
    Hartman v. Hunter, Treasurer.
    
      Stakite of limitations — Exemption from,a privilege of Sovereignty-Sections 1104 and 4891, Revised Statutes.
    
    1. Exemption from the operation of a statute limiting actions and in its terms containing no exception is a privilege.of sovereignty, and it can be asserted only by or on behalf of the sovereign.
    2. A civil action brought by the treasurer of a county under section 1104, Revised Statutes, to enforce assessments for the construction of township ditches, is, by the second clause of section 4891, Revised Statutes, barred in six years after the cause of action arises.
    (Decided March 30, 1897.)
    Error to the Circuit Court of Lucas county.
    Hunter, as treasurer of Lucas county, filed his petition in the court of common pleas against Hartman under section 1104 of the Revised Statutes, alleging that there stood charged upon the duplicate against the described lands of the defendant taxes and assessments theretofore duly levied amounting to $591.42; that they were unpaid, and praying for a decree to enforce the lieu for that amount and five per cent penalty thereon.
    Hartman answered, admitting that the sum alleged, composed of various items, stood charged against the premises, but alleging that certain specified items thereof, amounting to $337.62, were assessments for township ditches levied in the years 1885 and 1886, and pleading as to those items that the cause of action arose more than six years before the commencement of the action.
    In the court of common pleas a demurrer to this answer was sustained, and a judgment rendered for the plaintiff for $591.42 and interest and penalty.
    
      Hartman filed his petition in error in the circuit court, where the judgment of the common -pleas was reversed as to .the penalty and affirmed in all other respects.
    
      B. A. Hayes, for plaintiff in error.
    The action in this case was brought in accordance with and by authority of section 1104 of the Revised Statutes. In the case of Brenchweh v. DraJce, Treasurer, 31 Ohio St., 652, the court distinctly holds that there was no right of action for collection of taxes until the passage of the act of April 11, 1876, (73 Ohio Laws, 218), which is now section 1104 of the Revised Statutes. If, then, there was no such cause of action till the passage of that act, it would seem to follow that such cause of action was founded “upon a liability created by statute,” and therefore within the strict letter of the six year statute of limitations (R. S., 4981).
    The general question, whether the Statute of Limitations bars an action for the collection of taxes or assessments, has never been decided by this Court; three times the question has been presented, but in each case the Court based its decision on other grounds. These cases are: Reynolds v. Green, 27 Ohio St., 416; Brenchxoeh v. DraJce, Treasurer, 31 Ohio St., 652; Treasurer v. Martin, 50 Ohio St., 197; Los Angeles County v. Ballerino, 99 Cal., 593; San Francisco v, Tones, 20 Fed. Rep., 188; City of Louisville v. Johnson, 95 Ky., 254; State v. Lands inRedxoood county, 40 Minn., 512; PerJcins v. Dyer, 71 Md., 421.
    The Statute of Limitations is no longer viewed with disfavor. Toxonsend v. Eichelberger, 51 Ohio St., 213.
    
      The Statute of Limitations was a part of the Code of Civil Procedure, passed in 1853; section 1104, authorizing suit for taxes, was first enacted in 1876 (73 Ohio Laws, 218); so that the former antedates the latter twenty-three years at least.
    But this court held in Seymour v. Raihoay Company, 44 Ohio St., 12, that an action against a railroad company for failure to fence its road, whereby stock was killed on the right of way, was barred in in six years, notwithstanding the fact that section 3324 of the Revised Statutes, on which the action is based, was first enacted in .1859, Swan & Critehfield, 331, 56 Ohio Laws 62; see, also, 68 Ohio Laws 78, and 71 Ohio Laws 85, which are amendments of the original law at least six years after the passage of the Statute of Limitations.
    
      J. A. Barber, for defendant in error.
    It has been the uniform opinion, so far as I know, all over the State of Ohio, that we have no Statute of Limitations against taxes and assessments. It has been acquiesced in for a great many years that our general statutes of limitations do not apply to taxes and assessments. It was never thought of here, and no one ever raised the question until after the reported case of Treasurer v. Martin, 50 Ohio St., 197. In fact, it has never been raised here until this suit.
    The' force and authority of the uniform practical construction of any statute for a long- time is sometimes very strong and entitled to great weight. This proposition is too well known to need citations.
    The Supreme Court of the United States holds that a construction practiced and acquiesced under for a period of years fixes the construction, and the court will not shake or control it. Stuart v. Laird, 1 Craneh, 299; Deering’s Annotated Code and Statutes of California, volume 3, section 345.
    There is nothing involved in this case as to whether the Statute of Limitations is viewed with favor or disfavor. The question is, is there a Statute of Limitations? Such statutes, when enacted are “to be construed in the spirit of the enactment.”
    Section 4547 provides that the amount of costs and expenses of the construction of a ditch shall be placed upon the duplicate by the auditor “to be collected as other state and county taxes are collected. ”
    So also, section 4549 provides for the assessments for township ditches, “to be collected as other state and county taxes are collected.”
    It would seem to be the clear intention of the legislature that these taxes and assessments for ditches were to be of as high an order and grade of taxes as any other taxes and assessments. Certainly township ditches and county ditches in certain parts of our state are absolutely necessary, and essential to the existence of the township or county. There are no kinds of taxation that are intrinsically of greater merit than these for municipal, township and county improvements. Elliott v. Williamson, 11 Lee Tenn., 38.
   Shauck, J.

The limitation relied upon by the plaintiff in error is prescribed by section 4891 of the Revised Statutes, which provides that “an action upon a liability created by statute, other than a forfeiture or penalty, can only be brought within six years after the cause of action accrues. ”

Whether the liability asserted by the treasurer in this case be referred to section 1104 of the statutes, which authorizes the civil action to enforce the assessments for township ditches as well as other assessments and taxes, or to the provisions of the acts under whose favor the ditches were constructed, is a liability created by statute.

It is, however, contended that, although the liability is within the terms of the limitation, it is in view of the public character of the demandant, within that exemption from the operation of acts limiting actions which is defined by the familiar maxim ‘ ‘nullum tempus occurit regi. ’5 The scope of this exemption has been the subject of much discussion, and of diverse conclusions. It is not necessary, however, to enter into that discussion, since the repeated and consistent decisions of this court seem to furnish a clear rule for the determination of the case.

In Cincinnati v. The First Presbyterian Church, 8 Ohio, 299, it was decided that the statute of limitations runs against a municipal corporation. This case was followed and approved in Williams v. The Presbyterian Society, 1 Ohio St., 478, and in Cincinnati v. Evans, 5 Ohio St., 594.

In Lane v. Kennedy, 13 Ohio St., 42, it was conceded that the statute runs against the public with respect to highways, though the judgment was determined by the fact that the possession relied on was not adverse to the public. The case was followed and approved in McClelland v. Miller, 28 Ohio St., 488.

In Mount v. Lakeman, Clerk of Millcreeek Township, 21 Ohio St., 643, it was held that an action on behalf of a township to recover school funds which a treasurer had appropriated to his own use, is barred by the limitation of six years

In Oxford Township v. Columbia, 38 Ohio St., 87, it was held that “trustees of a township holding title to lands granted to them by the general government for school purposes, are not exempt from the operation of the statute of limitations, in an action prosecuted by them to recover possession of the premises.”

All attempts to extend the exemption to others than the general and state governments have failed. The terms of the statute except none from its operation and the exemption is a prerogative. ' Being a privilege of sovereignty, as in England it is the King’s plea, so here it is the plea of the sovereign, to be made by it or in its behalf. This view of the subject does not admit of further question in this state.

Judgment of the circuit and common pleas courts reversed. t  