STATE v. LINCOLN CO. COMMRS

Geo. S. Sawyer and Freeman Bates, for Appellant:

I. The question as to whether the statute of limitations applied to these bonds and coupons (bonds of Lincoln county) was expressly decided by the supreme court of the United States in the case of Lincoln County v. Luning, 133 U. S. 532.

II. The trial judge admits the decision of the supreme court of the United States to be as stated, but he seems to think the supreme court of the United States did not properly consider that case, and that if it had been properly considered by them, they would have allowed the plea of the statute of limitations, and he draws this conclusion from his construction of the decision in the case of Freehill v. Chamberlain, 65 Cal. 603.

III. In this, and in subsequent cases, the supreme court of the state of California held that the statute of limitations would begin to run as soon as the money was in the treasury of the city of Sacramento applicable to the payment of coupons, but that a coupon holder had the right to wait until the city levied and collected taxes, and that no duty was imposed upon him to enforce their levy by writ of mandate. While the city of Sacramento could not be sued in a direct action, any coupon holder had the same right by mandate to compel the levy of a tax at any time after his coupons became due, as the holder of a Lincoln county coupon would have to compel the levy of the tax in this case after his coupon became due.

Robt. M. Beatty, Attorney-General, and T. J. Osborne, District Attorney, for Respondent:

I. A county warrant payable out of any money in the treasury appropriated for county expenditures is a written acknowledgment of indebtedness, and, if not paid when presented, may be sued on by the legal holder, although there is no money in the treasury. (15 Am. and Eng. Ency. 1219, note 1, citing Clark v. Des Moines, 10 Iowa, 199; Bank v. Franklin Co., 65 Mo. 105; Terry v. Milwaukee, 15 Wis. 490; 10 Wis. 44, 76, 63; 24 Wis. 382; 19 Iowa, 450; 67 Iowa, 697; 11 Barb. 117; Lyall v. Saper Co., 6 McLean (U.S.) 446.)

II. But it can hardly be questioned that the right to sue accrued at maturity. The holders of nearly all the Lincoln county bonds deemed it necessary or expedient to bring suit, and after a contest they obtained judgments without the money being in the treasury to meet their obligations. A civil action in the state can only be commenced within the period prescribed by the statute after the cause of action shall have accrued. (Gen. Stats. 3629.)

III. It is a matter of regret that the cases of Luning and others against Lincoln county were not more carefully considered in the circuit and supreme courts of the United States. They both seem to have overlooked the fact that Sacramento could not be sued on its bonds, and that no cause of action ran in favor of the holder. Judge Sabin said in his decision: "I should have little hesitancy in holding the coupons barred, did I not consider them, under the authorities above cited (the cases in 17 and 65 Cal.), withdrawn from the operation of the statute." The opinion of Justice Brewer, whose abilities as a jurist are of a high order, followed in the same strain, and was based on the same authorities, and, paradoxical as it may seem, the conclusion cannot be avoided that these courts held that the statute did not run against certain coupons while suit could be brought, and gave judgment accordingly, because the supreme court of California had decided that bonds did not outlaw while suit could not be maintained on them. The distinction is a broad one, but apparently was overlooked by inadvertence in the Luning decisions, which were based partly on Freehill v. Chamberlain. These California cases are cited and affirmed in Sawyer v. Colgan, 36 Pac. 583, but the court there still bases its opinion on facts and reasons which do not exist here. The bonds were to be paid when a surplus came into the treasury, and this contingency did not happen until 1890. The court said: "Prior to that time the petitioner never could have maintained a mandate for the payment of his coupons, and, this being so, of course the statute of limitations is no bar to the proceedings. * * * He could not sue the state because there never was any act authorizing him to sue."

IV. If the time has expired for the institution of suit on these bonds, the right of mandamus is barred beyond question, but there are further reasons for holding that this proceeding is too late. The writ of mandate to enforce collection of a judgment against a municipal corporation is in the nature of a legal equivalent to the statutory execution, and the right to prosecute it for such purpose is limited to the same period of time within which execution may be sued out on a, judgment against an individual. (15 Am. Eng. Ency. 1314; U. S. v. Oswego Tp., 28 Fed. 55.)

V. The board of county commissioners has not levied or collected any tax for the payment of these bonds or interest during the last eleven years, and though the petitioner did not have a judgment, he was entitled to one, and without it he could have mandamused the board equally as well from the time of their first failure to levy the tax, and there seems to be no good reason why his right to the writ should not be barred in the same length of time it would have been if he had held a judgment.