King v. Mayor of City of Butte, 5545.

• Docket Nº: No. 5545.
• Citation: 71 Mont. 309
• Case Date: October 01, 1924
• Court: United States State Supreme Court of Montana

71 Mont. 309

KING
v.
MAYOR OF CITY OF BUTTE et al.

No. 5545.

Supreme Court of Montana.

Oct. 1, 1924.

Appeal from District Court, Silver Bow County; Wm. E. Carroll, Judge.

Action by Bernard King against the Mayor of the City of Butte and others. Judgment for defendants, and plaintiff appeals. Affirmed.

M. S. Galasso and Frank E. Blair, both of Butte, for appellants.

J. T. Andrew and F. E. Blodgett, both of Butte, for respondent.

RANKIN, J.

Plaintiff, formerly a police officer of the city of Butte, was charged before the examining and trial board of the police department of that city with being intoxicated while on duty The board, after trial and hearing on June 30, 1922, found him guilty as charged, and the day following the mayor approved the findings and dismissed him from the police force. Within 60 days he sought reinstatement, by instituting proceedings in mandamus directed against the mayor, upon whose application the proceedings were later dismissed. Thereafter, on November 25, 1922, he filed an action in the district court, under the provisions of section 5099 of the Revised Codes of 1921, against the mayor and the members of the examining and trial board to require them to reinstate him. The cause was tried to the court sitting without a jury, and in effect resulted in a judgment of dismissal, from which plaintiff appealed.

The defendants urge that the trial court was without jurisdiction to hear the cause; their contention being that the action was not commenced within the statutory period of 60 days after the decision of the examining and trial board.

Section 5099 provides:

“* * * The district court of the proper county shall have jurisdiction, however, in a suit brought by the officer or member, to determine whether the essential requirements of law have been complied with in the matter of his trial, but such suit must be brought by such officer or member within a period of sixty days following the decision of said board; * * * provided further, that no action for the restoration to office by any member of the police department unlawfully or illegally removed or excluded from office shall be maintained unless the same is begun within a period of sixty days from the date of accrual of the cause of action. * * *”

The complaint upon its face shows that this action was not instituted until November 25, 1922, nearly five months after the cause of action accrued. Plaintiff, however, contends that section 5099 is a statute of limitations, and that the defendants, having failed to plead it, waived its benefits. This brings us to the question whether the 60-day limitation provided in section 5099 affects only the remedy or is one of the conditions upon which the right of action depends.

In the case of Dolenty v. Broadwater County, 45 Mont. 261, 122 P. 919, Mr. Justice Holloway said:

“The rule is well settled in this country that whenever a statute grants a right which did not exist at common law, and prescribes the time within which the right must be exercised, the limitation thus imposed does not affect the remedy merely, but is of the essence of the right itself, and one who seeks to enforce such right must show affirmatively that he has brought his action within the time fixed by the statute; and, if he fails in this regard, he fails to disclose any right to relief under the statute. 25 Cyc. 1398; Bank v. Powhatan Clay Co., 102 Va. 274, 1 Ann. Cas. 83, 46 S. E. 294;Lambert v. Ensign Mfg. Co., 42 W. Va. 813, 26 S. E. 431;Taylor v. Cranberry I. & C. Co., 94 N. C. 525; The Harrisburg, 119 U. S. 199, 30 L. Ed. 358, 7 Sup. Ct. Rep. 140;Hill v. Board of Supervisors, 119 N. Y. 344, 23 N. E. 921.”

Adhering to the foregoing rule, this court, in the case of Eby v. City of Lewistown, 55 Mont. 113, 173 P. 1163, in construing an act requiring the filing of written objections to improvement district proceedings within 60 days, said:

“By many of the courts these provisions are classed as special statutes of limitation, in that the giving of the required notice is a...