Wittman v. Board of Police Commissioners
Before: Hall
Synopsis
Police Department of San Francisco—Dismissal of Chief of Police for Dereliction in Duty from Department—Mandamus After Three Years—Bar of Statute.—Where a chief of police of the city and county of San Francisco was found by the board of police commissioners guilty of dereliction in duty, and was dismissed both from the office of chief of police and from the department, and after the lapse of three years, he for the first time made a demand for reinstatement as a captain of police, which demand was refused, the statute of limitations had run against such demand, and it will not support a writ of mandate to compel such reinstatement. If his contention as to the illegality of his dismissal from the department is well founded, he could immediately upon his dismissal have perfected his right to the remedy by mandate by making Ms demand for reinstatement or assignment to duty as captain of police.
Id.—Bule as to Demand as Condition Precedent to Legal Belief— Accrual of Cause of Action—Bunning of Statute of Limitations.—It is a recognized rule that, where a right has fully accrued, except for some demand to be made as a condition precedent to legal relief, which the claimant can at any time make if he so chooses, the cause of action has accrued for the purpose of setting the statute of limitations running. The claimant cannot indefinitely prolong Ms right to enforce his claim by neglecting to make the demand until it suits Ms convenience to do so.
[230]
HALL, J.
This is an appeal from a judgment denying plaintiff’s petition for a peremptory writ of mandate, commanding the defendants to restore and assign petitioner to duty as captain of police of the city and county of San Francisco.
Defendants pleaded among other things, as a defense to plaintiff’s action, that the same was barred by the provisions of section 338, subdivision 1, of the Code of Civil Procedure. The court made findings of fact in accordance with this contention of defendants, and entered judgment for defendants. It is this finding of the court that presents the only point necessary to be decided upon this appeal.
Appellant was appointed a member of the police department of the city and county of San Francisco in 1885, and subsequently, on the thirty-first day of July, 1895, he was appointed a captain of police of said city and county.
On the twenty-first day of November, 1901, he was regularly appointed chief of police of said city and county.
On the fifteenth day of February, 1905, charges were pre-ferred against him as such chief of police to the board of police commissioners, which were heard and examined by said commissioners, who found him guilty thereof; and thereupon, on the twenty-fourth day of March, 1905, adopted a resolution in the words following, to wit: “Resolved, that George W. Wittman be, and he is hereby dismissed as chief of police of the police department of the city and county of San Francisco and as a member of said department.” And since said date defendants have not recognized or treated appellant as a member of the police department.
On the twentieth day of March, 1908, appellant demanded of defendants, the board of police commissioners of said city and county, that they assign appellant to duty as a captain of police, which demand they refused.
This proceeding to compel defendants to comply with such demand was instituted by the filing of a petition in the superior court for a writ of mandate on the ninth day of April, 1908, which was more than three years after appellant’s formal dismissal from the department, but less than one month from the date of his demand to be assigned to duty as such captain of pólice.
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