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, 1938, and 1939 tax levies to pay delinquent installments and interest on paving bonds for the fiscal years 1924, 1925, and 1926.
The improvement bonds were issued in the year 1922 (art. 12, 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 section 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, 1925, and 1926 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 *Page 173 June 3, 1937. More than ten years had elapsed after failure to make estimates and tax levies for the years 1924, 1925, and 1926.
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 Okla. 492, 94 P. 543; Tiger v. Brown et al., 130 Okla. 83,165 P. 124; Fox v. Ziehme et al., 30 Okla. 673, 120 P. 285; Missouri, K. T. Ry. Co. v. Wilcox, 32 Okla. 51, 121 P. 656; Ostran v. Bond et al., 69 Okla. 310, 172 P. 447; Delzell v. Couch, 70 Okla. 124, 173 P. 361.
Duke v. Turner, 204 U.S. 623, 51 L. Ed. 652, 27 S. Ct. 316. 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:
"This language is no less applicable to the Oklahoma Code. The proceeding in mandamus is not a civil action and therefore not within the terms of the statute of limitations."
It has many times been held by our court that mandamus is a special proceeding. Reisinger v. Hurst, 163 Okla. 92,20 P.2d 1040; Bath v. Dumas, 108 Okla. 260, 236 P. 1; Feuquay v. McAlister, 102 Okla. 164, 228 P. 487. But see The Homesteaders v. McCombs, 24 Okla. 201, 103 P. 691. See, also, Robertson v. Bozarth, 87 Okla. 102, 209 P. 742, and Carter v. Collins,174 Okla. 4, 50 P.2d 203.
The Supreme Court of the United States, in United States v. Lane, 249 U.S. 367, 63 L. Ed. 650, 39 S. Ct. 293, used these words:
"Mandamus is classed as a legal remedy. . . . It is an extraordinary remedy which will not be allowed in cases of doubtful right . . . and it is generally regarded as not embraced within the statutes of limitations applicable to ordinary actions, but as subject to the equitable doctrine of laches."
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 Okla. 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, Treas., v. Board of Education, 25 Okla. 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 any time, 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 lapse 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 principal 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 *Page 174 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 coequal with that of taxes is created by statute, under the statute section 10957, O. S. 1931, 42 Okla. Stat. 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 Okla. 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 section 6240, O. S. 1931, 11 Okla. Stat. 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 Okla. 176, 23 P.2d 210, 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 (bondholder) to sit idly by for a period of 10 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. Greer County v. Clark Courts, 12 Okla. 197,70 P. 212; Barnes v. Turner, 14 Okla. 284, 78 P. 108, 10 L. R. A. (N. S.) 478, 2 Ann. Cas. 391; Sulphur v. State, 62 Okla. 312,162 P. 744; Little et al. v. Emmett Irr. Dist., 45 Idaho, 485,263 P. 40, 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,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.
WELCH, C. J., CORN, V. C. J., and BAYLESS and ARNOLD, JJ., concur. HURST, J., concurs specially. OSBORN, GIBSON, and DAVISON, JJ., dissent.