
    THOMAS R. PEMBERTON et al. v. COUNTY BOARD OF EDUCATION OF GUILFORD COUNTY.
    (Filed 22 November, 1916.)
    Education — School Districts — Schools Within Three Miles — Old Sites — Commissioners’ Discretion — Courts—Statutes.
    Revisal, sec. 4129, requiring the county board of education to divide the townships into convenient school districts, as compact in form as practicable, having regard for the convenience and necessities of each race, no new school to be established in any township within less than 3 miles' by the nearest route of some other school already established, does not apply to the rebuilding of schoolhouses on old sites erected before the passage of the act, or interfere with the sound discretion of the commissioners in that respect, and .in this case the exercise of this discretion in rebuilding a school a half mile from the old site, and within three miles of the primary department, of another school more recently established, will not be interfered with.
    Walker and Allen, XX, dissenting without written opinion; Clark, C. J., concurring.
    Civil actioN pending in tbe Superior Court of Guileoed County, and beard by Webb, J., upon a motion to dissolve a restraining order, 22 April, 1916. Tbe court dissolved tbe restraining order and taxed tbe plaintiffs witb tbe cost, from wbicb order tbey appealed to tbe Supreme Court.
    
      William P. Bynum and B. 0. Strudwich for plaintiffs.
    
    
      Broohs, Sapp & Williams, John N. Wilson for defendants.
    
   BRoww, J.

Tbe judge below did not find tbe facts, but tbey appear in tbe pleadings and affidavits, and are practically uncontroverted. Over fourteen years ago tbe board of education of Guilford County established tbe South Buffalo School' District in Gilmer Township, Guilford County, and a school building was erected thereon. Thereafter another school district contiguous to this was established in tbe same township, called Bessemer. In tbe year 1911 tbe county board of education established a branch of tbe Bessemer School and erected a building for it as a primary school for small children. This primary school was a part of tbe Bessemer School. This primary school building is within 3 miles by the nearest traveled route of the site of the school building built some years ago in South Buffalo School District, and is also within 3 miles by the nearest traveled route of the location selected by the board for the erection of the new school building on the Gillespie site to take the place of the old one, but neither of these sites is within 3 miles of the main school building of Bessemer School District. The old sehoolhouse of the South Buffalo District building of fourteen years ago was insufficient, and a new building became necessary. To erect this, the voters of the South Buffalo District authorized a bond issue of $10,000. The defendant, the county board of education, received application for the removal of the site and heard witnesses upon that subject. After careful examination the board decided to cause the new school building for the Buffalo District to be erected on the other side of Buffalo Creek on the Gillespie site, which, according to the statement in the plaintiff’s brief, is only'one-half mile nearer Sunnyside School, which is the primary school referred to, than the old site of the South Buffalo School.

It is admitted that the old sehoolhouse stood within 3 miles of the Sunnyside School and that the proposed new school building will be erected on the site about one-lialf mile from the old site. The plaintiffs base their right of action upon the following statute, Eevisal, 4129: “The county board of education shall divide the townships into convenient school districts as compact in form as practicable. It shall consult the convenience and necessities of each race, in setting the boundaries of the school district for each race, and shall establish no new school in any township within less than S miles by the nearest traveled route of some school already established in the said township." That statute was enacted in 1905 and the old Buffalo sehoolhouse had then been in existence three yeprs.

We are of opinion that his Honor properly dissolved the restraining order. The Buffalo sehoolhouse was erected and the school established before the passage of the act, and it is, according to all the evidence, within 3 miles of the Sunnyside Primary Department of the Bessemer School. We find nothing in this statute which, in our opinion, makes it unlawful for the county school authorities in the exercise of sound discretion to remove the school building one-half mile from the old site. The overwhelming weight of evidence, as embodied m the affidavits, is that it is greatly to the interest of the school district that the new building should be located upon the Gillespie site, which is on the north side of the creek.

Forty-five affiants testify that South Buffalo Creek runs through the district and is crossed by a bridge; that on the north side of the creek where the school building is proposed to be erected there are 162 children of school age. These affiants state that in their opinion it is to the best interests of the school children of the district that the new building should be erected on the Gillespie site. This is a matter, we think, under these circumstances, that should be left to the sound discretion of the school authorities. It has been held that in the absence of misconduct or of violation of some provision of statute tbe action of tbe school authorities in dividing townships into school districts and in erection and maintenance of school buildings, cannot be supervised or restrained by the courts. Pickler v. Board of Education, 149 N. C., 221.

In this case it was specifically held that “When a school board, acting according to its judgment, without misconduct on its part, or any violation of some provision of statute, rebuilds a sehoolhouse on the old site, though in less than 3 miles of some school already established, it is not a violation of Revisal, 4129, providing that no new school shall be established within that distance of another.”

We find nothing in the statute which prohibits the erection of the new sehoolhouse for South Buffalo District on the Gillespie site.

Affirmed.

WalxbR and Allew, JJ., dissent.

Clark, C. J.,

concurring: Revisal, 4129, provides that the county board' of education in dividing the townships into' school districts “shall establish no new school in any township within less than 3 miles of the nearest traveled route of some school already established in said township.” This statute undertakes to prescribe a limitation upon the county board of education in laying out new school districts. This provision was not intended to interfere with their judgment as to the location of a sehoolhouse, without misconduct on their part. It was not intended that the opinion of a Superior Court judge should overrule that of the county board of education in that respect. The purpose is to restrict the creation of new districts by providing that in laying out a new district the children, therein should not be nearer than 3 miles from some existing school. The provision applies to the creation of new districts and not to the location, or change of location, of a sehoolhouse, which is properly a matter resting in the sound judgment of the local authorities, except, as above said, when there is shown to be some misconduct requiring judicial correction. Pickler v. Board of Education, 149 N. C., 221.  