Shackelford v. Pool

RILEY, J. A peremptory writ of mandamus is sought in this original action, to compel Gus Pool, clerk of this court, to refund a balance of a deposit for cost in cause No. 17928, which is an action long since closed, the mandate in that case having issued in the year 19-29. The petitioner also seeks refunds, or an adjudication as a basis for refunds, for all former litigants similaifiy situated. The total amount involved runs into thousands of dollars. The writ is denied. The reason for the denial follows The clerk holds no money subject to the ■payment of the claim presented, for the claim was not made within the time allowed by law. It is true that section 8613, C. O. S. 1921, vests in the clerk authority to withdraw funds from the state treasury, upon voucher, for refund of excessive collections, and authorizes said clerk thereby to make payments for legal claims and charges. However, the legality of such claims or charges and the refund of excessive collections are dependent upon an application therefor within time allowed by law. The question as to whether this claim is legal or otherwise depends upon the facts and the law applicable thereto. The facts stated in the petition are: “That said sum * * * has remained uncalled for more than one year since closing of said cause.” The law applicable is contained in section 78, C. O. S. 1921: “All moneys that shall remain unclaimed or uncalled for in the hands * * * of any * * * state officer or employee for the period of one year shall escheat to the state, and shall forthwith following the close of said one year period be paid into the state treasury. ” The inevitable conclusion under the facts and law is that this claim came too late, and that payment by the clerk was properly denied. We shall consider further the effect of the escheat of the unclaimed balance on deposit with the clerk as provided by the statute last above cited. “No inquest of office or other judicial proceedings is necessary” to escheat property the title to which fails for want of a proper claimant. 21 C. J. 853; State v. Stevenson (Idaho) 55 P. 886. But the title passes by operation of law without court proceedings or inquest in the nature of “office found” as provided by statute in such cases in this state. In re Apostolopolous’ Estate (Utah) 250 P. 469; State v. Smith (Cal.) 12 P. 121. Unless claimant appears and demands the funds within the period fixed by statute, his rights to the property have ceased to exist. People v. Roch (Cal.) 18 P. 407; Estate of Pendergast (Cal.) 76 P. 962. If claimant fails to appear in said time and claim the funds, the same then vest in the state, not strictly by escheat, but by virtue of the effect of the statute. In other words, the claim is barred and claimant has lost his right to claim the refund. Estate of Miner (Cal.) 76 P. 768. See, also, Fuhrer v. State, 55 Ind. 150, wherein .it is held that: “At the end of such period of time the property vests in the state by operation of law.” Scott v. State (Ind.) 134 N. E. 219. Such is the rule in New York. In re Melrose Avenue, 234 N. Y. 48, 136 N. E. 235, 23 A. L. R. 1233. The Supreme Court of the United States considered the type of escheats here involved and recognized with approval the statutes governing them, which in effect provide an escheat ipso facto, or, as that court said: “By mere operation of law.” Hamilton v Brown, 161 U. S. 256, 40 L. Ed. 691. We therefore hold that by virtue of section 78, supra, title to these unclaimed balances vested in the state immediately upon the expiration of' a one-year period. By virtue of section 80, C. O. S. 1921, these funds vested in the state were apportioned and credited to the general revenue fund for the current year. Petitioner cannot rightfully claim that he has been deprived of property without due process of law as inhibited by the state and federal Constitutions (Const. Okla. art. 2, sec. 7, Const. U. S. Amend. 14), for he was in court and he knew, in that he was charged with knowledge of *129 the law, that when his case was finally-closed, unless he asserted his right to refund of deposit fo.r cost within a one-year period, his right thereto would be forever barred and such funds would become general revenue of the state. Since title to the balance on deposit has long since become vested in the state, and since said item has long since been apportioned and has become a part of the general revenue fund of the year 1930, and thus has been expended, it is clear that the item sought to be recovered by this claim is beyond the control of the clerk, and it is now impossible, by law, for the clerk to perform the acts and duties demanded of him in this petition. It is axiomatic that the law will not require the impossible. Lex non cogit non impossibilia. There is another and distinct reason for denial of the writ. This matter was long ago presented to this court by these attorneys, and the right of refund of this particular item was then denied by order of this court and recorded in the ease of Georgianna Smith v. G. W. Hildebrandt, No. 17928. (Dismissed upon stipulation of parties. No opinion.) This former ruling is res adjudicata, and thus the issue now presented was foreclosed' by the order then made. The right to require the .performance of the act is not clear (section 449), and peremptory writ as sought should be denied. It is so ordered. LESTER, C. J., and CULLISON, SWINDALL, ANDREWS, and McNEILL, JJ., concur. KORNEGAY, J., dissents. CLARK, Y. O. J., and HEFNER, J., absent.