Opinion
No. 26923
Decided August 3, 1938.
Public money — Share assessed against street railway for grade-crossing elimination — Not public money in hands of municipality, when — Six-year statute of limitation applies — Section 11222, General Code — Liability created by statute — Section 286 et seq., General Code, inapplicable — Action on finding by Bureau of Inspection and Supervision of Public Offices.
APPEAL from the Court of Appeals of Mahoning county.
In the Court of Common Pleas the plaintiff, the City of Youngstown, filed this action against the defendant, The Youngstown Municipal Railway Company, for the recovery of money alleged to be due from the defendant as its assessed share of the cost of a certain grade elimination improvement that was completed by the plaintiff and certain railroad companies in the year 1919. In the second amended petition it is alleged that under a decree of the Court of Common Pleas the plaintiff was ordered to pay 35% of the total cost; that the decree was made "without prejudice to the right of the city of Youngstown to require, by ordinance, any street railway company or companies, constructing or operating a track or tracks over or upon said improvement, to pay the maximum proportion fixed by law of the cost herein decreed to be paid by the city"; that an ordinance was duly enacted requiring the defendant's predecessor to pay to the plaintiff 17 1/2% of the entire cost of the improvement; that the defendant refused to pay its said share; that "the Bureau of Inspection and Supervision of Public Offices of the state of Ohio, in its report of the city of Youngstown, submitted to the law director Of said city, under date of May 13, 1932, made a finding pursuant to the statutes in such cases made and provided, and particularly General Code, Section 286, et seq., against" the defendant for the amount of that share; and that this amount is still due from the defendant.
To the second amended petition the defendant filed a demurrer on the two grounds that the facts stated are insufficient to show a cause of action, and that the action was not brought within the time limited for the commencement of such actions. The Court of Common Pleas sustained the demurrer on both grounds.
Upon the prosecution of error proceedings to the Court of Appeals the judgment was reversed and the case remanded to the Court of Common Pleas.
The case is in this court upon an appeal as of right and upon the allowance of a motion to certify.
Mr. Vern B. Thomas and Mr. H.H. Hunt, for appellee.
Messrs. Harrington, Huxley Smith, for appellant.
Among the defendant's several assignments of error there is but one question requiring discussion. Does this action involve public money?
Section 286, General Code, as amended, 108 Ohio Laws, pt. 2, 1115, effective April 29, 1920, provides that "if the report sets forth that any public money has been illegally expended, or that any public money collected has not been accounted for, or that any public money due has not been collected, or that any public property has been converted or misappropriated, the officer receiving such certified copy of such report * * * may, within ninety days after the receipt of such certified copy of such report, institute * * * civil actions * * * for the recovery of the same * * *." The plaintiff relies upon the language "or that any public money due has not been collected."
What is meant by the phrase "public money," or "public money due"? The latter part of Section 286, General Code, provides that "the term 'public money' as used herein shall include all money received or collected under color of office, whether in accordance with or under authority of any law, ordinance or order, or otherwise * * *." The plaintiff concedes that this statutory definition is not sufficiently comprehensive to connote the unreceived, uncollected money described in its petition. However, it insists that the statute is not intended to be completely definitive of the term, and that recourse must be had to the more general statements to be found. But do even these furnish the necessary basis for the plaintiff's claim? Bouvier's Law Dictionary states that as used in the United States statutes, public money is the money of the federal government received from the public revenues, or intrusted to its fiscal officers, wherever it may be. In 32 Ohio Jurisprudence, 714, Section 1, it is stated that "public funds are moneys belonging to the state or to political subdivisions thereof, including municipal corporations." One definition from "Words and Phrases" is "all moneys which shall come into the hands of any officer * * * of any municipal or public corporation * * * pursuant to any provision of law." In 50 Corpus Juris, 845, it is stated that "a thing may be said to be public when owned by the public." When the municipality passed the ordinance can it reasonably be said that the public thereby became the owner of money in the defendant's possession? Of course under the statute the plaintiff became possessed of a right of action against the defendant together with a lien upon the defendant's property, but this is a very different thing from holding that by this preliminary process the defendant became the custodian of public money — especially when subsequent litigation might disclose that the defendant is in fact not indebted to the plaintiff in any amount whatsoever.
This court is of the opinion that the circumstances alleged in the petition do not involve public money in the hands of the defendant. Therefore, since this action is based upon a liability created by statute, the six-year statute of limitations applies, and the plaintiff is not permitted to bring its action under favor of Section 286 et seq., General Code. Neither may the plaintiff now bring the ordinary type of action, since the six-year period has long since been permitted to elapse.
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas is affirmed.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, WILLIAMS, MYERS and GORMAN, JJ., concur.