No. 535.

157 S.E.2d 703 (1967)

272 N.C. 33

Clyde J. HUGGINS, Walter E. Johnson, Ernest G. Northcutt, Lottie H. Sconyers and Doris T. White, and Others Similarly Situated, v. The WAKE COUNTY BOARD OF EDUCATION, a Body Corporate.

Supreme Court of North Carolina.

November 22, 1967.

Attorney(s) appearing for the Case

Everett & Creech, Raleigh, for plaintiff appellants.

Mordecai, Mills & Parker, Raleigh, for defendant appellee.

LAKE, Justice.

This is not an appeal from an assignment of a child to a public school. It appears from the record that some children of some of the named plaintiffs are eligible for enrollment in the ninth grade of a public school and were assigned, properly or not, by the defendant to the school facility herein called the West Cary Junior High School for the 1967-68 school year. In the absence of anything to indicate the contrary, we assume that all such children of such plaintiffs are now enrolled in and are attending that school facility. The record does not show whether some of the plaintiffs also have children who are assigned to and are now enrolled in and attending the Cary High School as pupils in the tenth, eleventh or twelfth grade. However that may be, there is nothing in the record to indicate that any child of any plaintiff, or any other child, is presently assigned to or enrolled in any school facility other than that to which such child, or the parents of such child, requested assignment for the school year of 1967-68. We, therefore, do not have before us, and the superior court did not have before it, any question as to the right of any plaintiff to compel the reassignment and transfer of any child to any school.

The plaintiffs say in their brief:

"The Board has consistently taken the position that its new plan of operation involved only a question of pupil assignment. The plaintiffs, with equal consistency, have contended that the new plan of operation was really a consolidation undertaken in violation of statutory requirements and that, in any event, there is no authority under State law to operate a school consisting only of the ninth grade."

What the plaintiffs seek in this action is a permanent injunction and an injunction pendente lite which will restrain the Board of Education from discontinuing the offering of instruction in grades ten, eleven and twelve at the West Cary Junior High School facility, and in grade nine at the Cary High School facility. To grant them the relief sought would require the defendant, with approximately one-third of the school year already past, to reassign and transfer immediately to the Cary High School facility from the West Cary Junior High School facility enough ninth grade teachers and ninth grade pupils to permit the efficient operation of a ninth grade curriculum at the Cary High School, and, at the same time, to transfer from the Cary High School facility to the West Cary Junior High School facility enough pupils in each of the tenth, eleventh and twelfth grades, and enough qualified teachers for those grades, to permit the efficient operation of the curricula of those grades at the West Cary Junior High School facility. There is nothing in the record to suggest that any parent of any child desires or would accept such reassignment or transfer of such child, or that any teacher would acquiesce in such transfer of his or her activities. It is a matter of common knowledge and, therefore, a matter of which this Court may take judicial notice, that such wholesale reshuffling of students and teachers in the midst of an academic year would entail widespread confusion and disruption in the work of both school facilities.

This suit was instituted six days before the opening of the school term. The hearing before Judge Bickett was had the day before the children and teachers were to commence work at their respective school facilities. Had he then granted the injunction pendente lite, as prayed for by the plaintiffs, the two schools would have commenced their year's work in uproar and confusion. To require the issuance of such an order at this time would be far more disturbing to the instruction of the pupils in both schools. In form, the plaintiffs seek a prohibitory injunction. In effect, what they seek would now be a mandatory injunction requiring a reshuffling of students and teachers in order to resume school operations not now in being. While a preliminary mandatory injunction may be issued to restore a status, wrongly disturbed, the issuance of such an order rests in the sound discretion of the court and is generally deemed to require a clear showing of substantial injury to the plaintiff, pending the final hearing, if the existing status is allowed to continue to such hearing. See: Creel v. Piedmont Natural Gas Co., 254 N.C. 324, 118 S.E.2d 761; Ingle v. Stubbins, 240 N.C. 382, 82 S.E.2d 388; 28 Am.Jur., Injunctions, § 32.

The plaintiffs contend that the present operation at the West Cary Junior High School facility is beyond the lawful authority of the Board of Education and, therefore, should be enjoined They rely upon G.S. § 115-5 and G.S. § 115-6. These statutes provide:

G.S. § 115-5. "School system defined. —The school system of each county and city administrative unit shall consist of twelve years of study or grades * * *. The system may be organized in one of two ways as follows: The first eight grades shall be styled the elementary school and the remaining four grades, the high school; or if more practicable, a junior high school may be formed by combining the first year of high school with both the seventh and eighth grades or with the eighth grade alone, and a senior high school which shall comprise the last three years of high school work. * * *" (Emphasis supplied.) G.S. § 115-6. "Schools classified and defined.—The different types of schools are classified and defined as follows: * * * "(4) A junior high school, that is, a school which embraces not more than the first year of high school with not more than the upper two elementary grades. * * *"

The contention of the plaintiffs that the operation of a school facility, at which only pupils in the ninth grade are enrolled and instructed, is not within the authority of the defendant Board of Education presents a question which is not rendered moot by the opening of the 1967-68 school year since the defendant is now carrying on that operation and proposes to continue to do so at least through the present school year. That is not, however, the question before us on this appeal. The question before us is whether, at this time, the present operation of the two school facilities in question should be disrupted by the issuance of an injunction pending the hearing of the matter in the superior court upon its merits. We think the answer is clearly, "No."

Neither the findings of fact nor the conclusions of law of the superior court, in denying the temporary injunction, will be binding upon that court at the trial of the action upon its merits. Findings and proceedings upon a hearing to determine whether a temporary injunction should be issued are not proper matters for the consideration of the court or jury in passing upon such issues as may arise at the final hearing. Carroll v. Warrenton Tobacco Board of Trade, 259 N.C. 692, 131 S.E.2d 483; Gene's, Inc. v. City of Charlotte, 259 N.C. 118, 129 S.E.2d 889; Huskins v. Yancey Hospital, 238 N.C. 357, 78 S.E.2d 116; Town of Fremont v. Baker, 236 N.C. 253, 72 S.E.2d 666; Grantham v. Nunn, 188 N.C. 239, 124 S.E. 309. Similarly, the decision of this Court upon an appeal from an order denying a temporary injunction does not determine any other right of the parties. We are not to be understood as expressing in this opinion any view as to any contention of the plaintiffs other than their contention that they are entitled to the issuance of a temporary injunction requiring the defendant to reorganize the schools in question pending the final hearing of the matter in the superior court. Western Conference, etc. v. Creech, 256 N.C. 128, 123 S.E.2d 619; First Presbyterian Church of Raleigh v. St. Andrews Presbyterian College, 254 N.C. 717, 119 S.E.2d 867; Public Service Co. of N. C., Inc. v. City of Shelby, 252 N.C. 816, 115 S.E.2d 12.

An application for a temporary injunction is ordinarily addressed to the sound discretion of the court. Western Conference, etc. v. Creech, supra; Huskins v. Yancey Hospital, supra. While this Court, upon an appeal from the granting or denial of a temporary injunction, is not bound by the findings of fact in the court below and may review the evidence and make its own findings of fact, the burden is upon the appellant to show error by the lower court. Western Conference, etc. v. Creech, supra; Whaley v. Broadway Taxi Company, 252 N.C. 586, 114 S.E.2d 254.

It is not error to deny an application for a temporary injunction where the injury likely to be sustained by the plaintiff from the continuance of the conduct of which he complains, pending the final hearing of the matter, is substantially outweighed by the injury which will be done the defendant by the prevention of such conduct, during the litigation, if it is ultimately determined that the defendant had the right to engage in it. Western Conference, etc. v. Creech, supra; Public Service Co. of N. C., Inc. v. City of Shelby, supra; Huskins v. Yancey Hospital, supra. It is also proper for the court to take into account probable injuries to persons not parties to the action and to the public if such an injunction were to be issued. Jones v. Lassiter, 169 N.C. 750, 86 S.E. 710. "The rule of `balancing conveniences' is that an injunction will not usually be granted or continued where `it will do more mischief and work greater injury than the wrong which it is asked to redress.'" McIntosh, North Carolina Practice and Procedure, 2d ed., § 2211.

We find no error in the finding and conclusion of the superior court that to restrain the Board of Education, on the eve of the opening of the public schools, from pursuing a program for their operation, announced by it several months before and known during the interval by the plaintiffs, would cause more damage to the public than would the continuation, during the litigation of the operation to which the plaintiffs object. Furthermore, the balance is now tipped even more in favor of the defendant by reason of the actual commencement of the operation in question and the passage of a substantial part of the current school year. The school operation which the plaintiffs asked the superior court to preserve has now been changed. While such alteration of the former status pending an appeal does not necessarily prevent a reversal of the lower court's denial of a temporary injunction, it is a circumstance to be considered by the appellate court, especially where, as here, to restore the former condition of things would disrupt the operation of a school and thereby jeopardize the interests of the children enrolled therein and the interests of the public in their education. See: McIntosh, North Carolina Practice and Procedure, 2d ed., § 2221; 28 Am.Jur., Injunctions, § 12.

As Parker, J., now C. J., said in Whaley v. Broadway Taxi Company, supra, "Appellants have not shown that the denial of their motion for an interlocutory injunction was `contrary to some rule of equity, or the result of improvident exercise of judicial discretion.'"



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