dissenting. As to whether the two-year statute of limitations contained in the Court of Claims Act is tolled by the savings provisions of R.C. 2305.19, this court must look to additional applicable rules. The pertinent general rule is set forth in 34 Ohio Jurisprudence 2d 505-506, Limitation of Actions, at Section 19, as follows:
“Where by statute a right of action is given which did not exist at common law, and the statute giving the right fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition on such right and will control. In such a case time is made of the essence of the right created, and the limitation is an inherent part of the statute or agreement out of which the right in question arises, so that there is no right of action whatever independent of the limitation and a lapse of the statutory *166period operates to extinguish the right altogether. If a cause of action arising out of a special statute containing limitations qualifying the right is not brought within the time limited in the statute, the court has no jurisdiction of the case.”
See, also, Annotation, 79 A.L.R. 2d 1309.
Accordingly, this court, in Sabol v. Pekoc (1947), 148 Ohio St. 545 [36 O.O. 182], in determining a question involving the wrongful death statutes, held, in paragraph one of the syllabus:
“The provision of Section 10509-167, General Code, that ‘except as otherwise provided by law, every such action [for wrongful death] must be commenced within two years after the death of such deceased person,’ is a restriction qualifying the right of the action and is not merely a time limitation upon the remedy. (Paragraph one of the syllabus in Pittsburg, C. & St. L. Ry. Co. v. Hine, Admx., 25 Ohio St., 629 approved and followed.)”
The right to sue the state of Ohio was created by R.C. Chapter 2743 in Am. Sub. H.B. No. 800. The period of limitations governing this right was embodied in R.C. 2743.16. R.C. 2305.19 is not now, nor was it ever, mentioned within this section as being applicable to actions brought in the Court of Claims. The only specific limitation on the running of the two-year statute of limitations of R.C. 2743.16 in the Court of Claims is the tolling of the statute for infirmities of the individual “except there shall be no tolling during imprisonment unless the imprisoned person is of unsound mind.”
I would hold that the General Assembly incorporated only that portion of R.C. Chapter 2305 into the Court of Claims Act which it specifically desired to become a part of this new Act creating a new right of action against the state of Ohio. Thus, R.C. 2305.19 was not intended to be a part of the Court of Claims Act.
The absolute language of R.C. 2743.16 prohibits commencement of an action later than two years after the cause of action accrues. This mandatory language is not found in the general statutes of limitations, and strongly denotes that such mandate is part of the right granted. The commencement of an action within the time set forth in the law granting such new right is an indispensable condition of the exercise of such new right of action. The time element is an inherent element of the right so created, and the limitation of the remedy is a limitation of the right. See Hibler v. Globe American Corp. (1958), 128 Ind. App. 156, 147 N.E. 2d 19.
Accordingly, I dissent.
Locher, J., concurs in the foregoing dissenting opinion.