The opinion
Petition for rehearing denied December 12,1944
On Petition for Rehearing
( 154 P. (2d) 188 )
BAILEY, C. J.
In a petition for rehearing, the respondent, W. E. Buell, asserts that the opinion rendered herein fails to follow our former decisions without expressly overruling them, “and as a result the whole matter of enforcing collection of defaulting municipal securities is left in a chaotic condition.”
The one case which he cites as so overruled is
J. E. Tillman Co. v. City of Seaside,
145 Or. 239 , 25 P. (2d) 917 . That ivas an action brought by the owner of warrants against the city of Seaside to recover damages alleged to have been sustained by reason of the failure of the city to levy and collect special assessments. We therein held that the action was not
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barred by the statute of limitation, inasmuch as the warrants “were payable out of a special fund and the money had not yet been provided by the city of Seaside with which to.pay them. ’ ’
In that case the warrants involved were not a general obligation of the city of Seaside. The duty to pay them was dependent upon the happening of a future event, to wit, the levy and collection of assessments on the particular properties benefited by a certain local improvement. In the instant case, however, the warrants and bonds were a general obligation of the district. The bonds and the interest coupons thereto attached were payable on dates certain. The warrants were due and payable immediately upon their issuance and delivery. The maturity of neither bonds nor warrants was dependent upon the happening of any future event. Furthermore, no question of laches was involved in the case cited in the petition for rehearing. We do not consider the decision herein inconsistent with that in the Tillman case. Not only are the facts different in the two cases, but also the nature of the proceedings.
It is further argued in the petition that we did not give proper weight to the findings of the trial court. There were no findings of that court, either general or special. All the facts in the case were stipulated, and on the stipulation as a basis the court decreed that a peremptory writ of mandamus be issued. Our opinion was, and we adhere to it, that the court’s conclusion was not supported by the facts.
The other matters mentioned in the petition were heretofore considered, in reaching our decision. We see no reason for granting this petition, and it is therefore denied.