Burns v. Board of Sup'rs of Stafford County

• Decision Date: 27 April 1984
• Docket Number: No. 810650,810650
• Citation: 227 Va. 354,315 S.E.2d 856
• Parties: B. Calvin BURNS, et al., etc. v. BOARD OF SUPERVISORS OF STAFFORD COUNTY. Record
• Court: Virginia Supreme Court

Page 856

315 S.E.2d 856

227 Va. 354

B. Calvin BURNS, et al., etc. v. BOARD OF SUPERVISORS OF STAFFORD COUNTY.

Record No. 810650.

Supreme Court of Virginia.

April 27, 1984.

Richard R. Nageotte, Woodbridge (Nageotte, Borinsky & Zelnick, Woodbridge, on brief), for appellants.

William H. Harris, Fredericksburg (Harris & Harris, Fredericksburg, on brief), for appellee.

Present: All the Justices.

THOMAS, Justice.

This appeal focuses primarily upon the question whether a statute of limitations applies to the governing body of a sanitary district. In response to a motion for judgment, the Stafford County Board of Supervisors counterclaimed on behalf of the Aquia Sanitary District to recover money allegedly owed for water and sewer services, and for certain connection fees. According to the Board, from October 20, 1969, through December 31, 1972, Staffordboro Enterprises, a partnership composed of B. Calvin Burns and Ethel Johnson, paid only a portion of the money it owed for water and sewer services. In addition, the Board claimed that Staffordboro owed connection fees which had never been paid. The case was tried to a jury on the basis of the Board's counterclaim. ¹ The jury returned a verdict in favor of the Board in the amount of $100,500.00 with interest thereon at 6% from October 20, 1969, to December 31, 1977.

The counterclaim, which had been filed on November 15, 1977, alleged breach of contract. However, Staffordboro contended that the bulk of the claim was barred by a five-year statute of limitations. According to Staffordboro, since the Board sought damages for the time period from October 20, 1969, through December 31, 1972, and since the Board's counterclaim was filed November 15, 1977, then all monies, except those owed from November 15, 1972, through December 31, 1972, were unrecoverable.

The Board contended, on the strength of Code § 8-35, ² that its claim was not barred by the statute of limitations. That provision reads as follows:

No statute of limitations which shall not in express terms apply to the Commonwealth shall be deemed a bar to any proceeding by or on behalf of the same. This section shall not, however, apply to agencies of the State incorporated for charitable or educational purposes.

This provision is a codification of the ancient maxim, nullum tempus occurit regi, that is, "time does not run against the king." But the statute goes further than the ancient rule. Had the provision concluded with the first sentence, its meaning would have been clear for, by its terms, only the Commonwealth itself would be exempt from the bar of a statute of limitations, unless otherwise expressly stated. The second sentence is the source of additional meaning and is thus central to this appeal.

The second sentence excludes two types of state agencies from the saving grace of the provision: state agencies incorporated for charitable purposes and state agencies incorporated for educational purposes. Because the legislature specifically excluded these two categories of state agencies, it appears that it intended to include other state agencies. The question here is whether the Board, in its capacity as governing body of the sanitary district, ³ is one of the agencies which the legislature intended to protect.

The precise issue raised in this appeal has not heretofore been decided by this Court. However, in Johnson v. Black, 103 Va. 477, 49 S.E. 633 (1905), we held that the applicable statute of limitations ran against a county. Johnson involved a suit by certain taxpayers of Norfolk County against the Norfolk County Board of Supervisors and others to compel the restoration to the county treasury of certain public monies which, according to the taxpayers, had been illegally and fraudulently withdrawn. The taxpayers contended that the members of the Board of Supervisors had paid themselves more than they were authorized by law to pay themselves. The trial court ruled that plaintiffs stated a cause of action, but held that the defense of the statute of limitations was good as to any defendant who had not drawn such illegal compensation within three years of the date of the institution of the suit. On appeal, we affirmed. We concluded that though the suit was brought in the name of certain taxpayers, it had to be treated as a suit brought by the county. But even though we analyzed the case as if it were one brought by the county itself we held that the applicable statute of limitations barred recovery. We wrote as follows in that regard:

This is a civil proceeding for the recovery of certain sums of money claimed to be due by the appellants to the county of Norfolk, and the county is practically the complainant. The appellants are only constructive or implied trustees, and in such cases it seems to be well settled that the bar of the statute applies.

The right expressed in the maxim "nullum tempus occurit regi" is an attribute of sovereignty and cannot be invoked by counties or other subdivisions of the State. As to such sub-divisions of the State the statute runs in the same manner and to the same extent as against natural persons.

103 Va. at 492, 49 S.E. at 638 (emphasis added). The rationale of Johnson is that a county is not one and the same as the sovereign with regard to the applicability of statutes of limitation. The import of Johnson is that the immunity of governmental bodies from the statutes of limitations is strictly limited.

Substantial policy reasons argue in favor of the view this Court espoused in Johnson. Professor William D. Ferguson in his book, The Statutes of Limitation Saving Statutes (1978), writes that such statutes are of ancient origin and date back to England in 1623. He identifies the three purposes usually advanced as reasons for such statutes: protection of the public, protection of the plaintiff, and protection of the defendant. He concludes that the primary purpose of the statute was to protect defendants. In this regard he writes as follows:

The defendant, unlike the plaintiff, had no control over the bringing of the action and thus no chance to avoid the risk of the death of witnesses or the loss of evidence.

....

As a matter of fairness to the defendant, he ought to receive notice that a claim was being made against him to enable him to do what he could to guard against loss of evidence. It would be more difficult to do justice between plaintiff and defendant where plaintiff could conserve his evidence and wait until the defendant's evidence was lost.

Based upon this analysis, it logically appears that the primary purpose of the statutes was to protect defendant against loss of witnesses and evidence and to protect his acts in reasonable reliance on plaintiff's inaction. The public interest was furthered by the protection of the defendant's interest and should not be permitted to override those interests. The interest in fair and equal justice could be served only by assuring defendants that suit would be commenced before witnesses and evidence were lost.

W. Ferguson, The Statutes of Limitation Saving Statutes (1978) at 42-43 (emphasis added). In short, statutes of limitation serve an important and salutary purpose. Without them, defendants could find themselves at the mercy of unscrupulous plaintiffs who hoard evidence that supports their position while waiting for their prospective opponents to discard evidence that would help make a defense. In light of the policy that surrounds statutes of limitation, the bar of such statutes should not be lifted unless the legislature makes unmistakably clear that such is to occur in a given case. Where there exists any doubt, it should be resolved in favor of the operation of the statute of limitations.

In our opinion, Johnson disposes of the statute of limitations issue in this appeal. If a county is not entitled to ignore a statute of limitations, an entity created by that county can have no greater authority to do so. In order to rule in favor of the Board on this issue we would have to overrule Johnson. This we are unwilling to do.

Our general reluctance to overrule longstanding precedents is fortified in this case by the fact that we have not been asked to overrule Johnson. The Board neither distinguished Johnson nor explained why it should not be treated as law. It simply argued that Johnson is a "maverick case" and that it predates Code § 8-35 and its predecessor provision, (Code 1919, § 5829). In making this assertion, the Board failed to cite a single case in which this Court has held a county or other governmental entity exempt from the operation of a statute of limitations.

Johnson is not a maverick case. The fact that it is the only Virginia case concerning the application of statutes of limitation to a county does not make it a maverick. It is faithful to the policy judgment that statutes of limitation serve the public good. Consequently, it quite reasonably seeks to restrict rather than expand the number of entities authorized to bring suit on the basis of stale claims.

Nor can Johnson be disregarded because it predates Code § 8-35 and its predecessor. In making this argument the Board has things turned the "wrong way 'round." Contrary to the Board's argument, the fact that Johnson predates the code provision does not weaken Johnson; it strengthens it. This is so because where the General Assembly acts in an area in which this Court has already spoken, it is presumed to know the law as the Court has stated it and to acquiesce therein. See Jones Construction Co. v. Martin, 198 Va. 370, 94 S.E.2d 202 (1956); Seymour and Burford Corp. v. Richardson, 194 Va. 709, 75 S.E.2d 77 (1953); McFadden v. McNorton, 193 Va. 455, 69 S.E.2d 445 (1952); Powers v. County School Board, 148 Va. 661, 139 S.E. 262 (1927). It follows therefore, that where the General Assembly intends to countermand a decision of this Court it must do so explicitly. In this case, the legislature had the benefit of Johnson when...