Kramer v. Board of Police Commissioners

RICHARDS, J.

This is an appeal from a judgment directing the issuance of a writ of mandate requiring the defendants to reinstate the plaintiff and respondent herein as a police officer. The judgment followed an order overruling the defendant’s demurrer to the plaintiff’s amended petition for such writ, the defendants declining to answer.

The facts, as presented in the plaintiff’s petition, are as follows: Prior to the month of August, 1906, the plaintiff was a regularly appointed and acting police officer of the city and county of San Francisco, but in that month, owing to conditions created by the earthquake and fire of that year, the board of police commissioners of said city and county suggested to certain members of the police department, the plaintiff being among the number, that they apply for leave of absence from the department without pay for the purpose of engaging temporarily in business, the object of this suggestion being to work a temporary reduction in the cost of maintaining the police department during the- critical period following the earthquake and fire. Acting upon this suggestion, the plaintiff applied for a leave of absence for three months, which was granted him, and it was thereupon stated and represented to him that if he. should engage in business and apply for additional leave of absence the said board of police commissioners would extend his leave for the further time of one year. The plaintiff thereupon purchased a business, paying therefor and for a stock of merchandise therein, a sum totaling two thousand three hundred dollars, and then engaged in said business. Within the period of the plaintiff’s three months’ leave of absence, however, the board of police commissioners, through its acting president, directed the chief of police to forthwith order back to duty all police officers

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then absent on leaves of absence, and accordingly, and within the period of his three months’ leave of absence, the plaintiff was ordered to return to duty forthwith. This order the plaintiff was unable to comply with without abandoning and neglecting his said business and losing the money he had invested therein, and he so informed the said chief of police, whereupon he was granted a suspension of the order for a time, during which he diligently attempted to dispose of his business, but was unable to do so. Shortly before January 1, 1907, the plaintiff was ordered by the chief of police, acting under the instruction of the police commissioners, to return to duty as a police officer on or before January 1, 1907, or resign from the police department. The plaintiff, protesting against this order on December, 31, 1906, presented his resignation from the police department to the board of police commissioners, which board then and there adopted an order and resolution accepting the same.