Garrell v. . Columbus County

2 S.E.2d 701, 215 N.C. 589, 1939 N.C. LEXIS 319

• Court: Supreme Court of North Carolina
• Decided: May 10, 1939
• Status: Published

Opinion

WiNBORNE, J.

Are plaintiffs barred of right to maintain this action? This is tbe decisive question, controlled and answered by tbe decisions of tbis Court in tbe cases of Kirby v. Comrs., 198 N. C., 440, 152 S. E., 165, and Jones v. Alamance County, 212 N. C., 603, 194 S. E., 109.

No constitutional- question is involved on tbis appeal, as was tbe case in Sessions v. Columbus County, 214 N. C., 634, 200 S. E., 418. Here tbe question relates to statutory law. While tbe plaintiffs, by tbe allegation in tbe complaint, direct their attack against tbe validity of tbe order of election and tbe election, tbe attack is in fact upon tbe bond order in that it is contended that tbe board of commissioners has failed to comply with tbe provisions of section fourteen of tbe County Finance Act, and that as a result tbe bond order, which .is to become effective when approved by tbe voters at an election as provided' by. law, is invalid. Section Seventeen, County Finance Act. These are questions which might be presented in an action instituted within thirty days after tbe first publication of tbe bond order, tbe time limit fixed by tbe provisions of section twenty of said act. In that section it is provided that: “After tbe expiration of such period of limitation, no right of action or defense upon tbe validity of tbe order shall be assérted; nor shall tbe validity or tbe order be opened to question in any court upon any ground whatever, except in an action or proceeding commenced within such period.”

Speaking to tbe question in Kirby v. Comrs., supra, Brogden, J., said: “Tbe statute in plain and imperative English provides that tbe validity of a bond ordinance shall not be open to question unless tbe suit is brought within thirty days after, tbe first publication of notice. Tbis statute is part of tbe act authorizing tbe b.ond ordinance, and hence all parts of tbe same statute must be read and construed together. Tbe effect of tbe time limit is that, after tbe lapse of thirty days, if no suit has been instituted, tbe bond ordinance is deemed to be valid for all purposes.” To like effect is tbe case of Jones v. Alamance County, supra.

Plaintiffs, having failed to institute tbe present action within tbe time limited, cannot now be beard to attack tbe bond order.

Tbe regularity of tbe proceedings providing for tbe election and of tbe conduct of tbe election is not challenged. These are matters which might be attacked in an action commenced within thirty days after the election, as limited by tbe provisions of section thirty of tbe County Finance Act.

Tbe judgment below is

Affirmed.