Town of Mount Dora v. Green

• Decision Date: 11 September 1934
• Citation: 158 So. 131,117 Fla. 385
• Court: Florida Supreme Court
• Parties: TOWN OF MOUNT DORA v. GREEN.

158 So. 131

117 Fla. 385

TOWN OF MOUNT DORA v. GREEN.

Florida Supreme Court

September 11, 1934

Rehearing Denied Nov. 7, 1934.

En Banc.

Suit by Luther C. Green against the Town of Mount Dora. Decree for complainant, and respondent appeals.

Reversed with directions. Appeal from Circuit Court Lake County; J. C. B. Koonce, judge.

COUNSEL

Shackleford Ivy, Farrior & Shannon and Robert W. Shackleford, all of Tampa, and Thomas H. Cooley, of Mt. Dora, for appellant.

Macfarlane Pettingill, Macfarlane & Fowler, of Tampa, for appellee on rehearing.

OPINION

BUFORD Justice.

Luther C. Green filed a bill of complaint, the purpose of which was to enjoin the municipality of Mount Dora, Fla., from setting up or pleading the statute of limitations as contained in the charter of the town as a defense in an action at law brought by the said Green to recover damages for injuries received by reason of the alleged negligence of such municipality.

The particular section of the charter, the benefits of which this suit was instituted to prevent the municipality from deriving the advantage of, was section 15 of the Charter Act, which was chapter 10866 of the Special Acts of 1925, to wit:

'That suits on all causes of action of whatsoever kind or nature, accruing against the Town of Mount Dora, shall be instituted within twelve months after the cause of action accrues.'

It was alleged in the bill of complaint that action at law was not filed within twelve months after the cause of action accrued, but it was alleged that the suit was not filed within the twelve months because of certain negotiations and representations which were carried on between plaintiff in that suit and one Lamoreux, who was a local agent of New Amsterdam Casualty Company, which company was bound by the terms of a policy of insurance issued by it to the town of Mount Dora to indemnify the town of Mount Dora against any liability it might sustain by reason of inflicting personal injuries by negligence, and that in connection with this incident the said Lamoreux acted as the agent and representative of the town of Mount Dora. The theory of the suit was, and is, that the town of Mount Dora was estopped from setting up the statute of limitations contained in its charter as a defense against this cause of action because of the representations and negotiations made and entered into by and between the injured person and Lamoreux, the agent of the municipality.

Much appears in the record and in the brief filed by the appellant concerning what Lamoreux did, or did not do, and concerning the extent of his authority as agent for the municipality or as to whether or not he was an agent of the municipality.

A number of questions of law are presented for our determination, but we think there is one controlling question presented, and that it is not necessary to discuss any others attempted to be presented.

The controlling question presented here is whether or not an agent of a municipality, without being thereunto authorized by a statute, may by express agreement or by conduct waive the right of the municipality to interpose its defense of statutory limitation against the enforcement of a cause of action, or, in other words, whether or not a municipality may be estopped from pleading the statute of limitations by reason of the conduct or express agreement of an agent of limited authority whose action in that connection is not specifically authorized by statute.

There is serious doubt in our minds as to whether or not the statutory governing authority of a municipality may by official action in that regard waive the right to plead the statute of limitations set up in the charter where the right is only permissive, unless the right to so waive the statute of limitation be authorized by statute. However, that question is not presented here and we do not determine it.

It is clear to us, however, that no conduct of any person or persons possessing less authority than the governing power of the municipality may by express agreement or by conduct, unless thereunto specifically authorized by statute, waive the duty of the municipality to plead the statute of limitations where the statute is mandatory.

It may be observed that the charter of a municipality is to the municipality what the Constitution is to the state. In a legislative charter the state both grants and withholds powers to and from the municipality and by its provisions protects and safeguards the rights of the public as well as of the individuals who may be affected.

In the charter provision here under consideration, the Legislature prescribed a mandatory condition to be observed by those who might seek to enforce claims by suits against the municipality. One purpose was to protect the public as represented by citizens and taxpayers of the municipality from the expense incident to the defense of stale claims.

This mandatory provision may not be respected or ignored at the will of the municipal officers and agents. It may not be set aside to favor some and invoked to hinder others but it is the controlling law and it is the duty of the municipality to invoke it in all cases. That duty cannot be waived or its performance estopped by the conduct of an officer or agent without legislative authority.

A mandatory statute of limitations and a mandatory requirement of presentation of notice as a condition precedent to the right to maintain an action stand on much the same ground.

McQuillin, in his treatise on Municipal Corporations, vol. 6, par. 2889, referring to requirements that notice be given as a condition precedent to the right to maintain the action, says:

'The waiver of the requirement is not sanctioned, although certain defects in the notice given may be waived, as contradistinguished from waiver of absence of notice. The general rule is that even the municipality itself cannot waive a compliance with such a requirement, although as to the latter the authorities are conflicting. Plaintiff's submission to an examination and filing the results with the corporation counsel it has been held, is not a waiver or substitute for the written notice required by law. And knowledge of the facts relating to the injury, it has been held, will not avail a plaintiff as a waiver of the condition precedent, namely, sufficient written notice as the law requires.'

In Trowbridge v. Schmidt, reported in 82 Miss. 475, 34 So. 84, the Supreme Court of Mississippi said:

'We have a statute (Code 1892, § 2755) as follows: '2755 (2685). Completion of Limitation Extinguishes Right. The completion of the period of limitation herein prescribed to bar any action, shall defeat and extinguish the right as well as the remedy; but the former legal obligation shall be a sufficient consideration to uphold a new promise based thereon.' We find the following in Dillon on Municipal Corporations, vol. 1 (4th Ed.) § 504 (412): 'Defenses. A municipal corporation is not estopped, after a warrant upon its treasury has been issued, to set up the defense of ultra vires or fraud or want or failure of consideration. And it may maintain a bill in equity to cancel warrants illegally issued. Taxpayers may enjoin the issue of illegal warrants of scrip.' The italics are those of the text. It is indisputable that a municipal board cannot lawfully give away public money. It is certain, also, that a former liability extinguished by the bar of the statute of limitations is no debt. It follows that paying it is giving away public money, and this is ultra vires, and the treasurer may refuse to pay it. Files v. McWilliams, 49 Miss. 578; Klein v. Board, 51 Miss. 878.

'No question of compromise payment appears in these pleadings. It will be time enough to settle that when it comes. It does appear, however, that a case is pending in the circuit court, and was when the allowance was made by the board, involving the very question of the bar of the statute of limitations here set up. Board v. Arrghi, 51 Miss. 667. There is no similarity between the case before us and the case of a claim within the power of the board to pay, and duly audited and allowed. It is the plain duty of a county or municipal board to plead the statute of limitations when it can, under the facts. Such boards are the people's trustee.'

In Spring Canyon Coal Co. v. Industrial Commission, 58 Utah, 608, 201 P. 173, 178, the Supreme Court of Utah said:

'No doubt any person who has the right to interpose the statute of limitations may waive such right. To do that, however ordinarily at least, implies that the right to waive is personal, and that in waiving it the person doing so acts in a personal capacity and in his own right. In this case, for example, the company, one of the plaintiffs, could waive the right to interpose the statute of limitations as a defense if it chose to do so. It could, however, only waive the right so far as it affected its own rights. Whether the State Insurance Fund could waive the benefit of the statute of limitations presents a different question. That fund is administered by the Industrial Commission as public officials, and hence is administered by them as trustees and not in their own right. The question therefore arises, May the statute of limitations be waived by those officials? It manifestly is their duty to administer the fund in accordance with law, and so as to treat all alike who have a right to participate in that fund. The people in their sovereign capacity have an interest in...