Doe ex dem. State Land Co. v. Factors & Traders Ins.

SIMPSON, J. This is a common-law action of ejectment by the appellant against the appellee. Various questions in regard to the validity of certain tax proceedings and sales are discussed, but the appellant confesses that: “If the former statute (section 2794, Code 1896) was operative, of course, it bars all right, in this case, for the appellee went into possession under his deed of 29th September, 1881, and has [65] since held adverse possession as far as it could do so. So the question is whether there was any statute of limitations against the state.” Said section 2794 provided a statute of limitations of twenty years when an action for lands was brought by the state against a citizen of the state. The argument of the appellant is that this section is violative of the fourteenth amendment to the Constitution of the United States, because the privilege of pleading the 20-year statute of limitations in actions brought hy the state was given only to citizens of this state; thus depriving citizens of other states of a like privilege or immunity. A sovereign state cannot be sued at all except hy its consent; and it is equally true as a maxim of the law that nullum tempus occurrit regi. These are immunities of the state which it in the exercise of its sovereignty can either avail itself of or waive, and it is at least questionable whether the fact that the state chooses to waive its right in one instance, thereby confers upon the other party a privilege or immunity within the meaning of the Constitution. But, however that may be, even if it should he held that the discrimination in said section is violative of the Constitution of the United States, it would not follow that the citizen could not claim the benefit of the statute. The Supreme Court of California, has held that where a statute exempting certain classes from liability to an inheritance tax mentioned “nieces or nephews when a resident of this state,” the effect of it was not to subject nieces and nephews residing in the state to the tax, hut only to confer on nonresident nieces and nephews the same privileges. The court cites a number of authorities, and well expresses the principle as follows (speaking of section 2, art. 4, of the Constitution of the United States), to wit: “In this case there is no striking down of or limitation upon the right of [66] a state to confer such immunities and privileges upon its own citizens as it may deem fit. The clause of the Constitution is protective merely, not destructive, nor yet even restrictive. * * * It nowhere intimates that an immunity conferred upon citizens of a state, because not in terms conferred upon citizens of sister states, shall therefore be void. * * * The Constitution itself becomes a part of the law. * * * They (the courts) .have never stricken down the immunity and privilege which a state may have accorded to its own citizens. * * * They have always construed the law so as to relieve the citizens of other states, and place all upon equal footing. * * In all these cases and in every case, if the privilege or immunity has been by the state conferred upon its citizens, and not in terms upon citizens of other states, such privilege and immunity is not for that reason declared void, but the protecting arm of the Constitution is thrown around the citizens of every other state who are thus embraced within the privilege granted.”—Estate of Johnson, 139 Cal. 532, 73 Pac. 424, 96 Am. St. Rep. 161, and cases cited. ' It results that section 2794 of the Code of 1896 was operative, and that judgment was properly rendered for the defendant. The judgment of the court is affirmed. Affirmed. Anderson, McClellan, and Mayfield, JJ., concur.