I dissent. The grounds upon which the judgment of the superior court are reversed are, in my opinion, absolutely inconsistent with the fundamental proposition upon which appellant's right of action is based. He proceeds by mandamus, and therefore assumes, and must maintain, that his demand for payment of his bonds and coupons cast upon the defendant the duty to pay them as far as the funds in his hands would suffice. But if a demand upon the treasurer made it his legal and imperative duty to pay, then it was his legal and imperative duty to pay those who presented the first demands, and, as their demands were more than sufficient to exhaust the fund, it could not be his duty to pay to appellant the identical money which he was already bound to pay to others unless they had in some manner forfeited their rights. It devolved upon the appellant, therefore, to show that when he commenced this proceeding those who had made prior demands upon the treasurer had in some way lost the right of action which accrued to them when their demands were refused, for if their right of action remained — if it was still the duty of the treasurer to pay them — it could not be his duty to pay the appellant. How, then, and at what time, *Page 260 did those other parties lose their right of action? This question the appellant has essayed, but failed, to answer. It is not pretended that it was barred by any statute of limitations, but it is said that they were guilty of inexcusable laches, because they waited six months without commencing proceedings bymandamus. No authority is cited by the court which has the remotest tendency to support this position, and those cited in the brief of appellant are decidedly against him. They show undoubtedly that the right to proceed by mandamus may be forfeited by laches, but they also show that in determining what will be deemed laches the courts are guided by the analogies furnished by the statutes of limitations, which in this case would permit a delay of four years in commencing the proceeding after the right accrued. The general doctrine, and the grounds of it, are briefly stated in section 87 of Merrill on Mandamus, as follows: "The courts require those who would avail themselves of the assistance of this writ to be prompt in demanding the enforcement of their rights. By lapse of time the necessary evidence is lost, and third parties may acquire rights growing out of the existing state of affairs. Where the parties have been guilty of unreasonable delay in applying for this writ, the courts have not hesitated to refuse such relief, unless the delay was accounted for to their satisfaction. In determining what will constitute unreasonable delay, regard should be had to the circumstances which justify the delay, to the nature of the case and the relief demanded, and to the question whether the rights of the defendant or of other persons have been prejudiced by such delay?"
To apply this doctrine let us consider the nature of this case, and the only relief which the holders of the coupons and bonds could have demanded. In cases where an action will lie on such obligations the action is barred by the statute in four years, and by the analogy of the statute a mandamus to enforce payment would be defeated by a delay of four years. If, under the circumstances, the lapse of a shorter time involved the loss of material evidence, or if rights of third parties were adversely affected, relief might be denied on that ground. But here is no pretense that any evidence was, or could be, lost in six months or six years. Nor was *Page 261 any right of any third party adversely affected. It was no injury to Meyer or any other claimant upon the fund if those who had secured the first right to the money then on hand chose to let it lie in the treasury. They alone were injured by the delay. The city and county was not injured, because it is in no event liable for any part of the debt. The fund was not depleted, and could not be, for the coupons are not bearing interest (Bates v.Gerber, 82 Cal. 550), and nothing is paid out of the bond fund except the face of the bonds. The court, however, holds, against the clear result of the authorities, that six months' inaction on the part of these claimants has worked a forfeiture of their rights. But if six months is fatal, why is not six weeks fatal? Or six days? Or one day? Where will the line be drawn, and upon what principle is the distinction to rest? After how short a delay in bringing suit will we conclude that perchance the party will never sue, or that his claim has been abandoned, or paid through some other channel? These presumptions in which the court indulges are without anything in the record to sustain them, and are against all probability, as they are against the correctness of the judgment of the superior court.
Nor has it been pointed out how the law itself (the Dupont street act) has provided other ways by which their (the prior demandants') claims may be satisfied. Nor have I been able to see, as the court does, that they probably do not want their money. Is it upon such fanciful suppositions as these that a judgment of this court can be securely rested?
The truth is, the doctrine of this case, carried to its logical conclusion, will permit the custodian of a fund in the position of this defendant to pay or refuse to pay those who make demands as his fancy inclines. As long as he is not sued he may refuse one and pay another, irrespective of the order of their demands, or he may refuse them all until some favored claimant serves him with a writ of mandate. The doctrine is, in my opinion, without reason to support it, and is pernicious in its consequences.
Temple, J., and Henshaw, J., concurred in the dissenting opinion. *Page 262