County of St. Charles v. Powell

22 Mo. 525 | Mo. | 1856

Leonard, Judge,

delivered the opinion of the court.

In 6 Bacon’s Abr. tit. “ Prerogative,” E. 5, it was said that when a statute is general, and thereby any prerogative, right, title, or interest is divested or taken from the king, in such case the king should not be bound, unless the statute is made by express words to extend to him. It is upon this principle that, by the English common law, statutes of limitations do not apply to actions brought by the crown, unless there be an express provision including it; and Story (United States v. Hoar, 2 Mason, 312,) after referring to the reason given by Blackstone (1 Com. 247,) says that the true reason of the king’s prerogative, “ nullum tempus occurrit regi,” is to be found in the great public policy of preserving the public rights, revenues and property from injury and loss by the negligence of public officers. But whatever the reason of the prerogative may have been, it was originally adopted, it is believed, in all the American states, governed by the common law. It seems, however, to have had no place in the Roman law of the prescription of actions, except to enlarge the time within which the public authorities, both general and local, were required to bring their suits. (1 Mackeldey’s Civil Law by Kaufman, 200, 202.) The new French code expressly renounces it (Civil Code, sec. 2227) ; and our own state has recently done so too. (Practice Act, 1849, art. 2, § 10.)

The immunity, however, it seems, was, even at common law, an attribute of sovereignty only, and did not belong to the municipal corporations or other local authorities established to manage the affairs of the political subdivisions of the state. It was so expressly held in the Lessee of the city of Cincinnati against the First Presbyterian church, (8 Ohio, 809,) and in Armstrong v. Dalton, (4 Dev. N. C. 569) ; and we are not aware of any case to the contrary. In Marion county against Moffett, (15 Mo. 604,) the omission of a public functionary to do an act required by law for the security of the public interest, was not allowed to operate as a release of the security; but the decision had nothing to do with the application of the statute of limitations to cases of that character. The money here sued for belonged to the county and not to the state at large. It was vested in the county by a legislative donation— impressed, it is true, with a trust for local improvements ; but yet it belonged exclusively to the county, although for local and not for general purposes.

It is scarcely necessary to remark, that the fact that the defendant was a member of the county court during part of the time of the bar, is no answer to the statute. If the defendant has been guilty of such conduct in the discharge of his official duties as to render him amenable to the law, he must be called to answer in a proper proceeding instituted for that purpose. The judgment is affirmed.