The opinion
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DAVISON, J.
(dissenting). I cannot agree with the view oí the majority of my associates that the statute of limitations should not be invoked in the present case.
The majority opinion is based upon the theory that the plaintiff should be entitled to recover the principal and interest due on certain bridge bonds issued by the defendant and purchased with a portion of the county sinking fund of the plaintiff, even though the statute of limitations had run. The theory of the majority is that the plaintiff, a political subdivision of the state, should be exempt from the operation of the statute in this case upon the reasoning that the protection of such funds is a public right.
The only question herein involved is whether the transaction existing in the present case constituted a public right as distinguished from a private and local right.
The determining factor as to whether the statute of limitations runs against a cause of action, to which the state or subdivision thereof is a party, is whether the right affected is a private right or a public right. Herndon v. Board of County Commissioners in and for Pontotoc County, 158 Okla. 14 , 11 P. 2d 939 .
The rule in the above case seems to be the generally recognized test for the determination of the question before us, but the authorities are not in complete agreement in respect to its application. See annotation 113 A.L.R. 376 .
An excellent discussion of .this matter is found in the case of Chicago v. Chicago & N. W. R. Co., 163 Ill. App. 251, 254 , wherein the court said:
“Controversies over the application of this rule more frequently arise from a failure to understand what are and what are not ‘public rights,’ than from a failure to understand the rule. In a sense, every right possessed by a municipal corporation is a public right, and every class of property held by it is held in its public capacity, and for public use, but for the purpose of distinguishing such rights, as only that part of the public included within the corporate limits of a municipality are interested in, from such rights in which all the people of the state are interested, the former class is designated by law writers and courts as ‘private rights,’ and the terms ‘public rights,’ ‘public uses’ and ‘public capacity’ are used only with reference to such rights, uses and capacities, as all the people of the state are alike interested in. To actions brought in relation to ‘public rights,’ using the term to indicate such rights as belong to all the people of the state alike, the statute of limitations does not apply, while as to actions brought in relation to ‘private rights,’ using that term to designate such rights as are limited to some local subdivision or municipality, such as a city, village, school district or the like, the statute of limitations applies to the same extent as to individuals.”
I believe that when plaintiff invested the money, as in the instant case, it became an outright investment for profit, being an investment permitted by statute (section 5915, O. S. 1931, 62 Okla. St. Ann. § 432), and only the taxpayers and bondholders of Oklahoma county would be injured or benefited by such investment.
In the Herndon Case, supra, we 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.”
In the above-cited case the question involving the statute of limitations was whether it should be applied to a suit upon contract entered into on behalf of Pontotoc county with Herndon for the conveyance of certain property to said county for the purpose of constructing a courthouse thereon. In that case we also discussed the case of Board of County Commissioners of Woodward County v. Willett, 49 Okla. 254 , 152 P. 365 , L.R.A. 1916E, 92 , in which it had been held that the statute of limitations barred the plaintiff’s recovery of a sum Woodward county
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had paid one of its officials in excess of the salary prescribed by statute for said officer. In speaking of the difference between the cause of action in the Willett Case and the one in the Hern-don Case, we said in our opinion on the latter case:
“In the Woodward County Case, supra, the money sought to be recovered affected only the taxpayers of said county and was held to be a private right. But where the right is such as to be used by the public in general, or in which the general public would have an interest, it is considered a public right. In the case at bar the property was purchased for a county courthouse site and street. Not only the taxpayers of Pontotoc county were interested in said matter, but the public is especially interested therein. The public uses the courthouse grounds and street adjacent thereto, whether residents of said county or of some other county or state. The use is general and to all the public, and thereby becomes a public right. * * *”
In my opinion, when a subdivision of the state invests any of its funds in such bonds, such investment is for a private purpose for profit, and such public corporation is serving its own interest and is acting in its private or corporate, rather than in its governmental, capacity. Its profit or loss from such investment does not accrue to the benefit or detriment of the citizens of the state as a whole, but only to the benefit or detriment of those who are liable for taxes in that particular county.