GORE et al.
v.
COLUMBUS COUNTY et al.
No. 601.
Supreme Court of North Carolina.
November 22, 1950.*892 Alton A. Lennon, and Isaac C. Wright, Wilmington, for plaintiffs.
W. H. Powell, E. K. Proctor, of Whiteville, and McLean & Stacy, Lumberton, for defendants.
DENNY, Justice.
The sole question presented for determination on this appeal is whether or not the court below committed error in dissolving the restraining order heretofore issued.
The appellants strenuously contend the order should have been continued to the final hearing, and we are inclined to agree.
A county board of education has the authority "to consolidate schools located in the same district, and, with the approval of the state board of education, to consolidate school districts, over which the board has full control, whenever and wherever in its judgment the consolidation will better serve the educational interests of the county or any part of it". G.S. § 115-99.
Ordinarily the courts will not interfere with the control and supervision of the school authorities in the exercise of their discretion in creating or consolidating school districts, or in the selection of a school site. Feezor v. Siceloff, N.C., 61 N.E.2d 714; Atkins v. McAden, 229 N.C. 752, 51 S.E.2d 484; Board of Education v. Pegram, 197 N.C. 33, 147 S.E. 622; Board of Education v. Forrest, 190 N.C. 753, 130 S.E. 621; Davenport v. Board of Education, 183 N.C. 570, 112 S.E. 246; School Commissioners v. Board of Aldermen, 158 N.C. 191, 73 S.E. 905; Venable v. School Committee, 149 N.C. 120, 62 S.E. 902. And it must be conceded that when the entire evidence disclosed by the record herein is considered, a strong case can be made out in favor of the construction of the proposed high school. Such a high school would no doubt "better serve the educational interests" of the two districts with respect to high school courses, courses in agriculture, home economics and commercial training. But the real question which is determinative of this appeal is whether the law sanctions the reallocation of these funds without an affirmative finding that the construction of the proposed high school will relieve *893 the elementary schools in the two districts of their over-crowded conditions and make the whole or any part of the expenditure of such funds on these elementary school plants unnecessary.
On the present record there is no finding by the County Board of Education of Columbus County, or of its Board of County Commissioners, whether the proposed high school will accommodate four or six grades. It is clearly disclosed by the evidence, however, that if it is to be a four year high school (grades 9 through 12), the enrollment of the Guideway School will not be reduced by a single pupil, and yet it has been found, heretofore, that eight additional class rooms are necessary to meet the needs of that elementary school. Likewise, if the proposed high school is to be a four year school, the Old Dock-Nakina School will be relieved only of its high school pupils. This high school is a substandard one with a present enrollment of 66 and an average daily attendance of only 61. If, on the other hand, the new high school is to take care of six grades (7 through 12), the Board of Education may find that the present facilities at these schools will be adequate to take care of the remaining elementary grades. If such be the case, and sufficient funds are retained from the funds allocated to these districts, or if funds are available from other sources, to put these elementary school buildings in adequate repair, then any surplus funds allocated to these school districts may be reallocated for the purpose of building the proposed high school. Atkins v. McAden, supra.
The General Assembly has no power to authorize local school authorities to exercise an arbitrary discretion, without regard to the existing facts and circumstances involved. Therefore, we hold that Chapter 942, of the 1949 Session Laws of North Carolina, authorizing the transfer of these funds in the discretion of the Board of Education and the Board of Commissioners of Columbus County, did not obviate the necessity for such discretion to be exercised in good faith, in light of the existing facts and circumstances. And if it be conceded the facts found with respect to the establishment of a new central high school are sufficient to justify the reallocation of any surplus bond funds to that project, they are insufficient, in our opinion, to authorize the reallocation of the funds theretofore allocated to other projects, unless it is found as a fact by the Board of Commissioners of Columbus County, acting in good faith, that such original projects are no longer necessary by reason of changed conditions, or that the proposed new project will eliminate the necessity for the originally contemplated expenditures, and "will better serve the educational interests" of the districts involved. G.S. § 115-99; Atkins v. McAden, supra; Waldrop v. Hodges, 230 N.C. 370, 53 S.E.2d 263; Feezor v. Siceloff, supra.
In the case of Waldrop v. Hodges, supra [230 N.C. 370, 53 S.E.2d 266], this Court held that a board of education and a board of commissioners in a county "have a limited authority, under certain conditions, to transfer or allocate funds from one project to another, included within the general purpose for which bonds were authorized, the transfer must be to a project included in the general purpose as stated in the bond resolution and notice of election. Atkins v. McAden, supra. The funds may be diverted to the proposed purposes only in the event the defendant Board of Commissioners finds in good faith that conditions have so changed since the bonds were authorized that the proceeds therefrom are no longer needed for the original purpose."
In the case of Feezor v. Siceloff, supra, the question presented on this appeal was not raised. But, on the contrary, each school district involved had a small high school in a building occupied by an elementary school, and one of the arguments for the construction of a consolidated high school, to serve all three districts, was to give the elementary schools the additional space occupied by the high schools. No question of the adequacy of the elementary schools was raised or the need of funds for their repair.
*894 On the present record, in our opinion, it was error to dismiss the restraining order, but it should have been continued to the final hearing. Consequently, the order dissolving the restraining order heretofore entered is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Error.