Crane Co. v. State Ex Rel. Davis

The state by this action seeks to recover an alleged deficit due by the defendant for franchise taxes for the year 1911. The defendant pleads the statute of limitation of three and six years. The state demurs to the plea on the ground that the statutes pleaded do not run against the state. The demurrer was sustained, and, the defendant declining to plead further, judgment was rendered in favor of the state for the amount sued for. A determination of this question depends upon a construction of sections 4830 and 4832 of the Code of 1907. It is unquestionably the law, sustained by almost if not all respectable authority, and based upon the soundest reasons of public policy, that statutes of limitations do not apply to actions by the state, unless a legislative intention that they shall do so is shown by express language or appears by the clearest implication. 17 R. C. L. p. 970, § 344. It is equally well settled that, where the limitation is fixed by statute, the state is equally bound with the citizen. State v. Schmidt,180 Ala. 374, 61 So. 293; Wyatt v. Tisdale, 97 Ala. 594,12 So. 233; State v. Dixon, 90 Kan. 594, 135 P. 568, 47 L.R.A. (N.S.) 905; Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430; Com. v. Hutchinson, 10 Pa. 466; State v. Joiner, 23 Miss. 500; Atty. Gen. v. Revere Copper Co., 152 Mass. 444, 25 N.E. 605, 9 L.R.A. 510. Under section 2794, subd. 1, of the Code of 1896, the state was specifically barred from maintaining a suit for the recovery of real or personal property after a lapse of 20 years. This remained the law until the adoption of the Code of 1907, which will be adverted to later. Under this limitation it is clear that, when the state was suing in its sovereign capacity, there was no limitation of action except as to real and personal property. Neither this section nor any other section dealing with the subject of limitations, except as above stated, mentioned the state, either directly or by reference. But for the section and subdivision supra, there would have been no limitation of any kind running against the state, in actions instituted by it in its sovereign capacity. In the Code of 1907, however, we find a very different statute. Remembering it to have been the policy of the state, at least since the Code of 1876, to place a limitation on actions by the state in suits to recover real and personal property. There was written into the Code of 1907, under the general head, "Limitation of Action," section 4830, relieving the state of the limitation as to time in actions for the recovery of lands mentioned in section 3859 of the Code of 1907, itself a new section, written by the Code Commission. If, as was contended by appellee, it was not the intention of the legislative power to continue a limitation of action upon the state as to some actions, section 4830 would not have been necessary, for by simply leaving out subdivision 1 of 2794, as it appeared in the Code of 1896, the state would have been entirely eliminated from the chapter "Limitation of Actions." But evidently the legislative power had no such intention, as is indicated by the fact that the state was considered in the chapter on "Limitations of Actions," and all sections in that chapter must be construed together. Section 4830, being a new section, states specifically when there is no limitation to an action by the state, and this of itself might by necessary implication embrace the state in the statutes following in the chapter on that subject. But, that there could be no doubt of its intention, section 4832 of the Code of 1907, changing the verbiage of section 2793 of the Code of 1896, to meet the changes in the chapter occasioned by the addition of sections 4830 and 4831, provides. "All other civil actions must be commenced after the cause of action has accrued, within the period prescribed in this chapter and not afterwards," thus tying all the sections in the chapter together in one subject, and making each dependent upon and relating to the other, and in Ballard v. Miss. Cotton Oil Co., 81 Miss. 507, 34 So. 533, 62 L.R.A. 407, 95 Am. St. Rep. 476, it was held that the amendment of a statute relating to railroad companies alone by re-enacting it with the insertion of the word "all" in place of the word "railroad" cannot be restricted by construction, so as to apply only to railroad corporations and others of that kind. We fail to see how any construction of section 4832 could be had that would exclude sections 4830 and 4831. In view of the fact that it had been the settled policy of the legislative power in this state, as evidenced by the various statutes of limitation appearing in the Codes prior to the Code of 1907, to place limitations upon the state with respect to certain actions, and the specific inclusion of the state in the general chapter relating to limitations, it would appear that the Legislature considered statutes of limitation to be statutes of repose, *Page 293 and as such favorably regarded, and, as is said by Mr. Sedgwick in his work on Construction of Statutes, at page 84: "There seems little reason why the government should be excepted from their operation, or why a power so abundantly able to protect itself should be armed with the formidable weapon of a perpetual claim." This general policy is emphasized by section 2260 of the Code of 1907, dealing with the public revenues, wherein a limitation of five years is placed, and while this section does not govern the case at bar, it shows conclusively the legislative policy that, even as to the collection of taxes, there should be a period fixed, after which the citizen may not be disturbed in his business by reason of dormant claims held by the state. By this statute the Legislature seems to have put this state alongside of New York by adopting a liberal policy, consenting in this respect to put the government on an equality with the citizen. Whether it is wise or not it is not within our province to say. The Legislature has spoken, and it is the duty of the courts to give full effect to the legislative will, and any efforts by the courts to throw discredit on statutory provisions as unjust or inexpedient is but to arrogate to themselves a censorship over the law-making power, which our Constitution has nowhere intrusted to them. The Legislature may change the statute, if it sees fit; but it may not be done by judicial construction. The suit in the instant case is a civil action brought to enforce the payment of a debt due the state in 1911, and under our view is barred. It follows that the judgment of the circuit court must be reversed, and the cause remanded. Reversed and remanded. MERRITT, J., dissents.