JAMES F. HUGHEY v. POLIE Q. CLONINGER, GEORGE A. JENKINS, BUD BLACK, GENE CARSON, HARLEY B. GASTON, JR., ROBERT A. HEAVNER, AND CHARLES A. RHYNE, COUNTY COMMISSIONERS OF GASTON COUNTY; AND GASTON COUNTY
No. 4
IN THE SUPREME COURT
(Filed 20 April 1979)
297 N.C. 86
An appropriation by a board of county commissioners to a school for dyslexic children was not authorized by
2. Counties § 6.2; Schools § 1- school for dyslexic children-appropriation by county commissioners-absence of statutory authority
An appropriation by a board of county commissioners to a school for dyslexic children was not authorized by
3. Counties § 6.2; Schools § 1- school for dyslexic children-appropriation by county commissioners-absence of statutory authority
An appropriation by a board of county commissioners to a school for dyslexic children was not authorized under the scheme for public education adopted by the General Assembly pursuant to its constitutional duty to “provide . . . for a general and uniform system of free public schools,”
Under
Justice EXUM dissenting.
ON petition for discretionary review of the decision of the Court of Appeals, 37 N.C. App. 107, 245 S.E. 2d 543 (1978), reversing judgment of Ervin, J., entered 14 July 1977 in GASTON Superior Court. This case was docketed and argued as No. 126 at the Fall Term 1978.
On 15 January 1977 the Gaston County Commissioners appropriated the sum of $47,068.00 to be disbursed directly to the Dyslexia School of North Carolina, Inc.
This is an action by James F. Hughey, a citizen and taxpayer of Gaston County, seeking to permanently enjoin Gaston County and its Board of Commissioners from appropriating or disbursing funds to the Dyslexia School of North Carolina. Plaintiff alleges this appropriation (1) was not authorized by statute and (2) violated the Constitution of North Carolina.
As of the filing of plaintiff‘s complaint on 18 April 1977 Gaston County had disbursed directly to the school approximately $22,068 of the $47,068 appropriated. The parties agreed that no funds had been disbursed since 18 April 1977 and that no funds would be disbursed in the future until the legality of the appropriation had been resolved.
The Dyslexia School of North Carolina, Inc., is a nonprofit corporation organized under Chapter 55A of the General Statutes of North Carolina. The purpose of the school is “to operate exclusively for educational purposes and to furnish programs of instruction for children with dyslexia.” The school is an approved non-public school certified by the North Carolina State Department of Public Instruction as a special school. This approval allows school-aged children to attend the school in lieu of the public schools without violation of compulsory school attendance requirements.
On plaintiff‘s appeal the Court of Appeals held that the funds appropriated by Gaston County were not for a public purpose in the constitutional sense. Defendants’ petition for discretionary review of that decision was allowed by this Court.
Roberts and Planer, P.A., by Joseph B. Roberts III, for plaintiff appellee.
Hollowell, Stott and Hollowell by Grady B. Stott; Whitesides and Robinson, by Henry M. Whitesides, for defendant appellants.
Charles Ronald Aycock and Durward Franklin Gunnells, for amicus curiae, North Carolina Association of County Commissioners.
Tharrington, Smith & Hargrove, by George T. Register, Jr., for amicus curiae, North Carolina School Boards Association.
Chambers, Stein, Ferguson & Becton, P.A., by James C. Fuller, Jr., for amicus curiae, North Carolina Association of Educators.
HUSKINS, Justice.
This appeal challenges the legality of an appropriation made by the Gaston County Board of Commissioners to the Dyslexia School of North Carolina, Inc.
It is axiomatic that a county has no power to appropriate funds unless authorized to do so by the General Assembly. The General Assembly determines the purposes for which a county may appropriate funds, which funds shall be utilized, and the manner in which appropriations are to be made. As Justice Bobbitt, later Chief Justice, states in Harris v. Board of Commissioners, 274 N.C. 343, 163 S.E. 2d 387 (1968):
“Counties are creatures of the General Assembly and constituent parts of the State government. They possess only
such powers and delegated authority as the General Assembly may deem fit to confer upon them.” (Citations omitted.)
Thus, the initial and dispositive question in this appeal is whether there was sufficient statutory authority for the appropriation made by the Gaston County Board of Commissioners to the Dyslexia School of North Carolina, Inc.
[1] The Board of Commissioners contends its appropriation is authorized by
“(a) A county may appropriate revenues not otherwise limited as to use by law:
*
*
*
*
(2) To a sheltered workshop or other private, non-profit, charitable organization offering work or training activities to the physically or mentally handicapped, and may otherwise assist such an organization.”
Does an appropriation to a school for dyslexic children come within the ambit of a statute authorizing appropriations to sheltered workshops and like institutions which provide work or training for the physically and mentally handicapped? We think not. Our studies, summarized below, have led us to conclude that the sheltered workshop is designed to deal with health problems fundamentally different from those presented by dyslexic children. As a consequence the objectives, organizational structure, and therapeutic philosophy of a sheltered workshop are markedly different from those of a school for dyslexic children.
The objective of a sheltered workshop is to help people handicapped by mental illness or physical disability to “achieve the maximum functioning of which they are capable.” I. Zwerling, Aftercare Systems, in 5 American Handbook of Psychiatry 729 (D. Freedman, J. Dyrud eds. 1975). To accomplish this objective the sheltered workshop provides a working environment similar to that in the real world in which the patient works at a job and receives training in vocational and social skills. The therapeutic philosophy of a sheltered workshop is to rehabilitate the handicapped patients rather than to treat the underlying causes of their physical or mental disability. Treatment “represents a
“The label ‘dyslexia’ has been overused in recent years. There is, however, a measure of agreement that the term implies the inability to cope with written and printed language in children who have average or better intellectual endowment and whose reading, writing, and spelling performance is considerably below their achievement in non-language-related subjects.” K. de Hirsch, Language Disabilities, in 2 Comprehensive Textbook of Psychiatry - II 2112-2116 (A. Freedman, H. Kaplan, B. Sadock eds. 1975). The objective of a school for dyslexic children is to help such children, who are of normal and above average intelligence, overcome the linguistic difficulties which hamper their academic progress in the fields of reading and writing. To accomplish this objective schools for dyslexic children provide their pupils with special remedial education designed to help them overcome their severe difficulties with language in an academic setting otherwise comparable to regular schools. Ultimately it is hoped the pupils can overcome their reading and writing difficulties to the point where they can return to regular schools. The therapeutic philosophy of these schools is treatment-oriented. Their goal is to turn hopelessly confused pupils into adequate readers and writers by directly attacking the perceptual difficulties which afflict them.
From this discussion it should be apparent that the sheltered workshop and the school for dyslexic children are fundamentally different institutions. The former seeks to rehabilitate patients who are mentally and physically deficient through work and vocational training, while the latter seeks to treat the linguistic difficulties of children of average and above average intelligence in an academic setting. Our studies have convinced us that G.S.
Defendants argue that
We recognize that valid and urgent problems are presented in those instances where the public school system cannot adequately provide educational opportunities for all of its learning disabled children. However, since the General Assembly has specifically addressed this problem in other legislation, we find it unnecessary to adopt the broad construction requested by defendant. It is well established that where there are two statutes, one dealing specifically with the matter in issue and the other being in general terms which could conceivably address the matter in question, the specific statute controls. See Utilities Comm. v. Edmisten, Atty. General, 291 N.C. 451, 232 S.E. 2d 184 (1977).
Following is the statement of legislative policy and purpose declared in
“The General Assembly of North Carolina recognizes that in unusual circumstances the public schools of this State cannot provide the necessary training for all of its exceptional children. It is further recognized that, in order for the exceptional child to obtain a proper education, it may become necessary for the child to attend a private or out-of-state institution. So that all of our young children may be trained to be useful citizens, and to provide our children with this opportunity where it may not exist in the public schools, it shall be the policy of this State to make an educational expense grant available to each eligible child as provided under
this Article, for the private or out-of-state education of such child.”
The term “exceptional children” encompasses “severely learning disabled” children who suffer from dyslexia.
Finally, we note the General Assembly has consistently delegated specific responsibility for the special education of learning disabled children to the State and local boards of education. See
We therefore hold that the appropriation by the Gaston County Board of Commissioners to the Dyslexia School of North Carolina is not authorized by
[2] The Board of Commissioners next contends its appropriation is authorized by both
[3] Since dyslexia constitutes a learning disability which is remedied through special education, the challenged appropriation might be justified as an exercise of the constitutional duty to “provide . . . for a general and uniform system of free public schools.”
“The establishment and operation of the public school system is under the control of the legislative branch of the government, subject only to pertinent constitutional provisions as to uniformity.”
In its discretion the General Assembly may delegate to local administrative units the general supervision and control of schools within their boundaries. See Coggins v. Board of Education, supra. Thus, the validity of this appropriation under the duty to
Pursuant to its duty to establish a general and uniform system of free public education, the General Assembly in Chapter 115 of the General Statutes has delineated the purpose and structure of public education in North Carolina. A review of this legislation leads us to conclude that the General Assembly has not delegated to boards of county commissioners the power to initiate and fund their own programs for the public schools; rather, county commissioners are delegated the power to fund only those school-related programs proposed by the board of education.
In the scheme of public education adopted by the General Assembly, the “general control and supervision of all matters pertaining to the public schools in their respective administrative units” is delegated to the county and city boards of education, subject to any paramount powers vested by law in the State Board of Education or any other authorized agency.
[4] In conclusion, we note the Court of Appeals reached the right result but for the wrong reason. It held that the challenged appropriation was prohibited by
The constitutional problem under the public purpose doctrine perceived by the Court of Appeals is no longer present in view of the addition, effective 1 July 1973, of subsection (7) to Article V, section 2 of the North Carolina Constitution. Subsection (7) provides that the General Assembly may enact laws which permit the State, county, city or town, or any other public corporation to “contract with and appropriate money to any person, association, or corporation for the accomplishment of public purposes only.” Thus, under subsection (7) direct disbursement of public funds to private entities is a constitutionally permissible means of accomplishing a public purpose provided there is statutory authority to make such appropriation. Had there been such statutory authority in this case the direct appropriation of funds by Gaston County to the Dyslexia School of North Carolina would have presented no “public purpose” difficulties as it is well established that both appropriations and expenditures of public funds for the education of the citizens of North Carolina are for a public purpose. Education Assistance Authority v. Bank, 276 N.C. 576, 174 S.E. 2d 551 (1970). We note that cases from this Court cited by the Court of Appeals in support of its reasoning were decided on facts arising prior to the effective date of subsection (7).
Since this case is decided on statutory grounds, further discussion of the constitutional questions raised by this appeal is unnecessary. See State v. Blackwell, 246 N.C. 642, 99 S.E. 2d 867 (1957), and cases collected in 1 N.C. Index 3d, Appeal and Error § 3, n. 31.
The sum appropriated by the Gaston County Board of Commissioners to the Dyslexia School of North Carolina totaled
For the reasons stated in this opinion the result reached by the Court of Appeals is
Affirmed.
Justice EXUM dissenting.
As the majority notes at the outset, there are two issues in this case: (1) whether the appropriation of funds by the Gaston County Commissioners to the Dyslexia School of North Carolina is in violation of the North Carolina Constitution, and (2) whether it is authorized by statute. The majority correctly concludes that this appropriation is consistent with
On this point, I disagree with the majority.
“(a) A county may appropriate revenues not otherwise limited as to use by law:
*
*
*
(2) To a sheltered workshop or other private, nonprofit, charitable organization offering work or training activities to the physically or mentally handicapped, and may otherwise assist such an organization.” (Emphasis supplied.)
The majority has essentially held that the Dyslexia School cannot fall within this statute because it is not like a sheltered workshop. In so doing it has unduly narrowed the scope of this provision. It has read its definition of “sheltered workshop” into the remaining language of the statute. Such a restrictive meaning should not be given wording which on its face is quite broad-“other private, nonprofit, charitable organization offering work or training activities to the physically or mentally handicapped.”
The Dyslexia School is a nonprofit organization. The children it serves suffer from a handicap that makes it difficult for them to cope in society. The handicap is either physical or mental or both. The school offers them training and instruction with the goal of enabling them to receive an adequate education. The school and its activities, therefore, fit precisely within the provisions of
The majority makes much of a supposed difference between “rehabilitation” and “treatment.” This difference is one created largely by the highly selective definitions of these terms in the majority opinion. Even if it does exist, it is important only when the statutory provisions are given the narrow construction the majority attaches to them. The goals of a sheltered workshop and the Dyslexia School are essentially the same. Both work with persons with handicaps, seeking to help them cope in society despite their handicaps. Even if their methods differ, the statutory language is broad enough to encompass both.
Next the majority argues that because there are other statutes which address the problem of children with learning disabilities, the General Assembly did not intend for
The majority does not tell us why the General Assembly might not have intended to attack this problem both through programs under the auspices of the public school administrators and through boards of county commissioners via such provisions as
The fallacy of the majority‘s argument, that because the General Assembly has authorized public school administrators to deal with learning disabilities it could not have meant for county commissioners also to do so, becomes apparent when the definitions of “exceptional children” entitled to education expense grants and “children with special needs” entitled to special education services are considered. An “exceptional child” is defined by
“[T]he seriously emotionally disturbed, the severely learning disabled, the visually and/or hearing handicapped or impaired, the multiple handicapped, the mentally retarded, the crippled or other health-impaired child.” (Emphasis supplied.)
“Children with special needs” are defined by
“[A]ll children between the ages of five and 18 who because of permanent or temporary mental physical or emotional handicaps need special education, are unable to have all their needs met in a regular class without special education or related services, or are unable to be adequately educated in
the public schools. It includes those who are mentally retarded, epileptic, learning disabled, cerebral palsied, seriously emotionally disturbed, orthopedically impaired, autistic, multiply handicapped, pregnant, hearing-impaired, speech-impaired, blind or visually-impaired, genetically impaired, and gifted and talented.” (Emphasis supplied.)
Many “exceptional children” and “children with special needs” who are physically or mentally handicapped, mentally retarded, or orthopedically impaired, are eligible for help both at “sheltered workshops” and “other private, nonprofit, charitable organization[s]” as those terms are used in
Obviously the General Assembly never intended such a result. It did not, in other words, intend to make the programs administered by public school administrators the exclusive tools by which this state can deal with the problem of its children who are physically or mentally handicapped, mentally retarded, or orthopedically impaired. The legislature intended, I am convinced, to authorize not only public school administrators but also county commissioners to help these children, the latter by direct appropriation to such organizations as sheltered workshops and “other private, nonprofit, charitable organization[s],” such as the Dyslexia School here, which help children who are disabled in all the various ways set out in all these statutes.
This is why the majority has applied the wrong maxim of statutory construction to this case. The proper maxim to be applied is that remedial statutes are to be liberally, not stintingly, construed. Puckett v. Sellars, 235 N.C. 264, 69 S.E. 2d 497 (1952);
Moreover, the majority has relied on an incomplete statement of the maxim it chooses to apply. The maxim, completely stated, is that a statute dealing specifically and in detail with a subject controls as against a more general statute dealing with the same subject only when the two statutes are necessarily inconsistent and both cannot be given effect. In Utilities Comm. v. Edmisten, Attorney General, supra, 291 N.C. 451, 232 S.E. 2d 184, relied on by the majority, the general statute, as interpreted by the Commission, and the specific statute, as ultimately interpreted by this Court, were necessarily inconsistent, and both could not be given effect. We held that under these circumstances, and assuming the Commission‘s interpretation to be correct, the specific statute should nevertheless control. For this complete rendering of the maxim see N.C. Digest, Statutes, § 223.4 and cases therein annotated. Clearly
For these reasons, I respectfully dissent and vote to reverse the Court of Appeals and affirm the trial court.