I agree with the majority opinion that, under the cases of Gandsi v. Seminary, 95 Miss. 315, 48 So. 908, Fire Hose Co. v. Vicksburg, 117 Miss. 89, 77 So. 911, and Pascagoula v. Krebs,151 Miss. 676, 118 So. 286, the act of the Governor in undertaking to abolish the municipality of North Greenwood on petition of its citizens was unauthorized and void; and that, consequently, the city had no authority to annex the municipality of North Greenwood to itself. The act of the officers in undertaking to do so was clearly beyond their power, ultra vires, and void.
I do not agree, however, that the judgment should be affirmed on any theory of delay and changed conditions resulting from the unauthorized attempt to annex North Greenwood. Until the act of the legislature in 1926, the municipality of North Greenwood continued to be a municipal corporation, and there has been no act on the part of the city of Greenwood since the passage of this legislative act to annex the territory constituting the municipality of North Greenwood.
Section 104 of the Constitution of 1890, provides that: "Statutes of limitation in civil causes shall not run against the state, or any subdivision or municipal corporation thereof."
The purpose of this section of the Constitution was to take away the power from any agency of the government, to bar the state from bringing suit because of time. At the common law, the state was a favored suitor and was not barred by the lapse of time. See Parmilee v. McNutt, 1 Smedes M. 179; Hill v. Josselyn, 13 Smedes M. 597; City of Lexington v. Hoskins,96 Miss. 163, 50 So. 561. In the last-named case, there was involved the right of the city of Lexington to use a strip of land as a part of the street. The county of Holmes, in which the city of Lexington is situated, was created in 1833, and was authorized to locate a county site within *Page 860 three miles of the center. O.W. Beall and Samuel Long each agreed to donate thirty acres of land for this purpose, and in June, 1833, each executed a bond for title, afterwards, in 1841, giving a deed conveying the adjacent tracts, making sixty acres, to the board of police of the county; the recited consideration being the location of the county site. The land conveyed formed the basis of the site of the town of Lexington which was incorporated in 1836. Before its incorporation there had been a survey and plat of the land made by one Benjamin Griffin in 1833 under the direction of the board of police, which survey divided the land into lots and streets; the court-house being the center. There was no record of the original plat, but what purports to be a copy thereof, made by Fleet C. Mercer, dated April 21, 1851, was recorded about that time in the office of the clerk of the chancery court, accompanied by the field notes of the survey of the town of Lexington, or a copy thereof, dated July 9, 1833. In 1908, M.W. Hoskins, who owned lot 104 in the town of Lexington, filed a bill against the city averring that the municipal authorities had recently made an order requiring that her fence be drawn in on the north side of her lot in order to widen or open what was claimed to be a street which the municipal authorities asserted to be forty feet wide. This street had been opened and used at twenty-three feet wide on one end, and twenty-seven feet nine inches wide at the other. The plat shows this street to be forty feet wide. The bill averred that the complainant had been in open, adverse possession of said lot 104, including the disputed strip, for a great many years, dating back to a period prior to the Civil War, and the proof showed that to be true. There was a decree in favor of the complainant from which the city prosecuted an appeal, and the court reversed the judgment, holding that the city could not be denied complainant's right to the street by the facts set forth. In 10 R.C.L. 401, section 148, it is stated that: "As a general principle laches is not imputable to the government. This doctrine is one *Page 861 of public policy and is based on the assumption that the officers of the government may be so busily engaged in the ordinary affairs of state as to neglect a vindication of its interest in the courts. Again, it is said that the government can transact its business only through its agents; and its fiscal operations are so various, and its agencies so numerous and scattered, that the utmost vigilance would not save the public from the most serious losses, if the doctrine of laches could be applied to its transactions. Where, however, the government is suing for the use and benefit of an individual, or for the prosecution of a private and proprietary, instead of a public or governmental right, it is not entitled to the exemption of nullus tempus, and the ordinary rule of laches applies in full force. Nor does a state's right to enforce all obligations, regardless of what period of time may have intervened pass to any of its creditors, but such right is strictly personal to the sovereign."
In 21 C.J., p. 217, section 216, it is said that: "While the contrary has been held, yet, by the weight of authority, the defense of laches is not available against the government, state or national, in a suit by it to enforce a public right or to protect a public interest, or, as the rule is sometimes expressed, the laches of its officers or agents will not be imputed to the government. This rule applies, however, only to suits brought by the government in its sovereign capacity to enforce or protect a public or governmental right. If it sues for the use and benefit of an individual, or for the enforcement or the protection of a private and proprietary right rather than a public or governmental right, laches is pleadable against it the same as against an individual. And the privilege of sovereignty in respect of laches is not available to creditors of the government who sue for their own benefit to enforce a claim due it. In some jurisdictions the rule exempting the government from the operation of the doctrine of laches applies in favor of municipal corporations and other governmental agencies *Page 862 when the right sought to be enforced by them is public or governmental in character, but not otherwise. In other jurisdictions, laches is pleadable against such corporations and agencies the same as against an individual."
It will be seen from these quotations, and the authorities cited in the notes to sustain them, that there is a distinction in the application of the doctrine of laches and estoppel between suits by a government in its sovereign capacity for the vindication of public rights, and suits by it for the enforcement or vindication of private rights. This distinction must be kept in mind as a key by which the problem is to be determined. In our own state, we have a number of cases which, in my judgment, are directly in point, so far as the principle is concerned, and the doctrine of laches and estoppel is not applied to either the state or municipalities in any case where an officer has acted ultra vires, or without authority of law. In the case before us, the officers were clearly acting without authority of law, ultra vires, and, consequently, no doctrine of laches or estoppel can be applied.
In the case of Edwards Hotel, etc., Co. v. City of Jackson,96 Miss. 547, 51 So. 802, 803, in the sixth syllabus, it is stated that, "An ultra vires contract, made with agents of a city, does not operate as an estoppel on the city."
In the seventh syllabus it is stated that, "All persons dealing with a city must take note of its charter and the powers of its officers."
In the fifth syllabus it is stated that a stipulation surrendering the right of the city to pave streets at the cost of abutting owners cannot be enforced because beyond the power of the city authorities.
In the third syllabus it was held that a city could not contract away its charter powers to require the paving of streets and assess a part of the costs on abutting property owners.
On page 575 of 96 Miss. 51 So. 802, 805, the court said in this case that: "As before stated, the city had no *Page 863 authority, through its mayor and board of aldermen, under the very terms of the charter, to relieve the street railway company of its duty to do this paving, and any contract looking to this was ultra vires. There seems to be little dissent from the view that an ultra vires contract made with the agents of the city cannot operate as an estoppel on the city. The mayor and board of aldermen are the mere agents of the city, having power to bind the city only within the scope of authority delegated to them. If a city could be estopped on an ultra vires contract by its mere agents, there would be little force in charter restrictions on the power of the agents of the city to bind it, since they could be easily destroyed in this way. All parties dealing with the city must take note of its charter and the power of its officers. It is a matter of law, and the citizens whom they represent cannot be prejudiced by their unauthorized and ultra vires acts. The powers are the city's powers, and not those of the officers who happen to represent the city."
In the case of Eastman Oil Mills v. State, 130 Miss. 63, 93 So. 484, 487, it was held that state officers cannot grant indulgences authorizing the committal of offenses, and they have no power to authorize the continuance of any business, or act, in violation of law of the state, and that the attempt of the attorney-general to grant permission to a corporation to own and operate a business in violation of a statute did not amount to more than a promise of forbearance on his part, and had no binding force on the state. In the fourth syllabus it is stated that, "The state cannot be estopped by the unauthorized acts of its officers." In that case the attorney-general, having brought suit against the oil mill for violation of anti-trust statutes, agreed with it that during the time the suit was pending the oil mill should continue to operate until the final decision of the case, and the succeeding attorney-general brought suit against the mill for violation of the law during this period of time. There was a period of time of considerable duration in which *Page 864 the mill had been operating under this agreement. If the doctrine of laches and estoppel could be applied, it should have been applied in that case, for the reason that the constitutionality of the statute was seriously doubted, and the case proceeded through different courts to the United States Supreme Court for final decision upon the constitutional features. Crescent Cotton Oil Co. v. State of Mississippi, 257 U.S. 129, 42 S.Ct. 42, 66 L.Ed. 166.
In Bank of Commerce v. City of Gulfport, 117 Miss. 591, 78 So. 519, it was held that a bank which had been selected as a depository, but had not made bond as required by law, but into which the city had paid its funds as though it were a legal depository, became insolvent or embarrassed. The city sought to recover its funds as trust funds. It was held that the city had the right, and it was not estopped from doing so by its course of business in dealing with the bank as though it were a depository.
In the case of Cleveland State Bank v. Cotton Exchange Bank,119 Miss. 868, 81 So. 170, the court held that although the county superintendent of education had authority to issue pay certificates to teachers under the law, yet where he did so fraudulently and without having complied with the conditions required by law, that the certificates were void, and the depository which paid them was liable for the funds so paid out. The case was then brought within the doctrine of estoppel, if that could be applied. There the county superintendent had authority to issue the pay certificates and determine the facts which authorized him to do so, but the fact that he did so, and money was paid on said certificates, the bank was liable which paid the money. In the sixth syllabus the rule is announced in the following language: "A county cannot be estopped by the fraudulent acts of the county superintendent of education in issuing school warrants or teachers' pay certificates to parties who had not taught school nor contracted to do so and where there *Page 865 was no compliance with sections 4560, 4561, 4497 (Hemingway's Code 1917, sections 7376, 7377, 7574)."
In Witherspoon v. City of Meridian, 69 Miss. 288, 13 So. 843, it was held that a city was not estopped by the fact that it had permitted a property owner to build so as to encroach upon the street, and acquiesced in it, or let such condition remain for about sixteen years. There the city had dedicated a street as being a certain width, but with the city's knowledge a property owner had erected a fence so as to include a part of the street under the belief that the fence was on his own land. The doctrine of estoppel was sought to be evoked, but was by the court repudiated. In the fourth syllabus this court said that: "In such case, to bar the municipality on the doctrine of equitable estoppel of its right to remove a fence which encroaches on a street so dedicated, it is not enough to show that the fence was located with the concurrence of the original owner, who had made the dedication, and that the city authorities had delayed for sixteen years to actively assert its claim, during which time they had maintained the street as actually opened, and the abutting owners had improved their lots without knowledge of the city's claim."
In Waterworks Co. v. Meridian, 85 Miss. 515, 37 So. 927, in the fourth syllabus thereto, it was held that: "Where a city had instituted proceedings to cancel a contract with a water company, the former's act in allowing or even in ordering additions and improvements to be made after suit was brought did not estop it from prosecuting the proceedings; but the water company, in making improvements with notice of the pendency of the proceedings acted as a volunteer."
In Woodruff v. Okolona, 57 Miss. 806, it was held that a recital in bonds of city that same are in conformity to the statute is not conclusive in favor of a purchaser for value, but that such purchaser must look to the statute and is chargeable with notice of any want of power to issue the specific bonds. In that case, the board, as in *Page 866 the case at bar, was acting without authority of law, and although its orders recite regularity of proceeding, yet the purchaser of the bonds was charged with notice of want of power in the board to issue the bonds and was not protected.
In the case of Board of Supervisors of Jefferson County v. Arrighi, 54 Miss. 668, it was held that contracts by county officers in violation of the Act of February 13, 1871 (Acts 1871, p. 101), regulating the manner of making them, are void, and that no subsequent ratification by such officers can make them binding on the county.
See also Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890; Bay St. Louis v. Bd. Supervisors Hancock County, 80 Miss. 364, 32 So. 54; Powell v. Bd. Supervisors, 107 Miss. 410, 65 So. 499, Ann. Cas. 1916B, 1262.
An interesting case upon the subject, and one which might be relied upon as a complete answer to all that is said in the majority opinion, is the case of State ex rel. Young v. Village of Kent, 96 Minn. 255, 104 N.W. 948, 1 L.R.A. (N.S.) 826, 6 Ann. Cas. 905. In the first syllabus of this case it is said: "When the attorney-general of the state, acting in his official capacity as the chief law officer of the state, exhibits an information in the nature of quo warranto to the district court, and asks that a writ issue, directed to a municipal corporation, requiring it to show cause why its franchise should not be declared null and void, the court has no discretion, but must grant leave to file the information as a matter of course and direct the writ to issue. Upon the return it is the duty of the court to try the issues of law and fact presented thereby, and to determine the same upon the merits according to rules of law applicable thereto."
This case refers to numerous authorities, and elaborately discusses them in a very interesting manner. I will only quote a few passages from it, the opinion being too full to embody in this opinion. At page 260 of 96 Minn., 104 N.W. 948, 950, 6 Ann. Cas. at page 907, it is said: *Page 867
"The ancient writ thus became obsolete in England, and the proceeding by information in the nature of quo warranto came into use. Informations in the nature of quo warranto were either (1) such as were filed by the Attorney-General ex officio on behalf of the crown, or (2) those exhibited by the Master of the Crown Office on the relation of some private individual. The abuse of the right which the Master of the Crown Office exercised of filing such informations on his own discretion at the instance of private persons who were not named as relators led to the enactment of St. 4 5, Wm. Mary, c. 18, which made it necessary for a person who desired to file such an information to obtain permission to do so from the court and enter into a recognizance for the sum of £ 20. Rex v. Hertford, Salk, 376. This statute was restrictive in its operation, and the purpose was to restrict the powers of the Master of the Crown Office to vex and oppress the King's subjects. It will be noted that the act in no way restrained or restricted the power of the attorney-general when acting ex officio on behalf of the general public. It related solely to proceedings sought to be instituted by the Master of the Crown Office at the instigation of private individuals. This is also true of the famous St. 9 Anne, c. 20, the substance of which has been embodied in so many American statutes relating to the subject of quo warranto. As we have seen, the former act was restrictive, but the statute of Anne was enacted for `rendering the proceedings upon writs of mandamus and informations in the nature of quo warranto more speedy and effectual and for the more easy trying and determining the rights of officers in franchises and boroughs.'
"The ancient common-law writ of quo-warranto was a writ of right for the King, and issued as of course at the instance of the attorney-general. 4 Blackstone, p. 309; Abbot of Strata Mercella, 5 Coke, 40; Rex v. Phillips, 4 Burr. 2090; Rex v. Staverton, Yelverton, 190, 1 Bulst. 54; Whelchel v. State,76 Ga. 644, 647. After the *Page 868 ancient writ was displaced by the information in the nature of quo warranto, no one, so far as we have been able to discover, ever questioned the right of the attorney-general to appear ex officio as the representative of the Crown, institute the proceedings without leave of court, and have the questions raised determined on their merits according to the laws applicable thereto. Rex v. Phillips, 3 Burr. 1565, per Lord Mansfield. . . .
"Where the common-law procedure prevails either by statutory enactment or adoption by the courts, the authorities in this country uniformly sustain the right of the attorney-general to the writ, when the information is filed by him in his official character as the representative of the state. In the recent case of Meehan v. Bachelder, 73 N.H. 113, 59 A. 620, 6 Ann. Cas. 462, BINGHAM, J., said: `The attorney-general ex officio has the right to bring an information in the nature of a quo warranto to try the title to a public office, and is not compelled to ask leave of the court.' In Vanatta v. Delaware, etc., R. Co., 38 N.J. Law, 282, Mr. Justice DIXON said: `When facts exist which, in the opinion of the attorney-general, call for a quo warranto information, he has the right to present it, without leave asked of any one. In that respect he represents the sovereignty, whose attorney he is. Such power existed unquestionably at common law, and neither the statute of 9 Anne nor our own statute in any way abridged it. Before St. 9 Anne quo warranto informations were filed either by the attorney or solicitor-general ex officio, or by an officer of the court under the direction of the court, at the instance of parties concerned. Such officer, in the King's Bench, was the Master of the Crown Office. The statute of 9 Anne merely regulated the practice in some cases of this latter class, requiring the parties concerned to be named as relators and to become responsible for costs, etc. Our statute substitutes the attorney-general for this Master of the Crown Office, and extends the range of the act; but in such case the attorney-general is only nominally a party, *Page 869 a mere officer of the court, subject to its control. He is not there as attorney-general, exercising in the cause that power which such officer had at common law and which he still wields, when he appears ex officio.' . . .
"In Lamoreaux v. Ellis, 89 Mich. 146, 50 N.W. 812, the court exercised the power to require the attorney-general to set the machinery of the law in motion, and upon a proper and prima-facie showing to file an information in the nature of quo warranto to test the right of an incumbent to the office of sheriff. A similar control over the attorney-general's discretion in permitting such proceeding to be instituted was exercised by the court in State v. Dahl, 69 Minn. 108, 71 N.W. 910. But these cases both arose on the attempt of a private citizen to induce the attorney-general to act. They were instances of the class over which the courts have exercised discretionary control ever since the statute of Anne was enacted. That the Lamoreaux case falls within this class clearly appears from the quotation there made from Vrooman v. Michie, 69 Mich. 42, 36 N.W. 749, where the court said: `Courts can never act, unless upon some reasonable showing, and, as it is contrary to public policy to allow persons to be needlessly annoyed by vexatious claims, the statute which has long existed in England, while it allows the public representative, who is the attorney-general or some other high official, to proceed ex officio, does not, as construed, permit a relator to proceed without exacting a very precise and positive showing.' State v. McLean County, 11 N.D. 356, 92 N.W. 385, also grew out of a contest between the attorney-general and a private relator. State v. Des Moines, 96 Iowa, 521, 65 N.W. 818, 31 L.R.A. 186, 59 Am. St. Rep. 381, was brought upon the relation of an individual. People v. Sutter St. R. Co., 117 Cal. 604, 49 P. 736, arose upon an information filed by the attorney-general upon the relation of a private person, and it was held that the attorney-general could not thereafter himself dismiss the proceedings without an order of court." *Page 870
In the case State of Minnesota ex rel. Phobstfield v. Sharp et al., 27 Minn. 38, 6 N.W. 408, in the first syllabus, it is announced: "A proceeding by information, in the nature of quo warranto, under section 1, chapter 63, is not the action provided for in chapter 79, Gen. St. 1878. In the absence of legislation, or any controlling consideration to the contrary, such proceeding is governed as respects procedure, by common-law rules. The onus probandi is therefore upon the respondent. It is for the attorney-general to determine whether the public good requires him to institute and conduct such proceeding. If he deems it best to proceed, notwithstanding any conduct of the relator, at whose instance he moves, it would be a very extraordinary case (if any) in which his determination would be overruled."
In this opinion, after stating the statutory provisions, the court further said: "At the start it is objected by the respondents that the relator, Probstfield, has actively acquiesced in the exercise of the franchise spoken of, and the respondents' assumption of title to the offices in question, and in their discharge of the alleged powers and duties of the same, and that he is, therefore, estopped to institute or conduct this proceeding. The answer to this is that it is the attorney-general who has instituted and who is conducting the proceeding, as the law officer of the state — the representative, not of the relator, but of the government. It is for him to determine whether the public good requires him to proceed in the matter. If he deems it best to proceed, notwithstanding any conduct of the party at whose instance he moves, if there is any case in which his determination would be overruled, it must certainly be a very extraordinary one, and not such a case as this."
In High's Extraordinary Legal Remedies (2 Ed.), p. 499, after discussing various questions as to quo warranto, it is stated: "But while the courts are disposed to overlook trifling irregularities in the election of officers who have held long and undisturbed possession of *Page 871 their franchise, length of time will not prevail as against the sovereign, where the irregularities in the election go to the very question of right, and in such cases, the maxim nullum tempus occurrit regi applies with especial force. So when the proceeding is instituted by the attorney-general in behalf of the state, the fact that the relator has acquiesced in the exercise by respondents of the franchise in question will not operate as an estoppel."
See also State v. Turnpike Co., 8 R.I. 521, 94 Am. Dec. 123.
Under our statute the quo warranto referred to in the majority opinion does not require the attorney-general to procure leave of the court in order to file suit. The court has nothing to do with his discretion as to whether he shall file suit, or whether a writ should issue. He exercises the discretion conferred upon him as the representative of the state, and the court has no right or power to refuse to hear a suit brought by him. His discretion is now reviewable by the court under the statutes of this state.
In Woodberry v. McClurg, 78 Miss. 831, 29 So. 514, it was undertaken to compel the attorney-general to approve a charter which he had declined to approve for the reason that, in his opinion, it was in violation of law. In the third syllabus of this case it is announced: "The courts will not undertake to control the attorney-general in the matter of his official opinions." In other words, the court refused to exercise any control over the discretion granted to the attorney-general. The Constitution does not confer upon courts any express power to control the bringing of suits by the state or any of its subdivisions. The statutes have not conferred upon the courts any such power, but have conferred upon the attorney-general the power to bring suits on behalf of the public in all cases affecting the public right, and upon district attorneys to also bring certain suits. A district attorney is a representative of the state, and decides for the state whether certain suits shall be brought or not. *Page 872 We are not at liberty to overrule his judgment upon the question as to the propriety of bringing suits, nor have we any discretion to withhold a judgment at law because of any real or fancied neglect on the part of the district attorney to act.
However, if we had such power, this case is not one where it should be exercised. The present suit was not brought until slightly more than six years, but that is not an unreasonable period of time.
There are other cases in which we have been called upon to decide this question, being suits brought by private persons in which it was sought to test this question, but which we found unnecessary to do to dispose of them in private litigation. One of these was Greenwood v. Provine, 143 Miss. 42, 108 So. 284, 45 A.L.R. 824, filed October 10, 1925, and, subsequently, another suit, Gwin v. Greenwood, 150 Miss. 656, 115 So. 890, 58 A.L.R. 849, was filed, which, as did the first, sought to have the questions here presented adjudicated; but these suits failed to get the judgment of the court upon the questions here presented.
The majority opinion cites the case of City of Jackson v. Merchants' Bank Trust Co., 112 Miss. 537, 73 So. 573, as supporting the rule announced. That case is distinguishable, because there the city had the right and power, and owed a duty to the people, to establish its street lines, and it had, in fact, had its surveyor to locate the line for the property owner when the building was erected, and the property owner, relying upon the correctness of the surveyor's lines, erected his building so as to extend into a street according to the true survey. The court refused to compel the property owner to remove his building because of the great injustice and expense. There the officer was acting within the scope of his duty in acting for the city, and it was not a case of an ultra vires action. Therefore that case has no force as authority here. There is also a difference between the application of laches and estoppel to a municipality *Page 873 and to a sovereign state. Municipalities are sometimes estopped when a state would not be under the same circumstances.
The majority opinion also cites the case of Ætna Ins. Co. v. Robertson, 131 Miss. 343, 94 So. 7, 95 So. 137. I am utterly unable to see how this decision can be construed as applying the doctrine of laches and estoppel. In the first syllabus of the opinion it is expressly held that: "Laches cannot be imputed to the state and invoked as a defense in a suit brought by the State Revenue Agent to collect penalties that have been incurred because of a violation of the state's anti-trust laws."
If there was any case where the doctrine of laches should have been applied, it was in a case such as there decided, where suits were brought for penalties accruing daily in large amounts, and running through a long period of years, and which, if enforced, meant, practically, confiscation of the capital involved, and also where such a peculiar situation existed — the withdrawal from the state by many insurance companies, large business built up and made profitable by the business sagacity of the owner of the business being thus destroyed, and the general public being greatly restricted in, and sometimes entirely prevented from, obtaining insurance upon property.
I cannot yield my consent to attaching to property rights an importance superior to governmental rights, and especially as applied to penal statutes. That was a case in the chancery court which proceeds according to equitable rules and principles, and laches is a doctrine of a court of equity, and has no application to a court of law. It is true that in some states it has been held that courts of law would apply the doctrine of laches, but in others only the chancery, while in other states the decisions are due to peculiar statutes — statutes difficult of being understood by judges and lawyers of other jurisdictions who are not entirely familiar with the statutory system of the state. Originally, equity had jurisdiction of *Page 874 the power to award relief upon conscientious considerations, and laches grew out of conscientious considerations by which equity courts determined the remedy where there had been laches, although courts of law would award remedies in any case.
The case before us is in a court of law as distinguished from equity, and the rule, for that reason, should not be applied.
The majority opinion relies principally upon the case of State v. Des Moines, 96 Iowa 521, 65 N.W. 818, 819, 31 L.R.A. 186, 59 Am. St. Rep. 381. This is a case not brought by the sovereign to vindicate a public right, but it was brought by a private person, and the rule, as above stated, distinguishes it from this case. In other words, it is no authority. Where a state is bringing a suit to vindicate a private right, it is as though a private person were suing in his own name. Many of the cases cited in the majority opinion are similar, that is, they are cases dealing with suits brought by private persons to vindicate private rights. There are some cases which sustain the majority opinion, but their reasoning is not satisfactory, and the basis of the decisions is not always clear. An analysis of them will, in my opinion, prove unsatisfactory to a lawyer who takes the whole line of cases and tries to deduce the true rule.
I always feel safe when I am in harmony with the decisions of the supreme court of the United States. That court has held, in many cases, with the views expressed in this opinion. In U.S. v. N.C. St. L.R.R. Co., 118 U.S. 120, 6 S.Ct. 1006, 1008, 30 L.Ed. 81, the decision states as follows: "It is settled beyond doubt or controversy, upon the foundation of the great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided, that the United States, asserting rights vested in them as a sovereign government, are not bound by any statute of limitations unless congress has clearly *Page 875 manifested its intention that they should be so bound. Lindsey v. Miller, 6 Pet. 666 (31 U.S.) 8 L.Ed. 538; United States v. Knight, 14 Pet. 301, 315 (39 U.S.) 10 L.Ed. 465; Gibson v. Chouteau, 13 Wall. 92 (80 U.S.) 20 L.Ed. 534; United States v. Thompson, 98 U.S. 586, 25 L.Ed. 194; Fink v. O'Neil,106 U.S. 272, 281, 1 S.Ct. 325, 27 L.Ed. 196."
I therefore think the case at bar should be reversed and judgment of the court rendered for the state. But it requires a majority of the judges to reverse a case, and, as the court is equally divided, we all recognize the rule that the judgment must be affirmed where there is an equally divided court.
SMITH, C.J., and McGOWEN, J., concur in this opinion.