Bannock County v. Bell

SULLIVAN, J. — This action was brought by Bannock county against the appellant, who was clerk of the district court and ex-officio auditor and recorder of said county for the years 1893 and 1894. The complaint contains two causes of action, one for each of said years. It is alleged in the complaint in the first cause of action that the appellant, as clerk, auditor and recorder of said county, did, on the sixteenth day of January, 1894, present to the board of county commissioners of said county an account for services rendered by the appellant for said county for the year 1893 in his official capacity, amounting to $805.75; that thereafter, on the seventeenth day of January, 1894, said board allowed said account, except for the sum of $52.80, and ordered a warrant drawn in favor of appellant for the sum so allowed to wit, $752.95; and that said warrant was paid by the treasurer of said county. In the *3 fifth paragraph of the complaint is set out an itemized statement of the items alleged to have been illegally, corruptly, and fraudulently allowed, amounting to $410.60, and it is alleged that none of said items were proper charges against said county, and that by reason of the allowance and payment of said claim the appellant became indebted to said county in the sum of $410.60; that demand has been made on appellant to pay the same, and he has refused to do so. For a second cause of action the necessary allegations are made charging appellant with having collected from said county, as clerk, auditor, and recorder thereof, for services rendered during the year 1894, illegal fees to the amount of $329.10. A general demurrer was filed to said complaint and overruled. The answer puts in issue the material allegations of the complaint, and also sets up the statute of limitations. The cause was tried by the court and judgment entered against the appellant for $1,068.81, interest and costs. This appeal is from the judgment, taken within sixty days after the entry thereof. The record contains a bill of exceptions purporting to contain all of the evidence taken on the trial. Several errors are assigned, but, in our view of this ease, it is necessary to notice but one of them. It is contended that the complaint shows on its face that both causes Of action stated therein are and were barred by the statute of limitations. Section 4053, of the Revised Statutes provides that the period within which to commence an action upon a contract, obligation, or liability not founded upon an instrument of writing is four years. Section 4060 of the Revised Statutes provides as follows: "An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued.” Section 4061 of the Revised Statutes provides that the limitations prescribed in chapter 3 of said Revised Statutes apply to the state the same as to private parties. The complaint, on its face, shows that the first cause of action accrued on the seventeenth day of January, 1894, and that the second cause of action arose on the fourteenth day of January, 1895. This action was commenced on the twelfth day of *4 March, 1900, about five years and two months after the last cause of action arose, about one year and two months after the action was barred by the statute of limitations. Under the provisions of either of said sections 4053 or 4060 of the Revised Statutes said action was barred within four years after the cause of action accrued. Under the provisions of section 4061 the statute of limitation applies to the state as well as to private parties. Section 346 of the Code of Civil Procedure of California is the same as section 4061 of the Revised Statutes, each of which provides that the statute of limitations applies to actions brought in the name of the state in the same manner as to actions by private parties. Under the provisions of subdivision 1, section 339, of the Code of Civil Procedure of California, which contains the same provisions as our section 4053, except the limitation is fixed at two years, the supreme court of that state held that when money belonging to the county is received by the county auditor, an action against hirn is barred in two years. (San Luis Obispo Co. v. Farnum, 108 Cal. 567, 41 Pac. 447.) It was held in Board v. Van Slyck, 52 Kan. 622, 35 Pac. 299, that a cause of action for fees not accounted for and wrongfully retained by the county clerk accrues at the end of each quarter, when the allowance of salary is made; and is barred, under the three year statute limitations, if the action is not brought within that period. It was also held that the statutory limitation could not be extended by the failure to demand the payment of the fees collected, as no demand was necessary for fees so illegally retained. In People v. Van Ness, 16 Cal. 121, 18 Pac. 139, the supreme court of California held that the statute of limitations applies to actions brought by the state for sums collected and held by a public officer, which the statute required him to pay into the public treasury. In People v. Melone, 13 Cal. 574, 15 Pac. 294, the supreme court of California held that the statute of limitations applied to the state. That was an action against the Secretary of State to recover fees received by him, which by law he was required to pay over to the state. The following cases hold that the statute of limitations runs against a *5 municipal corporation: In re Opening of Beck Street, 19 Misc. Rep. 571, 44 N. Y. Supp. 1087; In re Opening of Fox Street, 19 Misc. Rep. 571, 44 N. Y. Supp. 1087; Hartman v. Hunter, 56 Ohio, 175, 46 N B. 577; Gaines v. Hot Springs Co., 39 Ark. 262; City of Bedford v. Willard, 133 Ind. 562, 36 Am. St. Rep. 563, 33 N. E. 368; May v. School Dist. 22 Neb. 205, 3 Am. St. Rep. 266, 34 N. W. 377; State v. Dunbar’s Estate, 99 Mich. 99, 57 N. W. 1103. In the opinion in May v. School Dist., supra, the court quotes as follows from Wood on Limitation of Actions: “In Wood on Limitation of Actions, section 53, it is said : "The maxim, “Nullum tempos occurrit regí” (“Lapse of time does not bar the right of the crown”), 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 in the same manner as it does for or against individuals.” It has been suggested that the statute of limitations does not run against a county to recover public money wrongfully withheld by one of its fiducial agents, and that the clerk received said money as such agent. We cannot concede that view, as the whole current of modern authority is to the effect that implied trusts are within the statute, and that the statute begins to run from the time the money was wrongfully received. In a note to section 343 of the Code of Civil Procedure of California, which section is the same as section 4060 of the Revised ¡statutes, it is stated that, “by the whole current of modern’ authorities, implied trusts are withm tne statute, and the statute begins to run from the time the wrong was committed by which the person becomes chargeable as trustee by implication.” To sustain the position that the statute of limitations does not run against a county, counsel for respondent cites: Fremont Co. v. Brandon, 6 Idaho, 482, 56 Pac. 264; Ada Co. v. Gess, 4 Idaho, 611, 43 Pac. 71; Elmore Co. v. Alturas Co., 4 Idaho, 145, 95 Am. St. Rep. 53, 37 Pac. 349; Dunbar v. Board, 5 Idaho, 407, 49 Pac. 409. In the first ease cited this court held that, the defendant being a fiducial agent of the county, and having received money in trust for the county, the statute of limitations d' l not run *6 against the county in an action to recover such money. The statute of limitations of this state is expressly made applicable to the state. It is, therefore, applicable to the counties of the state, and, so far as the case of Fremont Co. v. Brandon holds that said statute does not run against the county, the same is hereby overruled. The other three cases above cited are not in point in the case at bar. The judgment is reversed and remanded, with instructions to sustain the demurrer, and for further proceedings in conformity with the views expressed in this opinion. Costs of this appeal are awarded to the appellant. Stoekslager, J., concurs.