Board of Educ. of City of Duncan v. Johnston
| Decision Date | 04 March 1941 |
| Docket Number | 28313. |
| Citation | 115 P.2d 132,189 Okla. 172,1941 OK 72 |
| Parties | BOARD OF EDUCATION OF CITY OF DUNCAN v. JOHNSTON. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 24, 1941.
Syllabus by the Court.
A proceeding in mandamus, by owner of paving bonds to compel a school district to make a tax levy to pay the paving bonds commenced after the statutory time within which a similar action to recover on such bonds could be maintained, is subject to laches.
Appeal from District Court, Stephens County; Eugene Rice, Judge.
Special proceeding at the instance of W. R. Johnston, petitioner, for mandamus against the Board of Education of the City of Duncan, Oklahoma, to require tax levies to liquidate delinquent installments due on paving bonds. From judgment awarding the writ, the Board of Education appeals.
Reversed and remanded with directions.
J. G Clift, of Duncan, for plaintiff in error.
Abernathy, Howell & Abernathy, of Shawnee, and Paul D. Sullivan, of Duncan, for defendant in error.
James G. Martin and Justus H. Fugate, both of Wichita, Kan., Myron S. Steere, of Pratt, Kan., James S. Twyford, Solon W. Smith, and William J. Crowe, all of Oklahoma City, Meacham, Meacham, & Meacham, of Clinton, and Smith Hester, L. T. Cook, and Geo. Bingaman, all of Purcell, amici curiae.
Johnston, owner of paving bonds, secured below a writ of mandamus to compel the Board of Education of the City of Duncan to include in its estimate for the fiscal years 1937, '38 and '39 tax levies to pay delinquent installments and interest on paving bonds for the fiscal years 1924, '25 and '26.
The improvement bonds were issued in the year 1922 (Art. 12, § 4583 et seq., Chap. 29, C.O.S.1921). They were payable in ten equal, annual installments, and assessments were made against the school property within the provision of Sec. 4593, C.O.S.1921, but no estimate or tax levy was made and approved, at any rate the assessments against the school property for the years 1924, '25 and '26 were not paid. As a result there was a deficiency in the fund with which to pay the bonds when they matured.
The record is not clear whether the first installment became due in 1922 or 1923, but in either event the bonds matured either in 1931 or 1932 and five years had elapsed thereafter before the present proceeding was commenced on June 3, 1937. More than ten years had elapsed after failure to make estimates and tax levies for the years 1924, '25 and '26.
The return challenged the sufficiency of the allegations contained in the alternative writ issued below and it effectively raised the issue of laches. Reaves v. Turner, 20 Okl. 492, 94 P. 543; Tiger v. Brown et al., 130 Okl. 83, 265 P. 124; Fox v. Ziehme et al., 30 Okl. 673, 120 P. 285; Missouri, K. & T. Ry. Co. v. Wilcox, 32 Okl. 51, 121 P. 656; Ostran v. Bond et al., 69 Okl. 310, 172 P. 447; Delzell v. Couch, 70 Okl. 124, 173 P. 361.
Duke v. Turner, 204 U.S. 623, 27 S.Ct. 316, 319, 51 L.Ed. 652, 9 Ann.Cas. 842. In that cause, the Supreme Court of the United States referred to the Ohio Statute, the construction of it as made in Chinn v. Trustees, 32 Ohio St. 236, and further said:
It has many times been held by our court that mandamus is a special proceeding. Reisinger v. Hurst, 163 Okl. 92, 20 P.2d 1040; Bath v. Dumas, 108 Okl. 260, 236 P. 1; Feuquay v. McAlister, 102 Okl. 164, 228 P. 487. But see Homesteaders v. McCombs, 24 Okl. 201, 103 P. 691, 38 L.R.A., N.S., 1000, 20 Ann.Cas. 181. See also Robertson v. Bozarth, 87 Okl. 102, 209 P. 742 and Carter v. Collins, 174 Okl. 4, 50 P.2d 203.
The Supreme Court of the United States in United States v. Lane, 249 U.S. 367, 39 S.Ct. 293, 294, 63 L.Ed. 650, used these words:
It is, as we have held, a discretionary writ and it lies to compel only performance of a plain legal duty. Marland v. Hoffman, 184 Okl. 591, 89 P.2d 287. The Statutes of Limitations may be made the gauge of stale claims and govern applicability of laches. Carter v. Collins, supra; People v. Chapin, 104 N.Y. 96, 10 N.E. 141; 38 C.J. 832.
The issue now presented is, after the elapse of more than a decade from the time it was the duty of the Board of Education to make tax levies with which to pay the assessment, whether that duty is now clear enough to warrant issuance of the discretionary writ.
In Wenner, Treasurer, v. Board of Education, 25 Okl. 515, 106 P. 821, certain creditors had obtained judgment against a school district; they permitted the judgment to remain more than five years without action to enforce payment despite the fact that, under the law, execution could not issue at anytime, as against the school district. It was held that mandamus was the remedy to compel tax levies to accumulate money with which to pay the judgment, but inasmuch as the judgment had become dormant by the elapse of time without the issuance of execution, mandamus, its equivalent in the particular instance, would not issue because of the same fault, measured by the same rule. Simpson et al. v. City of Kansas City et al., 52 Kan. 88, 34 P. 406.
The owner of public improvement bonds ought not be permitted to rest indefinitely secure with interest bearing burdens upon a municipality, for that would be detrimental if not destructive to the ownership of property liable for the debt. Such a property owner or prospective property owner should be entitled to have liability of particular property determined and discharged from the lien of principle and interest and the burden of penalty as soon as practicable.
In the case at bar all real property taxpayers of the school district, by the judgment rendered, are compelled to pay thrice the amount of the original cost had it been assessed in due course of law; whereas without the tax levy being made, they could not have determined their just share of the expense of the improvement and paid it as could individual owners of property improved. Herein the equitable doctrine of laches applies.
While a lien co-equal with that of taxes is created by statute, under the statute Sec. 10957, O.S.1931, 42 Okl.St.Ann. § 23, it may be extinguished by a mere lapse of time, and it is extinguished by the lapse of time within which under the provisions of civil procedure an action or the equivalent of a civil action can be brought to liquidate the obligation. McGrath v. Oklahoma City, 156 Okl. 34, 9 P.2d 711; St. Louis County ex rel. Scott v. Marvin Planing Mill Co., 228 Mo.App. 1048, 58 S.W.2d 769; City of Knoxville v. Gervin et al., 169 Tenn. 532, 89 S.W.2d 348, 103 A.L.R. 877; Farwell v. San Jacinto & Pleasant Valley Irr. Dist., 49 Cal.App. 167, 192 P. 1034. Moreover, by Sec. 6240, O.S.1931, 11 Okl.St.Ann. § 107, an action to foreclose the delinquent lien may be commenced within twelve months.
Independent School Dist. No. 39 of Creek County et al. v. Exchange National Co., 164 Okl. 176, 23 P.2d 210, 211, 95 A.L.R. 685, was a civil action against the school district. It was therein held that the action could not be maintained for the remedy was by mandamus. It was not therein held that the lien was perpetual. It was held subject to liquidation at any time, in the manner prescribed by law. The opinion expresses the view that: "*** our system for collection of taxes was never intended to operate" so as "to allow plaintiff [bond holder] to sit idly by for a period of ten years without taking advantage of its right to enforce payment of these assessments, allowing them to bear 18 per cent. interest from and after the date on which they became due ***."
However, the rule in reference to the statute of limitations may be as applied to the payment of warrants, under the special fund theory. Board of Com'rs of Greer County v. Clark & Courts, 12 Okl. 197, 70 P. 206, 212; Barnes v. Turner, 14 Okl. 284, 78 P. 108, 10 L.R.A., N.S., 478, 2 Ann.Cas. 391; Sulphur v. State, 62 Okl. 312, 162 P. 744; Little et al. v. Emmett Irr. Dist., 45 Idaho 485, 263 P. 40, 42, 56 A.L.R. 822: "*** have reached the ultimate of declaring that such limitations do not run against any warrant until the municipality has levied and collected the fund, ***."
We are not herein dealing with the collection of warrants, and like Kansas we distinguish such cases from these involving bonds which constitute general promises to pay upon a day certain from whence delays may defeat payments under statutes of limitation or laches. Schoenhoeft v. Kearny County Com'rs, 76 Kan. 883, 92 P. 1097, 16 L.R.A., N.S., 803, 14 Ann.Cas. 100.
Judgment reversed and cause remanded with directions to dismiss the proceedings.
While I agree that the plaintiff's right to have the levies made is barred by laches, I am of the further opinion that there is no statute authorizing a school district to levy and collect a tax during one fiscal year to pay special assessments that should have been collected and paid during a prior fiscal year, and consequently, since there is no clear legal right or duty to do so, mandamus will not lie to compel it. Marland v. Hoffman, 184 Okl. 591, 89 P.2d 287. I...
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