Waldrop v. Hodges

BaeNhill, J. 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 pro *373 ceedings for tbe calling of tbe election or of tbe election, for it is expressly provided in tbe Act tbat “No right of áction or defense founded upon tbe invalidity of sucb election . . . shall be asserted, nor shall tbe validity of sucb election ... be open to question in any court upon any ground whatever, except in an action or proceeding commenced within thirty days after tbe publication of” tbe result of tbe election. Sec. 5, Chap. 559, P.L.L. 1935. See also G.S. 153-90 and G.S. 153-100. But tbe limitation on tbe right to attack tbe irregularity or validity of tbe bond election and of tbe bonds to be issued pursuant thereto, thus provided, does not relate to or bar an action founded on tbe allegation tbat (1) tbe time within which tbe bonds may be issued has elapsed, or (2) tbe avowed purpose for which tbe proceeds derived from tbe sale of tbe bonds are to be used is contrary to law and constitutes an unauthorized use of said funds. So then, tbe two questions posed for decision are these: (1) Has tbe time within which tbe proposed bonds may be lawfully issued now elapsed, and (2) May tbe proceeds derived from the sale thereof be used for tbe purposes now contemplated by defendant boards? Tbe statute under which tbe defendants proceed, Chap. 559, P.L.L. 1935, contains no limitation upon tbe time within which tbe bonds, once authorized, may be issued. However, G.S. 153-102 provides tbat “After a bond order takes effect, bonds may be issued in conformity with its provisions at any time within three years” thereafter unless tbe bond order is repealed or anticipation notes have been issued and are outstanding. It would seem to be clear tbat this is a limitation upon tbe right to issue bonds authorized in an election held under tbe County Finance Act. G.S. Art. 9, Chap. 153. We may concede, without deciding, tbat, nothing else appearing, it is controlling here. Even so, tbe Legislature, by successive Acts, has extended tbe time within which bonds authorized under tbe provisions of tbe County Finance Act may be issued to July 1, 1949. Chap. 325, Session Laws 1943, Chap. 402, Session Laws 1945, Chap. 510, Session Laws 1947. A right or remedy, once barred by a statute of limitations, may not be revived by an Act of tbe General Assembly. Johnson v. Winslow, 63 N.C. 552; Whitehurst v. Dey, 90 N.C. 542; Wilkes County v. Forester, 204 N.C. 163, 167 S.E. 691; Annos. 36 A.L.R. 1316, 67 A.L.R. 297, 133 A.L.R. 384; 34 A.J. 37. But tbe Legislature may extend at will tbe time within which a right may be asserted or a remedy invoked so long as it is not already barred by an existing statute. Johnson v. Winslow, supra; Pearsall v. Kenan, 79 N.C. 472; Tucker v. Baker, 94 N.C. 162; Vanderbilt v. R. R., 188 N.C. 568, 125 S.E. 387; Anno. 46 A.L.R. 1101; 34 A.J. 35, 37. *374 It follows that; even if Gr.S. 153-102 applies here, the time within which the bonds may be marketed has been extended and has not yet expired. It is the duty of the Court to determine only whether defendants have the legal right to devote the proceeds of the bonds to the purposes now proposed. So long as their action is not arbitrary, capricious, or in disregard of law, the Court is not concerned with the wisdom of the course they intend to pursue. Pue v. Hood, Comr., 222 N.C. 310, 22 S.E. 2d 896; Atkins v. McAden, 229 N.C. 752. It is not charged that defendants have acted arbitrarily or capriciously. It is asserted only that the proposed use of the fund is not authorized and would constitute an unwarranted diversion thereof to purposes other than those authorized by the bond resolution. The statute, Chap. 559, sec. 3, P.L.L. 1935, authorizes an election “for the purpose of voting upon the question of issuing bonds . . . for the purpose of acquiring, erecting, enlarging, altering, and equipping school buildings and purchasing sites in such district or unit, or for any one or more of said purposes.” But the bond resolution and the published notice of election do not state that the proceeds of the bonds are to be used for these broad and comprehensive purposes. They are proposed only “for the purpose of erecting and equipping new school buildings and purchasing sites therefor.” In this connection it is admitted that it was the purpose of the Board at the time to erect a new high school building, and that this purpose was generally publicized during the pre-election campaign. While the defendants have a limited authority, under certain conditions, to transfer or allocate funds from one project to another, included within the general purpose for which bonds are authorized, the transfer must be to a project included in the general piirpose as stated in the bond resolution and notice of election. Atkins v. McAden, supra. The funds may be diverted to the proposed purposes only in the event the defendant Board of Commissioners finds in good faith that conditions have so changed since the bonds were authorized that the proceeds therefrom are no longer needed for the original purpose. In view of the fact the defendants now propose to erect a new elementary school building and to retain thirty per cent of the fund to be used in erecting a high school building, and assert that they plan another bond resolution and election to raise additional funds for that purpose, it would seem such a finding cannot now be made in good faith. 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. *375 ¥e conclude that defendants are authorized to issue and sell the proposed bonds which, when sold, will constitute valid obligations of the district, but that the proceeds derived therefrom must be used for the purpose indicated. Use thereof for any other purpose would constitute an unauthorized diversion against which plaintiff is entitled to injunctive relief. The cause is remanded for judgment accordant with this opinion. Modified and affirmed.