I cannot agree with the conclusion reached by the majority of my associates in this case. If this were a suit at law for the enforcement of the statutory lien, and such suit could be maintained, the three-year statute of limitation provided by subdivision 2 of section 101, O. S. 1931, 12 Okla. St. Ann. § 95, would apply because such liability is a statutory liability. Even if the three-year statute were not applicable, the five-year statute, being subdivision 6 of section 101, O. S. 1931, 12 Okla. St. Ann. § 95, would be if this were a law action. However, this is a mandamus action and I agree that neither of the foregoing statutes of limitation is applicable. Under proper circumstances laches would be a complete defense to this action and either the three- or five-year statute would be a good yardstick with which to measure and determine the application of the rule of laches. In this case there was a duty to perform on the part of the public officers. This duty was not performed. If this duty had been performed, the funds required to pay the installments would have been available as they fell due. Likewise, there rested a duty upon the bondholder, after the due date of the bonds, to exercise reasonable diligence in requiring that said funds be made available. In this regard he is guilty of laches. The unpaid delinquent installments on these bonds are due and unpaid.
If a bondholder is guilty of laches by failure to diligently proceed to require payment and the school board, or anyone else materially concerned, is injured, *Page 176 he would not ordinarily be permitted to recover. The school board was guilty of nonperformance of the statutory duty to make proper levies and the bondholder was guilty of laches. Under all the facts and circumstances, I can see no injury in this case resulting from laches except the item of interest provided by the judgment of the lower court. The facts in this case, as indicated above, do not justify the application of the equitable rule of laches to such an extreme extent as to prevent any recovery in this case. In my opinion, the judgment of the lower court should be permitted to stand, but without interest in any amount.