Sch. Comm. Of Seventyfirst Consol. Sch. Dist v. Bd. Of Educ. Of Cumberland County

• Decision Date: 12 December 1923
• Docket Number: (No. 303.)
• Citation: 120 S.E. 202,186 N.C. 642
• Parties: SCHOOL COMMITTEE OF SEVENTYFIRST CONSOL. SCHOOL DIST. et al. v. BOARD OF EDUCATION OF CUMBERLAND COUNTY et al.
• Court: North Carolina Supreme Court

120 S.E. 202

(186 N.C. 642)

SCHOOL COMMITTEE OF SEVENTYFIRST CONSOL. SCHOOL DIST. et al.

v.BOARD OF EDUCATION OF CUMBERLAND COUNTY et al.

(No. 303.)

Supreme Court of North Carolina.

Dec. 12, 1923.

Appeal from Superior Court, Cumberland County; Sinclair, Judge.

Suit by the School Committee of the Seventy-First Consolidated School District and others against the Board of Education of Cumberland County and others, in which another suit by R. H. Owen against named defendants was consolidated. From the judg-merit rendered, defendants appeal. Reversed in part, and in part affirmed as modified.

Prior to October 1, 1921, several districts having an equal rate of special school tax were consolidated and designated Seventy-First consolidated school district. By virtue of Public Laws, Extra Session 1920, c. 87, the board of commissioners on the first Monday in October, 1921, ordered an election to be held in the consolidated district on the question of issuing serial bonds not exceeding $40,000 and levying an annual tax for the purpose of erecting, enlarging, and equipping a school building or buildings in said district; but before the election was held a controversy arose among the voters as to the location of the proposed building, and thereupon the board of education expressed its purpose to place the building as near the geographical center of the district as was practicable, all things considered.

The election was carried in favor of the bonds and the special tax, but it would have failed if the board of education had not given assurance as to the location of the building. After the election, Clifton was chosen as the site, and R. H. Owen, a taxpayer residing in said district, brought suit against the board of education and the school committee, alleging that Clifton was not near the geographical center of the district, that the pre-election agreement had been disregarded, and that the board had abused its discretion in fixing the location. A preliminary restraining order was issued, but was dissolved at the hearing. Upon appeal the Supreme Court affirmed the judgment vacating the injunction but retained the cause for final hearing. See Owen v. Board of Education of Cumberland County, 184 N. C. 267, 114 S. E. 390. At the February term, 1923, Owen took a nonsuit as to the school committee. A tract of ten acres at Clifton, selected as a site, was conveyed to the board of education, the special tax was levied and collected for 1921 and 1922, and a notice was published that sealed bids would be received for the erection of the schoolhouse.

After the election was held as herein set out, the board of education thought that Galatia school district should be included in the Seventy-First, and in order finally to determine the question called into consultation the school committee of the Seventy-First consolidated district, and the committee unanimously recommended the consolidation of the two districts; whereupon the board of education in the exercise of its discretion effected the consolidation. After doing so, the board submitted a referendum to the taxpayers of the Seventy-First consolidated district as to the location of the building, and 201 votes were cast in favor of Glendale and 3 in favor of Clifton.

Before taking final action in the matter, the board of education caused an election to be held in the Galatia district to ascertain whether the taxpayers therein would assume payment of their part of the taxes necessary to maintain the school and pay the bonds and interest, and said election resulted in favor of assuming the debt and consolidating the districts. This outline is not intended to represent all the facts found by the lower court.

The object of the present action is to determine whether the proposed bonds may be issued and by whom; to enjoin the board of education from changing the location of the school site from Clifton to Glendale; and to require the immediate sale of the bonds and the erection of the building.

Judge Sinclair issued a temporary restraining order, and the case was heard by him at the September term, 1923. By consent this case and Owen v. Board of Education were consolidated, a jury trial was waived, and the presiding judge found the facts and rendered the following judgment:

It is ordered, adjudged, and decreed:

(1) That a bond issue in the amount of $40,000 of Seventy-First consolidated school district, in denominations of the terms, etc., as specified in the order and notice of election hereinbefore set out, has been legally authorized and, when issued, will be and constitute a valid and binding obligation upon, the Seventy-First consolidated school district as described in said order and notice, and the subjects of taxation therein can thereafter, in the manner provided by law, be taxed for the payment of said bonds and the interest thereon.

(2) The board of education is estopped from changing, or attempting to change, the location of the proposed school building from Clifton to Glendale, and its attempt so to do under the facts in this case is in excess of any authority vested in it by law and is so unreasonable as to amount to an oppressive and manifest abuse of discretion, is of no effect and void, and said board is hereby perpetually restrained and enjoined from attempting to locate or erect said building at Glendale.

(3) Clifton has heretofore been selected, determined upon, and designated by the board of education in the judicious exercise of its discretion as the location of the proposed building, and the board of education and the board of trustees of the district are hereby directed in the manner required by law to...