Rehearing denied September 16, 1924.
On Petition for Rehearing.
(228 Pae. 916.)
BEAN, J.By a petition for rehearing respondent urges further consideration of the question of laches of the plaintiff in prosecuting this action. Our former opinion is reported in 227 Pac. 301.
The plaintiff was discharged as a police officer under the civil service of the City of Portland on January 31, 1921. He had served as such officer continuously for more than six years. He was discharged without first having a trial or hearing. No written charges were filed against him prior to his discharge so as to give the board of commissioners jurisdiction of the matter. On February 4, 1921, plaintiff filed a formal petition with the Civil Service Board of the city asking to be reinstated. On February 28, 1921, the Civil Service Board issued an order sustaining the action of the Mayor and Chief of Police in discharging Nelson and dismissing the petition for rehearing and reinstatement. On November 3, 1921, plaintiff filed in the Circuit Court a petition for a writ of mandamus to compel defendant to reinstate plaintiff in his former position on the police force. The defendant Mayor answered the writ. A reply was filed by plaintiff and the issues were tried. This defendant did not demur to the writ or petition. Neither the sufficiency of the petition or writ was questioned in the trial court, nor the matter of laches *94called to the attention of that court or the plaintiff in any manner. This court is requested to review a matter that was not decided by the trial court.
Proceeding’s in mandamus are generally regarded as in the nature of an action at law in which the parties may plead as in other actions: High on Extraordinary Legal Remedies (3 ed.), §459; Barney v. State, 42 Md. 480; People v. Board, 26 N. Y. 316.
According to the provision of our statute (Or. L., § 620), the pleading’s in the proceeding by mandamus “ * * are to have the same effect and to be construed, and may be amended in the same manner, as pleadings in an action. Either party may move to strike out, or be allowed to plead over after motion or demurrer allowed or disallowed, and the issues joined shall be tried, and the further proceedings thereon had in like manner and with like effect as in an action.”
The statute of Oregon does not contain any limitation applying especially to the time in which mandamus may be brought.
The general rule is that the court may, in the exercise of its discretion, deny an application for mandamus made after an unreasonable delay, especially where the' delay has resulted prejudicially to the rights of respondent or others interested. The applicant may of course avoid the effect of this rule by showing a good excuse for the delay. In states where the statutes of limitations do not apply directly to mandamus proceedings it is common to apply them by analogy. It is difficult to lay down any fixed rule as to the time when the writ will be barred, it may be said in a general way that it must be brought within the period fixed for that particular form of civil action or proceeding which may be brought to en*95force the right which is the subject of the writ; and on the other hand that mandamus may be instituted at any time within such period: 26 Cyc. 393.
The doctrine of laches is an equitable one, therefore, we may look at our equity practice and decisions to determine how and when the question can be raised. In other states it has been held that if laches, not apappearing upon the face of the pleading of plaintiff, is not relied upon in the lower court the defense will be considered waived and cannot be urged in the appellate court: Beach v. Shaw, 57 Ill. 17, 25; School Trustees v. Wright, 12 Ill. 432; Walker v. Dennison, 86 Ill. 142; Dorst v. Murphy, 119 Ill. 343 (9 N. E. 887); Dawson v. Vickery, 150 Ill. 398 (37 N. E. 910); Humphreys v. Butler, 51 Ark. 351 (11 S. W. 479).
The rule requiring the defendant to set up and insist upon the complainants laches is invoked in order to give the latter an opportunity to amend by inserting allegations explaining and excusing the delay: Hall v. Fullerton, 69 Ill. 448, 451.
In the present case it is contended by plaintiff that if the respondent had raised the question of laches in the lower court, the plaintiff could and would have amended his pleadings and would have shown that after the Civil Service Board had affirmed the action of respondent in discharging the petitioner without a hearing, Nelson having employed an attorney other than the first, again petitioned the Civil Service Board to purge its records of the order of February 28, 1921, and to reinstate him; that after the matter was argued and an affidavit filed in objection thereto, on September 9, 1921, Olson was notified in the form of a letter by the Civil Service Board of the denial of his petition, and that thereafter the present counsel for plaintiff made an effort to obtain a reconsideration and *96failing therein ordered a transcript of the testimony that had been taken before the Civil Service Board, but was informed a few days before this action was commenced that the testimony had not been preserved. Neither the petition nor the writ disclosed laches on its face.
In the case of Wills v. Nehalem Goal Co., 52 Or. 70 (96 Pac. 528), the necessity of pleading laches within the statutory period of limitations was apparently before this court for the first time. Mr. Commissioner Slater speaking for the court at page 91 is reported to have said:
“In such cases, courts of equity are also said to act by analogy to the statutory limitations of actions at law and there is sound authority for the rule that when suit is brought within the time fixed by the analogous statute, the burden is on defendant to show the existence of circumstances amounting to laches. When, however, the suit is brought after the statutory time, plaintiff must plead and prove that laches does not exist, and the facts must be specifically and and precisely pleaded: 16 Cyc. 180; 1 Pomeroy’s Equitable Remedies, § 20. Nor are we prepared to say at this time that, if knowledge of the acts of the directors for the full period were imputed on the face of the complaint to the plaintiffs without disclosing any injury to the defendants arising from the delay, that of itself would be sufficient to establish laches under the fact of this case: Montgomery Light Co. v. Lahey, 121 Ala. 131 (25 South. 1006). But we shall leave the matter to be determined upon all of the facts.”
In Bailie v. Columbia Gold Min. Co., 86 Or. 1 (166 Pac. 965, 167 Pac. 1167) , Mr. Justice McCamant at page 23 says:
“An action at law for the recovery of a dividend would have to be brought within six years: Section 6 *97L. O. L. Equity is disposed to follow the law. If an equitable suit is brought within the time allowed to bring a corresponding action at law, the burden devolves on the defendant to allege and prove laches; if the equitable suit is brought after the expiration of the time allowed to bring corresponding action at law, plaintiff should explain the delay in his bill: Wills v. Nehalem Coal Co., 52 Or. 70, 91 (96 Pac. 528).”
The plaintiff has been persistent in asserting his rights ever since his illegal discharge. He has never waived or abandoned his claim. The plaintiff should be accorded a regular hearing upon written charges in compliance with Section 316 of the City Charter before he is discharged. It has been held that where the statute of limitations has not run against a claim a mandamus to enforce the claim will not be refused on the ground of laches: Hanna v. Chalker, 136 Mich. 8 (98 N. W. 732); State v. Renick, 157 Mo. 292 (57 S. W. 713).
In Hill v. Mayor of the City of Boston, 193 Mass. 569 (79 N. E. 825), at the trial of a petition by a veteran enrolled in the classified list of the public service and holding the office or employment of messenger in the printing department of a city, for a writ of mandamus commanding the mayor and the superintendent of the printing department to recognize the petitioner as the messenger of that department and to place his name on the pay-roll of the city as such messenger, it appeared that immediately after the plaintiff was notified orally of the abolition of his position and his discharge from employment he retained counsel who thereafter acted for him, but that owing to poverty he could not furnish money to prosecute his case until two years after his discharge, when he brought an action of contract against the *98city for arrears of salary, and, this action having been terminated by the presiding judge ordering a verdict for the defendant, he thereupon brought his petition for the writ of mandamus. In that proceeding the justice who heard the case found as facts that the petitioner never abandoned his claim that he had been removed from office unlawfully, and that he was advised that his action for salary was the proper remedy to test this question. Held, that under the circumstances the delay of two years before bringing the action of contract could not be said to be such an acquiescence by him in his dismissal as to require the court to deny him the writ of mandamus.
It was there held that on a petition for a writ of mandamus the question whether the petitioner so unreasonably has neglected to enforce his right that the court will deny him the remedy must depend upon the circumstances of each particular case.
It is also contended by the defendant that the allegation of the alternative writ, to the effect that the plaintiff duly made a demand upon defendant to be reinstated, is not supported by the evidence. There is no merit in this contention. The proof shows that plaintiff offered to perform the duties of policeman, and persistently requested to be reinstated and made a formal petition to the city officials to that end and was refused. Sections 108 and 316 of the City Charter are plain and need no construction. Obedience to those provisions is all that is necessary in cases of this kind.
We adhere to our former opinion. The petition for rehearing is denied. Rehearing Denied.
McBride, C. J., and Brown and Rand, JJ., concur.