Annotate this Case

72 S.E.2d 429 (1952)

236 N.C. 216


No. 17.

Supreme Court of North Carolina.

September 24, 1952.

*430 John A. Wilkinson and H. S. Ward, Washington, for plaintiffs, appellants.

Godwin & Godwin, Gatesville, for defendants, appellees.

ERVIN, Justice.

These propositions are well settled:

1. The superior court may enjoin or set aside the action of school authorities in creating or consolidating school districts when their action is without authority of law. Kreeger v. Drummond, 235 N.C. 8, 68 S.E.2d 800; Kistler v. Board of Education, 233 N.C. 400, 64 S.E.2d 403; Feezor v. Siceloff, 232 N.C. 563, 61 S.E.2d 714; Atkins v. McAden, 229 N.C. 752, 51 S.E.2d 484; School Committee of Seventy-First Consol. School Dist. v. Board of Education, 186 N.C. 643, 120 S.E. 202; Davenport v. Board of Education, 183 N.C. 570, 112 S.E. 246; Pemberton v. County Board of Education, 172 N.C. 552, 90 S.E. 578; Pickler v. Board of Education, 149 N.C. 221, 62 S.E. 902; Venable v. School Committee, 149 N.C. 120, 62 S.E. 902.

2. Although the law may confer upon school authorities the discretionary authority to create or consolidate school districts, the superior court may enjoin or set aside the creation or consolidation of school districts by such authorities when their action is so clearly unreasonable as to amount to an oppressive and manifest abuse of their discretion. Kreeger v. Drummond, supra; Kistler v. Board of Education, supra; Gore v. Columbus County, 232 N.C. 636, 61 S.E.2d 890; Feezor v. Siceloff, supra; Atkins v. McAden, supra; Messer v. Smathers, 213 N.C. 183, 195 S.E. 376; Moore v. Board of Education, 212 N.C. 499, 193 S.E. 732; Crabtree v. Board of Education, 199 N.C. 645, 155 S.E. 550; Clark v. McQueen, 195 N.C. 714, 143 S.E. 528; Board of Education of Orange County v. Forrest, 190 N. C. 753, 130 S.E. 621; McInnish v. Board of Education, 187 N.C. 494, 122 S.E. 182; School Committee of Seventy-First Consol. School Dist. v. Board of Education, supra; Pemberton v. County Board of Education, supra; Newton v. School Committee, 158 N.C. 186, 73 S.E. 886; Pickler v. Board of Education, supra; Venable v. School Committee, supra.

When this cause was before us on the former appeal, we held that the statute embodied in G.S. § 115-99 confers upon a county board of education, which acts in such respect with the approval of the State Board of Education, discretionary legal authority to consolidate a non-special tax district, either in whole or in part, for administrative and attendance purposes only with a special tax district having no supplemental tax under G.S. § 115-189 or G.S. § 115-361 without the consent of the voters in the portion of the non-special tax district being added to the special tax district. Gates School District Committee v. Board of Education, supra. This holding is tantamount to an adjudication that the Board of Education of Gates County was authorized by law to adopt the order of discontinuance and consolidation under attack, and that the complaint is fatally defective in so far as it attempts to allege the contrary.

It would unduly prolong this opinion without effecting a compensating good *431 to set forth a minute analysis of the other allegations of the complaint. When all is said, they merely disclose that at the time of their adoption of the order of discontinuance and consolidation, the school authorities were confronted by appealing reasons, chiefly sentimental in character, for continuing the elementary school in the Gates School District, and cogent reasons, largely practical in nature, for consolidating it with the union school in the Gatesville School District. The circumstance that the school authorities chose the latter course rather than the former does not suffice to show that they abused their discretion.

What has been said compels the conclusion that the complaint does not state facts sufficient to constitute a cause of action, and necessitates an affirmance of the judgment. McIntosh: North Carolina Practice and Procedure in Civil Cases, section 448.