I think the importance of the question involved justifies this expression of the reasons why I cannot concur in the majority opinion.
I consider the effect of the opinion is to declare operative as a statute of limitation that which under the law cannot be imposed by the Legislature or recognized by the courts as such; that same is violative of the obligations of contract which is inhibited by the Federal Constitution; that same is in contravention of the powers of the courts arising under grant by the Oklahoma Constitution; and that its overall effect is to place the approval of this court upon What amounts to the repudiation by a sovereign state of a power held in trust.
The sole basis that could exist, and the one relied on as existing, for the opinion, is that the limitation is procedural merely and thus applicable only to enforcement of remedies in contradistinction to substantive rights. What I deem to be the vice of the opinion is that it fails to fully recognize the fact that remedies of themselves may and in the instant case do constitute substantive rights and therefore are inviolate, and it ignores the controlling import of legal principles applicable thereto.
Prior to the issuance of the bonds under authority of the 1923 Act, and in order to give character thereto and to induce the public to invest, the law provided a careful, full and sure method for the payment thereof, wherein no duties or conditions were imposed upon the bondholder. And any contemplation that such could be imposed is precluded by the fact that each step in the process of collection is made the mandatory duty of the municipality and of those to whom the power of collection is delegated. And same was further advertised by making the bonds negotiable. The mandate of the law in the final analysis is that the city must collect the assessments and place same in a designated fund for disbursement, to which fund the bondholder is assured a right of recourse for the discharge of the bond. These specific provisions of law are not remedies afforded to existing rights, and thus subject to modification or recall. They are in no sense mere *Page 657 matters of legislative grace. They were offered contractually and the sole condition of the acceptance to make them obligations was the payment of the purchase price of the bonds, which is not questioned. Hence the obligations became absolute, and beyond the power of the Legislature to recall without a remedy that was an equivalent.
In view of the holdings of this court, that neither the municipality nor the lot owner is personally liable on the obligation of the bonds, the vital character of the lien and the prescribed methods for the discharge of the obligation are of vital concern to the bondholder. And appraising such a situation, this court, in Nelson v. Pitts, 126 Okla. 191,259 P. 533, 535, declared:
"The bonds in question were accepted by purchaser in view of the provisions of the act under which they were issued. The law under which bonds of this character are issued, and under which contracts of this character are made, enters into and becomes an essential part of the contract. Oklahoma Cotton Growers' Ass'n v. Salyer, 114 Okla. 77, 243 P. 232; 6 R.C.L. p. 855; 13 C. J. 247; Deweese v. Smith, 66 L. R. A. 971; Armour Packing Co. v. U.S., 14 L.R.A. (N.S.) 400; Moore Co. Treas., v. Otis et al., 275 F. 747; Moore v. Gas Securities Co. (C.C.A.) 278 F. 111."
Pertinent to the trust phase of the situation there was declared in Spitzer v. City of El Reno, 41 Okla. 430,138 P. 797, 802, the following:
"That such money, when collected from the various property owners, becomes a trust fund, to be used only for the particular purpose for which it was raised, and especially until all bonds and interest and other legal charges against said fund have been paid, there can be no doubt. See City of El Reno v. Cleveland Trinidad Paving Co., 25 Okla. 648,107 P. 163, 27 L.R.A. (N.S.) 650; Ritterbusch, Co. Treas., v. Havinghorst, City Treas., 29 Okla. 478, 118 P. 138; Shultz v. Ritterbusch, 38 Okla. 478, 132 P. 961."
In Straughn v. Berry, 179 Okla. 364, 65 P.2d 1203, 1205, considering the same law under which the paving bonds in the instant case were issued (11 O. S. 1941 § 81-117), we declared:
"The law existing at the time of the issuance of municipal bonds, and under the authority of which they are issued, enters into and becomes a part of the contract in such a way that the obligation of the contract cannot thereafter be in any way impaired, or its fulfillment hampered or obstructed by a change in the law."
And in recognition of the property right of the bondholder in the collection of the assessments and creation and disbursements of the trust fund, there is further declared:
"The right of the bondholder to require that interest and penalties be collected and applied to payment of the bonds and interest coupons is a vested property right. Such right may not be divested by subsequent legislation."
In recognition of the soundness and controlling effect of these principles, the Circuit Court of Appeals, Tenth Circuit, in Hann et al. v. City of Clinton ex. rel. Schuetter,131 F.2d 978, considering the 1939 law (11 O. S. 1941 § 242), which is upheld in the opinion, declared:
"Where paving bonds, issued under 1923 statute which provided that lien. should continue until assessment and interest thereon should be paid in full, were outstanding when statute was enacted limiting right to enforce assessment lien to three years following maturity of bonds, such later statute did not affect the bonds since to absolve property of lien short of payment or sale of property for delinquent installments or other delinquent taxes would 'impair the obligation of contract', the provision of the 1923 statute having become a part of the contract. 11 O.S. 1941 §§ 107[11-107], 103, 242."
What I consider to be an authoritative expression is the following, declared in the United States ex rel. Von Hoffman v. City of Quincy, 4 Wall 535, 19 L.Ed. 403:
"It cannot be doubted, either upon principle or authority, that each of such *Page 658 laws passed by a state would impair the obligation of the contract, and the last mentioned not less than the first. Nothing can be more material to the obligation than the means of enforcement. Without the remedy the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfillment wholly upon the will of the individual. The ideas of validity and remedy are inseparable, and both are parts of the obligation, which is guaranteed by the Constitution against invasion. The obligation of the contract 'is the law which binds the parties to perform their agreement.' Sturges v. Crowninshield, 4 Wheat 122.
"No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances. Whenever the result last mentioned is produced, the act is within the prohibition of the Constitution, and to that extent void. . . .
"It is equally clear that where a state has authorized a municipal corporation to contract and to exercise the power of local taxation to the extent necessary to meet its engagements, the power thus given cannot be withdrawn until the contract is satisfied. The state and the corporation, in such cases, are equally bound. The power given becomes a trust which the donor cannot annul, and which the donee is bound to execute; ;and neither the state nor the corporation can any more impair the obligation of the contract in this way than in any other."
In the light of what has been said, I deem it manifest that the right of the bondholder to perpetuity of the lien and the exercise of the tax powers prescribed to meet the obligations of the bonds, considered independently of the provision for foreclosure by the bondholder, would be clearly beyond the power of the Legislature to directly impair without providing what in law would be deemed an equivalent. James M. Seibert, Collector, etc., v. United States ex rel., 122 U.S. 284, 30 L.Ed. 1161; Louisiana v. New Orleans, 102 U.S. 203; United States ex rel. Wolff v. New Orleans, 103 U.S. 358, 26 L.Ed. 395; Cooley, Const. Lim. (8th Ed.) vol. 1, p. 583. The remedy proposed by the 1939 Act is in no sense efficacious. It is in substance an abridgement of existing remedies and that to be accomplished through an impairment of vested rights. (Cases last cited and Worthen ex rel. Board of Com'rs v. Kavanaugh, 55 S.Ct. 555, 79 L.Ed. 1298, 97 A.L.R. 905, and anno. note p. 911; Fidelity State Bank, etc., v. North Fork Highway District, 35 Idaho, 797, 209 P. 449, 31 A.L.R. 781).
The remedy provided by foreclosure was merely cumulative and the failure to pursue the same in no wise impaired the right and duty of the county treasurer to proceed by sale and resale where not forestalled by foreclosure action. Oklahoma City v. Vahlberg, Co. Treas., 185 Okla. 28, 89 P.2d 962.
If such remedy by foreclosure were purely a procedural action, the application of the general statutes of limitation thereto, as was done in City of Bristow v. Groom,194 Okla. 384, 151 P.2d 936, would be justified. On the other hand, if such remedy is a substantive right the sole justification for its impairment would be the fact there remained the equally effective remedy through tax sale proceedings. Richmond Mortgage Loan Corp. v. Wachovia Bank Trust Co.,300 U.S. 124. In the Groom Case it is expressly recognized that the statute of limitation there applied would not be applicable to proceedings by the county treasurer. Such is a recognition of the fact such duties are without the field of the operation of statutes of limitation. I am of the opinion that such duties are not only without the field of the operation of statutes of limitation but, because of the duties are in the exercise of a power in trust, and a limitation upon the right to compel performance is contrary to established public policy and an infringement upon the power of the court to *Page 659 enforce contracts, as well as violative of the obligations of such contracts.
Under general law in force at the issuance of the bonds (68 O. S. 1941 § 353), taxes upon real property were made a perpetual lien. And this court in construing the lien of special assessments has consistently held the lien thereof is co-equal with the lien of other taxes, "and as to unpaid installments and interest, such assessments and interest continue as a lien until they are fully paid" Settle v. Frakes,156 Okla. 53, 9 P.2d 768; Runnells v. Citizens National Bank etc., 157 Okla. 94, 11 P.2d 173; Blythe v. Pratt, 171 Okla. 2,41 P.2d 895; Service Feed Co. v. City of Ardmore,171 Okla. 155, 42 P.2d 853.
We have seen that the duties of the treasurer are in the exercise of a power in trust. As to the integrity of such powers there is also to be borne in mind the definition and quality thereof under law existing at the time of the issuance of the bonds.
The nature of the power is defined in 60 O.S. 1941 § 183[60-183], as follows:
"A power, as the term is used in this article, is an authority to do some act in relation to real property, or to the creation or revocation of an estate therein, or to a charge thereon, which the owner granting or reserving such power might himself perform for any purpose."
That the power here is one in trust is made to appear by section 189 of the same title, which is as follows:
"A power is in trust when any person or class of persons, other than its holder, has, by the terms of its creation an interest in its execution."
The irrevocability is stated in section 196 of the same title as follows:
"Every power, beneficial or in trust, is irrevocable unless an authority to revoke it is given or reserved in the instrument creating the power."
And that its execution is imperative and imposes a duty which may be compelled by the bondholder is thus declared in section 292 of the same title:
"Every trust power, unless its execution is made expressly to depend on the will of the trustee, is imperative, and imposes a duty on the trustee, the performance of which may be compelled for the benefit of the parties interested."
The duty to convert the liens into cash through tax sales did not devolve upon the bondholder but did devolve upon the governmental agencies. The only delay in the conversion was through nonperformance of such duty. Under the contract such delay could neither impair the lien nor the duty which was mandatory and irrevocable. Under the contract the state could not refuse performance of the duty nor limit the time of its performance short of a sale of the premises upon which the lien obtained. The effect of the 1939 Act would be to accomplish indirectly that which under the Constitution it could not do directly. It places upon the bondholder the duty to foreclose which did not obtain under the contract. At the same time it abrogates the right to exact performance of the governmental duty which theretofore existed. With the duty so shifted it imposes a time limit upon the action which if not timely pursued will result in the extinguishment of the lien. The makeshift is too artificial to be convincing. Under the doctrine of both the Von Hoffman-Quincy and Straughn-Berry Cases, supra, the power and the duty of the governmental agencies were in trust and cannot be thrown aside upon a ground which is in fact but a breach of trust.
Considering the contract as embodying the existing laws, and especially the statutory provisions with reference to powers in trust, the power and duty to sell at tax sale was irrevocable and hence remained until performed. The duty to perform was unconditional and mandatory and therefore the bondholder had a vested right under the existing law to resort to mandamus to compel performance. To abrogate such duty, in which the bondholder has a *Page 660 vested right, prior to its performance, is beyond the legislative power under the constitutional limitations. And since such duty is unimpaired any limitation upon the right to exact performance through the medium of mandamus as the right obtained under the existing laws is not only violative of a vested contract right and inoperative by reason thereof, but is further inoperative because it is an unauthorized infringement upon the judicial power of the district courts. The jurisdiction of the court to issue mandamus is derived through the Constitution and not through any Act of the Legislature (Const., art. VII, sec. 10). It is a well settled rule that judicial power cannot be taken away by legislative action and that any legislation that hampers judicial action or interferes with the discharge of judicial functions is unconstitutional (11 Am. Jur. 908, and cases cited). And it follows that it cannot interfere with the power vested in the court to issue its prerogative writ of mandamus to enforce the performance of an official duty. This question was thoroughly considered in the case of State ex rel. Buckwalter v. City of Lakeland (Fla.)150 So. 508, 90 A.L.R. 704, involving the same principle as here. We quote the third, fourth and fifth paragraph of the syllabus:
"3. A constitutional grant of power to the courts of the state to issue writs of mandamus vests in them full and complete authority to issue such writs to enforce the performance of the full and complete duty devolved by law upon any official.
"4. A statute providing that in any mandamus suit by the holder of past-due municipal bonds or interest coupons, to compel payment thereof from money actually on hand in the interest and sinking fund, the peremptory writ, if issued, shall command the respondents to pay to relator only such pro rata portion of the fund as the relator's amount of past-due bonds or interest coupons bears to the whole amount of past-due bonds or interest coupons then unpaid and outstanding, is invalid as an attempt by the Legislature to interfere with power vested in the courts by the state Constitution to issue writs of mandamus to enforce the performance of an official duty.
"5. Power conferred upon the courts by the Constitution cannot be enlarged or abridged by the Legislature."
It is further held therein that the act in the respect indicated was an unconstitutional impairment of the obligation of the bondholder's contract.
In Oklahoma the duty to sell at the tax sale is a duty that is intermediate and preliminary in order to provide the fund to which the bondholder can look for relief and until such fund is created statutes of limitation as such can have no application because they would be contrary to public policy in placing a premium on dishonesty and fraud. Furthermore, the right to mandamus such sale is not in this jurisdiction subject to a statutory limitation. These propositions were established in this jurisdiction during territorial days, by the Supreme Court of the Territory of Oklahoma, in C.W. Barnes, Mayor, et al. v. C.W. Turner and James Kirkwood, 14 Okla. 284, 78 P. 108, and on appeal same was made unquestionable by the Supreme Court of the United States in Duke, Mayor, et al. v. Turner et al.,204 U.S. 623, 9 Anno. Cas. 842. The doctrines so announced are settled law in this jurisdiction. City of Sulphur v. State ex rel. Lankford, Bank Com'r, 62 Okla. 312, 162 P. 744; Board of Education of City of Duncan v. Johnston, 189 Okla. 172,115 P.2d 132; Wilson v. City of Hollis, 193 Okla. 241, 142 P.2d 633.
The doctrine of said cases is not even considered in the opinion. And as authority for the application of the limitation on mandamus there is cited Wheeler v. Jackson, 137 U.S. 245, and Terry v. Anderson, 95 U.S. 628.
The Terry Case involved a reduction in time of an existing limitation and hence the power to impose was not involved but accepted. It can have no *Page 661 application here where the power to impose is the question.
The Wheeler Case is no more in point.
Under the law of New York a mandamus proceeding is an "action" or "civil action" within the meaning of statutes limiting civil actions. People v. Marsh, 82 N.Y. App. Div. 571, 81 N.Y.S. 579, affirmed in 178 N.Y. 618,70 N.E. 1107 (cited in annotation 9 Anno. Cas. 845) In no event could the Wheeler Case be in point without first assuming that in Oklahoma a mandamus action is to be classed with ordinary civil actions and thus amenable to statutes of limitations. However, independently thereof, the Wheeler Case affords no parallel in its facts by reason of which the discussion therein could be helpful. Here, there is not involved mandamus to compel the disbursement of a fund which had been created, but to compel the doing of something that is preliminary and necessary to the creation of such fund. There, no duties preliminary to awarding the ultimate relief obtained. The relief to which he was entitled was the ultimate relief, a lease which he was entitled to receive on demand. There was involved no unperformed duty in which he had a vested right. His right was to demand and receive the lease, in substance the same as an action for specific performance. The holding was that he had no vested right to withhold demand. If in the instant case the assessments had been collected and placed in the fund as required and the bondholder, deeming it to his advantage to not demand payment, stood back and failed to do so, we would have a parallel situation.
The situation in the instant case was not and could not have been involved in the Wheeler Case and hence nothing there said can afford a criterion herein.
In the majority opinion reference is made to conditions which had arisen by failure of county treasurers to perform their duties and that the act was passed to remedy such condition. This indicates an attempt to justify the act on authority of police power. The exercise of police power rests in the discretion of the Legislature and must square with public necessity. It is not to be accorded to an act by the courts independently of the legislative intent. And such intent must be found in the phrasing of the law. Cooley, Const. Lim., 8th Ed. vol. 1, p. 1228; Home Building Loan Ass'n v. Blaisdell et al., 290 U.S. 398, 78 L.Ed. 413; Leonard v. State, 100 Ohio St. 456, 127 N.E. 464; Spann v. Dallas, 111 Tex. 350, 235 S.W. 513, 19 A. L. R. 1387.
The 1939 Act not only fails to declare it is in exercise of police power, but there is nothing in the act to indicate as much. The act does not purport to wipe the slate clean in the public interest. It recognizes the indebtedness, the lien and the right of enforcement. If shortening the period of enforcement was the purpose, why should it not have been accomplished by compelling the county treasurers to act in accordance with duty already prescribed by the state? The reason is obvious. By shifting the duty to enforce collection to shoulders where for obvious reasons it could not be successfully borne, and at the same time thereby exonerating the county treasurer from duty unless so coerced, there is sought to be accomplished indirectly what could not be, and it is not sought to be, done directly. No public interest is even pretended.
The conditions referred to in the opinion are attributable to no fault of the bondholder and they arose through failure of the property owner to discharge the lien by payment of the assessments, which was the only basis upon which he was entitled to enjoy the property free from the lien, and also through the failure of the county treasurer to effect the collection of the assessments which he was in duty bound under the law to do for the use and benefit of the bondholder. Upon what theory can it be said that under such circumstances the state may repudiate its power in trust and thus reward a defaulting debtor at the expense *Page 662 of the creditors who loaned in reliance upon the pledged power?
I consider the holding and comment of the court in Rees v. Watertown, 19 Wall. 107, 22 L.Ed. 72, clearly in point here. It is there declared:
"The remedies for the collection of a debt are essential parts of the contract of indebtedness, and those in existence at the time it is incurred must be substantially preserved to the creditor. Thus a statute prohibiting the exercise of its taxing power by the city to raise money for the payment of these bonds would be void."
And referring to conditions that reflected the result of nonfulfillment of the obligation, further said:
"These theories are vicious. They are based upon the idea that a refusal to pay an honest debt is justifiable because it would distress the debtor to pay it. A voluntary refusal to pay an honest debt is a high offense in a commercial community and is a just cause of war between nation."
In my opinion the law applicable to, and the proper disposition of the issues herein, should be stated as follows:
I. The law existing at the time of the issuance of municipal bonds, and under the authority of which they are issued, enters into and becomes a part of the contract in such a way that the obligation of the contract cannot thereafter be in any way impaired, or its fulfillment hampered or obstructed by a change in the law.
II. The remedy given by statute to holders of paving bonds issued pursuant to the 1925 Act to foreclose the lien of assessments in the district court is cumulative and in addition to the remedy by tax sale and resale by the county treasurer, and is without prejudice to bondholders' right to have collections made by such sales (11 O. S. 1941 § 107).
III. The holders of street improvement bonds, issued under the 1923 Act, have a vested property right in the lien of assessments levied and in the obligations imposed by the act upon governmental agents to collect such levies by tax sales. (11 O. S. 1941 § 81 et seq.)
IV. The lien of assessments made for street improvements pursuant to the 1923 Act continues intact and unextinguished as to unpaid installments and interest until they are paid in full or merged into a valid sale thereof as for taxes, notwithstanding the provisions of the 1939 Act (11 O. S. 1941 § 242).
V. The 1939 Act (11 O.S. 1941 § 242[11-242]) to the extent same would impair an assessment lien levied pursuant to the 1923 Act (11 O.S. 1941 § 81[11-81] et seq.) and remaining unpaid before same is merged in a valid tax sale of the property and to the extent same would impair the obligations of the municipality acting through governmental agents to make such sales in pursuance of the authority of the 1923 Act, is violative of the State and Federal Constitutions (Okla. St. Const. Ann., art. 2, §§ 7 and 15; U.S.C.A. Const., art. 1, sec. 10, cl. 1; Amend. 14).
VI. Where pursuant to legislative grant of power a municipality levies assessments to provide a fund for payment of paving bonds, which are sold, the power granted and the exercise thereof become a trust which the municipality through the designated agencies is bound to execute. And during the continuance thereof statutes of limitation will not run against the bondholder, who is a beneficiary, and in favor of the municipality, which is the trustee.
VII. The constitutional grant of power to the courts of this state to issue writs of mandamus vests in them full and complete authority to issue such writs to compel the performance of any act which the law specifically enjoins as a duty, resulting from an office or trust.
VIII. Powers conferred upon the courts by the Constitution cannot be abridged by the Legislature.
The provisions of the 1939 Act (11 O.S. 1941 § 242[11-242]) placing a limitation *Page 663 upon the time within which application for and issuing of writ of mandamus may be had to compel a tax sale for delinquent assessments which is mandatory under the provision of the 1923 Act (11 O. S. 1941 § 83 et seq.) is an unconstitutional impairment of the right of holder of bonds issued thereunder and is further invalid as an at-tempt by the Legislature to interfere with power vested in the courts by the State Constitution to issue such writs.
X. 12, O. S. 1941 § 95, 2d subd., providing that an action on liability created by statute is barred after three years from accrual, has no application to sale of land for delinquent assessments by county treasurer at a tax sale.
In my opinion, investors in municipal bonds in Oklahoma will do so without any assurance or security that the statutes which are written into the bonds at the time of their issuance will remain therein but that they may be withdrawn by the Legislature without adequate substitutes being made.
For the foregoing reasons, I respectfully dissent.