (Citations omitted.)' (Emphasis added.) Accord, In re Trucking Co., supra; Garner v. Garner, 268 N.C. 664, 151 S.E.2d 553 (1966); Walker v. Story, 256 N.C. 453, 124 S.E.2d 113 (1962); Hayes v. Ricard, supra. In Garner, supra, 268 N.C. at 666, 151 S.E.2d at 554, quoting from Moore v. Harkins, 179 N.C. 167, 101 S.E. 564 (1919), we stated: ". . . This extent of the rule can impose no hardship. It requires no more than a reasonable degree of vigilance and attention; a different course might be dangerous and often oppressive. . . ."

Applying this rule to the present case, we think plaintiffs' claim regarding Selection of the Yancey farm site is barred by the earlier judgment involving essentially the same plaintiffs and defendants. The complaint in the earlier action prayed the court that selection of the Yancey farm site be declared void, alleging that the Board unlawfully denied plaintiffs opportunity to be heard and that the Board improperly delegated its authority in violation of law. Plaintiffs pray the court for identical relief in the present action, asserting as an additional ground for recovery that the Board abused its discretion in selecting the Yancey farm site. We think plaintiffs, in the exercise of a reasonable degree of diligence, should have included this allegation in its earlier action.

The record in the earlier action discloses that defendant Board alleged in its answer that the selection of the Yancey farm site was made in the reasonable exercise of its discretion. Several affidavits relating in some detail the care taken in selecting the Yancey farm site were introduced by defendant in the prior action. The trial judge in allowing summary judgment for defendant in that action ordered: 'That the action of the Wake County Board of Education in selecting the G. W. Yancey homeplace as the site for the establishment of a comprehensive high school is valid.'

Additionally, the record contains the following statement made by one of plaintiffs' attorneys at a meeting of plaintiffs regarding the issue of site selection: 'Ultimate relief by injunction would be fruitless in my opinion because the school board has so much discretionary authority to act and the facts and figures to be put into a lawsuit could be refuted by them to their satisfaction and within their discretionary authority.' It thus appears that the failure to allege and offer proof in the earlier action that the Board abused its discretion in the selection of the Yancey site was the result of a conscious decision by plaintiffs. Plaintiffs must now abide the consequences of that decision. See Hayes v. Ricard, supra, 251 N.C. at 494--95, 112 S.E.2d at 130, and cases cited. We hold that the trial court did not err in holding that the matters raised in the present suit concerning the selection of the Yancey site should have been raised in the earlier action.

In view of this holding, only three questions which were not and could not have been reasonably raised in the prior action remain to be decided. First, is G.S. § 115--126(d) constitutional? Second, did defendant abuse its discretion in offering to exchange its tract (Wakefield tract) for the Yancey tract? Third, is the Board of Education, required to have the approval of the Board of County Commissioners for the exchange under the provisions of G.S. § 115--78(c)(1)?

G.S. § 115--126(d) provides:

'In the Acquisition by it of any property for Public school purposes any county board of education, or any board of education for any city administrative unit, may exchange therefor, as full or partial payment therefor, any property owned or held by it, without compliance with the provisions of this section: Provided, that for at least 10 (ten) days before any exchange of real property shall be consummated, the terms of such proposed exchange shall be filed in the office of the superintendent of schools of such administrative unit and in the office of the clerk of the superior court in the county in which such property is located, and a notice thereof published one or more times in a newspaper having a general circulation in the administrative unit at least 10 (ten) days before the consummation of said exchange.' (Emphasis added.)

Plaintiffs contend that under this statute a school board is given absolute and unbridled discretion in exchanging public land for private land in that no standards or guidelines are provided, and for this reason, under Article II, Section 1 of the North Carolina Constitution, this statute is unconstitutional.

The General Assembly has clearly stated the policy of the State with reference to the power of a county board of education. G.S. § 115--27 provides in part:

'. . . The several boards of education, both county and city, shall hold all school property and be capable of purchasing and holding real and personal property, of building and repairing schoolhouses, of selling and Transferring the same for school purposes, and of prosecuting and defending suits for or against the corporation.' (Emphasis added.)

G.S. § 115--125 provides in part 'County and city boards of education may Acquire suitable sites for Schoolhouses or other school facilities either within or without the administrative unit . . ..' (Emphasis added.)

G.S. § 115--35(b) provides:

'General Powers and General Control.--All powers and duties conferred and imposed by law Respecting public schools, which are not expressly conferred and imposed upon some other official, are conferred and imposed upon county and city boards of education. Said boards of education shall have general control and supervision of all matters Pertaining to the public schools in their respective administrative units and they shall enforce the school law in their respective units.' (Emphasis added.)

And, regarding the Board's power relating to school consolidation Per se, the General Assembly has said in G.S. § 115--76(1):

'. . . (T)he board of education of the county . . . and the State Board of Education shall cause a thorough study . . . to be made, having in mind primarily the welfare of the students to be affected by a proposed consolidation and including in such study, among other factors, geographic conditions, anticipated increase or decrease in school enrollment, the inconvenience or hardship that might result to the pupils to be affected by such consolidation, the cost of providing additional school facilities in the event of such consolidation, and the importance of such school to the people of the community in which the same is located and their interest in and support of same. . . .'

In construing these statutes, our Court has consistently held that the Board of Education determines whether new school buildings are needed and, if so, where they shall be located. Such decisions are vested in the sound discretion of the Board. The Board's discretion with reference thereto cannot be restrained by the courts absent a manifest abuse of discretion or a disregard of law. Lutz v. Board of Education, 282 N.C. 208, 192 S.E.2d 463 (1972); Dilday v. Board of Education, 267 N.C. 438, 148 S.E.2d 513 (1966); Feezor v. Siceloff, 232 N.C. 563, 61 S.E.2d 714 (1950); Board of Education v. Lewis, 231 N.C. 661, 58 S.E.2d 725 (1950); Waldrop v. Hodges, 230 N.C. 370, 53 S.E.2d 263 (1949); Atkins v. McAden, 229 N.C. 752, 51 S.E.2d 484 (1949); Board of Education v. Pegram, 197 N.C. 33, 147 S.E. 622 (1929); Board of Education v. Forrest, 190 N.C. 753, 130 S.E. 621 (1925); School Commissioners v. Aldermen, 158 N.C. 191, 73 S.E. 905 (1912); Venable v. School Committee, 149 N.C. 120, 62 S.E. 902 (1908). Thus, abundant case law and the above statutes, when read In pari materia, give well-defined contours to the requirement that the school board not abuse its discretion in acquiring property for public school purposes. See In re Willis, 288 N.C. 1, 215 S.E.2d 771 (1975).

In Coastal Highway v. Turnpike Authority, 237 N.C. 52, 74 S.E.2d 310 (1953), which plaintiffs contend is supportive of their position, there was no such well-developed case law providing guidelines for the Turnpike Authority in the exercise of its duties 'in the public interest.' Further, the legislative power delegated in Coastal Highway was not the type usually granted local governments in aid of the functions of state...