#### J. A. NEWTON et al. v. SCHOOL COMMITTEE OF CITY OF CHARLOTTE et al.

(Filed 28 February, 1912.)

1. Cities and Towns — School Committees — Discretionary Powers— Aldermen — Supervision.

Tbe Board of Aldermen of Charlotte have no supervisory power of tbe school committee of that city in selecting a site, etc., for school purposes. School Commissioners v. Aldermen, post, 191, cited and applied.

*1872. Cities and Towns — School Committees — Discretionary Powers— Power of Courts — Abuse of Discretion.

The courts may not interfere with discretionary powers conferred on school committees in their administration of school . affairs, unless their action is so clearly unreasonable as to amount to an oppressive and manifest abuse of the discretion conferred.

3. Same — Evidence.

In this proceeding involving the right of the school committee of the city of Charlotte to select and build upon a certain site selected for public school purposes, it is held, upon the affidavits tending to show the site complained of was properly selected, that the court cannot inquire into the discretion of the committee in selecting it, there being no sufficient evidence that this discretion was unreasonably or arbitrarily exercised.

Appeal from MecexeNbubg by plaintiffs from an order made by W. J. Adams, J., 9 December, 1911.

Clarkson & Duls, E. R. Preston, and Maxwell & Eerans for plaintiff.

Burwell & Cansler and Tillett & Guthrie for defendants.

HoKE, J.

This was an action to restrain defendant, tbe Board of Scbool Commissioners of tbe City of Charlotte, from tbe selection of a certain scbool site for tbe Graded School District of North Charlotte. There was judgment dissolving restraining order, and plaintiffs, citizens and taxpayers of tbe district, excepted and appealed, assigning for error, first, that tbe power of supervising tbe action of defendant board and of ultimate decision in tbe premises was vested by law in tbe board of aider-men of tbe city; second, that if vested in defendant board, they bad selected a site so unsuitable and in such flagrant disregard of tbe rights and interests of tbe patrons of tbe scbool as. to render their action illegal and void.

On appeal by tbe Board of Aldermen of tbe City of Charlotte in a case just decided, and for tbe reasons therein stated, tbe first exception must be resolved against tbe plaintiff, and this being true, and on tbe facts as they appear in tbe present record, we are of opinion that like decision must be made as to plaintiffs’ second position.

*188In numerous and repeated decisions the principle bas been announced and sustained that courts may not interfere with discretionary powers conferred on these local administrative boards for the public welfare unless their action is so clearly unreasonable as to amount to an oppressive and manifest abuse of discretion. Jeffress v. Greenville, 154 N. C., 499; Board of Education v. Board of Commissioners, 150 N. C., 116; Rosenthal v. Goldsboro, 149 N. C., 128; Ward v. Commissioners, 146 N. C., 534; Small v. Edenton, 146 N. C., 527; Tate v. Greensboro, 114 N. C., 392; Brodnax v. Groom, 64 N. C., 244.

In some of the opinions decided intimation is given that in so far as the courts are concerned the action of these administrative boards must stand unless so arbitrary and unreasonable as to indicate malicious or wanton disregard of the rights of persons affected. It is undesirable and utterly impracticable for the courts to act on any other principie. Speaking to this question in Ward v. Commissioners, our present Chief Justice quotes with approval from the opinion in Brodnax v. Groom, supra, as follows:

> “In Brodnax v. Groom, 64 N. C., 244, Pearson, C. J., discussed this subject, and said: 'The case before us is within the power of the county commissioners. How can this Court undertake to control its exercise? Can we say such a bridge does not need repairs, or that in building a new bridge near the site o£ an old bridge it should be erected, as heretofore, upon posts, so as to be cheap, but warranted to last some years; or that it is better policy to locate it a mile or so above, where the banks are good abutments, and tó have stone pillars, at a heavier outlay at the start, but such as will insure permanence and be cheaper in the long run? In short/ the Court continued, 'this Court is not capable of controlling the exercise of power on the part of the General Assembly or of the county authorities, and it cannot assume to do so without putting itself in antagonism as well to the General Assembly as to the county authorities and erecting a despotism of five men, which is opposed to the fundamental principles of our Government and the usages of all times past. For the exercise of powers conferred by the Constitution the people must rely upon the honesty of the mem*189bers of tbe General Assembly and of tbe persons elected to fill places of trust in tbe several counties. Tbis Court bas no power, and is not capable if it bad tbe power, of controlling tbe exercise of power conferred by tbe Constitution upon tbe legislative department of tbe Government or upon tbe county authorities.’ ”

Considering tbe evidence presented in tbe light of these authorities, tbe court below bas clearly made correct decision on tbe rights of these litigants. While tbe plaintiffs, acting no doubt under full belief that these rights and interests have been entirely disregarded, have filed strong affidavits tending to show that another place for a school site should be selected, and in fact that in tbe present state and placing of tbe population there should be two schools maintained in tbe district. There is satisfactory evidence on part of tbe defendants tending to show that tbe site determined on is near tbe physical center of tbe school district; that it is a most attractive site, having-desirable elevation and affording ample space for tbe buildings for tbe school and playgrounds for tbe children.

Among other affidavits in support of their position, defendants offer that of Alexander Graham, Esq., tbe superintendent of tbe city schools. Tbe affiant, who bas now held tbis position for tbe past twenty-three years and whose administration bas been again and again approved by bis associates and fellow-citizens, makes oath as follows: “That be was in attendance, in bis capacity as superintendent of the schools, at tbe several meetings of tbe board of school commissioners, when tbe location of tbe school spoken of in tbe complaint was determined by these commissioners, and be verily believes that in tbe selection of tbis site they, and each one of them, were actuated solely by their interest in tbe promotion of tbe cause of education in tbe city of Charlotte, and tbe proper use of tbe fund which tbe people have put at tbe disposal of tbe board for tbe purpose of buying sites for buildings and erecting bouses thereon. He further swears that be is acquainted with tbe other sites for buildings selected by tbe board, and be verily believes that each one of these sites is tbe proper site for school buildings, and will serve tbe community as proper sites for schools. He *190further swears that be is familiar with the other sites mentioned in the complaint, and which the plaintiffs in this action allege should have been selected, instead of the one offered by the Pegram-Wadsworth Land Company, and he expresses the opinion that the board, in rejecting each one of these sites, did that which was best for the interests of the public and the children of that vicinity. He further swears that he believes that the best interests of the administration of the fund of the city will be promoted by consolidating, as much as possible, those few to be well equipped, and, at the same time, to be so located as to be convenient, as far as they may be, to the children of the different portions of the city, and that these selections of sites, in his opinion, should be-made, and, as he believes, have been made thus far, by the board with a view to the convenience and interest not only of the present generation, but of those who are to come after, and who will hereafter attend these schools. He further swears that before the Pegram-'Wadsworth Land Company had made any offer whatever in regard to the site in question, that he had looked over this school district with a view to determining, in his own mind, what would be the best location for a school building for these two wards, and that he had selected the very site that has been selected by the board, his impression being that the site must be purchased and would not be donated.”

In view of this and other supporting evidence, we think his. Honor might well hold, as he did in his judgment, “That the board of school commissioners has fairly and properly exercised the discretion vested in the board in respect to the selection of the site for the school building referred to in the complaint.” And certainly there is nothing in the record to justify the courts in undertaking to disturb the conclusion they have reached.

There is no error and the judgment of the Superior Court is Affirmed.