City of Bisbee v. Cochise County, Civil 3831

• Decision Date: 18 October 1937
• Docket Number: Civil 3831
• Citation: 72 P.2d 439,50 Ariz. 360
• Parties: CITY OF BISBEE, a Municipal Corporation, Appellant, v. COCHISE COUNTY, DANIEL S. KITCHEL, as Treasurer and Ex-officio Tax Collector of Cochise County, and JOHN HILD, HARLIE COX and JOHN MURPHY, as the Board of Supervisors of Cochise County, Appellees
• Court: Arizona Supreme Court

72 P.2d 439

50 Ariz. 360

CITY OF BISBEE, a Municipal Corporation, Appellant, v. COCHISE COUNTY, DANIEL S. KITCHEL, as Treasurer and Ex-officio Tax Collector of Cochise County, and JOHN HILD, HARLIE COX and JOHN MURPHY, as the Board of Supervisors of Cochise County, Appellees

Civil No. 3831

Supreme Court of Arizona

October 18, 1937

APPEAL from a judgment of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Judgment reversed and cause remanded with instructions.

Mr James T. Gentry and Mr. W. G. Gilmore, for Appellant.

Mr Frank E. Thomas, County Attorney, and Mr. Geo. M. Roark, his Deputy, for Appellees.

OPINION

LOCKWOOD, J.

The City of Bisbee, a municipal corporation, hereinafter called plaintiff, filed suit against the county of Cochise, Daniel S. Kitchel, as treasurer and ex-officio tax collector of the county, and the members of the board of supervisors of said county, to recover certain interest penalties, and fees on delinquent taxes levied by the plaintiff for the years 1918 to 1930, inclusive. It was alleged that under the law the county treasurer of Cochise County was made the agent of plaintiff to collect and receive all city taxes due, and that the various county treasurers had collected as penalties and fees on delinquent taxes accruing to plaintiff during the years 1918 to 1929, inclusive, $2,730.86, together with an unknown amount up to June 13, 1931, but had failed and refused to pay the same to plaintiff, and had deposited the money in the general fund of Cochise County. The suit asked that a writ of mandamus issue compelling the payment of the sum mentioned to plaintiff, together with any further payments on delinquent taxes that might have been retained by the county treasurer up to June 13, 1931.

The defendants interposed a demurrer based on four grounds, (a) that the complaint did not state facts authorizing the issuance of a writ of mandamus, (b) that it did not state facts constituting a cause of action, (c) that the indebtedness was barred by the statute of limitations, and (d) that it did not allege that a demand, such as the law required, was presented to and rejected by the board of supervisors. The court sustained the demurrer, and, judgment being rendered against plaintiff, dismissing the action, an appeal was taken to this court.

In the case of City of Bisbee v. Cochise County, 44 Ariz. 233, 36 P.2d 559, we held that the complaint did state a cause of action against the county treasurer of Cochise County at the time the suit was filed, for the reason that the plaintiff under the law was entitled to the money sued for and the presumption of law was that any funds illegally retained by any county treasurer had passed into the hands of the current treasurer and, therefore, the treasurer at the time the suit was brought was the proper person to sue, but held that the county itself and the supervisors were not proper parties because, under the allegations of the complaint, the money in question was a trust fund belonging to the plaintiff, and not to the county, and was, therefore, never under the jurisdiction of the supervisors.

It was further urged that the claim was barred by the statute of limitations, being section 2058, Revised Code 1928, on the ground that it was a liability created by statute, and that any actions on such liability must be brought within one year. We expressly declined to pass upon the question as to whether the statute of limitations in general applied to municipal corporations, in the absence of an explicit statement by the legislature that it did, for the reason that, since it was pleaded the money in question was held as an express trust, the statute did not begin to run until the trustee had explicitly called to the attention of the cestui que trust that he had repudiated the trust, and no such notice was set up in the complaint, and the case was sent back with instructions to overrule the demurrer to the complaint so far as the county treasurer was concerned, and to proceed to trial on the issues presented thereby. A motion was thereafter made by plaintiff to substitute in place of Daniel S. Kitchel, Carl Gordner, who had in the interim become the duly elected, qualified, and acting county treasurer and ex-officio tax collector of Cochise County, which motion was granted. Gordner Filed various pleas to the jurisdiction of the court and in bar of the action, and the case was then tried on its merits. The evidence, taken in the strongest manner in support of the judgment, in which manner of course we must take it, shows that the various county treasurers of Cochise County from 1918 to June 12, 1931, had collected as penalties upon delinquent city taxes due plaintiff the sum of $2,928.42, which had never been paid to plaintiff; that at some time prior to December 31, 1926, a demand was made upon the then county treasurer by a representative of plaintiff for the payment of that portion of the fees and penalties above specified then due, and city was informed that the county claimed those fees as its own and had applied them to county purposes. It further appears that the fees in question were by all of the county treasurers placed in the general fund of Cochise County and commingled therewith, and that at the time Gordner took over the duties of county treasurer, and at all times up to the trial of the suit, the balance in the general fund of Cochise County was inadequate to pay outstanding registered warrants on said fund, and that the evidence did not show just how much of the amount in question had been collected after June 14, 1930. The trial court held from these facts, as a conclusion of law, that the statute of limitations had run against the plaintiff as to all of the amount involved collected by the county treasurer up to the date last stated, and that there was no statute authorizing the substitution of Gordner for Kitchel in an action of the nature of the present one, and that he was entitled to be discharged as defendant, and, upon these conclusions of law, rendered judgment against the plaintiff and in favor of the defendant Gordner, he being the only one remaining in the action.

In the previous appeal we held that under the allegations of the complaint the amount in question was a special trust fund held by a trustee of an express trust, and that since it did not appear the trustee had ever repudiated the trust until within a year of the time the action was commenced, section 2058, supra, did not apply, expressly reserving the question as to whether, under any circumstances, any statute of limitations runs against a plaintiff in an action of this nature. Since the evidence upon the trial was sufficient to sustain the trial court in finding that the trustee did repudiate the trust prior to December 31, 1926, section 2058, supra, does apply to all funds collected before June 14, 1930, if statutes of limitations apply at all to municipal corporations like the plaintiff in actions of this nature.

The first question before us then is whether our statutes of limitations apply at all in an action by one municipal corporation to collect from another such corporation part of its money raised by taxation and held by the latter corporation without authority of law. There is a great diversity of authority upon this question. The general rule of law, of course, is nullum tempus occurrit regi, and, where the sovereign state is prosecuting a suit solely for its own benefit in its official capacity, statutes of limitations do not run against it, unless the legislative authority has specially and specifically provided that they do. 37 C.J. 711, and cases cited. When, however, the action is not brought by nor for the benefit of the state itself, but by and for the benefit of one of its municipal corporations, the authorities are in hopeless conflict. It is quite generally held that so far as contracts of such corporations or mere private rights pertaining to them are concerned, they, like private citizens, may plead or have pleaded against them the appropriate statute of limitations. City of Alton v. Illinois Transp. Co., 12 Ill. 38, 52 Am. Dec. 479; Chicago v. Dunham Towing Co., 246 Ill. 29, 92 N.E. 566, 32 L.R.A. (N.S.) 245, 20 Ann. Cas. 426. But when the action is one involving public rights pertaining to the people of the state in general, and not solely to the private rights of a particular municipal corporation, we find no such harmony. It would be of no particular value to cite and review all of the cases in which this matter has been discussed. We think it sufficient to consider a very few of the leading ones and their reasoning. Typical of the one view is the case of Brown v. Board of Education, 148 Okl. 97, 298 P. 249, 253. Therein the board of education of the City of Duncan brought suit against the county treasurer to recover certain money which it was alleged had been received by the county and which, by general state law, it was the duty of the county to pay over to the board. The court recognized the great diversity of decisions in regard to this point, and, after citing many of them, said:

"Clearly if the defendant were an individual, the statute of limitations could be successfully invoked as a defense against claims arising more than three years prior to the institution of the suit. We fail to discover any reason or logic why the same application of the statute of limitations cannot be invoked in this case. In our judgment, it is more necessary that the statute of limitations be applied in an action against a county than in case of an individual, for...