State v. City of Aberdeen

• Decision Date: 11 January 1904
• Citation: 74 P. 1022,34 Wash. 61
• Parties: STATE v. CITY OF ABERDEEN.
• Court: Washington Supreme Court

74 P. 1022

34 Wash. 61

STATE v. CITY OF ABERDEEN.

Supreme Court of Washington

January 11, 1904

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by the state against the city of Aberdeen. From a judgment sustaining a demurrer to the first cause of action stated in its complaint, plaintiff appeals. Reversed.

W. B. Stratton, for the State.

E. H Fox, for respondent.

HADLEY J.

The state of Washington instituted this action against the city of Aberdeen, a municipal corporation, to recover a balance alleged to be due the state from said municipality on account of moneys received by it for the issuance of licenses to sell intoxicating liquors. The demand is made under and by virtue of the statute of 1888, as found in section 2934, 1 Ballinger's Ann. Codes & St., which provides that 10 per cent. of the annual liquor license fees paid to the treasurer of an incorporated city or town shall be paid into the general fund of the state treasury. The complaint contains two causes of action. The first alleges that between the 3d day of June, 1890, and the 1st day of September, 1900, the city received as fees for liquor licenses the sum of $39,552.05, all of which, except the sum of $350 paid to the state, it has converted to its own use. Judgment is demanded under the first cause of action for $3,955.20, less $350 paid as aforesaid, the sum demanded being the unpaid balance of 10 per cent. of the total collections during the period named. The second cause of action alleges that between the 31st day of August, 1900, and the 20th day of August 1903, the city collected the sum of $42,450, all of which it has converted to its own use, and judgment is demanded for $4,245, being 10 per cent. of the amount collected within the last-named period. The city demurred to each cause of action on the ground that sufficient facts were not stated to authorize recovery, and to the first cause of action the additional ground of demurrer was interposed that the action was not commenced within the time limited by law. The demurrer was sustained as to the first cause of action, and overruled as to the second. Each party refused to plead further, and judgment was thereupon entered dismissing the first cause of action, and awarding recovery for the amount prayed under the second. The state has appealed from the order sustaining the demurrer as to the first cause of action.

The only question involved is, was the first cause of action barred by the statute of limitations when the suit was begun? Section 4807, 2 Ballinger's Ann. Codes & St., provides as follows: 'The limitations prescribed in this chapter shall apply to actions brought in the name of the state, or any county or other public corporation therein, or for its benefit, in the same manner as to actions by private parties. An action shall be deemed commenced when the complaint is filed.' The above statute was in effect prior to the time any of the collections were made by the respondent city as set forth in the complaint, and it will be observed that by the terms thereof the limitation statutes were specially declared to apply to the state. Under the terms of that statute, at least the principal portion of the amount sought to be recovered under the first cause of action was barred when this action was begun. But by an act of the Legislature of 1903 said section was amended. See Sess. Laws 1903, p. 26, c. 24, § 1. The amending section is as follows 'Section 35 of the Code of Civil Procedure of Washington 1881, the same being section 4807 of Ballinger's Annotated Codes and Statutes of Washington, shall be amended to read as follows: Section 35 (section 4807). The limitations prescribed in this act (chapter) shall apply to actions brought in the name or for the benefit of any county or other municipality or quasi municipality of the state, in the same manner as to actions brought by private parties: provided, that there shall be no limitation to actions brought in the name or for the benefit of the state, and no claim of right predicated upon the lapse of time shall ever be asserted against the state: and further provided, that no previously existing statute of limitation shall be interposed as a defense to any action brought in the name of or for the benefit of the state, although such statute may have run and become fully operative as a defense prior to the adoption of this act, nor shall any cause of action against the state be predicated upon such a statute. An action shall be deemed commenced when the complaint is filed.' It will be seen that the new statute provides that there shall be no limitation to actions brought in the name or for the benefit of the state, and, further, that no previously existing statute of limitation shall be interposed as a defense to an action brought for the benefit of the state, although such statute may have fully run prior to the adoption of the above amendment. Respondent contends that the retroactive features of said amendment violate the provisions of the federal and state Constitutions that no person shall be deprived of property without due process of law. It is urged that the right to plead the statute of limitations when it has once fully run is a vested right, and that the act of 1903 is void because it takes away that right. On the other hand, appellant contends that the right to plead the statute in cases of obligations arising on contracts, express or implied, is merely a remedial one, which may be taken away even after the statute has fully run.

The leading case cited by appellant is Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483. That case holds that the repeal of a statute of limitation of actions on personal debts does not deprive a debtor of his property in violation of the fourteenth amendment to the Constitution of the United States, although the right of action against him is already barred. The opinion discusses authorities and principles extensively, and clearly draws a distinction between vested rights in real and personal property which arise by lapse of time and adverse possession thus acting upon title, and the right to plead the statute of limitation as against a mere personal obligation or debt arising out of a contract express or implied. The following cases cited also hold that the right to plead the statute of limitation as to debts is a mere remedial one, and is not a vested property right. Guiterman v. Wishon, 21 Mont. 458, 54 P. 566; Townsend v. Jemison, 9 How. 407, 13 L.Ed. 194; De Cordova v. Galveston, 4 Tex. 470; Lewis v. Davidson, 51 Tex. 251; Jones v. Jones, 18 Ala. 248. See, also, 10 Rose's Notes on U.S. Rep. pp. 1174, 1175.

It must be conceded that there is substantial conflict of authority as to whether the right to plead the statute of limitations as to debts on contracts between private individuals comes within the classification of vested rights, so as to constitute it a property right within the meaning of the constitutional provisions. Notwithstanding the fact that as eminent a tribunal as the Supreme Court of the United States has held that it is not such, in Campbell v Holt, supra, yet it will be observed by reference to page 1175 of Rose's Notes, cited above, that other courts have not followed that doctrine. See, also, Dunbar v. Boston, etc., R. R., 181 Mass. 383, 63 N.E. 916, in which Chief Justice Holmes distinguished the case then in hand from Campbell v. Holt, and said: 'As yet it is not necessary for us to choose between that decision and the weighty intimations to the contrary in this court and elsewhere.' In notes of volume 19, Am. & Eng. Enc. of Law (2d Ed.) p. 171, will be found a list of cases cited as following Campbell v. Holt, and also an extended list as opposed to the doctrine of that case. While the...