Dilday v. Beaufort County Board of Education

148 S.E.2d 513 (1966)

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.

*518 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 Boardas well as a statement of the findings allegedly requestedappear 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 *519 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 *520 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 are no longer necessary for the original purpose, or that the proposed new project will eliminate *521 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. Parker v. Anson County, supra; Mauldin v. McAden, 234 N.C. 501, 67 S.E.2d 647; Gore v. Columbus County, 232 N.C. 636, 61 S.E.2d 890; Feezor v. Siceloff, supra; Waldrop v. Hodges, supra; Atkins v. McAden, supra.

Here, defendant School Board has strictly followed the appropriate procedures in requesting the reallocation of the funds in question. However, when it requested defendant Commissioners' approval of the transfer to Central High School of funds which had been allotted to the Beaufort County and Belhaven high schools, the Commissionerswithout taking any official action and without making any entry whatever upon their minutesorally advised the Board of Education (through the county attorney) that "the bond order for the county school bond funds has sufficient latitude to enable the Board of Education to apply the funds to school building construction according to needs."

The transfer which the School Board has requested involves no change in the purpose for which the school bonds were issued, i.e., "to enable the County of Beaufort as an administrative agency of the public school system of North Carolina to maintain public schools in said administrative unit for the nine months' school term prescribed by law." It does, however, involve a change in the method of accomplishing that purpose. Feezor v. Siceloff, supra. Prima facie, the requested transfer would be entirely legal under ordinary circumstances, for it would seem that if the high school children from the Beaufort County and the Belhaven high schools are transferred to Central High School, the necessity for the expenditures originally proposed for these two schools will be totally eliminated, or reduced to such an extent that the expenditure originally contemplated could not be justified. Defendant Boards, however, are not faced with ordinary circumstances. Even if some of the needs at the Beaufort County and Belhaven schools should still remain after the transfer of their high school students to a centrally-located, consolidated high school, so also would the illegality of the original plan to make Central High School a segregated school for white children.

If the Commissioners approve the School Board's request for a transfer of funds, plaintiffs do not suggest that the voters of Beaufort County will have been dealt with unfairly in that tax funds are being misspent or diverted from educational purposes. They do assert, however, that the people voted bonds for Central High School believing that it would be a consolidated school for white children only. Defendants do not contest this assertion, and we assume its truth. But notwithstanding that belief, it is not within the power of the Board of Education or the Board of Commissioners of Beaufort County to provide their constituents with racially segregated schools. The provision of Section 2, Article 9 of the Constitution of North Carolina which provided that "the children of the white race and the children of the colored race shall be taught in separate public schools" was invalidated on May 17, 1954, when the Supreme Court of the United States handed down its decision in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873, 38 A.L.R.2d 1180. The Constitution of the United States takes precedence over the Constitution of North *522 Carolina, and, for all practical purposes, the Federal Constitution means what the Supreme Court of the United States says it means. It boots a little that the members of the Board of County Commissioners, the Board of Education, and the majority of their constituents share the conviction that the Brown case did violence to the Constitution as it was understood by its authors and by those who ratified it. The Brown case is binding upon us. Constantian v. Anson County, 244 N.C. 221, 93 S.E.2d 163. Furthermore, Title VI of the Civil Rights Act of 1964 provides that the Federal department or agency which is empowered to extend Federal financial assistance to any program is directed to effectuate the provisions of the Act "by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken." Translated, this simply means that if Beaufort County is to secure any Federal aid to education, it must comply with Federal law.

Title VI of the Civil Rights Act refers only to federally-assisted programs and, where no Federal grants are in contemplation, need not be considered. A refusal to accept Federal aid, however, will not solve the basic problem in this case. Title IV of the Civil Rights Act of 1964 (78 Stat. 246, 42 U.S.C.A. §§ 2000c through 2000c-9), entitled "Public Education," authorizes the Attorney General of the United States, upon a written complaint by any parent or group of parents that his or their minor children, as members of a class of persons similarly situated, are being deprived by a school board of the equal protection of the laws, "to initiate and maintain appropriate legal proceedings for relief" in a district court of the United States, to the end "that the institution of an action will materially further the orderly achievement of desegregation in public education."

Obviously, plaintiffs instituted this action in the unwarranted and ill-advised hope that they could create a racially segregated school in Central High School. It is a dream which anyone familiar with the Federal decisions should know cannot be realized. If Central High School is constructed as a facility to house the children from the three schools which presently serve only white children, its physical plant will, of course, remain unchanged. Its complexion, however, will not.

Under the decisions of the Supreme Court of the United States and the Acts of the Congress, the Board of Education of Beaufort County can no longer legally impose segregation of the races in any school. Therefore, the real question to be resolved by the County Board of Education, the Board of County Commissioners, and the State Board of Education is whether it is in the best interest of the children who live in District III to have a single integrated high school or three integrated high schools. The question whether the schools of Beaufort County will be integrated in the future is no longer open. At the time of the bond election, defendant Boards apparently did not believe that the situation which now confronts them could possibly materialize. Having assumed the responsibilities of their respective offices, board members are required by their oaths to face realities now and, having done so, to take the steps which, in their best judgment, will serve the highest good of all the school children, for whom they are trustees. It behooves defendants to see to it that the citizens understand the exigencies which confront not only defendant Boards but every member of the body politic. Democracy is based upon the premise that the citizenry, if educated and enlightened, will do what is required of it to preserve government by law. The preservation of our form of government, therefore, depends upon an adequate system of public education.

Since defendant Board of County Commissioners has not acted upon defendant School Board's request that it approve a reallocation of the funds in question, the latter has no authority, acting alone, to *523 make the reallocation. Until defendant Commissioners approve the request, defendant School Board may not proceed. The order of Judge Mintz is reversed and the injunction is reinstated.

Reversed and remanded.

MOORE, J., not sitting.

For concurring opinion of LAKE, J., see 149 S.E.2d 345.