76 P. 42 | Cal. | 1904
Mandamus. The principal question raised is on plea of the statute of limitations raised by the demurrer. It does not appear by the transcript when the original petition for the writ was filed, but the respondent states that it was on January 6, 1898, and we will assume that to be the date. The demurrer was sustained, and defendant had judgment, from which plaintiff appealed. The purpose of the writ was to compel defendant to pay the plaintiff certain moneys alleged to be due plaintiff out of the swamp-land fund held by defendant.
It appears that the amount paid into the treasury of Kern County by plaintiff's predecessors and assignors on account of the purchase price of the land in swamp-land district No. *448 457 as originally defined was $1,931.38, and the amount paid on account of the purchase price of land in the annexation was $414.37. More than two dollars per acre was expended by plaintiff and its assignors in the reclamation of the land in the original district, and the fact was duly certified by the trustees of the district, as provided by section 3476 of the Political Code, and was also so certified to the register of the state land office on March 9, 1891, and on March 11, 1891, agreeably to section 3477 of the same code, the register forwarded to the treasurer of Kern County a statement that the amount paid by the purchaser was as above shown. Similar expenditures, to the amount of $414.33, were made in reclaiming the land in the annexation, and were duly certified by the trustees of the district April 4, 1893, and were certified back by the register to the treasurer of the county on April 14, 1893. There was no amount at any time chargeable against the district or its annexation by reason of moneys drawn from the swamp-land fund, nor had the district ever had any indebtedness represented by controller's warrants drawn on the state treasury.
Under section 3477 of the Political Code the right accrued to demand the sum of $1,931.38 out of the swamp-land fund of the county at least as early as March 11, 1891, and the sum of $414.37 on April 14, 1893. It is alleged, however, that from March 10, 1891, to and including December 28, 1897, the total amount of money in the swamp-land fund of said county was less than $1,894. On December 28, 1897, payment was demanded of the several sums due, "or as much thereof as there remained in the swamp-land fund, which demand was refused." At this time the amount in the fund was $1,098.09.
The alleged insufficiency of the facts to constitute a cause of action is not urged by respondent, nor is the question as to an alleged defect of parties defendant; these points will be deemed waived. Respondent rests upon the claim that the action is barred by the statute of limitations. The cause was here once before(Miller Lux v. Batz,
According to the petition, there was about $1,894 in the swamp-land fund from the time plaintiff could have demanded the money up to the time (December 28, 1897,) when the demand was made, and there was $1,098.09 when the petition was filed. The balance of the money standing to the purchaser's credit must be presumed to have been in the general fund by transfer, as there was no authority to make other disposition of it (Code Civ. Proc., sec. 1963, subd. 15), and on demand it became the duty of the board of supervisors to retransfer the money to the swamp-land fund or issue warrants against the general fund, as provided by the act of 1880. (Stats. 1880, p. 399.)
Appellant contends that the treasurer holds the money as trustee of an express trust, and therefore the statute did not begin to run until appellant's demand was made, and until the trust is expressly repudiated the statute does not run; that the money is held in trust as is the land, and the purchaser may demand either at his pleasure. It is also claimed that if the treasurer is not the trustee of an express trust the demand was made within a reasonable time after the right accrued, and nothing more was required.
The question then is, Was the statute of limitations set in motion at the time when plaintiff or its assignors had the right to demand payment? We think the answer must be in the negative.
The original grant of swamp and overflowed land by the general government to the state was by its nature and object a trust to bring about the reclamation of the land, although title to the land passed to the state. In its disposition by the state to purchasers reclamation was contemplated, — hence the machinery for organizing reclamation districts; the creation of a swamp-land fund, of which the money paid by the purchaser was a part; the provisions for carrying on the work of reclamation by trustees, or by the purchasers themselves out of this fund, and for the repayment to the purchasers the unexpended purchase money on completion of the reclamation or the expenditure of two dollars per acre for that purpose. The history and object of the grant and the successive state enactments will be found quite fully set forth in the County of Kings v. County of Tulare,
This swamp-land fund is a special fund, separate from all other funds of the state or county which became vested in the state upon payment by the purchaser. The state agreed, however, on certain conditions, not only to convey the title to the land to the purchaser, but to restore to him the purchase money in the event of his reclaiming the land. It was not the purpose of the law that the state should profit pecuniarily by the transaction. The main object was to cause the land to be reclaimed, and to bring otherwise profitless land under cultivation and make it productive and habitable. The state could retain the money only upon failure of the purchaser to do what the law required of him, which, when done, entitled him not only to a patent to the land, but a return of the money paid whenever he might apply for it.
An act of Congress imposed a direct tax upon certain property, and provided that in case of sale the surplus of the proceeds "shall be paid to the owner of the property," and if not paid "shall be deposited in the treasury of the United States, to be there held for the use of the owner, or his legal *452
representative, until he or they shall make application therefor to the secretary of the treasury, who, upon such application, shall, by warrant on the treasury, cause the same to be paid to the applicant." Suit was brought in the Court of Claims, and the bar of the statute of limitations was pleaded. The court held that the law imposing the tax fixed no limit of time within which the application should be made, and the secretary was not authorized to fix a limit; that the government held the money as trustee, and that the statute did not begin to run against thecestui que trust until the trustee had unequivocally repudiated the trust. (United States v. Taylor,
A gas company contracted with the municipality to furnish gas to the city, "and was to be paid ten cents on the $100, the tax levied for lighting purposes, whenever said taxes were collected." In a suit by the company the city pleaded the statute of limitations. It was held that the tax was levied for a specific purpose in pursuance of a lawful contract made by the city, and the gas company became the equitable owner of those taxes. The charter made it the duty of the commissioners of the taxing district to disburse taxes for the purpose for which they were levied, and a creditor could look only to the particular tax levied. The court said: "We are, therefore, of the opinion that, in view of the provisions of this charter, the commissioners are made express trustees of those taxes. The board of commissioners constitutes an agency or instrumentality of the taxing district, and the plea of the statute of limitations is unavailing as a defense to the city." (Memphis Gas Light Co. v. Memphis,
A statute of Maine provided for equalizing the burden of war debts of the towns in the state by a limited assumption on the part of the state. It was provided that where, in the process of equalizing bounties, a town had received a surplus over what it had expended, this surplus should belong to the soldiers who served on the town's quota without receiving any bounty therefrom. The court held that this legislation constituted an express trust, and the statute of limitations did not begin to run in favor of the town until disavowed by it; that mere delay on the part of the soldier in demanding payment, after his share became payable, did not bar his right of recovery. (McGuire v.Linnens,
The controlling principle of these cases appears applicable to the case now here, and warrants us in holding that the statute of limitations does not stand in the way of paying the plaintiff's claim.
We find nothing in what was said in the case when here before, nor in Carpenter v. San Francisco Savings Union,
It is advised that the judgment be reversed, with directions to overrule the demurrer.
Gray, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the judgment is reversed, with directions to overrule the demurrer.
Angellotti, J., Shaw, J., Van Dyke, J.