Farrell v. Board of Police Commissioners

[6]

HALL, J.

This is an action by plaintiff against the defendants for a writ of mandate, directed to and requiring the board of police commissioners of the city and county of San Francisco to admit plaintiff to the office of policeman on the regularly constituted police department of the city and county of San Francisco.

In plaintiff’s petition he alleges that the board of police commissioners removed him from his office of policeman in the month of March, 1892, arbitrarily and without any charges being preferred against him, and without any trial or hearing upon any charges; and that said commissioners have ever since said time deprived him of the use and enjoyment of his said office, and that he is still by them deprived of the enjoyment of said office.

The petition for the writ was filed in the month of May, 1901. To this petition the defendants demurred upon the general ground that it did not state facts sufficient to constitute a cause of action or to entitle plaintiff to a writ of mandate; and also upon the ground that “plaintiff’s cause of action and right to a writ of mandate is barred by subdivision 1 of section 338 of the Code- of Civil Procedure and by section 343 of the Code of Civil Procedure.”

The lower court overruled the demurrer, defendants answered, a trial was had, and judgment went against the defendants as prayed for in plaintiff’s petition.

So far as the plea of the statute of limitations is concerned, a precisely similar case was presented to the supreme court since the taking of the appeal in this case, in the case of

Jones

v.

Board of Police Commissioners of San Francisco,

141 Cal. 96, [74 Pac. 696]. The only difference between the Jones case and the case before this court is, that in the Jones case the delay in bringing the action was about seven years, while in this case it exceeds nine years. In that case it was held that the plea of the bar of the statute of limitations was well taken, and the judgment of the lower court in favor of the plaintiff in that action was reversed, with directions to the court below to sustain the demurrer and dismiss the proceeding. The principle of the Jones case controls this. (See, also,