Pennycook v. Boyle

Public Officers—Inspector of Department of Electricity—Suspension and Reinstatement—Right to Salary—Claim of Laches— Mandamus.—In a proceeding for a writ of mandamus to compel the auditor of the city and county of San Francisco to audit, and the treasurer to pay, certain salary demands of the petitioner, as inspector of the department of electricity, where it appears that petitioner was absent from his post of duty during the period for which salary is sought to be recovered under suspension upon charges of neglect of duty, which charges were never heard, but were finally dismissed, and the petitioner was reinstated in his position and within two months after such reinstatement instituted this proceeding, the petitioner cannot be held to be guilty of laches in bringing the suit, on the theory that because the civil service provisions of the charter of San Francisco limit the power and period of suspension of a subordinate official to thirty days, and therefore after the lapse of such period the petitioner was in a position to have demanded and retaken his place and performed his duties and that not having done so, he ought not to be permitted to wait for a period of over a year before applying for a writ of mandate to compel the payment of a salary for which he rendered no service.

Id.—Period of Suspension—Offer to Perform Services—Demand for Salary—Lack of Laches.—In such a case, where the proof showed that, whether or not the suspension of the petitioner was lawful for a longer period than thirty days, it was actually maintained by the persons ordering it for nearly a year, during which time another person was actually in possession of the petitioner’s place, claiming title to it, and that, although the petitioner daily for a period of three months after his suspension presented himself at his proper place for service and offered to perform his duties, his offer was refused, and that in addition to this the petitioner presented regularly and during the entire year of his suspension his salary demand in due form to the city officials whose duty it was to audit and pay the same and within two months after his reinstatement he instituted this proceeding, the petitioner was not guilty of laches, as he could not have taken his position by force nor could he have successfully applied for a writ of mandate during the period of suspension.

Id.—Loss to City.—In such a case the petitioner being an injured party throughout, and at all times entitled to his office and its emoluments, the writ should not be denied him because its issuance would result in great loss and injury to the city.