(dissenting).
There is something basically wrong when the state is permitted to exact compliance from St. Louis with the statutes requiring St. Louis to pay for indigent patients in state mental institutions, yet at the same time the state is not required to comply with statutes which require it to pay St. Louis for the support of charity patients in the city tuberculosis and city mental hospitals.
*581According to St. Louis, the state is obligated to pay it $735,621.54 for care and maintenance of insane patients at Malcolm A. Bliss Mental Health Center and St. Louis Chronic Hospital, as required by Sec. 202.670, RSMo 1949 and 1959, and $935,020.72 for support of charity patients in Robert Koch Hospital, as required by Sec. 205.450, RSMo 1949 and 1959. The city asserts (and this is not denied) it has made efforts to induce past governors and the general assembly to pay this indebtedness, but without success. The state does not deny the debt. The state, however, says the statute of limitations bars the offset which the city attempts to assert.
I do not believe the statute of limitations was intended by the legislature to apply to public rights, where one part of the state is dealing with another part of the state. In Reorg. Sch. Dist. R-l v. Reorg. Sch. Dist. R-III, 360 S.W.2d 376 (Mo.App.1962), one school district sought to assert the statute of limitations against another school district in a dispute over boundaries and taxes. The trial court held the statute had run against plaintiff’s action, but this was reversed on appeal, the court saying, 360 S.W.2d l. c. 381: . . [W]e are cited to Section 516.010 relating to limitation of actions for recovery of land, and to Sections 516.110 and 516.120 relating to personal actions. Section 516.360 provides that these limitations shall apply to the state. This action is neither for the recovery of real property or a personal action within the statute. The action is to enforce a public right, and it is therefore not within the statutes mentioned. . . (emphasis supplied).
The court cited in support of its ruling the case of State ex rel. Wyatt v. Cantley, 325 Mo. 67, 26 S.W.2d 976 (banc. 1930). There the claim of a county collector of revenue for county taxes was held not to be barred by failure to file the claim within the time prescribed by statute for filing claims against insolvent banks taken over by the state finance commissioner. The court held that statutes of limitations do not apply to the state unless clearly so provided, the reasoning being that the public right or title should not be lost by the neglect or wrong of the agents of the state.
In City of Osawatomie v. Board of Com’rs of Miami County, 78 Kan. 270, 96 P. 670 (1908) the court held that the statute of limitations did not run against the city in an action to recover taxes collected by the county which should have been turned over to the city. The court put the decision on the basis that the statute did not apply to public rights or property held upon a public trust, quoting from a West Virginia decision, Ralston v. Weston, 46 W.Va. 544, 33 S.E. 326, as follows (96 P. l. c. 671): “. . . So, statutes of limitations, which are made to apply to the state, do not apply to the people or their public rights. But they only apply to the state in the same cases that they apply to individuals. The entry upon, or recovery of, lands held for sale, suits or bonds, contracts, evidences of debt, or for torts — all these, though the state is a party, are subject to bar. As to all such things there is no reason why the state 'should have any longer time than an individual. Such is not the case with the right of taxation, the right of eminent domain, the right to use the public highways, and other rights, which pertain only to the sovereignty of the people. None of these can ever be lost by the negligence of the public servants, who have no power of disposal over them in anyway whatever, except according to the express will of the people.”
The court also quoted with approval from Simplot v. Chicago, etc. Ry. Co. (C. C.) 16 F. 350, as follows (96 P. l. c. 671): “The true rule is that when a municipal corporation seeks to enforce a contract right, or some right belonging to it in a proprietary sense, or, in other words, when the corporation is seeking to enforce the private rights belonging to it, as distinguished from rights belonging to the public, then it may be defeated by force of the statute of limitations, but in all cases wherein the corporation represents the *582public at large, or the state, or is seeking to enforce a right pertaining to sovereignty, then the statute of limitations, as such, cannot be made applicable. In the latter cases the courts may apply the doctrine or principle of an estoppel, and by means thereof, where justice and right demand it, prevent wrong and injury from being done to private rights.”
In conclusion, the Kansas court said as follows, 96 P. l. c. 672: “The present controversy involves no element of private contract. It does not concern the vindication of any private right. It is between public officers or public bodies with respect to the performance of a public duty, in which the people of the state at large have at least an indirect interest. It is not affected by mere general provisions of the statute, and no statutory limitation is made to apply to it either in express terms or by necessary implication.”
I believe Sec. 516.360 RSMo, V.A.M.S. has reference to cases where the state brings an action, for its benefit, against a private individual, seeking to collect, for example, back taxes. In such a situation, the statute of limitations applies against the state. Other examples are where the state is seeking to forfeit the license of a corporation, State ex rel. Attorney General v. Arkansas Lumber Co., 260 Mo. 212, 169 S.W. 145 (1914), or to a suit by a city on a special tax bill, City of St. Louis v. Newman, 45 Mo. 138 (1869), or to a suit by the state to recover delinquent income taxes, State v. Dalton, 353 Mo. 307, 182 S.W.2d 311 (1944), or antitrust conspiracy proceedings brought by the state against a private corporation, State ex inf. Eagleton v. Stupp Bros. Bridge & Iron Co., 380 S.W.2d 382 (Mo. banc 1964). None of these is the situation before us.
In V. S. DiCarlo Const. Co. v. State, 485 S.W.2d 52 (Mo.1972) we pointed out how unfair it was to let the state have the benefit of a contract and then at the same time assert that a private citizen could not maintain suit against it on the contract. We held that the general assembly did not intend a contract lacking in mutuality, that to hold otherwise would be to sanction “the highest type of governmental tyranny.”
I would apply the same principles of equity and fair dealing here. If'the state expects St. Louis to live up to its public obligations, it should also live up to its public obligations to St. Louis and come into court with clean hands, as mandamus partakes of the nature of equity to the extent that the relator must come with clean hands, State ex rel. Hyde v. Jackson County Medical Soc., 295 Mo. 144, 243 S.W. 341, 342 (1922)’. The statutes in question are to a great extent reciprocal: the city must pay the state a certain sum for its patients in a state facility and the state must pay the city a certain sum for taking care of charity patients in city facilities who would otherwise have to be taken care of elsewhere. The statutory language in both instances as to what each shall receive from the other is direct, to the point, and admits of no exceptions. There is no indication the legislature intended the state to escape these obligations by invoking the statute of limitations. The money involved here is all public money, yet the way this case turns out, St. Louis is being shorted the public money due it, while the state is not.
I would send this case back to the circuit court for a hearing and determination of the offset asserted by St. Louis and would instruct the trial court to award appropriate relief to whichever side is entitled to recover after the accounts are balanced.