Citizens Ass'n for Reasonable Growth of Washington v. City of Washington

WEBB, Judge. This case brings to the Court two separate appeals. We consider first the appeal from the judgment of Judge Cowper dismissing all except the plaintiffs’ Fourth Claim for Relief. The first three claims for relief are based on alleged errors in the bond orders as adopted by the Council of the City of Washington. These orders were adopted pursuant to G.S. 159-54. On 18 May [10] 1977 the City Clerk of the City of Washington published the bond orders for both the water bonds and the sewer bonds pursuant to G.S. 159-58. G.S. 159-59 provides: Any action or proceeding in any court to set aside a bond order, or to obtain any other relief, upon the ground that the order is invalid, must be begun within 30 days after the date of publication of the bond order as adopted. After the expiration of this period of limitation, no right of action or defense based upon the invalidity of the order shall be asserted, nor shall the validity of the order be open to question in any court upon any ground whatever, except in an action or proceeding begun within the period of limitation prescribed in this section. The action to test the validity of the bond orders by the first three claims for relief was filed on 19 August 1977, more than 30 days after the publication of the bond orders. The first three claims for relief are barred by the statute of limitation contained in G.S. 159-59. The plaintiffs’ Fifth Claim for Relief is based on constitutional grounds. They allege that the errors in the procedure for the conduct of the election were so substantial that the election was invalid and the issuance of the bonds pursuant to the election deprives them of due process of law. The irregularities of which plaintiffs complain consisted of the published notice of the water bond election referring, in the body of the notice, to a sanitary sewer bond issue, and the error in the water bond ballot which said the bond issue would not exceed $1,500,00. In their briefs, plaintiffs do not say how the failure to comply with a statute rises to a due process question. We can see no reason why due process is violated. We hold that Judge Cowper was correct in dismissing the Fifth Claim for Relief. In the plaintiffs’ Sixth Claim for Relief, they allege that the defendants planned to use the money from the bond issue in such a way that it would violate the Washington CAMA Land Use Plan and the Coastal Area Management Act of 1974. They also allege the City of Washington is participating in the formation of a waste treatment management plan which has not yet received the required approval of the State of North Carolina and the Federal Environmental Protection Agency. They allege that the [11] bonds should not be issued until the deficiencies are corrected. This is an action to test the validity of two bond elections. The fact that the city might have to take some steps to comply with a land use plan or get the approval of the state or federal government should not affect the validity of the election. Judge Cowper properly dismissed the Sixth Claim for Relief. We affirm the judgment of Judge Cowper dismissing all plaintiffs’ claims for relief except the Fourth Claim. We turn next to the order of Judge Peel dismissing the plaintiffs’ Fourth Claim for Relief and granting defendants’ motion for summary judgment. This claim for relief is based on the allegation that the sample water bond ballot and the ballots used in the election stated that the bonds issued would not exceed $1,500,00. Plaintiffs contend this voids the water bond election. On 13 July 1977 the results of the election were published in the Washington Daily News as required by G.S. 159-61. On 22 July 1977 the results of the election were again published in the Washington Daily News entitled “Corrected Publication Statement of Result of Special Election Held in the City of Washington on June 30, 1977.” This action was commenced on 19 August 1977. G.S. 159-62 provides: Any action or proceeding in any court to set aside a bond referendum, or to obtain any other relief, upon the ground that the referendum is invalid or was irregularly conducted, must be begun within 30 days after the publication of the statement of the results of the referendum. After the expiration of this period of limitation, no right of action or defense based upon the invalidity of or any irregularity in the referendum shall be asserted, nor shall the validity of the referendum be open to question in any court upon any ground whatever, except in an action or proceeding begun within the period of limitation prescribed in this section. The question posed by the appeal as to the Fourth Claim for Relief is whether the statute of limitations begins to run from the date of the first publication or the date of the second publication. If it began to run from the first publication, the plaintiffs are barred. If it ran from the second, they are not. We hold that it ran from the first publication. The appellants do not question the sufficiency of the first notice. If the second notice had not been [12] published, there would be no question that the claim would be barred. The wording of G.S. 159-62 is persuasive that the City of Washington cannot start the statute running anew by publishing the notice a second time. It says the action “must be begun within 30 days after the publication . . . .” It says further that after the 30-day period, “no right of action . . . shall be asserted, nor shall the validity of the referendum be open to question in any court upon any ground whatever . . . .” This statute is different from most statutes of limitation. Ordinarily a statute of limitation does not extinguish a claim. It merely serves as a bar to the prosecution of the claim. See Shearin v. Lloyd, 246 N.C. 363, 98 S.E. 2d 508 (1957) and Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E. 2d 870 (1970). As we read G.S. 159-62, by providing actions “must be begun” within the prescribed period, “no right of action . . . shall be asserted” and the “validity of the referendum” shall not be questioned after the prescribed period, this statute provides any claim not prosecuted within 30 days of the date of publication is extinguished. When the notice was published on 13 July 1977 and no action was commenced within 30 days to test the validity of the election, any claim to contest the validity was extinguished under G.S. 159-62. The City of Washington could not, by readvertising, revive a claim that was extinguished by operation of law. We affirm the order of Judge Peel which dismissed the plaintiffs’ Fourth Claim for Relief and granted summary judgment for defendant. Affirmed. Judges VAUGHN and martin (Harry C.) concur.