Waldrop v. Hodges

• Decision Date: 04 May 1949
• Docket Number: 310
• Parties: WALDROP v. HODGES et al.
• Court: North Carolina Supreme Court

53 S.E.2d 263

230 N.C. 370

WALDROP v. HODGES et al.

No. 310

Supreme Court of North Carolina

May 4, 1949

Civil action to restrain and enjoin the issuance of proposed school bonds.

The Greenville School District is a duly and regularly created school district. On 28 October 1941, pursuant to call, an election was held in said district to determine whether the electors therein would approve the issuance of $250,000 in school bonds for the purpose set forth in the resolution of the defendant Board of Commissioners and the notice of election published pursuant thereto. The issuance of the bonds was approved by a substantial majority of the registered voters.

While the bond election was held on 28 October 1941, the result of said election was not published until 23 January 1943.

The purpose for which the bonds were to be issued as set forth in the order calling the election and in the published notice of election was 'for the purpose of erecting and equipping new school buildings and purchasing sites therefor in said district,' and it is admitted that it was generally publicized and represented to the voters of the district prior to the election that the proceeds of the bonds would be used for the purpose of purchasing a site somewhere in the eastern section of said school district and erecting a new high school building thereon.

It is now the avowed plan and purpose of the defendants to use approximately seventy per cent of said bond proceeds for the purpose of enlarging the Third Street and West Greenville elementary school buildings, constructing a new elementary school for Negroes, making additions to the Eppes School building for Negroes, and to hold intact the balance of the bond proceeds to be used, in connection with a contemplated future bond issue, in the erection of a new high school building.

On 5 January 1943, the defendant Board of Commissioners adopted a resolution providing for the issuance of $25,000 in bonds under authority of said election, but the bonds were not issued and this resolution was rescinded on the first Monday in March, 1949.

On 7 March 1949, said Board, at the request of the defendant Board of Education, adopted a resolution providing for the issuance of the full amount of bonds authorized in said election and the levying of a tax for the payment thereof 'for the purpose of erecting and equipping new school buildings and purchasing sites therefor in said district.'

Thereupon the plaintiff instituted this action for injunctive relief against the issuance and sale of said bonds for the causes and upon the grounds set forth in his complaint.

When the cause came on for hearing on the rule to show cause why an injunction should not issue, the court below entered judgment that the defendant Board of Commissioners is fully authorized to issue and sell said bonds and to levy a tax for the payment thereof. It thereupon denied the motion for an order of injunction and dismissed the action at the cost of the plaintiff. Plaintiff excepted and appealed.

Harding & Lee, of Greenville, for plaintiff appellant.

Sam B Underwood, Jr., of Greenville, for defendant appellees.

BARNHILL Justice.

The Greenville School District was established and the bond election was held pursuant to the provisions of Chap. 559 P.L.L.1935, as amended by Chap. 388, P.L.L.1937, making the Act applicable to Pitt County. The 1935 Act, in sec. 9 thereof provides in part: 'The powers conferred by this Act shall be regarded as supplemental and in addition to powers conferred by other laws and shall not supplant or repeal any existing powers for the issuance of bonds * * *.'

The plaintiff seeks to attack the issuance of the proposed bonds for irregularities in the registration of a voter, for delay in publishing the result of the election, and for other causes relating directly to the calling and holding of said election. But the doors of the courts are no longer open to plaintiff to assail, for the causes stated, the validity of the proceedings for the calling of the election or of the election, for it is expressly provided in the Act that 'No right of action or defense founded upon the invalidity of such election * * * shall be asserted, nor shall the validity of such election * * * be open to question in any court upon any ground whatever, except in an action or proceeding commenced within thirty days after the publication of' the result of the election. Sec. 5, Chap. 559 P.L.L.1935. See also G.S. ss 153-90 and 153-100.

But the limitation on the right to attack the irregularity or validity of the bond election and of the bonds to be issued pursuant thereto, thus provided, does not relate to or bar an action founded on the allegation that (1) the time within which the bonds may be issued has elapsed, or (2) the avowed purpose for which the proceeds derived from the sale of the bonds are to be used is contrary to law and constitutes an unauthorized use of said funds.

So then, the two questions posed for decision are these: (1) Has the time within which the proposed bonds may be lawfully issued now elapsed, and (2) May the proceeds derived from the sale thereof be used for the purposes now contemplated by defendant boards?

The statute under which the defendants proceed, Chap. 559 P.L.L.1935, contains no limitation upon the time within which the bonds, once authorized, may be issued. However, s G.S. 153-102 provides that...