Summary
holding that although the state is immune from statutes of limitation and such immunity "can only be waived by express provision to that effect within the statute," the state's immunity does not extend to a political subdivision
Summary of this case from Ceccarelli v. LevinOpinion
No. 25351
Decided December 26, 1935.
Statute of limitations — Immunity of state inapplicable to school board or district — Board of education amenable to laws governing litigants, when — Subordinate political subdivision not exempt from statutory provisions, when — Tuition for inmates of fraternal homes.
1. Immunity attaching to the state does not accrue to the benefit of a board of education or school district.
2. A board of education or school district, clothed with the capacity to sue and be sued, is thereby rendered amenable to the laws governing litigants, including the plea of the statute of limitations.
3. Where a statute does not expressly exempt a subordinate political subdivision from its operation, the exemption therefrom does not exist.
IN MANDAMUS.
This is an action in mandamus instituted in this court by the Board of Education of the Springfield City School District against the Auditor of Athens county, for an order to compel the latter to issue his warrant on the Treasurer of Athens county for the payment of money claimed to be due for tuition of children originally from Athens county, but who during the time covered by the petition were residents of Knights of Pythias, Odd Fellows and Masonic homes located within the limits of the Springfield City School District.
The petition contains three causes of action covering the school years from 1919 to 1933, inclusive, during which time the Board of Education of the Springfield City School District admitted to the schools of the city inmates of the Knights of Pythias, Odd Fellows and Masonic homes located within the limits of the Springfield City School District.
The first cause of action alleges that the Grand Lodge of the Knights of Pythias, a fraternal corporation, maintains a private children's home, or orphan asylum, within the limits of the Springfield City School District; that during the school years, from September 2, 1919, to September 11, 1933, both inclusive, the Board of Education of the Springfield City School District, by virtue of Section 7681, General Code, admitted to its schools inmates of said home, children of school age; that during these years reports, as required by Section 7677, General Code, were filed in the office of the County Auditor showing in detail the average per capita cost, except for improvement and repairs of the elementary, junior high and senior high schools in said district, which set forth the names and former residences of all inmates of said home in attendance at the schools of said district and the duration of such attendance; that upon the receipt of the reports so filed the County Auditor of Clark county estimated the amounts chargeable to the various school districts for tuition of inmates of such home, including those of Athens county, "and thereupon in the distribution of taxes collected, transferred to the proper school funds such amounts, and certified to the defendant C.O. Gibson, as Auditor of Athens County, Ohio, and to his predecessors in such office, the amounts due for said tuition * * * aggregating a total of $5,635.07, and requested said county auditor to forthwith issue his warrant on the Treasurer of said Athens County, Ohio, for said amounts. The defendant has wholly failed, neglected and refused to issue his warrant on the treasurer of Athens County, Ohio, in favor of Clark County, Ohio, or the Auditor thereof for the benefit of said Springfield City School District, Clark County, Ohio, for said amount or any part thereof."
The allegations of the second and third causes of action were substantially the same as those contained in the first cause of action, except that the second cause of action relates to the Odd Fellows Home, claiming the sum of $2,840.37, and the third cause of action relates to the Masonic Home, claiming $866.26.
The petition prays that the respondent be required to issue his warrant on the Treasurer of Athens county in favor of the Auditor of Clark county for the total sum of $9,341.70.
The answer of respondent admits the allegations of relator's petition insofar as the same pertain to the claim for tuition for the school years 1929 to 1933, both inclusive, but denies relator's right to recover for the school years from 1919 to 1928, both inclusive, alleging that the causes of action for those years did not accrue within the six years next before the commencement of suit and were therefore barred by the statute of limitations, Section 11222, General Code.
Relator, in its reply, denies that the statute of limitations can be asserted against the board of education on the ground that it is an arm or agency of the state for the promotion of education throughout the state of Ohio.
Mr. M.E. Spencer and Mr. Ben Goldman, for relator.
Mr. H.J. Rose, prosecuting attorney, for respondent.
Whether plaintiff is barred by Section 11222, General Code, from maintaining this action is the issue presented for our determination.
Section 11222, General Code, provides: "An action upon a contract not in writing, express or implied, or upon a liability created by statute other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued."
That a state is immune from the operation of the statute of limitations is universally recognized. The ancient maxim nullum tempus occurrit regi (no time runs against the crown) still prevails. This immunity is an attribute of sovereignty and can only be waived by express provision to that effect within the statute.
Does such immunity attaching to the state accrue to the benefit of a board of education or school district?
This immunity is extended to the state as an attribute of sovereignty and does not extend to a board of education or school district. Excepting only the sovereign, the law recognizes no distinction in litigants, and the same rule of law is applicable to all.
A state, as an attribute to its sovereignty, cannot be sued without its consent. When a board of education or school district is clothed with the capacity to sue and be sued, it is thereby rendered amenable to the laws governing litigants, including the plea of the statute of limitations. To give one character of litigants special privileges over other litigants is to create artificial distinctions which have no place in a progressive democracy.
"The principle, that the sovereign power of a state is not bound by statutes of limitation, without express words, obtained in the earliest stages of the common law, and has descended to this day. This rule is sometimes of odious application; but it is adopted as incidental to sovereignty, and necessary to preserve against negligence or cupidity, those rights which the state has acquired or retained.
"This immunity, however, seems to be an attribute of sovereignty only. No case is found in the books which exempts any other description of person, whether natural or artificial, from the operations of the laws; and none of the reasons for the exemption apply with much force to municipal corporations. The law imposes upon them the duty of defending the interests which they are created to hold, and has conferred every power necessary to this end." Lessee of City of Cincinnati v. First Presbyterian Church, 8 Ohio, 299, at page 310.
"Exemption from the operation of the statute is a privilege of sovereignty, and this privilege can only be asserted by, or on behalf of the sovereign." 25 Ohio Jurisprudence, 630.
A board of education or school district does not partake of the elements of sovereignty and is not entitled to immunity from the statute of limitations.
The extension of the privileges of sovereignty to others than the general and state governments does not find favor in enlightened jurisdictions. 17 Ruling Case Law, 972, 973.
Where a statute does not expressly except a subordinate political subdivision from its operation, the exemption therefrom does not exist.
Where a board of education or school district is subject to suit it is to be treated, for the purpose of such suit, in the same manner as a private litigant. Not being an entire sovereignty, there is no sound reason for treating it in a manner different from the manner of treating any other litigant. The law should be of universal application and without distinction among litigants. The fact that a board of education or school district is engaged in a public task is an immaterial circumstance. When it is rendered subject to suit without consent, it is automatically stripped of its attribute of sovereignty and of the exemptions and immunities available to sovereignties.
State, ex rel. King, Pros. Atty., v. Sherman, County Aud., 104 Ohio St. 317, 135 N.E. 625, is cited by counsel for relator as authority on the question of proper procedure in such matters. However, that case does not involve the question of the statute of limitations. It merely concerns itself with the right of one school district to recover from another tuition for the schooling of inmates of a private children's home when such children are non-residents of the district, and the court held such tuition recoverable. However, that is not the issue here.
State, ex rel. King, Pros. Atty., v. Eveland, Aud., 117 Ohio St. 59, 158 N.E. 169, is likewise cited. There, too, the statute of limitations is not in issue.
The claims of plaintiff for tuition covering the period from 1919 to 1928, both inclusive, having accrued prior to the six year period immediately preceding the commencement of the action, are barred under Section 11222, General Code, and the claims for tuition from 1929 to 1933, both inclusive, are valid and enforcible. The writ will therefore be denied as to the years 1919 to 1928, both inclusive, and will be issued for the years 1929 to 1934, both inclusive, as prayed for.
Writ allowed in part.
WEYGANDT, C.J., STEPHENSON, WILLIAMS, JONES, MATTHIAS and ZIMMERMAN, JJ., concur.