Jones v. Board of Police Commissioners

COOPER, C.—

This is a proceeding in

mandamus

for the purposes of compelling the board' of police commissioners of

[97]

the city and county of Sam Francisco to admit petitioner to the office of policeman in the police department of said city. The petition was filed October 4, 1901, and alleges: “That on the sixteenth day of April, A. D. 1894, the board of police commissioners of the city and county of San Francisco did unlawfully preclude this plaintiff from the use and enjoyment of his said office as such policeman, and did pretend to dismiss him therefrom, and did prevent him from performing any of the duties of his said office. That ever since said sixteenth day of April, 1894, plaintiff and petitioner, by the said unlawful acts of said board of police.commissioners, has been and now is precluded from the use and enjoyment of his said office.”

Defendant demurred to the complaint upon the ground, among others, “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 demurrer was overruled, and defendant failed to answer. Thereupon judgment was entered for petitioner as prayed. This appeal is from the judgment. The demurrer should have been sustained upon the ground that the right to the writ, if it ever existed, is barred by the statute. It was more than seven years after petitioner was dismissed and discharged before he filed his petition. It becomes immaterial to determine which particular provision of the code bars this proceeding, because it is barred by either provision. The period that elapsed after petitioner’s alleged rights accrued is longer than the time given for the commencing of an action by an individual under any provision of the code. Not only this, but it is barred by laches. Courts will not allow parties to sleep upon their rights for so many years and then invoke the aid of this prerogative writ. It has been said in some cases that the statute of limitations is not applicable, strictly speaking, to a petition for a writ of mandate, but we think it is applicable under our Code of Civil Procedure. The provisions in regard to granting the writ of mandate are under part III of title I. Section 1109, under the same title, provides, “the provisions of part II of this code are applicable to, and constitute the rules of practice