
    SCHOOL COMMITTEE OF SEVENTY-FIRST CONSOLIDATED SCHOOL DISTRICT et al. v. BOARD OF EDUCATION OF CUMBERLAND COUNTY and BOARD OF COMMISSIONERS OF CUMBERLAND COUNTY.
    (Filed 12 December, 1923.)
    1. Schools! — Districts — Consolidation — Taxation — Bonds—Elections'— Counties — Board of Education — Discretion.
    "Where, prior to an election of a school district to vote upon the question of issuing bonds and levying a special tax for the location and erection of public school buildings, assurance is given by the county board of education that the buildings would be located in the geographical center of the district, and upon this assurance the bonds and special tax were approved, the change in the location of the school buildings is a matter within the discretion of the board, when it is further made to appear that another district had since been added to the original one, with its approval, by consolidation according to law, which had voted to contribute their proportional part of the expenses of the district thus consolidated.
    
      2. Same — Courts.
    The courts will not interfere with the exercise of its discretion by the county board of education in locating public school buildings within a school district therein, when not in abuse of the discretion vested in the board.
    3. Same — Referendum.
    Where the county board of education has by referendum ascertained the approval of a school district as to the relocation of a place' previously proposed by it for its public school buildings, it will be received as evidence of its good faith in the exercise of its discretion, notwithstanding the referendum was not made in strict accordance with law.
    4. Appeal and Error — Schools—Findings of Fact — Review.
    The findings of fact upon the evidence by the judge of the Superior Court, upon which he bases "his conclusions of law as to the abuse of its discretion by the county board of education in locating or relocating a place for the erection of its public school buildings, is not conclusive on the Supreme Court on appeal.
    
      5. Schools — Taxation—Bond Issues — Constitutional Law.
    Where a school district has been consolidated with another having valid authority to issue bonds for public school purposes, and levy a special tax therefor, and has complied with Article VII, section 7, of the Constitution as to the payment of its proportionate part, the bonds when issued will be a valid obligation upon both of the districts so consolidated.
    6.- Schools — Taxation—Bonds—Statutes.
    Where two school districts have been consolidated and have voted for bonds and a special tax levy for public school purposes under the provisions of chapter 87, Public Laws, Extra Session of 1920, but have not issued the same or incurred obligations thereunder, the bonds to be issued should be in the name of the consolidated district, under the provisions of the Public Laws of 1923, ch. 136, sec. 266.
    Appeal from Sinclair, J., at September Term, 1923, of Cumbeeland.
    Prior to 1 October, 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, ch. 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 preelection 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 184 N. C., 267. 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 beld, 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 three 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 tó 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 ease 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 bas 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 immediately erect and equip said building at Clifton as soon as the money can be realized from the sale of said bonds.
    (4) The Board of Education of Cumberland County is hereby adjudged to be the proper body to issue and sell said bonds, and it is hereby directed forthwith to do all things needful and proper in the immediate issuance and sale of said bonds, and sell the same and apply the proceeds therefrom as above directed to the erection of said building at Clifton.
    (5) The cost of this action, to be taxed by the clerk, is adjudged against the defendant board of education.
    
      Bye & Ciarle for plaintiffs.
    
    
      Rose & Rose, Attorney-General Manning, and Assistant Attorney-General Nash for defendants.
    
   Adams, J.

The cardinal question presented in the argument here is whether the board of education had the legal right to change the site of the proposed schoolhouse from Clifton to Glendale. His Honor found as a fact that in making the change the board was actuated by no improper motive, but he held as a legal inference that upon the facts in the case the change was ultra vires, or if not, that it amounted to an oppressive and manifest abuse of discretion. This conclusion, we presume, was based chiefly on the finding that the potential factor in the election of 17 November, 1921, was the board’s assurance that the building should be erected at or near the geographical center of the district, and that a majority of the qualified voters would not have voted for the bonds if such assurance had not been given. If the record showed nothing more in regard to the change of site these facts would raise the serious question whether approval of the bond issue had not been submitted as a conditional proposition by which the defendants are bound (McGrachen v. R. R., 168 N. C., 62); but there are other, facts which must be considered. It appears from the record in the Owen suit that there was serious objection to Clifton as a site for the school, and the board of education endeavored to allay the dissatisfaction. On 30 April, 1923, certain citizens of Seventy-first District filed with the board of education a petition requesting that the Galatia District be included in the Seventy-first School District and that the selection of a site for the building be reconsidered. The school committee of tbe Seventy-first District recommended such consolidation. Tbe board of education tben decided tbat a referendum or test vote should be taken on 18 May to ascertain tbe wishes of tbe qualified voters of tbe two districts as to tbe location of tbe school building; and tbe returns made by tbe judges of election show tbat 201 voters favored Glendale and three favored Clifton. It is true tbat a new registration was not required, and tbe three pollholders or a majority of them were authorized to decide who were qualified to vote; but tbe names of tbe voters were preserved and there is no suggestion tbat any one voted who was not qualified or tbat any qualified voter was rejected. His Honor found tbat a large proportion of tbe voters of the Seventy-first District did not take part in tbe referendum for tbe reason tbat they' considered tbe location settled; tbat Galatia at tbat time was not a part of tbe consolidated district, and tbat tbe referendum was not authorized by law. But we are not now dealing with tbe legal efficacy of tbe test vote as a binding obligation, but with the question whether the board of education grossly abused its discretion or whether it intended primarily to subserve tbe educational interests of tbe two districts. Moreover, tbe defendants contend- tbat in tbe bond 'election tbe total registered vote of Seventy-first District was 199, tbe total registered vote of tbe Galatia territory 63, making a total combined registration of 262, and tbat a majority of tbe qualified voters residing in tbe original Seventy-first District favored tbe proposed change of site.

"While bis Honor’s findings of fact are comprehensive aiid in tbe main supported by tbe evidence, they are subject to review in a suit of this character (Lee v. Waynesville, 184 N. C., 565), and our understanding of tbe facts precludes approval of tbe ruling tbat changing the schoolhouse site from Clifton to Glendale was beyond tbe power vested in tbe board of education or was so unreasonable as to amount to an oppressive and manifest abuse of discretion. If, as we have intimated, tbe doctrine in McCraclceris case is not applicable to tbe facts here presented tbe board of education was remitted to tbe exercise of its sound discretion in determining tbe matter of a change in tbe location of tbe building (P. L. 1923, cb. ..., sec. 60 et seq.), and tbe familiar principle (recognized by bis Honor) is firmly established, tbat in tbe absence of gross abuse tbe courts will not undertake to supervise or control tbe discretion conferred by law upon public officers in tbe discharge of their duties. In Venable v. School Committee, 149 N. C., 120, tbe Chief Justice said: “Tbe rebuilding of tbe school and tbe change of site are matters vested by tbe statute in tbe sound discretion of tbe school committee, and is not to be -restrained by tbe courts unless in violation of some provision of law or tbe committee is influenced by improper motives or there is misconduct on their part.” Peters v. Highway Com., 184 N. C., 30; Person v. Watts, 184 N. C., 506; Davenport v. Board of Education, 183 N. C., 570; Dula v. School Trustees, 177 N. C., 426; Newton v. School Committee, 158 N. C., 187; Brodnax v. Groom, 64 N. C., 244.

His Honor adjudged that tbe bonds wben issued will be a valid obligation upon tbe Seventy-first Consolidated School District as described in tbe order and notice of election, and tbat tbe subjects of taxation therein shall be taxed for tbe payment of tbe bonds and interest. To this extent tbe judgment is correct; but if at an election duly held a majority of tbe qualified voters in tbe Galatia District pledged tbe faith and loaned tbe credit of tbe district for their proportionate part of tbe tax necessary to pay tbe bonds and interest, as provided in tbe Constitution, Art. VII, sec. 7, tbe bonds when issued will be a valid obligation upon tbe Seventy-first Consolidated School District, including Galatia.

In substance, tbe plaintiffs have also applied for a mandatory injunction to compel tbe immediate issuance of tbe bonds, and a question has arisen as to tbe body by whom they are to be issued. It is admitted tbat tbe election upon tbe bond issue was held under tbe provisions of chapter 87 of tbe Public Laws of tbe Extra Session of 1920. In tbe second section of tbat act it was provided tbat bonds authorized for a school district should be issued in tbe corporate name of tbe school district as provided by chapters 143 and 308 of tbe Public Laws of 1919. At tbe session of 1923 tbe General Assembly repealed chapter 87 of tbe Public Laws of 1920 (Extra Session) and made tbe following provision for bonds previously authorized: “If bonds or indebtedness have heretofore been voted under any act, and have not yet been issued or incurred, they may be issued or incurred pursuant to tbe provisions of tbe act under which they were voted.” P. L. 1923, cb. 136, sec. 265. This section seems to be controlling.

His Honor’s judgment as it appears of record is set out in tbe statement of facts. Tbe first section thereof is modified to tbe extent of including Galatia District since its consolidation with Seventy-first Consolidated District, and as thus modified is affirmed. Tbe second, third, and fifth sections are reversed, and tbe fourth section is reversed as to tbe corporate name in which tbe bonds are to be issued and sold and as to tbe direction tbat tbe scboolbouse be. erected at Clifton; but tbe bonds should be issued and tbe proceeds applied as provided by law.

In part reversed.

In part modified and affirmed.  