23 S.D. 424 | S.D. | 1909
-Trial was bad in the lower court -upon an 'agr'eed statement of facts, from which it appears that ¡the plaintiff below and respondent here is a city of the third class, situated within the defendant, Turner county; that between the 20th"day of-November, 1894, (and the 1st day. of December, 1906, the' duly elected, qualified, and acting county treasurers of defendant county, as officers thereof, collected from plaintiff the sum of $38,621.85-^1 taxes, as the city tax for the said city, and that the said amount of taxes was paid to the respective treasurers of -said county'by the taxpayers of said city; that at several times- during each year; from November, 1894, to the rst day of December, • 1906, the respective treasurers of. said county- remitted to said city the city taxes so collected during said period, less 4 per cent, of-the total amount of said taxes so collected, which the said treasurers retained &s:a commission for collecting the said taxes; that the total- amount retained. by said treasurers during the said period was $1,544.73, or 4 per cent, of the total amount so collected; that the said treasurers during said period deposited the said sum of $1,544.73, so retained as such commissions, in the special salary fund - of the said county; that out of the said salary fund certain officers’ salaries were paid, and the balance remaining in said fund, at the end of each fiscal year, was deposited by the proper county officer in the general- fund of the county, for the use and benefit of the said county; that on the 4th day of January, 1907, the plaintiff presented to the said county a duly verified account showing the receipts and disbursements of said taxes, and the amount retained by said county as commissions, viz., $1,544.73, being 4 per cent. of-the total tax so collected, and demanded that' said county account for, and pay to, plaintiff city $1,158.54, the difference between 1 per cent, and 4 per cent, of the total tax so collected, and the defendant rejected and disallowed the whole of said demand, (and refused to pay to plaintiff the said $1,158.54, or any part thereof.
The trial court made (findings of fact embracing the foregoing statement of fact. The trial court -also made conclusions of law; the third, fourth, and fifth being as follows: “(3)-That the defendant is made by law. the -agent of the plaintiff to collect, and enforce the collection of, the said taxes, and the relationship ex-
The appellant further contends that, in the event the plaintiff should recove'r the excess of 1 per cent, that had been retained by defendant the portion o.f the said taxes which were collected by the said county treasurers for the period of time between the 20th day of November, 1894, and more than six years prior to the date of the commencement of this action, are barred by the statute of limitations, and that it was errct to render judgment for the full amount for the entire time from November 20, 1894; this action having been commenced on January 10, 1907. In this contention we believe appellant is right. Appellant properly pleaded the statute of limitations as to this portion of plaintiff’s claim. 'It is contended on the par.t' of plaiintiff that inasmuch as the trial court found that the defendant is made by law the agent of the plaintiff to collect the said taxes, and that the relationship between plaintiff and defendant was a fiduciary one, and that said taxes, when collected, were a trust fund in the hands of the defendant, in the execution of an express trust, the statute of limitations will not run. Th|is seems to be the general rule in some jurisdictions where there has been a misappropriation of trust funds; but, even in those jurisdictions, it seems to be held that, where the public officer or municipality retains the money under claim or .color of right,
It will be observed that section 1265, Rev. Pol. Code, provides that the city and school taxes collected T3y the county treasurer shall be paid over to the city treasurer on the first day of every month on demand; and, although the fact that a suit might not be maintainable against the treasurer of the county -before demand made (a question which it is not necessary to decide in this case), stiil that would avail the plaintiff nothing in the case at bar.< “Although a demand may have been necessary before cause of action could accrue, a' party cannot take advantage of his own failure to make a demand in order to prevent the running of the'statute, where the period of limitation has already elapsed. To hold other wise would put it in the power of- the party to destroy the beneficial effect of the statute.” Newsom v. Board of Com’rs, 103 Ind. 526, 3 N. E. 163; 25 Cyc. 1207. And where the demand is a preliminary step referring only to the remedy, and not to the right, the action will be barred if the demand is not made within the statutory period. This rule is applicable to suits- against public officers and municipalities. Easton v. Sorenson, 53 Minn. 309; 55 N. W. 128; 25 Cyc. 1209. Again, where the statute fixes the time when the demand shall be made, the claim is barred, -unless the-demand is made within the statutory period. This section 1265 provides that the county treasurer shall, pay over to the city
Each one of the payments required to be made under section 1265 being a cause of action in itself, and all such .payments made prior to January 10, 1901, being barred by the statute of limitations, it is ordered that this action be remanded -ito the circuit court, with directions to ascertain by evidence the amount of said taxes paid to Turner county, or its treasurers, after January 10, 1901, and modify and enter judgment in .favor of plaintiff for such amount as shall be found to have been so paid after said date, with costs in favor of plaintiff in the circuit court, and that appellant be awarded costs on this appeal.