Mayer v. Board of Police Commissioners

STEPHENS, P. J. From a judgment rendered pursuant to trial upon a petition for a writ of numdamus, directing that the respondent be restored to duty upon the police department of the city of Los Angeles and that he be paid accrued salary from the date of his alleged attempted suspension therefrom, the board of police commissioners of said city has appealed. By this petition the respondent, alleged and the trial court found that on or about February 2, 1926, he was suspended from duty by the chief of police, and on the thirteenth day of the same month he was removed from office, upon the *536 ground that he had been charged with the commission of a felony and that he was guilty of conduct unbecoming a police officer, but that he was never served with notice thereof as provided hy the city charter in either instance, and that therefore neither the attempted discharge nor suspension was effective as such. Pie further alleged and it was found by the court that on the date first mentioned he was charged by a complaint filed in the municipal court with the crime of perjury; that said charge was dismissed on April 25, 1928, and that no further proceedings were had thereon; that he thereupon applied to said board of police commissioners for reinstatement, which application was denied; that he applied therefor on numerous occasions at intervals of not less than six months nor more than nine months, at each of which times his application was denied, and that at no time was a hearing afforded him nor evidence taken; that the charge in the municipal court was insufficient to warrant his removal from office and was adjudged to be no offense nor cause for such charge. The trial court found that “having heard evidence on behalf of petitioner, and no evidence having been offered on behalf of defendants, it having been stipulated by counsel for the respective parties that the facts set forth in the petition and brought out by the evidence were true”, conclusions of law and judgment should be entered as heretofore stated. Appellants contend that their demurrer,- duly made and overruled, should have been sustained because of the bar of the statute of limitations and of laches; also that the petition is not sufficient to state a cause of action for plaintiff’s back salary in that it contains no allegation that he ever filed his claim therefor as prescribed by sections 361 and 376, inclusive, of the Los Angeles city charter. The appeal is on-the judgment-roll alone. The above statement of fact, excepting that only which appears in italics, which is ours, was prepared by Mr. Justice Craig, but being unable to agree with his conclusions we substitute our own in place thereof. Appellant’s first contention: The statu-te of limitations lars recovery. Section 338, Code of Civil Procedure, provides that the action must be instituted within three years from date it accrues. We think the petition was subject to the demurrer that the statute of limitations had run. *537 This shows clearly on the face of the petition, for inasmuch as neither the attempted suspension nor discharge was legal the petitioner’s right to file the same accrued immediately upon failure of his superiors to permit him to engage in his regular duties and upon their failure to certify his name upon the monthly or semi-monthly pay-roll. (Shannon v. City of Los Angeles, 205 Cal. 366 [270 Pac. 682]; Curtin v. Board of Police Commrs., 74 Cal. App. 77 [239 Pac. 355], and cases cited therein.) Appellants’ second contention: The petition shows laches. We are not in accord with this claim, as the allegations of the complaint do not necessarily establish laches; and since the evidence is not before us it must be presumed to support the finding that there has been no laches. Appellants’ third contention: Petition does not state cause of action for bach salary. We think the petition does not state a cause of action against the commission nor its members for the payment of back salary. Of course, under proper circumstances the writ might command the commissioners to authorize the issuance of pay warrants, but we have already seen that the statute has run against the use of the writ of mandate to compel the board to act. It should be noted that the city of Los Angeles is not made a party to the proceedings, and therefore the notices provided for by sections 361 to 376, inclusive, of the Los Angeles City Charter, relating to claims against the city, have no place in this proceeding. Both the petition and the judgment are in form against the commission and the individual commissioners, but as neither has any financial liability to police officers for their salaries the judgment against them cannot stand. We are aware that, so far as the judgment-roll speaks, the application of the statute of limitations works an injustice, as it seems like visiting a penalty upon petitioner for not pressing for' reinstatement during the pendency of the criminal charge against him. However, we think we are given no option in the matter. Judgment reversed. Archbald, J., pro tem., concurred.