727 103 v. v. 1986 103 727 103 1986 OK CIV APP 11 STATE BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY v. SHELTON STATE BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY v. FRENCH STATE BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY v. WARD STATE BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY v. SMITH
| Decision Date | 10 June 1986 |
| Docket Number | Nos. 2 and 4,No. 64147,64147,s. 2 and 4 |
| Citation | 727 P.2d 103 |
| Parties | Page 103 727 P.2d 103 1986 OK CIV APP 11 STATE of Oklahoma, ex rel. BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY, Plaintiff-Appellant, v. Fred A. SHELTON, Henry Peak, Marshall Greenman, Charles Ray, Joe Swank, James Joseph Skipper, Jack Ford, Muskogee Equipment and Supply Company, Inc., Eastern Equipment Company, Inc., Port City Road Supply Company, S & S Supply Company, Inc., and Ford Supply Company, Defendants-Appellees. STATE of Oklahoma, ex rel. BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY, Plaintiff-Appellant, v. Eddie B. FRENCH, Henry Peak, Marshall Greenman, Charles Ray, Joe Swank, James Joseph Skipper, Hershell Long, Muskogee Equipment and Supply Company, Inc., Eastern Equipment Company, Inc., Port City Road Supply Company, S & S Supply Company, Inc., and Morris Equipment Company, Defendants-Appellees. STATE of Oklahoma, ex rel. BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY, Plaintiff-Appellant, v. Kenneth E. WARD, Henry Peak, Marshall Greenman, Charles Ray, Joe Swank, James Joseph Skipper, Hershell Long, Jack Ford, Muskogee Equipment and Supply Company, Inc., Eastern Equipment Company, Inc., Port City Road Supply Company, S & S Supply Company, Inc., Morris Equipment Company and Ford Supply Company, Defendants-Appellees. STATE of Oklahoma, ex rel. BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY, Plaintiff-Appellant, v. Jesse V. SMITH, Henry Peak, Marshall Greenman, Charles Ray, Joe Swank, James Joseph Skipper, Hershell Long, Jack Ford, Muskogee Equipment and Supply Company, Inc., Eastern Equipment Company, Inc., Port City Road Supply Company, S & S Supply Company, Inc., Morris Equipment Company and Ford Supply Company, Defendants-Appellees. Released for Publication by Order Division Court of Appeals of Oklahoma, Division |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Norman D. Thygesen, Asst. Dist. Atty., Muskogee, for plaintiff-appellant.
Jon Tom Staton, Mike Norman, Muskogee, for defendants-appellees Shelton and French.
Bill Settle, Muskogee, for defendant-appellee Ward.
Julian K. Fite, Muskogee, for defendant-appellee Smith.
Lloyd Payton, Muskogee, for defendant-appellee Eastern Equipment Co.
Stephen J. Scherer, Muskogee, for defendant-appellee Hershell Long, d/b/a Morris Equipment Co.
Henry Peak, pro se.
The issue for review is whether a statute of limitations has run against four state actions consolidated for this appeal. The trial court, without saying so, evidently concluded one had and dismissed all of the actions.
We hold, however, that none of the actions is barred by a statute of limitations and vacate the orders of dismissal.
These actions were filed by the district attorney for Muskogee County on September 17, 1984, to recover public monies paid by or to defendants pursuant to contracts said to be induced by bribes, laced with kickbacks and executed pursuant to an ongoing conspiratorial scheme to fraudulently divert public funds and convert public property to defendants' private use between 1970 and 1981.1 The government set out a schedule of the various sales contracts complained of and asked for judgments against the defendants in the aggregate amount of $2,808,925.62--a sum double the facial amount of the scheduled illegal agreements, the recovery of which is authorized by 62 O.S.1981 § 372.2 The defendants are former Muskogee County Commissioners and various material, equipment and service vendors with whom they corruptly conspired. Each of the named commissioners was convicted of or pleaded guilty to felonious violations of various federal anti-corruption laws involving the same transactions that form the foundation for these lawsuits.
Only two defendants filed an answer--Eastern Equipment Company and Kenneth Ward--and the closest they came to raising the statute of limitations as a defense was with this language: "the court is without jurisdiction for the reason that said suit has not been timely filed against this Defendant." (Emphasis added.) Six defendants filed motions to dismiss on the ground the action against them, based as it was on the penal provisions of 62 O.S.1981 § 372, was barred by the one-year provision of 12 O.S.1981 § 95 (Fourth) and in any event the two-year limit of 12 O.S.1981 § 95 (Third). Nine of the defendants did not file an answer or a motion to dismiss, or otherwise raise a limitations defense.3
A journal entry recited that on February 13, 1984, "all motions pending" came on for hearing before a specially assigned judge. It further stated that "from testimony given, and arguments of counsel and cited authorities, it is the order of the court ... that the above cases [all four] are hereby dismissed." That's all. The journal entry reflects no findings of fact or any conclusions of law. We can presume, however, that the basis for the adjudication was the one stated in defendants' motions to dismiss and argued in support of them--namely, that a statute of limitations had run against the government's actions at the time they were filed. And the actions were dismissed against all defendants whether a defendant had raised the limitations defense or not.
The plaintiff appeals contending it is proceeding in its sovereign capacity to enforce and protect a public right and is therefore immune from the operation of any statute of limitations. Alternatively, the state argues that in any event no statute of limitations began to run until plaintiff, with the use of diligence, could or should have known of and had access to evidence of facts necessary to prove the essential elements of the causes of actions in question. And in this case, says plaintiff, because of the unrecorded and secret nature of defendants' illicit activity, it could not have acquired such knowledge, even if it had investigated with reasonable diligence, until defendants either publicly admitted or were convicted of the criminal acts in question. While we consider this alternative argument correct and sound, it will not be necessary to pursue it because of our view of plaintiff's first contention.4
The question we address, then, is whether the facts pleaded in the government's petitions justify the trial court's presumed conclusionary finding that the sovereign is not immune from the restraints of the statute of limitations.
Defendants concede that the ancient common law doctrine of "Nullum tempus occurrit regi" (lapse of time does not bar the king's right [to sue] ) has been judicially accepted in principle by the courts of this country with this variation in the sophisticated Latin phraseology: "Nullum tempus occurrit reipublicae" (no lapse of time bars the right of sovereign governments [to sue] ). Defendants also agree that the concept's application extends to both state and local governments with regard to "public rights of all kinds," by quoting confirmatory language in Foote v. Town of Watonga, 37 Okl. 43, 130 P. 597 (1913). See also Herndon v. Board of Commissioners, 158 Okl. 14, 11 P.2d 939 (1932).
But after acknowledging the import of Foote defendants turn to and lean heavily on a decision that came down two years later--Board of County Commissioners v. Willett, 49 Okl. 254, 152 P. 365 (1915)--for the proposition that the right which the county is seeking to protect here is a "private" one. In Willett, the court considered whether a county could recover sums of money illegally paid to a county attorney in the form of a salary for over three years. The official's annual salary was $1250 and he was overpaid $337.50 during calendar year 1908, $100 during 1909 and $100 in 1910. Suit was filed August 3, 1912. The opinion does not disclose why the overpayment occurred but evidently no fraud was alleged because no penalty was sought under the provision of Rev.Laws 1903 § 5900, now 62 O.S.1981 § 372. The trial court sustained defendant's demurrers to all three "causes of action" plaintiff pleaded--one for each year involved--on the ground they were barred by the three-year statute of limitations set out in Rev.Laws 1910 § 4657, now 12 O.S.1981 § 95 (Second), prescribed for "An action upon a contract express or implied not in writing...." and the county appealed.
The appellate court reversed as to the 1909 and 1910 causes but affirmed as to the 1908 cause. In so ruling the upper court rejected the county's contention that a public right was being asserted by reason of which the government was immune from any limitations bar. In its opinion the Willett court starts right out with a crucial primal conclusion--that the "right, which is sought to be enforced [by the county], is a private right for the reason that all the people of the state have no interest in the funds of the county illegally paid out and sought thereby to be recovered, but only that part of the public within the confines of the county are interested in the funds." (Emphasis added). The court then began to quote from various cases across the country and a treatise--J. Dillon, Commentaries on the Law of Municipal Corporations (5th ed., 1911)--in an effort to clarify the seemingly unclarifiable, namely, the distinction between and the meaning of "private" rights of municipalities and their "public" rights. Foote was recognized, approved but then ignored. And to support its private right predilection the Willett court turned to an early Indiana case and an old Virginia decision, each of which had used the private right terminology as a vehicle for reaching the ultimate conclusion that a county enjoyed no sovereign immunity from statutes of limitation in seeking to enforce "private" rights.
There are at least three significant reasons why Willett affords no precedential help in resolving the issue in this case. First of all, Willett was not a § 372 action such as we have here and the court treated it as an action on an oral contract--a theory of recovery...
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State ex rel. Bd. of County Com'Rs v. Shelton
...727 P.2d 103 ... 1986 OK CIV APP 11 ... STATE of homa, ex rel. BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY, ... Eddie B. FRENCH, Henry Peak, Marshall Greenman, Charles Ray, Joe ... Kenneth E. WARD, Henry Peak, Marshall Greenman, Charles Ray, Joe ... Jesse V. SMITH, Henry Peak, Marshall Greenman, Charles Ray, Joe ... ...