CRAIG, J., Dissenting.
I dissent.
The court’s opinion holding that the general demurrer should have been sustained ignores the original suspension
[538]
of the petitioner, at which time the petition alleges that a charge of perjury had been made against the petitioner. Authority is hardly needed to sustain the proposition, to my mind self-evident, that until such charge was removed the petitioner was subject to suspension and could not ultimately or even in the particular proceeding here, had it then been begun, have compelled the board of police commissioners to restore him to regular employment. The mere pendency of the criminal charge against him justified his suspension. (Los Angeles City Charter, art. XIX; 46 C. J., p. 982, sec. 142; 43 C. J., p. 651, secs. 1077, 1084.) However, even if because of lack of proper notice or other irregularities in the proceeding of attempted suspension petitioner herein might have contested such action of the board at the time, it is obvious that such a contest would then have been idle, for •while the criminal charge was pending the board need only have immediately taken the same action over again and proceeded properly to accomplish the same temporary result. It is true that the petition states that neither the attempted discharge nor removal were effective as such and for the purposes of this decision this must be accepted as true; also we must accept the further allegation that the charge in the municipal court was insufficient to warrant petitioner’s removal. However, it will be noted that this allegation docs not apply to his suspension and the petition nowhere avers that such charge did not legally justify suspension, and therefore we must assume that this is conceded. These facts are shown on the face of the petition. The law neither contemplates nor requires idle acts. The petitioner could not have actually at that time secured restoration to employment, nor until the termination favorably to himself of the criminal proceeding. His right to accomplish this result did not accrue until that was done, which, according to the petition, occurred on April 25, 1928; three years did not elapse from that date until this proceeding was begun, in March, 1931. In my opinion the claim of petitioner, whose rights admittedly have been grossly ignored and violated by the respondents, cannot be waived aside by the mere statement that his right to “file” this particular petition accrued immediately upon failure of his superiors to certify his name on the regular pay-roll. It is elementary that, de
[539]
pendent on the type of case involved, there are other legal considerations which may determine when a statute of limitations begins to run than the mere one as to when an action might have been “filed”. Mistake, fraud, incompetency, need for demand, etc., are examples of such considerations. Here the facts alleged in the petition preclude the running of the statute of limitations, regardless of the right to “file” the proceeding. Again, it is not enough, where a demurrer is based on an alleged bar of the statute, that the action may be barred. “It must appear affirmatively that upon the fads stated the right of action is necessarily barred.”
(Pike
v.
Zadig,
171 Cal. 273 [152 Pac. 923], and cases there cited.) Both
Shannon
v.
City of Los Angeles,
205 Cal. 366 [270 Pac. 682], and
Curtin
v.
Board of Police Commrs.,
74 Cal. App. 77 [239 Pac. 355], cited in the opinion, are clearly distinguishable from this proceeding. But in this dissenting opinion no good purposes would be subserved by protracting the discussion in that regard.
Aside from considering the demurrer, the following is pertinent to this appeal: Upon the trial no evidence was introduced except by the plaintiff. The appeal is on the judgment-roll alone. Among others, the following facts were found: That the plaintiff’s cause of action did not accrue until April 25, 1928; that it was not barred, by the statute of limitations; and that there was no laches. These facts are not inconsistent with the complaint. We are not in possession of the evidence. Among other facts it is shown that the plaintiff had no notice of his attempted dismissal until April 25, 1928. There is nothing contained in the judgment-roll to the contrary. If so, of course the cause of action was not barred by the statute of limitations. Nor are Ave warranted in saying that laches was proved, against the petitioner. We must assume that evidence was introduced as to the entire transaction. Concerning laches, the circumstances under which the delay in bringing the action occurred would be determinative. These things are evidentiary, and we have not the benefit of the evidence.
Relative to the plaintiff’s right to recover back salary, he was never lawfully discharged, but only originally subject to suspension, and in fact suspended; hence he was under no duty to ask an investigation as to the grounds of his dis
[540]
charge.
(Shannon
v.
City of Los Angeles, supra.)
Nor is he precluded from claiming his salary for the months during which he was illegally excluded from duty. Since his status from February, 1926, to March, 1928, was one of suspension because of the charge of perjury pending against him, upon its final determination and dismissal he was clearly entitled to his pay during that period. (46 C. J., p. 982, sec. 142; 43 C. J., p. 651, secs. 1077, 1084.) For the period beginning with his being relieved of the charge he was in no position to present a demand as required by section 376 of the city charter. Under the plan embraced in section 364 et seq. thereof, providing for payment of salaries of officers and employees of the city, the duty is placed squarely upon the board of police commissioners to approve the salary demand of the plaintiff as one item of each monthly pay-roll made under its direction. In this he could have no part and cannot be said to be in any way responsible for the board’s neglect. He is not barred by reason of neglect or refusal to act of those over whom he had no control. It is so held in
Shannon
v.
Board of Police Commrs., supra,
following the reasoning of
Geimann
v.
Board of Police Commrs.,
158 Cal. 748 [112 Pac. 553], The decision in the Shannon case does not overrule nor conflict with these authorities. In that case the remedy was sought by way of judgment against the city itself. It is there said, “he is also seeking to compel by the city itself the allowance and- payment of the accumulated amount of his salary from the date of his purported discharge to the date of issuance of this writ . . . nor has he made the several departments and officials of said city, whose duty it might become to comply successively with the last-named charter provision, parties to this proceeding. The special demurrer of the city of Los Angeles was, therefore, properly sustained, and the petitioner declining to amend, it follows that the judgment herein as to the city of Los Angeles must be affirmed”. This was the beginning and the end of the rule as to plaintiff’s right to back salary as the issue was presented on that appeal. However, the same opinion does indicate further that the action of the city officials therein involved “is, after all, the action of the municipality itself”, and therefore that in such a proceeding the claim that the city was improperly made a party was without merit; that the city was a proper, “though, per
[541]
haps, not a necessary party to proceedings of this character”. The gist of what is indicated on this point appears to be that the department and officials whose duty it was to comply with the allowance and payment of an employee’s salary, must be parties to such an action as the one then before the court, and as the instant one, but that the city itself is not a necessary party thereto. This would seem to meet the criticism based on the fact that the city of Los Angeles is not made a party to this proceeding.
A petition for a rehearing of this cause was denied by the District Court of Appeal on February 26, 1934, and an application by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 29, 1934.