Board of Com'rs of Woodward County v. Willett

• Decision Date: 12 October 1915
• Docket Number: 4769.
• Citation: 152 P. 365,49 Okla. 254,1915 OK 788
• Parties: BOARD OF COUNTY COM'RS OF WOODWARD COUNTY v. WILLETT.
• Court: Oklahoma Supreme Court

152 P. 365

49 Okla. 254, 1915 OK 788

BOARD OF COUNTY COM'RS OF WOODWARD COUNTY v. WILLETT.

No. 4769.

Supreme Court of Oklahoma

October 12, 1915

Syllabus by the Court.

An action by a county to recover a sum illegally paid in excess of the salary of its county attorney involves only a private right of the county, and is therefore subject to the statute of limitations. Rev. Laws 1910, § 4657.

Error from District Court, Woodward County; James W. Steen, Judge.

Action by the Board of County Commissioners of Woodward County against B. F. Willett. Judgment for defendant, and plaintiff brings error. Affirmed in part, and reversed and remanded in part.

O. C Wybrant, of Woodward, for plaintiff in error.

R. H Nichols and J. R. Dean, both of Woodward, for defendant in error.

TURNER J.

On August 3, 1912, in the district court of Woodward county the board of county commissioners of that county, plaintiff in error, sued B. F. Willett, defendant in error, in assumpsit. For a first cause of action the petition alleged that from November 16, 1907, to January 9, 1911, Willett was county attorney of that county; that as such he was only entitled to receive a yearly salary of $1,250; that for the year beginning January 1, 1908, and ending December 31, 1908, the board illegally overpaid him as salary $337.50. For a second cause of action it alleged that for the year beginning January 1, 1909, and ending December 31, 1909, the board illegally overpaid him $100. And for a third cause of action they alleged that for the year beginning January 1, 1910, and ending December 31, 1910, they illegally overpaid him $100. All of which they say they are entitled to recover and for which they pray judgment. The court sustained a demurrer to each of these causes of action on the ground that they were barred by the three-year statute of limitations. Rev. Laws 1910, § 4657.

Whether he did right as to the first cause of action turns upon the question of whether the statute runs against an action by the county to enforce, as here, a private right of the municipality. And this right, which is sought to be enforced 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.

City of Chicago v. C. & N.W. Ry. Co., 163 Ill.App. 251, was a suit by the city to recover damages for negligent killing some fire horses belonging to the city. Whether the statute ran against the action turned upon the question of whether it was one to enforce a private right of the municipality. The court held that such it was and said:

"It is conceded by plaintiff in error that, if the property in question was held by it in its private capacity, the statute of limitations bars the action; but it insists the property was not so held, but was held in its 'public capacity,' and that the statute of limitations does not run against actions by a city to enforce a right in regard to property so held by it.

The well-settled law in this state is that the statute of limitations will not run against a municipal corporation in actions involving strictly public rights. Brown v. Trustees of Schools, 224 Ill. 184 [79 N.E. 579, 115 Am. St. Rep. 146, 8 Ann. Cas. 96], and cases there cited. Controversies over the application of this rule more frequently arise from a failure to understand what are and what are not 'public rights,' than from a failure to understand the rule. In a sense, every right possessed by a municipal corporation is a public right, and every class of property held by it is held in its public capacity, and for public use; but for the purpose of distinguishing such rights, as only that part of the public included within the corporate limits of a municipality are interested in, from such rights in which all the people in the state are interested, the former class is designated by law writers and courts as 'private rights,' and the terms 'public rights,' 'public uses,' and 'public capacity' are used only with reference to such rights, uses and capacities, as all the people of the state are alike interested in. To actions brought in relation to 'public rights,' using the term to indicate such rights as belong to all the people of the state alike, the statute of limitations does not apply, while as to actions brought in relation to 'private rights,' using that term to designate such rights as are limited to some local subdivision or municipality, such as a city, village, school district, or the like, the statute of limitations applies to the same extent as to individuals. Brown v. Trustees of Schools, supra; Dillon on Municipal Corporations (3d Ed.) vol. 2, § 675."

This is in keeping with what we held in Foot v. City of Watonga, 37 Okl. 43, 130 P. 597. There, in the syllabus, we said:

"The generally accepted doctrine is that the maxim, 'Nullum tempus occurrit regi,' is not restricted in its application to sovereign states and governments, but that its application extends to and includes public rights of all kinds, and that it applies to municipal corporations as trustees of the rights of the public, and protects from invasion and encroachment the property of the municipality which is held for and devoted to public use, no matter how lax the municipal authorities may have been in asserting the rights of the public."

In keeping with this and the weight of authority...