I cannot agree to the view of the majority of my associates that a statute of limitation may be invoked against the sovereign or a municipal subdivision thereof when the act involved is one of a public right and concerning a governmental duty. The maintenance of a free public school system is an "imperative government duty." Board of Education v. State,26 Okla. 366, 109 P. 563; Miller v. Childers, 107 Okla. 57,238 P. 204; Section 1, art. 13, Constitution of Oklahoma; sec. 1568, Dillon on Municipal Corporations (4th Ed.). Herein the school district sought tax moneys rightfully belonging to it.
It is suggested in the majority opinion that the conclusion is reached because some of the money sought to be recovered may be paid out as attorney's fees incident to the recovery. The lowly Nazarene, when on earth, said: "The laborer is worthy of his hire."
In Foot v. Watonga, 37 Min. 43, 130 P. 597, this court held:
"A careful examination of the decisions show that the generally accepted doctrine is that the maxim, 'nullum tempus occurrit regi,' is not restricted in its application to sovereign states or governments, but that its application extends to and includes public rights of all kinds, and that it applies to municipal corporations as trustees of the rights of the public, and protects from invasion and encroachment the property of the municipality which is held for and devoted to public use no matter how lax the municipal authorities may have been in asserting the rights of the public."
The Supreme Court of Kansas, considering a statute identical with that here held to be a bar (section 185, C. O. S. 1921), held to the contrary:
"The rule that statutes of limitation 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 also applies to subordinate political bodies, including municipal corporations, with respect to any limitation to enforce governmental rights." City of Osawatomie v. Board of Com'rs of Miami County (Kan.) 96 P. 670.
And further in the opinion it is stated:
"Although the county may have misappropriated the city's money and thereby obligated the latter to sue for its recovery, the action is essential to compel the performance of a public duty and not to enforce a private contract."
Heretofore we have laid stress upon the adoption of a statute in view of the construction placed upon it; now we depart from that doctrine; likewise we depart from the rule prevailing in the federal courts. Simplot v. Chicago, M. St. P. Ry. Co. (C. C.) 16 Fed. 350; Marsh v. Fulton County, 10 Wall (U.S.) 676, 19 L. Ed. 1040.
It was said in New Orleans v. Fisher, 91 Fed. 574:
"A city cannot plead limitation against a suit to require it to account for taxes collected in behalf of its school board, as it holds such taxes in trust, and cannot acquire rights therein by prescription."
On appeal in that case the Supreme Court of the United States said:
"We are unable to find any authority in law or morals for the city to appropriate to itself this interest." 180 U.S. 185.
So, also, we depart from the majority rule prevailing in the states of the Union. 37 C. J. 715.
In St. Paul v. Chicago St. Ry. Co., 45 Minn. 387, 48 N.E. 17, it was said:
"There is no power more distinctively sovereign and governmental than that of levying and enforcing payment of taxes."
37 C. J. 711, states:
"The general rule is that statutes of limitation do not run against the sovereign, or state or federal or territorial government * * * in a matter falling within the scope of its governmental functions."
In Anderson v. Ritterbusch, 22 Okla. 761, 98 P. 1002, this court said:
"The 'taxing power,' when acting within its legitimate sphere, is one which knows no stopping place until it has accomplished the purpose for which it exists. * * *"
In Board of County Com'rs of Woodward County v. Willett,49 Okla. 254, 152 P. 365; this court followed the rule:
"The well-settled law in this state is that *Page 103 the statute of limitation will not run against a municipal corporation in actions involving strictly public rights."
See Gustaverson v. Dwyer (Wash.) 145 P. 458; Carter County v. Sch. Dist., 135 Okla. 248, 275 P. 302, wherein this court accepted the view:
"The principle that an obligation rests upon all persons, natural and artificial, to do justice, so that, if a county obtain money or property without authority, the law, independent of any statute, will compel restitution or compensation, is not questioned."
The Constitution of this state in no uncertain terms provides in section 19, art. 10:
"No tax levied and collected for one purpose shall ever be devoted to another purpose."
The taxes involved in this case were levied and collected for school purposes. The majority opinion in recognizing the statute of limitations permits such tax moneys levied and collected to be devoted to a purpose other than that for which they were levied and collected.
For these reasons, I dissent.