Ratcliff v. County of Buncombe , 81 N.C. App. 153 ( 1986 )

343 S.E.2d 601 (1986)

R. Curtis RATCLIFF, individually and on behalf of other citizens and residents of Buncombe County, North Carolina
v.
The COUNTY OF BUNCOMBE.

No. 862SC37.

Court of Appeals of North Carolina.

June 3, 1986.

Robert B. Long, Jr. and Steve Warren, Asheville, for plaintiff-appellant.

Shuford, Best, Rowe, Brondyke & Orr by James Gary Rowe, Asheville, for defendant-appellee.

WELLS, Judge.

The law is well settled that "one who voluntarily proceeds under a statute and claims benefits thereby conferred will not be heard to question its constitutionality in order to avoid its burdens." In re Appeal of Martin, 286 N.C. 66, 209 S.E.2d 766 (1974), quoting 16 Am.Jur.2d, Constitutional Law § 135 (1964). Thus, in Martin, Mecklenburg County was held to be precluded from challenging the constitutionality of exemptions from taxation after having exercised its taxing powers under the statute. Similarly, in Ramsey v. Veterans Commission, 261 N.C. 645, 135 S.E.2d 659 (1964), an applicant for a scholarship provided by statute was precluded from challenging the constitutionality of eligibility requirements stated by the statute. See also City of Durham v. Bates, 273 N.C. 336, 160 S.E.2d 60 (1968) (landowners could not challenge constitutionality of eminent domain statute when they had accepted part of deposit under statute); Convent v. Winston-Salem, 243 N.C. 316, 90 S.E.2d 879 (1956) (plaintiff, who had obtained special use permit under zoning ordinance, was barred from challenging ordinance and restrictions in permit); Goforth Properties, Inc. v. Town of Chapel Hill, 71 N.C.App. 771, 323 S.E.2d 427 (1984) (plaintiffs, having built under a building permit issued pursuant to an ordinance, were precluded from challenging ordinance).

It is undisputed in the present case that plaintiff has accepted the benefits of the Act by being elected to the Buncombe County Board of Commissioners and by being elected chairman of the Board under the Act. He thus will not be heard to challenge the constitutionality of a statute under which he has benefited. We therefore hold that the court properly dismissed plaintiff's complaint.

Defendant County has attempted to assert a cross-assignment of error, contending that the trial court erred in failing to declare the disputed statute to be constitutional. In its motion for judgment on the pleadings, defendant did not seek such relief, nor did the trial court reach or rule upon the question of the constitutional validity of the statute. Under these circumstances, we will not reach or rule upon this question. See Comr. of Insurance v. Rate Bureau, 300 N.C. 381, 269 S.E.2d 547 (1980) and cases cited and relied upon therein. This assignment is overruled.

The judgment appealed from is

Affirmed.

ARNOLD and BECTON, JJ., concur.