Sappington v. Bd. of Com'Rs of Jefferson Cnty.

• Court: Oklahoma Supreme Court
• Writing for the Court: BENNETT, C.
• Citation: Sappington v. Bd. of Com'Rs of Jefferson Cnty., 1928 OK 655, 273 P. 274, 134 Okla. 253 (Okla. 1928)
• Decision Date: 13 November 1928
• Docket Number: Case Number: 18637
• Parties: SAPPINGTON, County Treas., v. BOARD OF COM'RS OF JEFFERSON COUNTY et al.

1928 OK 655

273 P. 274

134 Okla. 253

SAPPINGTON, County Treas., v. BOARD OF COM'RS OF JEFFERSON COUNTY et al.

Case Number: 18637

Supreme Court of Oklahoma

Decided: November 13, 1928

Syllabus

¶0 1. Limitation of Actions--Action on Township Warrants Held Barred Five Years After Tax Collected for Payment.

In a suit by a county treasurer as custodian of the sinking funds of the common school districts of his county against the board of county commissioners of said county as ex-officio officers of a certain township in said county, and also against said township for the collection of certain township warrants issued by said township, which were subsequently purchased by said county treasurer out of said sinking funds, and where, following the issuance of such warrants, a sufficient tax was properly levied and collected for the payment thereof, but the county treasurer used the funds so collected to retire subsequent warrants, and where there is no proof in the case as to when said money was actually diverted, nor for what purpose, nor as to whether or not a call was ever made for the warrants sought to be collected, nor whether or not there are moneys in the treasury sufficient to pay same, and where more than five years elapsed after the collection of such tax before suit to recover upon said warrants was filed, it is not error for the trial court to hold that the action on the warrants is barred.

2. Same--Statute Begins to Run Against Action on Municipal Warrants from Time Funds Are Available for Payment.

In a suit to enforce the collection of municipal warrants the statute of limitations begins to run from the time a sum sufficient in amount and properly applicable to the payment thereof has been collected and provided for their liquidation.

Harper & Dillard, for plaintiff in error.

Robert R. Pruet, for defendants in error.

BENNETT, C.

¶1 Plaintiff in error was plaintiff, and defendants in error were defendants in trial court, and they will be referred to as such plaintiff and defendants as they there appeared.

¶2 May 25, 1926, plaintiff filed suit in district court of Jefferson county, Okla., against defendants, alleging, in substance, that plaintiff is county treasurer of Jefferson county, Okla. and is custodian of the sinking funds belonging to the various common school districts of said county with exclusive power to control and invest the same; that defendants Tom Dorsett, D. A. Cathy and A. L. Duncan are county commissioners of said county, and, as such, are ex-officio officers of the various townships of said county, with control over disbursements of the various funds of said county, and that Patterson township is a township of said county; that during the two fiscal years 1918-19 and 1919-20, the then county treasurer of said county invested part of the sinking funds of the common school districts of said county in certain township warrants, numbered 18, 20, 24, and 29 and 3 to 43, inclusive. The first four warrants were purchased in the fiscal year 1918-19, the remainder in the fiscal year 1919-20, and all of said warrants were issued upon verified claims against estimates which had been approved and allowed for said Patterson township for the said respective fiscal years. There were at the time of issuance unexpended balances in said township fund. Tabulated statements showing in detail the number of said warrants, their total value, accrued interest thereon, the bonded indebtedness of the township, the judgments and other amounts due thereby for said fiscal years, were attached to and made parts of the petition and marked exhibits "A" and "B"; that the total amount due on the said first four warrants, principal and interest, was $ 103 53, and the amount, principal and interest, due on the remaining warrants was $ 2,265.11.

¶3 Defendants filed a general denial, and also special demurrer, on the ground that the claims of plaintiff were barred by the statute of limitations. The court overruled defendants' demurrer, and thereafter they filed answer, which is first a general denial, except an admission that the parties above named are officers of Jefferson county, as alleged in the petition, and that for each of the two fiscal years mentioned, an estimate was made for said Patterson township; that said estimate was approved, and a levy made to raise the fund, and that by reason whereof a fund sufficient was provided and paid in and to the treasurer to pay said warrants, but that said fund so provided and raised was diverted to another and different purpose; that more than five years have elapsed since the making of said levy and collection, and since said warrants were issued and registered, and that, if said warrants were ever a valid indebtedness, which the defendants do not admit, they are now barred by the statute of limitations.

¶4 By agreement, the cause was tried to the court without a jury, and upon the facts disclosed in the following stipulation:

"It is stipulated and agreed as follows: That W. C. Sappington is the duly elected, qualified and acting county treasurer of Jefferson county, Okla., and as such is the officer having the care and custody of the funds of the common school district of Jefferson county, Okla."

"That for the fiscal year 1918 and 1919, an estimate was made and approved for said township in the sum of $ 2,775, and against said estimate warrants were issued in the sum of $ 2,773.75."

"That warrant No. 18, registered 9-2-08 for $ 4; warrant No. 20, 9-2-18, $ 11.81; warrant No. 24, 10-7-18, $ 12, and warrant No. 29, $ 36 95, registered 11-4-1918, are at this time held as investments in the common school sinking fund for said Jefferson county and have never been retired."

"That for the fiscal year 1918 and 1919 for said township taxes have been collected in the sum of $ 3,061.96, and of this amount $ 3,005.27 was collected prior to January 1st, 1920."

"That for the year 1918-1919, there were issued warrants numbers 1 to 74, inclusive, and that warrants issued subsequent to the above-mentioned warrants and registered subsequent thereto were paid in amounts greater than the amount of the warrants above mentioned."

"Second Cause of Action."

"That for the fiscal year 1919 and 1920, an estimate was made and approved for said township in the sum of $ 2,627.33 and against said estimate warrants were issued in the sum of $ 2,613.58."

"That warrants Nos. 3, 13, 14, 16, 19, 21, 22, 23, 26, 29, 30, 34, 35, 36, 39, 41, 42, 43, as shown by exhibit 'A' attached hereto in the total sum registered in the day and dates shown by exhibit are at this time held as investments in the common school sinking fund for said county, and have never been retired."

"That for the year 1919-1920 taxes have been collected in the sum of $ 2,947.63, and of this amount $ 2,800.47 was collected by July 1, 1920."

"That for said year there were issued 71 warrants and warrants 45 to 71, inclusive, were registered subsequent to those pleaded in this action and said warrants mentioned were not paid; that the total amount of warrants issued subsequent and paid prior thereto was $ ."

"That the financial statement of said township filed at the end of the fiscal year 1919-1920 shows a surplus of $ 1,200.89."

¶5 Upon consideration of the pleadings and stipulation, the court found for defendants upon the ground that plaintiff's causes of action were barred, and plaintiff, after his motion for new trial was overruled, brings the case here for review.

¶6 It will be observed that these warrants were issued to individuals and later purchased by the county, and that the validity of the warrants when issued is not questioned. It clearly appears that proper levies were made and sufficient taxes thereunder collected to pay off said warrants, but that the money, when raised, was not used for that purpose, but that warrants subsequent in date and in an amount in excess of that claimed by plaintiff were actually paid.

¶7 It further appears from the admitted facts that more than five years elapsed from and after the collection of these moneys by the county treasurer before the institution of this action.

¶8 As we see it, there is presented for our determination one proposition of law: Did the statute of limitations bar plaintiff's action under the facts? The determination of this main proposition presents to us the following questions: (1) Does the statute of limitations run against municipal warrants? (2) If so, when does the statute of limitations begin to run? (3) Is a township warrant purchased by a county out of its sinking fund and sought to be enforced by it subject to the statutes of limitations?

¶9 Taking the above inquiries in their order: Wood on Limitations (4th Ed.) vol. 1, par. 53, says:

"The maxim nullum tempus occurrit regi only applies in favor of the sovereign power, and has no application to municipal corporations deriving their powers from the sovereign, although their powers in a limited sense are governmental. Thus the statute runs for or against towns and cities (Citing Cincinnati v. Evans, 5 Ohio St. 594; Lane v. Kennedy, 13 Ohio St. 42; Cincinnati v. First Presbyterian Church, 8 Ohio 298, 32 Am. Dec. 718; Conyngham School Dist. v. Columbia Co. (Pa.) 6 Leg. Gaz. 26; School Directors of Goerges, 50 Mo. 194; Kennebunk v. Smith, 21 Me. 445; Gibson v. Chouteau, 80 U.S. 92, (13 Wall. 92, 20 L. Ed. 534; City of Alton v. Illinois Trans, etc., Co., 12 Ill. 38, 52 Am. Dec. 479) and also for or against counties (citing County of St. Charles v. Powell, 22 Mo. 525, 66 Am. Dec. 627; Evans v. Erie County, 66 P. 222; Baker v. Johnson Co., 33 Iowa 151; Armstrong v. Dalton, 15 N.C. (4 Dev.) 568; County of Lancaster v. Brinthall, 29 Pa. 38) in the same manner as it does for and against individuals." (Citing Boone County v. Burlington & Mo. River R. Co., 139 U.S. 684, 693. 11 S. Ct. 687, 35 L. Ed. 319; Hammond v. Shepard, 186 Ill. 235, 57 N.E. 867; Arapahoe Village v. Albee, 24 Neb. 242, 38 N.W. 737, 8 Am. St. Rep. 202, and note.)"

¶10 In 17...