Ervix. J.
It will conduce to clarity of understanding to note and emphasize at the outset that the issuance of the bonds and the imposition of the tax mentioned in chapter 397 of the Session Laws of 1947 will not impinge upon the inhibition of Article VII, Section 7, of our Constitution because they have been expressly sanctioned by a vote of the majority of the qualified voters of the City of Kinston. Moreover, the plaintiff properly concedes that the establishment and maintenance of an athletic stadium for use “in connection with the athletic activities of the city’s public park system” constitutes a public purpose within the meaning of Article V, Section 3, of our organic law prescribing that “taxes shall be levied only for public purposes.”
Nash v. Tarboro,
227 N. C., 283, 42 S. E. (2d), 209;
Atkins v. Durham,
210 N. C., 295, 186 S. E., 330;
Adams r. Durham.,
189 N. C., 232, 126 S. E., 611; 173 A. L. R., 415. Since the validity of the proposed lease of the projected athletic stadium by the City of Kinston to some professional baseball association is not put directly in issue in this action, we resist the temptation to consider that matter, and refrain from expressing any opinion in regard to it.
The case at bar presents this precise problem for solution: Does chapter 544 of the Session Laws of 1947 authorizing the Board of Trustees of the Kinston Graded Schools to convey the Pierce property to the City of Kinston in fee simple and without monetary consideration for use as a part of the system of public parks of the City of Kinston and as the site for the contemplated athletic stadium conflict
with the provision of Article IX, Section 5, of the North Carolina Constitution that “all moneys, stocks, bonds, and other property belonging to a county school fund . . . shall be faithfully appropriated for establishing and maintaining free public schools in the several counties” of the State ?
None of the former decisions of this Court interpreting this constitutional provision involved any question similar to that raised by the present record.
Carter v. R. R.,
126 N. C., 437, 36 S. E., 14;
Board of Education v. Henderson,
126 N. C., 689, 36 S. E., 158;
Bearden v. Fullam,
129 N. C., 477, 40 S. E., 204;
S. v. Maultsby,
139 N. C., 583, 51 S. E., 956;
In re Wiggins,
171 N. C., 372, 88 S. E., 508;
Board of Education v. High Point,
213 N. C., 636, 197 S. E., 191. So we must glean its meaning from the words in which it is couched.
It is manifest that Article IX, Section 5, of the Constitution was designed in its entirety to secure two wise ends, namely: (1) To set apart the property and revenue specified therein for the support of the public school system; and (2) to prevent the diversion of public school property and revenue from their intended use to other purposes.
The Pierce property was bought by the public school authorities with public school funds. It has hitherto been set apart by these authorities for the use of the children attending the Kinston Graded Schools as an athletic field and playground. Without doubt, this is a proper public school use, for physical training is a legitimate function of education. We affirm the soundness of the concept of education expressed by the Montana Supreme Court in this language: “By its voluntary act, the state has assumed the function of education primarily resting upon the parents, and by laws on compulsory education has decreed that the custody of children be yielded to the state during the major portion of their waking hours for five days a week, and, usually, nine months in the year. In doing so, the state is not actuated by motives of philanthropy or charity, but for the good of the state, and, for what it expends on education, it expects substantial returns in good citizenship. With this fact in mind, it is clear that the solemn mandate of the Constitution is not discharged by the mere training of the mind; mentality without physical well-being does not make for good citizenship—the good citizen, the man or woman who is of the greatest value to the state, is the one whose every faculty is developed and alert. Education may be particularly directed to either mental, moral, or physical powers or faculties, but in its broadest and best sense it embraces them all.”
McNair v. School District No. 1 of Cascade County,
87 Mont., 423, 288 P., 188, 69 A. L. R., 866.
This case provokes a judicial regret that practical considerations sometimes prevent the lawmakers from legislating upon the theory that a straight line is the shortest distance between two points in law as well
as in geometry. Assuredly, nothing in our Constitution denies to the General Assembly power to enact appropriate statutes authorizing a legally established public school district to issue bonds or to levy taxes for the establishment and maintenance of an athletic stadium for its students upon land owned and controlled by it when authorized so to do by a vote of the majority of the qualified voters in the school district. N. C. Const., Art. VII, sec. 7; 47 Am. Jur., Schools, sec. 75.
Here, however, the Legislature shunned any attempt to satisfy the needs of the Kinston Graded Schools for an adequate athletic stadium for the use of its students by direct means because of a desire to “serve the needs of both the City of Kinston and the Kinston Graded Schooi.s” and because of a fear that imposing a debt for such purpose upon the taxpayers and property of the school district might later “hamper the construction of necessary additional school buildings” in the school district. Rut it has authorized virtually the same voters in approximately the same territory to impose such a debt upon practically the same taxpayers and property by issuing bonds and levying taxes for substantially the same purpose in the name of the City of Kinston, another political subdivision of the State. The consummation of the legislative plan contemplates that the Board of Trustees of the Kinston Graded Schools shall convey its athletic field and playground to the City of Kinston in fee simple and without monetary consideration, and that the City of Kinston shall devote such property to use as a part of its system of public parks and as the site of the proposed athletic stadium.
This indirect approach to the problem has given rise to the somewhat perplexing question as to whether chapter 544 of the Session Laws of 1947 authorizing the Board of Trustees to convey the land at issue to the City of Kinston for these purposes infringes upon Article IX, Section 5, of the Constitution by permitting school property to be diverted from its intended use to other objects.
The task of judging the validity of this statute must be performed in the light of the established principle that any reasonable doubt as to the constitutionality of a legislative enactment is to be resolved in favor of the lawful exercise of their power by the representatives of the people.
Glenn v. Board of Education,
210 N. C., 525, 187 S. E., 781;
Albertson v. Albertson,
207 N. C., 547, 178 S. E., 352.
Free access — add to your briefcase to read the full text and ask questions with AI
Ervix. J.
It will conduce to clarity of understanding to note and emphasize at the outset that the issuance of the bonds and the imposition of the tax mentioned in chapter 397 of the Session Laws of 1947 will not impinge upon the inhibition of Article VII, Section 7, of our Constitution because they have been expressly sanctioned by a vote of the majority of the qualified voters of the City of Kinston. Moreover, the plaintiff properly concedes that the establishment and maintenance of an athletic stadium for use “in connection with the athletic activities of the city’s public park system” constitutes a public purpose within the meaning of Article V, Section 3, of our organic law prescribing that “taxes shall be levied only for public purposes.”
Nash v. Tarboro,
227 N. C., 283, 42 S. E. (2d), 209;
Atkins v. Durham,
210 N. C., 295, 186 S. E., 330;
Adams r. Durham.,
189 N. C., 232, 126 S. E., 611; 173 A. L. R., 415. Since the validity of the proposed lease of the projected athletic stadium by the City of Kinston to some professional baseball association is not put directly in issue in this action, we resist the temptation to consider that matter, and refrain from expressing any opinion in regard to it.
The case at bar presents this precise problem for solution: Does chapter 544 of the Session Laws of 1947 authorizing the Board of Trustees of the Kinston Graded Schools to convey the Pierce property to the City of Kinston in fee simple and without monetary consideration for use as a part of the system of public parks of the City of Kinston and as the site for the contemplated athletic stadium conflict
with the provision of Article IX, Section 5, of the North Carolina Constitution that “all moneys, stocks, bonds, and other property belonging to a county school fund . . . shall be faithfully appropriated for establishing and maintaining free public schools in the several counties” of the State ?
None of the former decisions of this Court interpreting this constitutional provision involved any question similar to that raised by the present record.
Carter v. R. R.,
126 N. C., 437, 36 S. E., 14;
Board of Education v. Henderson,
126 N. C., 689, 36 S. E., 158;
Bearden v. Fullam,
129 N. C., 477, 40 S. E., 204;
S. v. Maultsby,
139 N. C., 583, 51 S. E., 956;
In re Wiggins,
171 N. C., 372, 88 S. E., 508;
Board of Education v. High Point,
213 N. C., 636, 197 S. E., 191. So we must glean its meaning from the words in which it is couched.
It is manifest that Article IX, Section 5, of the Constitution was designed in its entirety to secure two wise ends, namely: (1) To set apart the property and revenue specified therein for the support of the public school system; and (2) to prevent the diversion of public school property and revenue from their intended use to other purposes.
The Pierce property was bought by the public school authorities with public school funds. It has hitherto been set apart by these authorities for the use of the children attending the Kinston Graded Schools as an athletic field and playground. Without doubt, this is a proper public school use, for physical training is a legitimate function of education. We affirm the soundness of the concept of education expressed by the Montana Supreme Court in this language: “By its voluntary act, the state has assumed the function of education primarily resting upon the parents, and by laws on compulsory education has decreed that the custody of children be yielded to the state during the major portion of their waking hours for five days a week, and, usually, nine months in the year. In doing so, the state is not actuated by motives of philanthropy or charity, but for the good of the state, and, for what it expends on education, it expects substantial returns in good citizenship. With this fact in mind, it is clear that the solemn mandate of the Constitution is not discharged by the mere training of the mind; mentality without physical well-being does not make for good citizenship—the good citizen, the man or woman who is of the greatest value to the state, is the one whose every faculty is developed and alert. Education may be particularly directed to either mental, moral, or physical powers or faculties, but in its broadest and best sense it embraces them all.”
McNair v. School District No. 1 of Cascade County,
87 Mont., 423, 288 P., 188, 69 A. L. R., 866.
This case provokes a judicial regret that practical considerations sometimes prevent the lawmakers from legislating upon the theory that a straight line is the shortest distance between two points in law as well
as in geometry. Assuredly, nothing in our Constitution denies to the General Assembly power to enact appropriate statutes authorizing a legally established public school district to issue bonds or to levy taxes for the establishment and maintenance of an athletic stadium for its students upon land owned and controlled by it when authorized so to do by a vote of the majority of the qualified voters in the school district. N. C. Const., Art. VII, sec. 7; 47 Am. Jur., Schools, sec. 75.
Here, however, the Legislature shunned any attempt to satisfy the needs of the Kinston Graded Schools for an adequate athletic stadium for the use of its students by direct means because of a desire to “serve the needs of both the City of Kinston and the Kinston Graded Schooi.s” and because of a fear that imposing a debt for such purpose upon the taxpayers and property of the school district might later “hamper the construction of necessary additional school buildings” in the school district. Rut it has authorized virtually the same voters in approximately the same territory to impose such a debt upon practically the same taxpayers and property by issuing bonds and levying taxes for substantially the same purpose in the name of the City of Kinston, another political subdivision of the State. The consummation of the legislative plan contemplates that the Board of Trustees of the Kinston Graded Schools shall convey its athletic field and playground to the City of Kinston in fee simple and without monetary consideration, and that the City of Kinston shall devote such property to use as a part of its system of public parks and as the site of the proposed athletic stadium.
This indirect approach to the problem has given rise to the somewhat perplexing question as to whether chapter 544 of the Session Laws of 1947 authorizing the Board of Trustees to convey the land at issue to the City of Kinston for these purposes infringes upon Article IX, Section 5, of the Constitution by permitting school property to be diverted from its intended use to other objects.
The task of judging the validity of this statute must be performed in the light of the established principle that any reasonable doubt as to the constitutionality of a legislative enactment is to be resolved in favor of the lawful exercise of their power by the representatives of the people.
Glenn v. Board of Education,
210 N. C., 525, 187 S. E., 781;
Albertson v. Albertson,
207 N. C., 547, 178 S. E., 352. When chapter 544 of the Session Laws of 1947 is tested by this cardinal rule of construction, it can be said that the supposed diversion of the school property is apparent rather than real, and that the statute harmonizes with the constitutional provision here considered.
The proposed conveyance will divest the Board of Trustees of the Kinston Graded Schools of its legal title to the Pierce property, but it will not result in any substantial diversion of the land from its intended use for athletic purposes by the children attending the Kinston Graded
Schools. This is so because the statute stipulates that the proposed stadium and its site shall be subject to “all reasonable use by the Kinston Graded Schools for athletic and recreational purposes,” and because the written agreement between the school trustees and the City of Kinston provides that the Kinston Graded Schools shall have free and unlimited use of the projected stadium and the grounds during the school term, except when the same are required for use by a professional baseball association in connection with the playing of its regularly scheduled games. As most of those baseball games will be played during school vacation, this restriction upon the use of the stadium and grounds by the Kinston Graded Schools seems unimportant.
When all is said, the Kinston Graded Schools are exchanging a practically unimproved $8,500 tract of land for the right to the substantial use of a $150,000 stadium. Hence, the contemplated conveyance is based upon a valuable consideration.
Institute v. Mobanc,
165 N. C., 644, 81 S. E., 1020. The correctness of this observation is not affected by the fact that virtually all of the school children in question are citizens of the City of Kinston for the statute and the contract confer upon such children rights superior to those enjoyed by the citizens of the municipality in general.
In conclusion, we wish to observe that the right of the Kinston Graded Schools to use the Pierce property and the stadium to be erected by the City of Kinston thereon is not rendered illusory in a legal sense because section 2 of chapter 544 of the Session Laws of 1947 provides that “the rules and regulations governing the time and use of such athletic stadium and grounds by the Kinston Graded Schools” shall be promulgated and enforced “by a joint resolution passed by a majority in number of the members of each board.” This is true because the statute makes it plain that the right of the Kinston Graded Schools to the reasonable use of the projected stadium and its site shall be unlimited in time, and because the written agreement between the school trustees and the City of Kin-ston given legislative efficacy by the statute spells out in detail the right of the Kinston Graded Schools to the free use of the stadium and its site. Certainly, this agreement cannot be altered, and rules and regulations inconsistent with it cannot be promulgated without the consent of a majority of the members of the Board of Trustees of the Kinston Graded Schools. It necessarily follows that plenary power rests in the school trustees to protect their rights in the premises. Moreover, the written agreement specifies that the land is to be reconveyed to the school trustees in the eventuality that the proposed stadium is destroyed by fire or other casualty and another stadium is not made available to the Kinston Graded Schools by the City of Kinston. Besides, the courts will ahvays be open to prevent any unconstitutional diversion of the right of the Kinston Graded Schools to the use of the property in question.
For the reasons given, the judgment rendered in the court below is
Affirmed.