70 So. 642 | Ala. | 1916
This is an appeal from the judgment of the circuit court, overruling the demurrer to plea 8, which set up the statute of nonclaim, as provided by section 1191 of the Code. The statute is as follows: “All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim, or shall be barred; claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred.”
The question is whether this statute has application, and whether it is correctly pleaded. Plea 8 is as follows: “Comes the said defendant, and for a further plea to the entire complaint of the plaintiff says that the said claims are barred by the statute of limitations of two years; for that the said claims were not within two years from the accrual of the said claims presented to the clerk of defendant or to defendant- for payment.”
Appellant insists that the moneys paid over by the board of revenue for the plaintiff, to the defendant, belonged to the road and bridge fund of the county, and that the city of Montgomery had no legal right to receive the same. This question was decided in City of Montgomery v. County of Montgomery, 185 Ala. 281, 64 South. 588, and in County of Montgomery v. City of Montgomery, 190 Ala. 366, 67 South. 311 (construing section 215 of the Constitution).
It is further insisted that “no title to public funds can be acquired by prescription or statute of limitations,” on authority of
No such principle inheres in this action. Here the property in dispute is money paid out under a supposed authority of law, a statute afterwards construed by this court and held not to warrant the payments in question. Both city and county officials acted under an honest misapprehension of the law. There is no pretense that fraud was committed by any one. The city, under a mistake of law, received the money now claimed by this suit, and has no doubt disbursed it to third parties, in the application of this road and bridge fund. The county did have a proprietary right, and so, an alienable title to its moneys. Judge Dillon (3 Munic. Corp. [5th Ed.] § 1194) expressly states that: “In an action on contract or for tort a municipal corporation may plead or have pleaded against it the statute of limitation.”
In section 188, Id., we find this author’s statement of the exception to the general rule, as follows: “Although municipal corporations are public agencies, exercising on behalf of the state public duties, yet they also exercise and acquire what the courts have called rights in a private and proprietary capacity, rather than in a public and governmental capacity, and such corpor
It has been held that actions to recover moneys collected by public officials are within the bar of the statute (Clarke v. School Dist., 84 Ark. 516, 106 S. W. 677; Bannock County v. Bell, 8 Idaho 1, 65 Pac. 710, 101 Am. St. Rep. 140; Johnson v. Black, 103 Va. 477, 492, 49 S. E. 633, 68 L. R. A. 264, 106 Am. St. Rep. 890) ; that an action by a city to recover damages for breach of contract by a railroad company to pave a city street within a reasonable time is within that bar. — Muscatine v. Chicago, R. I. & P. R. Co., 79 Iowa, 645, 44 N. W. 909. In Metropolitan R. Co. v. District of Columbia, 132 U. S. 11, 10 Sup. Ct. 19, 33 L. Ed. 231, the Supreme Court of the United States said: “It is scarcely necessary to discuss further the question of the applicability of the statute of limitations to a purely municipal corporation when it is embraced within the general terms of the law. It was expressly decided to be applicable in the cases of Kennebunkport v. Smith, 22 Me. 445, Cincinnati v. First Presbyterian Church, 8 Ohio 298 [32 Am. Dec. 718], Cincinnati v. Evans, 5 Ohio St. 594, St. Charles County v. Powell, 22 Mo. 525 [66 Am. Dec. 637], Armstrong v. Dalton, 15 N. C. 568, and other cases cited in the notes to Wood on Limitations,.! 53, and to 2 Dillon on Municipal Corporations (3d Ed.) ! 668. Judge Dillon, in the section last cited, accurately says: ‘The doctrine is well understood that to the sovereign power the maxim, “Nullum tern-pus occurit regi,” applies, and that the United States and the several states are not, without express words, bound by statutes of limitation. Although municipal corporations are considered as public agencies, exercising, in behalf of the state, public duties, there are many cases which hold that such corporations are not' exempt from the operation of limitation statutes, but that such statutes, at least as respects all real and personal actions, run in favor of and against these corporations in the same manner and to the same extent as
An action by a county to set aside for fraud a decree declaring certain railroad taxes to be illegal was held to be within the statutory limitation in Boone Co. v. Burlington & Missouri R. R. Co., 139 U. S. 684, 11 Sup. Ct. 687, 35 L. Ed. 319, Mr. Justice Blatchford, for the court, said: “The appellant' seeks to apply to the county and its officers in this case the established rule that laches will not be imputed to a government for a failure on the part of its officers to perform their duty. — United States v. Kirkpatrick, 9 Wheat. 720 [6 L. Ed. 199]; United States v. Vanzandt, 11 Wheat. 184 [6 L. Ed. 448]; United States v. Nicholl, 12 Wheat. 505 [6 L. Ed. 709]; Dox v. Postmaster General, 1 Pet. 325 [7 L. Ed. 160]; Gaussen v. United States, 97 U. S. 584 [24 L. Ed. 1009]. But this doctrine is not extended to such a municipal corporation as the county of Boone. — Metropolitan Railroad v. District of Columbia, 132 U. S. 1, 11, 12 [10 Sup. Ct. 19, 33 L. Ed. 231].”
The rule declared in Metropolitan Railroad v. District of Columbia, supra, was also approved in District of Columbia v. Bailey, 171 U. S. 161, 18 S. Ct. 874, 43 L. Ed. 118.
This statement of the law is supported by the opinion of Mr. Chief Justice English in Hill v. State, 23 Ark. 604. See, also, In re Jacobs’ Estate, 119 Iowa 176, 178, 93 N. W. 94; 18 Cyc. 468.
The statute in question (section 1191, Code) is not technically a statute of limitations, but is one of nonclaims (Anderson v. City of Birmingham, 177 Ala. 302, 58 South. 256), and is analogous to the statute requiring presentation of claims to an administrator within a prescribed time, and providing that on failure to be so filed they shall be barred. A similar statute of nonclaims, in favor of counties, section 150 of the Code of 1907, has been applied to the claims of a city against a county. — City of Mobile v. Board of R. & R. Com., 180 Ala. 514, 61 South. 814. This section (section 150) reads: “All claims against counties must be presented for allowance within twelve months after the time they accrue, or become payable, or the same are barred, unless it be a claim due to a minor, or to a lunatic, who may present such claim within twelve months after the removal of such disability.”
The case is affirmed.