Board of County Com'rs v. Good Twp.

GIBSON, J. Oklahoma county brought this suit against Good township of Harper county to recover principal and interest due on certain bridge bonds issued by defendant, and maturing October 14, 1926. The bonds were purchased with county sinking fund. Defendant pleaded the five-year statute of limitations, and the trial court sustained the plea. Plaintiff sought by certain allegations and proof to avoid the alleged limitation, and in addition thereto asserted the county’s immunity from the operation of the statute. As we view the record, our determination of the latter question will fully dispose of the appeal. It is insisted that the investment of the county’s sinking fund in the bonds in question was clearly a public right or duty as distinguished from a mere so-called private right, thus saving said county from the operation of the statute of limitations. Herndon v. Board of Com’rs, etc., 158 Okla. 14, 11 P. 2d 939. Plaintiff says that by reason of certain constitutional and statutory provisions the sinking fund was impressed with a public trust,' and that the investment thereof was a matter in which the state at large was interested and not merely of local interest to the county, and therefore involved a public right as distinguished from a private right. The constitutional provisions referred to are sections 26 and 28, article 10, which provide for the levy and collection of taxes for a sinking fund to retire bonded indebtedness. The statutes referred to are sections 5915 and 5917, O. S. 1931, 62 Okla. Stat. Ann. §§ 432, 434, prescribing the manner in which sinking funds may be invested when not presently needed to retire indebtedness, and providing a penalty against county and municipal treasurers for failure to invest such fund. Plaintiff says that these laws stamp the investment with a public interest. If this court is to continue to recognize a distinction between a public and private right of a political subdivision of the state with reference to the application of the statute of limitations thereto, the distinction when drawn should be bolstered by every reasonable presumption favorable to government immunity from the limitation. This we say for the reason that the general rule has been to exempt the state from the operation of the statute in the absence of specific permissive act of the Legislature (State ex rel. Freeling v. Smith, 77 Okla. 277, 188 P. 96); and that immunity ordinarily applies to the political subdivisions. Foote v. Town of Watonga, 37 Okla. 43, 130 P. 597. To apply the statute in cases such as this is a drastic exception to the general rule. As said above, it is applied when the right sought to be enforced is a *152 private one as distinguished from a public right. It may readily be seen that the line of demarcation between such rights is invariably indistinct and uncertain. Therefore the presumptions should favor the sovereignty of the government and all doubts resolved to the end that all government rights are public rights. Defendant says' that the plaintiff is asserting merely a private right in this action; that the collection of invested sinking fund is a matter of interest to the county alone, and not to the general public of the state at large. This distinction, says defendant, is agreeable with that drawn in the Herndon Case, above, wherein the court said: “The test as to whether a matter is a public right or a private right appears to be whether the right is such as to affect the public generally or to merely affect a class of individuals within the political subdivision.” Perhaps the inhabitants of the county alone are primarily interested in the collection of their investments made out of the sinking fund, but the state has manifested a direct interest in such fund, and has adopted a definite policy of action with relation to the creation, the investment, and the disbursement thereof. If there ever existed a function of government that affected the people at large throughout the state any more than the official handling of the sinking fund of the different counties and municipalities, we are not aware thereof. The state has confined the investment of that fund to the bonds of the United States, the state, and its various subdivisions, and to the warrants of the subdivisions (sec. 5915, O. S. 1931, 62 Okla. Stat. Ann. § 432); and to the payment of bonded indebtedness of the particular municipality and any outstanding judgments against it. Section 5919, O. S. 1931, 62 Okla. Stat. Ann. § 435. County and municipal treasurers are enjoined, at their peril, to invest such fund when not needed presently for the retirement of the bonds for the payment of which the fund was established. Section 5917, O. S. 1931, 62 Okla. Stat. Ann. § 434. The sinking fund is established not only for the payment of public improvements such as courthouses and other public structures which the whole public may enjoy (Herndon Case, supra), but has been inaugurated under the general governmental policy of the state as a business trust fund, to the trustees of which any person from anywhere may resort to transact the business to which that fund is dedicated. It has all the marks of a public trust, the protection of which should be a public right, and immune from the' bar of the statute of limitations. Then, too, if the right to enforce conveyance of realty to be used as courthouse grounds is a public right as held in the Herndon Case, then it seems logical to say that the protection of the funds to pay for such premises is also a public right. In this respect such funds are held for and dedicated to a public use, and the laxity of the public officials in relation thereto will not deprive the municipality of its right to claim immunity from time limitation. This, we say, accords with the holding of this court in Foote v. Town of Watonga, supra, which reads as follows: “The generally accepted doctrine is that the maxim, ‘Nullum tempus occur-rit regi,’ is not restricted in its application to sovereign states or governments, but that its application extends to and includes public rights of all kinds, and that it applies to municipal corporations as trustees of the rights of the public, and protects from invasion and encroachment the property of the municipality which is held for and devoted to public use, no matter how lax the municipal authorities may have been in asserting the rights of the public.” The trial court erred in sustaining the plea of the statute of limitations. It is necessary, therefore, that the judgment be reversed and the cause remanded, with directions to proceed with the trial. RILEY, OSBORN, HURST, and NEFF, JJ., concur. BAYLESS, C. J., WELCH, Y. C. J., and CORN and DAVISON, JJ., dissent.