Dilday v. Beaufort County Board of Education

161 S.E.2d 108 (1968)

273 N.C. 679

Marion DILDAY, Berl B. Respess and Robert E. Moore v. BEAUFORT COUNTY BOARD OF EDUCATION, a body corporate, and the Individual Members Thereof: W. B. Voliva, Chairman; Ralph Hodges, Jr., Jasper Warren, Carmer Wallace, W. L. Guilford, W. F. Veasey, Secretary; and Beaufort County Commissioners, Consisting of: Sam Moore, Chairman, Cecil Lilley, Jake Van Gyzen, Alton Cayton, and Walton Broome and Jay M. Hodges, Beaufort County Treasurer and Auditor.

No. 32.

Supreme Court of North Carolina.

May 22, 1968.

*112 John A. Wilkinson, Washington, for plaintiff appellees.

W. P. Mayo, Washington, for defendant Beaufort County Board of Education, appellants.

L. H. Ross, Washington, for defendant Beaufort County Board of Commissioners, appellants.

Atty. Gen. T. Wade Bruton and Deputy Atty. Gen. Ralph Moody for the State, amicus curiae.

*113 BOBBITT, Justice.

Reference is made to the opinion of Sharp, J., on former appeal, 267 N.C. 438, 148 S.E.2d 513, 149 S.E.2d 345, for a full statement, in accordance with statutes and decisions cited, as to the respective functions and responsibilities of the School Board and the Commissioners in providing for the educational needs of the children of the county. Specific reference is made to G.S. § 153-107 which, as construed in Atkins v. McAden, 229 N.C. 752, 756, 51 S.E.2d 484, 487, "does not place a limitation upon the legal right to transfer or allocate funds from one project to another included within the general purpose for which bonds were issued," (our italics) but does prevent the transfer and use of funds obtained for one general purpose for another general purpose.

The opinion on former appeal sets forth that, to effectuate a transfer of funds from one project to another certain facts must appear, and certain preliminary steps must be taken, viz.: (1) The School Board must, by resolution, request the reallocation of funds and apprise the Commissioners of the conditions which bring about the need for the transfer; (2) the Commissioners must then investigate the facts upon which the School Board's request is based; and (3) the Commissioners, after making their investigation, "must, by resolution, record their findings upon their official minutes and authorize or reject the proposed reallocation of funds." The opinion then gives the explicit directive quoted in the following paragraph.

"If the commissioners find (1) that, since the bonds were authorized, conditions have so changed that the funds are no longer necessary for the original purpose, or that the proposed new project will eliminate the necessity for the originally-contemplated expenditure and better serve the educational interests of the district involved, or that the law will not permit the original purpose to be accomplished in the manner intended, and (2) that the total proposed expenditure for the changed purpose is not excessive, but is necessary in order to maintain the constitutional school term, the commissioners may then legally reallocate the funds in accordance with the request from the board of education. Without such affirmative findings, however, the commissioners have no authority to transfer funds previously allocated to another purpose. And, without authority from the commissioners, the county board of education itself has no power to reallocate the funds." (Our italics.)

The School Board's original proposal, publicized prior to the bond elections of November 3, 1964, was to spend $780,000.00 to construct a new consolidated school, "Central High School," exclusively for white students who had previously attended Pantego High School, Bath High School and Wilkinson High School of Belhaven. After said election, it became manifest, as set forth in opinion on former appeal, that the School Board could "no longer legally impose segregation of the races in any school." Thus, the original proposal could not be lawfully accomplished in the manner intended.

The School Board then proposed to consolidate all of the five high schools in District III, to wit, Pantego High School, Bath High School, Wilkinson High School of Belhaven, Beaufort County High School at Pantego and Belhaven High School, into one central high school, to be located on a site in the Yeatesville area. The School Board requested the Commissioners to approve the reallocation of the $105,000.00 originally designated for construction at the Beaufort County High School at Pantego and of the $90,000.00 originally designated for construction at the Belhaven High School for use, together with the $780,000.00 originally designated for the construction of a central high school for all students theretofore attending the five high schools in District III.

The failure of the Commissioners to act on the School Board's said request, and the necessity for such action by the Commissioners before reallocations could be *114 made, were considered fully on former appeal.

The Commissioners who had refused to act on the School Board's said request were in office at the time of our decision on former appeal. In their resolution of July 23, 1966, adopted unanimously, they determined, inter alia, that funds were not available to permit the building of a high school sufficient to accommodate all the students then attending the five separate high schools in District III. Defendants did not except to Judge Bundy's finding of fact that "(t)he undisputed evidence shows that this action was concurred in by the defendant Board of Education."

Three of the five Commissioners who participated in said determination of July 23, 1966, namely, Van Gyzen, Cayton and Broome, were re-elected. Cayton and Broome adhered to said determinations of July 23, 1966. The affidavit of Cayton sets forth the facts on which he based his opinion. Van Gyzen, who had voted for said resolution of July 23, 1966, joined with the two members, Hackney and Page, in adopting in 1967 the vague and anemic resolutions on which defendants based their motion to vacate the temporary restraining order issued April 22, 1966.

It was the duty of the Commissioners, in passing upon the School Board's resubmitted request, to investigate the matter sufficiently to determine all pertinent facts and to base their decision on their declared factual findings. Since the primary ground on which Judge Bundy refused to vacate the temporary restraining order was that "the action of the Board of Commissioners in undertaking to approve the reallocation of funds without making a proper and thorough investigation of the financial aspects of such allocation" constituted "an abuse of discretion vested in them as public officers," we deem it appropriate to deal specifically with this feature of the case. (Our italics.)

The School Board's resolution of December 21, 1966, contains no reference to plans for or cost of the central high school then proposed. The Commissioners' resolution of April 3, 1967, contains a general finding that "the total proposed expenditure for the changed purpose is not excessive," but contains no specific findings bearing upon what building or buildings were planned for the proposed central high school or upon whether the cost thereof would exceed available funds.

The Hackney report contains no factual statements bearing upon the cost of the proposed central high school.

Mr. Van Gyzen testified under adverse examination he did not "have the vaguest idea of the cost of this proposed school."

There was evidence to the effect that the cost of a central high school to accommodate 900-1,000 students would cost as much as $1,800,000.00. It would seem Judge Bundy took a conservative view of the evidence as to costs when he made the following findings of fact, to wit:

"13. An examination of the testimony of W. B. Voliva, Chairman of the Beaufort County Board of Education, and that of W. F. Veasey, Superintendent of the Beaufort County Schools * * *, discloses that the amount of money available for the construction consisted of the $780,000 originally allocated for the construction of a three-school consolidated high school housing between 500 and 600 students and an additional $195,000 originally contemplated to be spent at the Beaufort County High School in Pantego and the Belhaven High School in Belhaven, both of which are Union Schools serving largely Negro students from grades 1 through 12. The evidence of both the Chairman and the Secretary of the School Board discloses that neither of these schools presently have a gymnasium nor an auditorium. The testimony of the Chairman, W. B. Voliva, discloses that the student body of the Belhaven School, both high school and elementary students, use a nearby church as an auditorium. The evidence further discloses that the Board of Education, after *115 having requested that the $195,000 allotted to these two schools be transferred to the central school project, further requested the County Commissioners at the January 1967 meeting to allocate additional funds for a part, at least, of the very purposes originally contemplated at these schools. The evidence discloses that this request was denied by the Commissioners on the grounds of a lack of available funds. The only evidence bearing even indirectly upon the probable cost of the school was furnished by the Chairman of the Board of Education, Mr. Voliva, who testified that it was his opinion that the probable cost would be $1,300 per student and that the original figure of $780,000 was arrived at by multiplying the estimated number of students that would attend the three-school consolidated high school by such figure. The Court finds that the estimate of a probable attendance at a five-school consolidated high school is between 900 and 1,000 students. If these figures are correct, then the cost of the school would be between $1,170,000 and $1,300,000. If Mr. Voliva's figures concerning the matter of money available are correct, the maximum amount after the transfer of funds allocated to the construction and repair at the two Union schools serving largely Negro children would be approximately $975,000. Therefore, the only evidence, sketchy as it is, tends to disclose that the cost of the building is excessive in relation to the funds available and that the building cannot be built with presently available funds. The Court does not find this as a fact because the evidence is too sketchy to support any conclusion concerning it, but it does find as a fact that there is nothing in the record that would have supported a conclusion by the County Board of Commissioners that the total proposed expenditures for the changed purpose is not excessive or, indeed, that it could presently be accomplished.

"14. Further examination of the testimony of Mr. Voliva and Mr. Veasey discloses that no other firm plans have yet been made by the Beaufort County Board of Education concerning the size of the proposed high school. As the over-all record in this matter discloses, it was originally intended to build a high school to accommodate students from three high schools, the John A. Wilkinson High School in Belhaven, Pantego High School and Bath High School. The record further discloses that these schools largely served white children, but all had some Negro students at the beginning of the 1965-66 school year and all still have such students. The over-all record further discloses that the North Carolina Board of Education brought about a change of plan and that the school authorities in Raleigh directed that the consolidated high school be enlarged to accommodate the students of the Belhaven High School and the Beaufort County High School at Pantego, both of which largely served Negro students. It was contemplated that those two high schools would be discontinued and a resolution was adopted abolishing their high school districts. The testimony of Mr. Voliva and Mr. Veasey now discloses the likelihood that the high school department of one or both of these schools will be retained. The size of the resulting consolidated school has not been determined either in the number of students or the amount of construction contemplated. Attention is invited to the testimony of the witnesses Voliva and Veasey, who said that, under existing conditions, such a determination could not now be reached. This evidence is unchallenged and uncontradicted. The Court therefore finds as a fact that the size and, consequently, the cost of the school proposed to be constructed is presently undetermined and unknown."

The findings of fact to which defendants excepted, including those quoted above, are amply supported by the evidence. The Commissioners made no finding and the evidence would not support a finding that a central high school sufficient to accommodate all students in District III could be built with funds presently available for that purpose. Hence, the conclusion *116 reached is that the evidence was insufficient to compel or warrant dissolution of the temporary restraining order.

If defendants seek to proceed with the construction of a consolidated (five high schools) central high school, they must make positive and specific factual findings with reference to the building(s) for the proposed central high school and with reference to the sufficiency of available funds for construction thereof.

As indicated above, defendants have not filed answers. The only question before us is whether Judge Bundy erred in denying defendants' motion to vacate the temporary restraining order. We hold that he did not. Hence, the order entered by Judge Bundy is affirmed.

Affirmed.

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