Johnston v. Board of Education

The obligation of a school district to pay street improvement assessments is one imposed by law. It is in no sense contractual. The school district is not a party to the bonds. It does not promise to pay the assessments. The statute of limitations in an action for recovery of a money judgment against the school district on such an obligation is three years after the installment is due. 12 O. S. 1941 § 95(2). In Wilson v. City of Hollis, 193 Okla. 241, 142 P.2d 633, this court held that such an action may be maintained.

Some language is used in Board of Education v. Johnston,189 Okla. 172, 115 P.2d 132, that is misleading, and with which I do not agree. The maturity date of the bonds, on the question of laches, is immaterial in an action against a school district to recover on a paving installment or to compel the making of a levy for the same. The maturity date of the paving installment is the fact that is of importance.

We have long been committed to the rule that, in applying the doctrine of laches, equity will ordinarily adopt the period fixed by the statute of limitations for analogous actions. Wilson v. Bombeck, 38 Okla. 498, 134 P. 382; Thompson v. Rosehill Burial Park, 177 Okla. 422, 60 P.2d 756. And this rule is supported by the overwhelming weight of authority in this country. See 19 Am. Jur. 345, § 500; 21 C. J. 251; 30 C.J.S. 557, § 131.

This proceeding in mandamus has for its purpose the recovery of money. It is analogous to an ordinary suit at law for recovery of a money judgment. The defense of laches is applicable to such a proceeding. Board of Education v. Johnston, above; United States v. Lane, 249 U.S. 367, 63 L. Ed. 650, 39 S. Ct. 293. The three-year period that would have barred an action to recover a money judgment expired as to the last installment in 1937. The first mandamus proceeding was not commenced until 1939. The present mandamus proceeding was commenced in 1942. The defense of laches is universally recognized as a legitimate defense. We have many times so recognized it.

The rule seems to be well settled that where an action or proceeding, to which the defense of laches is applicable, is commenced before the statute of limitations bars an analogous action, the one claiming laches has the burden of pleading and proving facts justifying the defense of laches (21 C. J. 257, note 2; 30 C.J.S. 563, note 43; 19 Am. Jur. 346, § 501); but where, as here, the action or proceeding is commenced after the statute of limitations on an analogous action has run, the plaintiff has the burden of pleading and proving facts excusing the delay. 19 Am. Jur. 347, note 12; 21 C. J. 254, note 84; 30 C.J.S. 560, note 25; Wood v. Master Schools Inc., 221 Ala. 645,130 So. 178; Costello v. Muheim, 9 Ariz. 422, 84 P. 906; Baillie v. Columbia Gold Mining Co., 86 Or. 1, 166 P. 965. For an excellent statement of the rule as to the burden of pleading and proving facts excusing delay or establishing laches, see Kelley v. Boettcher, 85 F. 55, 29 C.C.A. 14, opinion by Judge Sanborn that has been frequently quoted with approval. See, also, Pomeroy's Equity Jurisdiction (4th Ed.) § 1441; Roswell v. Mountain States Tel. Tel. Co., 78 F.2d 379.

Under this rule, the burden was on the plaintiff to excuse his delay in instituting proceedings to collect the delinquent assessments. The burden was not on the school district to establish the facts showing injury to it due to the delay, which it might have done if it had been called upon to do so by proving the changes since 1933, such as increase in teachers' salaries and other costs, decrease in valuation of property, decrease in population, etc.

The plaintiff pleaded the first mandamus proceeding prosecuted in 1939. The trial court refused to admit in evidence the petition and writ in that proceeding, but some oral testimony was introduced relative thereto. If, under the record, it is proper for us to consider that proceeding, I do not believe it should have any bearing on the present proceeding. The writ in that case was issued July 22, 1939, and commanded that levies be made in 1939, 1940, and 1941. The levy was made in 1939, but not in 1940 and 1941. The present proceeding was commenced August 9, 1942. It was not to carry out the first writ. The time for carrying out that writ had expired. The present proceeding was commenced to compel a levy to be made in 1942 for the 1942-1943 fiscal year. The plaintiff argues that the prior proceedings were competent to show prior adjudication of the validity of the assessments (which is not questioned), the neglect of duty in failing to timely make the levies to pay the assessments (which is not denied), and diligence on plaintiff's part in prosecuting his claim. He cites no authority that the prior proceeding constitutes an excuse for the long delay in filing the present proceeding, nine years after the 1933 installment should have been provided for by levy, or that it is res adjudicata of the fact that the present proceeding is prosecuted with diligence. I think his position is not tenable. The excuse given for the delay does not seem to me to appeal to the conscience of a court of equity.

For a discussion of the matters that will excuse long delay in bringing an action that is subject to the defense of laches, see 21 C. J. 237-251; 30 C.J.S. 543-556; 19 Am. Jur. 348-352.

In any event, the defendants pleaded laches. If the case is to be reversed, it would seem that it should be remanded for a new trial so that they may be heard on their claim of injury and prejudice by reason of the delay in filing this proceeding. The decision in Wilson v. City of Hollis, above, which the majority is following, was silent on the burden of excusing the delay. It should not be followed as a precedent on this point.

For the foregoing reasons, I respectfully dissent.