State Ex Rel. Schones v. Town of Canute

HARGRAVE, Justice.

We granted certiorari to determine whether resident taxpayers’ suit to recover the penalty provided in 62 O.S. § 372 is barred by the one-year statute of limitations of 12 O.S.1981 § 95(4). 1 The trial court dismissed the action, presumably finding that the statute of limitations barred suit. The Court of Appeals reversed, relying on State ex rel. Board of County Commissioners v. Shelton, 727 P.2d 103 (Okla.App.1986), holding that where suit is brought on behalf of the state to enforce a “public right,” the statute of limitations will not bar the suit by the sovereign. Because we find that a suit *437 brought by the proper officers of the Town of Canute in this case would not be barred by the statute of limitations, we find that the taxpayers’ suit was timely filed. The applicable statutes are 62 O.S.Supp.1982 § 372 2 and 62 O.S.1981 § 373. 3

This case involves suit brought by plaintiffs, resident taxpayers of the Town of Canute, pursuant to 62 O.S. § 373, against numerous individual defendants, including the former mayor and clerk/treasurer, alleged to be members of the Board of Trustees of Canute during a period from 1979 to 1985. The Town of Canute was named a defendant, as required by the statute. Plaintiffs pled twelve “causes of action”: (a) four violations of competitive bidding provisions of city ordinances, (b) seven instances of wrongful approval of purchase orders under void contracts in violation of 62 O.S. § 371, and (c) one claim for damages to the Town of Canute and its residents for a contract for removal of a water tank, contrary to Canute city ordinances, which allegedly damaged Canute in amount of two thousand dollars ($2,000.00) for the value of the tank, and three thousand dollars ($3,000.00) as damages caused by depriving the city of a backup water supply system. For the first eleven causes of action plaintiffs sought recovery of the amounts paid. Plaintiffs then prayed for recovery of triple the amount wrongfully paid on each of the causes pursuant to § 372. Only three of the claims stated the date of the transaction and those dates were in 1979 and 1982.

The taxpayers, on February 10, 1989, made written demand upon the city officials to file suit. The city officials did not file suit and plaintiffs’ suit was filed July 28, 1989. Defendants moved to dismiss on grounds the action was barred by the statute of limitations, and the trial court entered an order of dismissal. Suit was brought by the taxpayers within six months of written demand being made; the question is whether the cause already was time-barred when demand was made.

Two lines of authority create confusion. A line of early cases held (or assumed) that *438 the statute of limitations would run against the state or political subdivision in § 372 and § 373 cases where suit was for recovery of the penalty. See, State ex rel. Lockhart v. Board of Commissioners of Lincoln County, 197 Okla. 605 , 173 P.2d 725 (1946), Cummings v. Board of Education, 190 Okla. 533 , 125 P.2d 989 (1942), Battles v. Conner, 182 Okla. 613 , 79 P.2d 232 (1938), State ex rel. Estill v. Board of Commissioners of Pontotoc County, 119 Okla. 215 , 249 P. 394 (1926), State ex rel. Gooch v. Drumright, 88 Okla. 244 , 212 P. 991 (1923), State ex rel. Schilling v. Oklahoma City, 67 Okla. 18 , 168 P. 227 (1917), Territory ex rel. Johnston v. Woolsey, 35 Okla. 545 , 130 P. 934 (1913). In those eases, apparently no argument was raised that the statute of limitations would not run against the sovereign or that the suit was for vindication of a “public right.”

Another line of cases, which did not involve suit for recovery of a penalty, held that the statute of limitations would not bar a suit by the sovereign or political subdivision suing in their sovereign capacity for vindication of public rights. See, Foote v. Town of Watonga, 37 Okla. 43 , 130 P. 597 (1913), State ex rel. Land Commissioners v. Hall, 191 Okla. 257 , 128 P.2d 838 (1942), Wooten v. State ex rel. Commissioners of the Land Office, 191 Okla. 306 , 129 P.2d 584 (1942), Herndon v. Board of County Commissioners of Pontotoc County, 158 Okla. 14 , 11 P.2d 939 (1932), Board of County Commissioners v. Good Township, 188 Okla. 151 , 107 P.2d 805 (1940), State ex rel. Cartwright v. Tidmore, 674 P.2d 14 (Okla.1983). The rationale behind these cases is that the public interest shall not be prejudiced by the negligence of the public officers to whose care those rights may be consigned.

Even those cases holding that the statute of limitations would run against the cause of action for recovery of a penalty by the state or political subdivision were not consistent as to when the statute would run against the resident taxpayers. The difficulty was in determining when the taxpayers’ cause of action accrued. Some cases held that demand must be made within the limitations time and others held that the taxpayers’ cause of action did not accrue until demand was made so that the statute did not begin to run against the taxpayers until demand was made. See, for example, State ex rel. Lockhart v. Board of Co. Com’rs of Lincoln Co., 197 Okla. 605 , 173 P.2d 725 (1946), State ex rel. Estill v. Board of Commissioners of Pontotoc Co., 119 Okla. 215 , 249 P. 394 (1926), State ex rel. Gooch v. Drumright, 212 P.2d 991 (Okla.1923), State ex rel. Schilling v. Oklahoma City, 67 Okla. 18 , 168 P. 227 (1917). It appears that the question whether the statute of limitations would run against the sovereign or its subdivisions for recovery of the penalty under § 372 in vindication of public rights had not been specifically addressed.

Both issues were raised in State ex rel. Board of County Commissioners v. Shelton, 727 P.2d 103 (Okla.App.1986). The Court of Appeals held that the statute of limitations would not run against a political subdivision where the Board of County Commissioners sued to recover the § 372 penalty against former county commissioners. Some of the defendants there argued that § 372 is a penal statute and that cause of action was thus barred by 12 O.S. § 95(4), or in any event by the two-year statute of limitations of § 95(3) for fraud. The trial court granted a motion to dismiss and the Board appealed, alleging that it was suing in its sovereign capacity to enforce a public right and was “... immune to bar of statute of limitations or, alternately that no statute of limitations began to run until plaintiff knew or should have known and had evidence to prove elements of its cause of action.” The Court of Appeals held that the county was immune from operation of the statute of limitations. We denied certiorari.

Recently, in City of Oklahoma City v. HTB, Inc., 769 P.2d 131 (Okla.1988), we reaffirmed the rule that, where the State or political subdivision is acting in its sovereign capacity vindicating a “public right”, the statute of limitations will not run against it. In HTB, Inc., which was not a *439 suit for recovery of a penalty, we recognized that the maxim nullum tempus oc-currit regí (time does not run against the King) applies to municipal corporations as trustees of the rights of the public. 4 We said, 769 P.2d at p. 134 :

“From these cases we distill the general rule that statutes of limitation shall not bar suit by any governmental entity acting in its sovereign capacity to vindicate public rights and that public policy requires that every reasonable presumption favors governmental immunity from such limitation, in applying this rule to [the case being considered] we must determine whether plaintiffs acted in a sovereign capacity and whether the rights at issue rise to the level of public rights.”

Section 372 gives a right of recovery to the proper municipal officers of triple the value of property wrongfully conveyed or amounts wrongfully paid out as a penalty. Section 373 gives resident taxpayers, after demand, the right to bring any proper action that the proper officers might maintain, and the right is phrased in the alternative: to recover the money or property, or for the penalty provided in § 372. In the case at bar, the resident taxpayers, although seeking recovery of amounts wrongfully paid, seek triple the amounts so paid, and as such, their suit is for recovery of the penalty. Whichever route the taxpayer takes, taxpayer will receive one-half of his recovery as “reward” and other half will go to the state or subdivision. 62 O.S. § 373. The only time the subdivision will be made “whole” in a resident taxpayer suit, is when taxpayer recovers the penalty. See, Territory ex rel. Johnston v. Woolsey, 130 P. 934, 938 (Okla.1913).

The resident taxpayer statute, § 373, offers three choices for recovery: recovery of the property wrongfully transferred, recovery of the amounts wrongfully paid or recovery of the penalty, which is triple the value of the property or money wrongfully transferred. The ultimate right at issue in each situation is the vindication of the public’s right against wrongful actions by its public officials.

We have broadly categorized “public rights.” We have held that suits by the Commissioner of the Land Office to foreclose its mortgages involve public rights and the statute of limitations will not bar the suit. Sears v. Fair, 397 P.2d 134 (Okla.1964), State ex rel. Commissioners of Land Office v. Hall, and Wooten v. State ex rel. Commissioners of the Land Office. See also Herndon v. Board of County Commissioners of Pontotoc County, supra, we said that the public’s use of the courthouse and its adjoining street involved a public right and the statute of limitations would not bar the suit.

In Board of County Commissioners v. Good Township, supra, we held that public rights were involved where county sued to recover principal and interest due on bridge bonds purchased with county sinking funds.

The public interest is involved in assuring that the performance of public officials in carrying out their official duties is free from illegality, fraud or wrongful conduct. We note that § 372 also provides a cause of action against those who receive the benefit of the wrongful payment of money or transfer of property. Section 372 is a powerful weapon given to the proper officers of the state or any county, township, city, town or school board to enforce violations enumerated therein against the public weal. In the case at bar taxpayer plaintiffs allege violation of the city’s competí: tive bidding ordinances and violation of 62 O.S. § 371 for money paid out under void contracts entered into by the former trustees. The action clearly is one to vindicate *440 public rights in insuring that public funds are properly spent. We therefore find that had suit in the case at bar been brought by the proper city officers, the statute of limitations would not bar the suit because the proper officers of the Town of Canute would be acting in a sovereign capacity for vindication of public rights.

Having determined that the statute of limitations would not bar the right of action in the proper officers in this case to recover the § 372 penalty, we find that the resident taxpayers’ action in the case at bar was timely filed. Under § 373, the resident taxpayer has no right to file suit until demand has been made on the proper officers and the proper officers have failed to act. We hold that the taxpayers right of action does not accrue until demand has been made and the proper officers have failed to act. We said in State ex rel. Trimble v. City of Moore, 818 P.2d 889, 894 (Okla.1991), in discussing § 373, “The right of action accrues to the taxpayers when the city officers fail to act.”

In the case at bar, the taxpayers made their demand in February, 1989, and filed their suit in July, 1989. The demand was timely because the statute of limitations did not bar the right of action of the proper officers of the Town of Canute, and the resident taxpayers’ suit was timely brought after demand was made.

THE OPINION OF THE COURT OF APPEALS IS VACATED, AND THE TRIAL COURT’S ORDER OF DISMISSAL IS REVERSED.

LAVENDER, V.C.J., and ALMA WILSON, KAUGER and WATT, JJ., concur.

SUMMERS, J., concurs in part; dissents in part.

HODGES, C.J., and SIMMS (joins OPA-LA, J., in part) and OPALA (by separate opinion), JJ., dissent.

. 12 O.S.1981 § 95(4) provides:

"Within one (1) year: An action for libel, slander, assault, battery, malicious prosecution, or false imprisonment; an action upon a statute for penalty or forfeiture, except where the statute imposing it prescribes a different limitation.”

. 62 O.S.Supp.1982 § 372 provides:

“Every officer of the state and of any county, township, city, town or school district, who shall hereafter order or direct the payment of any money or transfer of any property belonging to the state or to such county, township, city, town or school district, in settlement of any claim known to such officers to be fraudulent or void, or in pursuance of any unauthorized, unlawful or fraudulent contract or agreement made or attempted to be made, for the state or any such county, township, city, town or school district, by any officer thereof, and every person, having notice of the facts, with whom such unauthorized, unlawful or fraudulent contract shall have been made, or to whom, or for whose benefit such money shall be paid or such transfer of property shall be made, shall be jointly and severally liable in damage in all innocent persons in any manner injured thereby, and shall be furthermore jointly and severally liable to the state, county, township, city, town or school district affected, for triple the amount of all such sums of money so paid, and triple the value of property so transferred, as a penalty, to be recovered at the suit of the proper officers of the state or such county, township, city, town or school district, or of any resident taxpayer thereof, as hereinafter provided.”

. 62 O.S.1981 § 373 provides:

“Upon the refusal, failure, or neglect of the proper officers of the state or of any county, township, city, town or school district, after written demand made upon them by ten resident taxpayers of the state or such county, township, city, town, or school district, to institute or diligently prosecute proper proceedings at law or in equity for the recovery of any money or property belonging to the state, or such county, township, city, town, or school district, paid out or transferred by any officer thereof in pursuance of any unauthorized, unlawful, fraudulent, or void contract made, or attempted to be made, by any of its officers for the state or any such county, township, city, town or school district, or for the penalty provides in the preceding section, any resident taxpayer of the state or such county, township, city, town, or school district affected by such payment or transfer after serving the notice aforesaid and after giving security for cost, may in the name of the State of Oklahoma as plaintiff, institute and maintain any proper action which the proper officers of the state, county, township, city, town, or school district might institute and maintain for the recovery of such property, or for said penalty; and such municipality shall in such event be made defendant, and one-half (½) the amount of money and one-half (½) the value of the property recovered in any action maintained at the expense of the resident taxpayer under this section, shall be paid to such resident taxpayer as a reward.” footnote citation omitted

. Article 5, § 53 of the Constitution of the State of Oklahoma provides:

"... the Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part, the indebtedness, liabilities or obligations of any corporation or individual, to this State, or any county or other municipal corporation thereof, ”

including counties and municipal corporations within the scope of the protection afforded to the State and recognizing the continuity of liabilities and obligations to the sovereign.