Opinion
For majority opinion, see 148 S.E.2d 513.
LAKE Justice (concurring).
I concur in the result reached by the majority opinion. I also agree that the reasons there advanced are sufficient to support the reinstatement of the injunction for the present. However, I would reach that result on a ground much more fundamental and more enduring than the absence, as of the present, of a resolution by the Board of County Commissioners. Because of this, and my inability to concur in some of the statement in the majority opinion, I shall state my own view of the matter.
The question is not whether the schools as originally proposed shall be constructed or whether, if constructed, they can be operated as the defendants contemplated when they submitted the bond issue to the voters. The question is whether the proceeds of a bond issue, submitted to and approved by the voters on the basis of a definite, specific proposal for the construction or improvement of certain named public schools, may lawfully be spent by the defendants for the construction of an entirely different school. In my opinion the answer should be 'No' and it would make no difference if the Board of County Commissioners had already adopted and recorded a resolution approving the change in purpose.
The appellants in their argument make it clear that they do not question the good faith of the defendants in submitting the original, specific proposal to the people of the county as the statement of the purposes for which the proceeds of the bonds would be used. But for actions of the federal government, in which the defendants had no voice, the proceeds of the bonds would have been used as stated by the defendants in their pre-election campaign releases, which were designed to persuade the people to vote for approval of the bond issue. Those actions have forced the defendants into a dilemma which they did not anticipate when they submitted their proposal to the voters of the county.
For the purpose of the present discussion, I assume that it is now impossible, legally and practically, for the defendants to operate the originally contemplated schools in the originally contemplated manner, tested and proved to be wise and beneficial by over sixty-five years of experience in this State. It may also be true that the school construction and operation now proposed as a substitute for the original plan, by which the voters were persuaded to approve the bond issue, is wiser and will be better for the people of Beaufort County than the original proposal would have been under today's conditions. That is not the question for us to decide. Nor, in my opinion, is that a question for these defendants to decide, at least so far as the expenditure of the proceeds of these bonds is concerned. That is a question which should be submitted to the people of Beaufort County, whose children are to be educated and whose homes and farms and business properties are to be taxed in order to pay the bonds. It may well be that, given an opportunity, they will approve the use of bond proceeds to build the schools now proposed by the defendants, but fair play demands that they be given the opportunity to say 'No.'
In Waldrop v. Hodges, 230 N.C. 370, 53 S.E.2d 263, 266, Barnhill, J., later C.J., spoke for this Court with reference to a school bond issue, approved by the voters on the basis of a proposal to use such proceeds to build new schools, the plan thereafter being changed so as to divert the proceeds to the enlargement of existing schools. He said:
'The law is founded on the principle of fair play, and fair play demands that defendants keep faith with the electors of the district and use the proceeds for the purpose for which the bonds were authorized--the erection and equipment of new buildings and the purchase of sites therefor * * * Use therefore for any other purpose (i.e., enlarging existing schools) would constitute an unauthorized diversion against which plaintiff is entitled to injunctive relief.'
See, also, Lewis v. Beaufort County, 249 N.C. 628, 107 S.E.2d 77.
I have no thought of charging any defendant in this action with bad faith or with having, at any time, any purpose other than to provide for the children of Beaufort County the best public school system possible under the oppressive and, in my opinion, unconstitutional interference of the federal government by which they are presently hampered and restricted. The fact remains, as shown in the record before us, that, in order to persuade the people of Beaufort County to vote for the bond issue, they caused representations to be made to the people that the proceeds of the bond issue would be used to build and improve certain schools, the itemized list of the proposed constructions and improvements being published and circulated as a campaign document prior to the election. Now, after the election, they propose to spend the money to build different schools. To do so, however worthy the motive, is to break faith with the people and to make a mockery of the law requiring the bond issue to be submitted to the vote of the people.
To be sure, the proceeds of these bonds will, under the present proposal, be used for school construction and not for roads, hospitals or courthouses. Nevertheless, the presently proposed use is utterly different from that which the voters approved. To be sure, the ballots on which they recorded their votes did not carry the proposal in itemized form, but the defendants, acting in the utmost good faith, publicized the itemized, original proposal and asked the people to vote for the bonds so that it could be put into effect. Whether that campaign document carried the election for the bond issue no one can presently say with certainty, but there is a way to find out. The matter should be resubmitted to a vote of the people before the proceeds of these bonds are spent and, if the people disapprove the change in plan, the proceeds of such bonds as have been issued should be held for their retirement.
A truly liberal construction of provisions of the Constitution and of statutes dealing with the pledging of the public credit and the expenditure of the public funds is not one which, for fear that the people may not approve the expenditure, denies them the right to vote upon the question and places the power to determine the matter in the hands of a board or commission, however, wise and honorable. The truly liberal construction of these provisions of the law is that which enlarges the power of the people to determine their own destiny by deciding what obligations they will assume and for what purpose.
I cannot agree with the statement in the majority opinion that the Constitution of the United States means whatever five out of nine members of the Supreme Court of the United States may see fit, from time to time, to say that it means. This, in my opinion, is a far more significant matter than the use to be made of the proceeds of these bonds. The statement is as inaccurate as it would be to say that the Constitution of North Carolina means whatever four of us may see fit to say it means. The decision of a majority of this Court, applying the provisions of the Constitution of North Carolina, as we understand them, to a matter before us, is the final adjudication of the rights of the parties in that particular lawsuit and is a precedent which the judges of the other courts of this State must follow in deciding subsequent cases of like nature, until it is overruled by us or by our successors or by the people, themselves, through the amending process. Nevertheless, we have no authority to change the true meaning of the Constitution of North Carolina by our fiat. The Supreme Court of the United States has no greater authority in its field. In my judgment, the distinction is a vitally important one which must be kept before ourselves and before the people of America if our country is to avoid the smothering of freedom beneath the robes of a judicial despotism.
The Constitution of the United States, itself, in explicit, clear language declares what is the supreme law of the land. It states in Article VI, Clause 2:
'This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, and Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'
That provision I am bound by my oath as a member of this Court to support and defend. It requires me to recognize the difference between 'the law of the land' and judicial lawlessness regardless of the court in whose decrees it may be found. The Constitution does not declare a decision of the United States Supreme Court to be the supreme law of the land. On the contrary, it declares that such decision is not the 'law of the land' if it is in conflict with the Constitution, itself.
I agree, of course, that this Court and all other courts, both state and federal, must now decide cases brought before us or them as if the decision of the United States Supreme Court in Brown v. Board of Education, etc., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 38 A.L.R.2d 1180, were a correct interpretation of the Fourteenth Amendment to the United States Constitution, but I cannot concur in the statement that it is so, or in the though that the Constitution which I have sworn to support and defend actually means no more than five judges see fit to say that it means; that its true meaning varies from opinion day to opinion day. This, in effect, means that there can be no distortion, no misconstruction, no violation of the Constitution of this State by this Court or of the Constitution of the United States by the Supreme Court of the United States; that a court of last resort can do no wrong. That I believe to be a dangerous fallacy.
This error in the majority opinion is not removed by inserting the phrase 'for all practical purposes.' There is a practical value in recognizing the difference between what the Constitution of our country really means and what a majority of the Supreme Court of the United States says it means. There is always practical value in recognizing the difference between right and wrong even though one is without power to prevent the wrong. The first step in curing a disease is to recognize the difference between sickness and health. But, if indeed we be only 'a voice crying in the wilderness' I believe it our duty to exert that effort to 'make straight the path.'