Kirby v. . Commissioners of Person

BeogdeN, J. No question is raised with reference to the validity and regularity of all preliminary steps required by the statute in adopting bond ordinances or resolutions. The merits of the whole controversy depend upon the proper construction of section 17, chapter 81,- Public Laws of 1927, with reference to that part of said section which undertakes to fix a debt limit for the county. It is conceded that the proposed bond issue is for a necessary governmental expense, and hence special legislative authority for issuing bonds for such purpose is contained in section 8 of said County Finance Act. The portion of section 17 of said act involved in this appeal is as follows: “And no order shall be passéd for the issuance of bonds other than school bonds unless it appears from said sworn statement that the net indebtedness for other than school purposes does not exceed five per cent of said assessed valuation . . . and that if the net debt of any county for other than school purposes shall, on the day this act is ratified be in excess of four-fifths of the limitation above fixed therefor, such order may be passed if the net debt for other than school purposes shall not be increased thereby more than two per cent of such assessed valuation,” etc. The County Finance Act was ratified on 7 March, 1927. The admitted facts disclose that on that date the net debt of Person County for other than school purposes was less than four per cent of the then assessed valuation of property. Apparently the County Finance Act undertook to prohibit the issuing of bonds for “other than school purposes” in excess of five per cent of the assessed valuation of property unless at the time the act took effect a *443 county bad theretofore issued bonds in excess of four per cent of the assessed valuation of property. If the net indebtedness “for other than school purposes” was less than four per cent on the date the act was ratified, then the utmost limit of bonds could not exceed five per cent of the assessed valuation. However, if the net indebtedness “for other than school purposes” was more than four per cent of the assessed valuation on 7 March, 1927, then additional bonds in an amount not exceeding two per cent of the assessed valuation could be issued and sold. Applying the law as written to the facts in the case at bar, it is clear that the two per cent increase does not apply. Therefore, it necessarily follows that the bond order authorizing $150,000 exceeded the debt limit. The bond order was finally passed on 11 February, 1929, after a public hearing held on 21 January, 1929. Suit was not instituted until 24 June, 1929, or after a lapse of four months from the final passage of the bond ordinance. The defendant pleads section 20 of chapter 81,, Public Laws of 1927, which is now C. S., 1334 (20), which provides in substance that the validity of the bond order shall not “be open to question in any court upon any ground whatever” unless the proceeding be commenced “within thirty days after the first publication of notice as aforesaid and the order or supposed order referred to in the notice.” C. S., 1334 (20) has not been construed by this Court, but statutes requiring notice to be given and providing that failure to give a notice within the time specified will operate as a bar, have been frequently construed and upheld. Neal v. Marion, 126 N. C., 412, 35 S. E., 812; Board of Education v. Town of Greenville, 132 N. C., 4, 43 S. E., 472; Dockery v. Hamlet, 162 N. C., 118, 78 S. E., 13; Noland v. Asheville, 197 N. C., 300. Other jurisdictions have adopted the same construction of similar statutes. Montgomery v. City of Atlanta, 134 S. E., 152; King v. Mayor of City of Butte, 230 Pac., 62; Waters v. Bayonne, 104 Atlantic, 770; Ditzel v. Evergreen Highway District, 187 Pac., 269; Henderson Land, Timber and Investment Co. v. Police Jury of Vernon Parish, 106 So., 285. The time limit discussed in the foregoing authorities ranges from fifteen days to one year. Some of the courts interpret the time limit as a condition precedent or annexed to the cause of action. Others refer to it as a special statute of limitation. As intimated in Board of Education v. Town of Greenville, supra, it is unnecessary to inquire or to decide whether the statute is strictly one of limitation or a condition precedent annexed to the cause of action. In either event, the statute in plain and imperative English provides that the validity of a bond ordinance shall not be open to question unless *444 tbe suit is brought witbiu thirty days after the first publication of notice. This statute is part of the act authorizing the bond ordinance, and hence all parts of the same statute must be read and construed together. The effect of the time limit is that, after the lapse of thirty days, if no suit has been instituted, the bond ordinance is deemed to be valid for all purposes. There are other questions referred to in the briefs, but they are not material in view of the construction placed upon the statute. Affirmed.