Aebli v. Board of Education

natural, probable intends all the and usual person conse- acts; except that instruction quences his own this does not apply specific where intent essential element of the crime is an charged, event, proved the intent itself must be which beyond a reasonable doubt.” argued merely reading the definition of the

It is word specific “willful” removed element of from the intent consideration of the and that jury, conflicted with necessary specific other instruction “that a intent to con- and, a crime.” merit far stitute The criticism is without so see, jury properly as we instructed. can judgments denying trial, new as to each and orders appellants, are affirmed. Marks, J., Griffin, J., concurred.

Appellants’ petition hearing by Supreme for a Court February denied 1944. Dist., 2, 1944.] First No. 11824. One. Feb. Div.

[Civ. ADA AEBLI al., Appellants; et S. Plaintiffs and FLOYD al., et Respondents,

FRENCH v. BOARD EDUCA- OF TION OF THE FRAN- CITY AND COUNTY OF SAN al., Appellants; CISCO et Defendants and and consoli- dated cases. Appellants. Plaintiffs and

Piccirillo & Wolf Dold, A. City Attorney, Walter Chief O’Toole, John J. Breyer for Defendants City Attorney, Irving Deputy Appellants. Re & Acton for ’Brien, M. ’Brien and O Dibert Franklyn O spondents. Education

PETERS, 1932 the Board of P. J.In Owensby hired Wilbur S. City County Francisco of San books, examine and audit the- records accounts to. department, regard particular service classification and status of all of the teachers department. San Francisco salaries of teachers are salary schedule, being fixed the amount of de- pendent according Owensby and rated of service. investigation audit, made an exhaustive reported that all pro- of the 189 teachers involved in'these ceedings had been kinds, overrated due to errors of various and consequently overpaid periods varying for from one to years more than prior ten 1932. to He recommended the service rating status of each of these teachers be re-rated in interpretation downward accordance with his of the rules in effect when these teachers first were em- ployed. rating Some of the errors in were due to errors by employees calculation made board, purely of the either by interpretation mechanical or applica- caused errors board, tion rules of the while others were due to the fact given that when these teachers first they were hired were by which, the board as it was then ratings, constituted ac- cording Owensby’s views, to high were too violation of the rules of the they board as then existed. The board in 1932 adopted Owensby’s It proceeded recommendations. to downward, re-rate these 189 steps took also to recover such alleged teachers the amount of the over- payments period years 1, of two preceding July next 1932, that being*the beginning date of the of the next suc- ceeding year. school Although; cases, alleged most rating errors in had than prior occurred more two the re-rating 1932, charge back was limited two years on the theory that recovery beyond payments excess that period was barred the statute of limitations. The revised applied was also making salary payments 1932, commencing July 1, school and for all subsequent years. The net result of the action of the board in 1932 was that these 189 teachers had from their deducted salaries in money installments alleged substantial sums of to have been overpaid 1930-1932, and, them for period period starting July 1, their and con- ratings, sequently salaries, their were substantially reduced below what ratings their 1931-1932, were in prior thereto. The protested affected the deductions and reductions salary, and immediately eight pro- instituted these mandamus

713 actions the ceedings In these have consolidated. which charged recovery seek the of the amounts teachers affected period against for the payments back their salaries as excess the board 1930-1932, compel and also seek mandamus to 1, 1932, and give starting July to them for 1932. ratings re-rating of thereafter, they prior transcript contains lengthy (the reporter’s After a trial Goodell, J. pages), the trial the Honorable judge, C. law prepared he opinions two which discussed complete applicable litigants. facts to each Thereafter of the were of law carefully findings and conclusions prepared Generally speaking filed. trial court 'the divided teachers into three main groups. one,

As to group involving the so-called “mechanical” error (which is, itself, group divided several into dis- categories tinct discussed), hereafter it was held that teachers included therein neither could recover amounts charged against back their salaries, nor they entitled ratings restored prior existed to the re- rating of 1932. court found these teachers had been high rated too due to “mechanical and errors,” clerical employees board, mainly paymaster’s depart- ment, without authorization the board. It was held that the board legally required place was the teachers in this group on rating their correct salary as soon as the errors were discovered, back all overpayments collect based alleged the by errors not barred the statute of limitations.

As to the group, involving second the so-called “non- uniformity” (also categories eases into several divided here- after discussed), the court found that the teachers included therein were alleged entitled to payments recover the excess charged against but, back salaries, tneir that the board could lawfully and did re-rate them downward effective as of the commencement of the school 1932-1933. other words, group held, as to this it was board could the change ratings its but it not do so retro- prospectively, could actively. third group

The included six teachers. them the As to trial court peculiar held because facts to their indi- vidual estopped charging the board from back the was allegedly payments ratings excess from changing prospectively year 1932-1933, for the school and thereafter. that, regardless any error that words, it was held

In other originally teachers were may committed when the have been board, of the peculiar because of facts each rated, the re-rating from teachers either cases, estopped these six retroactively. or prospectively group appeal teachers in the first from judgment The the it them relief both prospectively insofar as denies and retro- main actively. Their contentions are that no there were ratings, original but even were, errors if there original right had ratings; teachers a vested that the right no to interfere right; had lawful with that board vested errors, any were; that the ratified if there board that the estopped now to claim error. board is appeal group second from judg- The teachers right ment it sustained the insofar as re- board to year commencing for the prospectively July 1,1932. rate them The teachers here involved make same contentions and, in group, addition, point in the first every out those original group his or her teacher in this fixed resolution the board. It is contended that formal the board right in 1932 as it constituted had no lawful overrule granted by an change right earlier board in the exercise appeals judgment from The board inso- its discretion. right far it group sustains charged against salary. current The recover amounts back thought origi- is that these main teachers were rated, board, that it nally erroneously duty pros- error, only re-rate them upon discovering overpayments error. based pectively but to recover judgment in favor of the six appeals being group, third contended no lawful estoppel for an exists. basis discussing parties directly contentions

Before salary made to the schedule of must be reference some applicable thereto. department and to the rules department in the school personnel of certificated salaries employee. Such separate each contract with are not fixed schedule, the amount of are fixed salaries year, Each between service. dependent upon years being board, acting pursuant May 21st, May 1st and Code, adopted the School city and of charter provisions ensuing the next school for for teachers of salaries schedule July once when schedules 1st. Such year, starts which changed worked year. out were each Frequently the board readopt would for preceding year. schedule For the year school 1925-1926 salary adopted. a new schedule was That readopted schedule succeeding year each 1930- until 1931 when a adopted. new schedule This mentioned last schedule through year remained in effect the school 1932- 1933. These schedules fixed the salaries of the teachers the several separate divisions of system, the school schedule being set forth elementary schools, for teachers in con- tinuation part-time high schools, junior high schools, at- high tendance officers and In schedules senior schools. these salary depends each teacher status upon her “service rating,” which depends in turn her of service. ratings” 1925-1926 schedule has twelve “service status for each division, designated 12th, through 1st except ratings for stop attendance 9th. The schedule officers for ratings,” 1930-1931 shows fifteen “service status ten for pro- rating attendance as the officers. Salaries rise gresses. When acquired a teacher has last “service status rating” division, listed in the has schedule for her she reached salary maximum rating, according paid and thereafter to that maximum.

These various schedules usually pro- contained a vision that rating service status of the teachers should advance position one year. each Thus, in general, there was an advance of place one in service rating year status each department. in the were, There however, exceptions this rule. in 1925-1926, Thus after the salary schedule for that year had been adopted, supervisors the board of made avail- able an money additional sum give in- teachers an salary. crease in In accomplish order to result, being late, apparently, too revise schedule, the board provided education that teachers should be advanced more than place one service status 1925-1926. already pointed out, a new schedule adopted. That schedule contained substantial high raises for all teachers over the corresponding salaries contained schedule for the preceding year. board concluded that .The give higher rate, and, at the same "time advance the high school teachers one rating, would result in too great Hence, by resolution, ratings increase. high school teachers were “frozen.” teacher the “frozen” .Each year. In 1932 preceding to retain the of

group was all and no at “frozen” raises allowed schedule was entire system the years such a amount for thereafter. Under several depends seniority, on until teacher salary by of received each the maximum been reached. has a mentioned. When generally should be problem

Another department necessary it for the is teacher first enters any to credit to whether she to entitled board determine gained non-teaching, out- teaching or experience, for either Department. de- The board side Francisco School the San end, experience. this give for To to credit outside termined en- of rules August 11, 1925, adopted a series on Elsewhere and Teaching Experience “Credit for titled to state purported rules Other These Classes of Schools.” teaching only outside not what credit would be allowed experience “vocational experience, but for outside also in effect remained industry These rules and commerce.” re- certain May 1930, until were modified of when changed its February 1932 the board spects, then in of subject. time the board abolished on this At that policy entire experi- for outside salary purposes of giving credit for first all new teachers ence, and thereafter commenced year-of salary schedule.

(cid:127) adopted applicant in 1925 posi- rules Under employee tion of would submit the board her creden- tials, including reference her outside experience. detailed In January, 1926, a department there created of person- duty survey. nel it make preliminary whose The de- partment always personnel rigidly apply did not the 1925 Moreover, many applicants experience rules. had type of a department by the rules. covered would calculate a rat- ing This applicant. recommendation would be sub- composed personnel board, mitted to the committee members This three board. committee then would transmit the full recommendation to board. The board approve, reject modify would then formal resolution rating, provide hiring and would for the of the teacher rating.so fixed. here the various cases involved seventy-five (hereafter there are discussed detail “non-uniformity” cases) ratings under the whose thus 1931, years through fixed formal resolution- initio object ab strenuously being who in 1932. re-rated When the to its satisfaction from board determined Owens- due originally, had been particular teacher by’s report improperly rated and therefore error, improperly to some salary than that which higher compensated at a rate entitled, sent, prior the commencement she was This letter 1932-1933, a to each teacher. letter had drawn specified she her that for certain informed salary rates fixed the uniform excess of schedule experience of the same for other teachers 1930, July informed that since classification. She was then al- of excess she had overrated the amount told that leged specified. She to have been received was the reimbursing department option she had the the of payment, overpayment lump sum by an immediate either salary from from her monthly payments to be deducted 1932, 31, June 1933. 30, to October that The contend even if teachers the owed money overpayments, and even if the board could overpayments, them it to power sue and recover the no had right self-help by exercise the deducting of thus sums from consent, their salaries without their least at after the teachers challenged validity by filing of the claims these ac attempt enjoin tions. not The teachers did the deductions. When these cases trial all the went to deductions had been money impounded made the board. While we have governmental agency, propriety some doubt of the of a after it employee money, an has determined that owes it to deduct part employee’s all or of the amount claimed from the claim, employee challenged validity after the of the has determined, validity and before the has no been we have doubt steps at all employee that if the see fit take to see does validity money.is the court until the impounded it determined, of the and then is determined claim objections to employee money, has any he waived owed case it been de pursued. In the instant has the method various these teachers owed the board termined some of money. board, tried, of sums Before these were self-help, the sums owed of a form deducted exercise fact it If teachers from these teachers’ salaries. date to late money they position are in owed no by the board. complain adopted procedure of the mandate petitions of the that all board insists did the teachers in all of because the cases must denied 718

not exhaust instituting administrative remedies before these It proceedings. is, course, settled well administrative remedies must available be exhausted before (Abelleira is had redress to the courts. v. District Court of Appeal, 280 Cal.2d P.2d 715]; A.L.R. [109 Bd., Alexander v. Personnel State Cal.2d 198 P.2d [137 433].) urges that The board 5.760 and 5.761 of School §§ provide remedy Code administrative should have proceedings utilized before these mandamus were insti provides “Any tuted. Section 5.760 that: teacher whose may appeal superintendent is withheld to the public instruction, thereupon require who shall superintendent investigate of schools to present the matter and the facts thereof to him.” next judg section provides “The that: ment superintendent public instruction shall be final; upon receiving superintendent schools, judgment if the is in teacher, shall, favor of the case trustees refuse to issue an order for salary, said withheld requisition issue his in favor of said teacher.” These application have appeals. sections no to these These cases disputes do not over involve whether warrants being properly withheld. Here war rants month, were made out and delivered each with a deduction admittedly the amount owed. The dispute is right over the re-rate in 1932. The superintendent public instruction has no power pass on the questions and fact concerning the complicated], law proper rating of partial salary these teachers. The with holding feature main of the case was to this fea incidental ture. Under such circumstances there were no administrative remedy. proper available and was the remedies mandamus Dupuy (See, Education, 106 Cal.App. v. Board 533 [289 689]; Bagnelle, 408].) P. Williams v. 138 Cal. P. [72 closing argue length In some their the brief teachers right that for may whatever the board have had to deduct during 1930-1932, overpayments the it at no time notified teachers, compensation prior July 1, the that 1932, their year pursuant for 1932-1933 to the reduced the would be urged May and rating. It is that the notices sent them 1932, ratings of their June, merely notified them reduced salary by them prior and the amount received excess urged re-rating resolution to June It is also that 1932. not re-rate for future. purport itself did forth the setting be purpose No useful would served It true opinion. in this form of letter and resolution teacher's state what expressly that letter does inevitable the clear and rating But 1932-1933 be. for will fu- resolution, that was letter, implication Thus as reduced. ratings on the ratings based ture would be her typical, informs Cushman, which is letter to Miss 1931-1932, but year for rated 11th that she should have been It is true year. 12th erroneously that she rated legal was without the board her held case court 1931- for retroactively salary right rating to reduce her year rating paid on 12th 1932 and that be she should intent the board’s year. clearly indicated But the letter any- future. To for the rating she should be reduced in Francisco of the San salary one familiar with the schedule rating method of Department School and familiar with the letter were, teachers, involved as all the here meaning. have no other could

The Clerical or Mechanical Error Cases general. already As noted, the held, trial court group clerical, where error in was mechanical that the legally justified retroactively board was in re-rating prospectively—that is, that the board could collect overpayments two-year period 1930-1932, was justified lowering ratings of these teachers for the categories large group future. There are several within this appear category. some teachers more than one These categories main separately will considered. “split year” cases.

The trial correctly placed court this cate- gory. Their names relating facts to each of fully findings cases are set set forth and need not be grant- forth herein. These with the cases arose connection ing “big so-called raise” in the 1925-1926. out, already pointed As for this school schedule adopted money raise of at least before for the per year $360 For this each teacher made available. for the raise providing $360 reason a schedule without adopted. But, contingent money being made avail- for as follows: “big provided able raise” schedule provisions Salary “Under the of this Schedule and of the governing placing rules of teachers now service Schedules, teachers, the new all principals, super- full-time all supervisors visors and day assistant schools will re- during year (1925-1926) ceive the next school an increase of than Sixty less Three Hundred and Dollars above that they which during year 1924-1925, received apart school from small odd amounts added or to fit subtracted order the teachers’ salaries exactly into the new schedule.” This accomplished raise was through placing higher rating a of the 1925-1926 salary schedule than would have only received with year the usual one advance rating. salary The schedule contained a section indicating where on the (1924-1925) old schedule were to placed be salary various brackets of the 1925-1926 schedule. For ex- ample, elementary teacher who had receiving salary year 1924-1925, $1400 for the the lowest or first service rating, status was $1824 to receive 1925-1926. order figure, to arrive this adopted the schedule compli- a most procedure. cated toAs some the teachers, it provided that they should on paid “split year” basis. example, For provided the schedule that a teacher who year was on first rating 1924-1925, being placed instead of rating on second for the next year, school jumped was to be placed on year the 5th rating for first year half 1925- year rating the 6th for the second half. salary year rating for the 5th on the salary 1925-1926 sched- $1776, year ule was rating, that for the 6th $1872. One-half plus $1776 one-half of $1872 $1824. This feature of paying for one-half of the according rating, to the 5th according year salary one-half 6th designated to the “split year” rating. hand, On the other a teacher who rating 2nd 1924-1925 salary of $1450 received 6th advanced on the 1925-1926 salary schedule, which salary carried a $1872. Thus schedule through the up salary ratings. continued various ratings Some “split year” advanced this method without and others with it. This made the schedule most com- plicated, expressly provided board’s schedule “split this year” system as to certain of the brackets and not as No made complaint others. is here having adopted procedure. error which Mr. Owens- year” rating found “split continuance year Owensby’s analysis 1925-1926. In beyond the Mr.' salary schedule, adopted as the which was 1925-1926 the succeeding year 1930-1931, the years until for the schedule (one- 5y2 “split year” rating for 1925-1926 the teacher with 6th) 5th at should year year rating, half at second half (1926-1927) commencing July 1, 1926 have been year for the that straight year rating 6th have at placed continued on gone year 1927-1928, she rating until the when would have Instead, July 1, rating year commencing the 1927. on 7th for given “split rating, on 6th 6y2 year” 1926-1927 was for she January, 1927, to year the half the on 7th from first such 30, continued, is, that advancement on June 1927. This A was school 1930-1931. new schedule plan, year until the paymaster adopted year. for At that the board’s that time both, schools, or determined that superintendent “split year” system then terminated. To accom- should be elementary “split year” on the plish object that one, com- rating rating plus were the next even placed on mencing is, general for July 1, 1930. That rule with year year elementary they advanced rating. year rating if 1929- a teacher for But had 9% was, year 1930- she the school commencement of 1931, given rating. Owensby’s 11th view, full Mr. “split year” court, of the trial of this continuance system beyond contrary to year 1925-1926 school year for schedule provisions salary of the board’s 1925-1926, with readopted succeeding years. If a teacher for 5y2. rating year 1926-1927 been during 1925-1926 had for the year, given rating rating 6th thereafter advanced one rating, in- year she 1930-1931 would for have had 10th stead of 11th. year rating given by pay-

This additional one-half elementary teachers. only apply master in 1930 not did already pointed adopted As out, new schedule given They year high “froze” school teachers. year. rating for that usual one advance higher than the This the 1930-1931 was because schedule was pay would old felt that the increase schedule and was rating under large got too if the teachers advance “split year” teachers higher But schedule. for That is a teacher high given. schools an advance was in effect on 10th rat- “split” placed 9y2 1929-1930 was rating on for ing. 1926-1927, rating If, placed she had 6th done, she 6y2, instead of as should have been would have 9th rating, found herself 1930-1931 rather than 10th. year” theory “split of the board in was that system beyond contrary continued 1925-1926 1925-1926, provisions of the board’s schedule view, readopted years up for the 1930-1931. In board’s (either acting its employees paymaster paymaster or the acting superintendent schools), under the direction of con- misunderstanding under a direction as board’s thereto, tained in contrary the schedule and continued higher “split year” system, thereby giving certain teachers a direction than have if the board’s would contained in the schedule had been followed.

The trial court found, accordance with the board’s interpretation salary of the schedule of 1925-1926 that under schedule, that it provided insofar as certain groups the “split year” payment method of year, for that school payment such method of have should terminated with the year commencing July 1, 1926; that at that time a teacher paid, example, was on “split year” who basis for 1925-1926 on year one-half sixth, fifth and one-half on should placed have been on 6th year rating commencing July 1, year 1926, instead of done; as was that “at time no 6% has Department the said adopted ever or maintained a schedule split year based on semi-annual or rates that and (after when said $360.00 increase had effected) said teachers year were to year, advanced from commencing with year the school 1926-1927, at year’ such semi-annual or ‘split ratings, they were so advanced in violation of said resolution 16, 1925, June and unwarranted continuation plan effecting increase, $360.00 said that such and advances error, and increases were made reason of clerical inadvertence and on part Department mistake of said employees” (Finding 198); its 61, p. No. Tr. that Cl. occurring reason of these errors 1926 and in 1930 these erroneously year’s rating; teachers increase in received full “none said advances was made the exercise of judgment discretion or any of said teachers or . n of them . in charging teachers, 1932, . said payments excessive they during which received two year period immediately next preceding the time when said charges made, were namely, what for the difference between or basis split semi-annual erroneous received yearly basis shown they should have received on what re-rating prospectively teachers these schedule on said [and rights, and Board its 1, was within July since said 1932] made; Court legally charges properly all were such made said were overpayments finds said all thereof and that mistake and clerical error through legally properly back and collectible were properly to collect is entitled that none of said collected, and thereof, or entitled any part from the defendants back change restoration ordering any the mandate of Court 207.) p. (Finding No. Cl. Tr. status.” ruling the trial court’s considering propriety In problem The first involved. really questions there two are year” “split is, interpretation—that should one of problem July 1, 1926 ? second have been continued after error is, assuming an question law, that involves a board, the board could by the employees committed during overpaid lawfully the amount back recover period of limitations? within statute first question On the teachers contend that there misinterpretation was no schedule, what was done was in accordance with the That schedule. trial properly court schedule, construed the 1925-1926 which readopted each until 1930, open is not to reasonable doubt. provision addition quoted above salary schedule, 1925-1926 there another provision which adjustments read: “The of the salary teachers now in made service to the middle session, be of next in order to give proper salary, of shall amount continue effect adjustment August until (This the is made for 1st, 1927.” date, was, July changed 22, 1925, 1st, to “July read 1927.”) salary adopted May The schedule of 1925. 1932, The trial court, interpreted and the the refer ence to “the of next referring middle session” as to the middle year, of the 1925-1926 school when certain teachers paid year higher rating to be for the last half at a than analysis for the first half. the above provision means that salary paid the last 1925-1926, for the half of was to 1926-1927, July 1, continue as the for until 1927, in all cases there a where had been middle session ad justment year appears in the plain 1925-1926. This be

purport provision. The teachers, while seriously contending that quoted paragraph standing alone should interpreted, not be so qualify quoted seek to paragraph provision earlier in the schedule which reads as fol ‘ lows : Increases in on account of of service Department the San School Francisco will made once annually; August 1 changed August effect July 1, as [later ’’ year. is an obvious each teachers contend error] any teacher on “split year” year a basis 1925- school example year rating fifth for the first half of the year and sixth for half, the second full be rated one advance or for the 6y2 1926-1927. The obvi ous error in this construction is that the “middle of next session” paragraph provision quoted particular above is a applying “split year” rating, controls with a which those general provision rating. annual advancement obviously “annual” provision, upon by teachers, relied applied basis, to those “split year” applied not on a “split year” July 1, after 1927.

Once it is en- determined that these teachers joyed in 1932 mistake, was the result an error or question presented next re- could then is whether overpayments cover the period for the the statute within judge problem limitations. The trial fully discussed in his first ade- opinion. are discussion We satisfied that his quately disposes We therefore phase problem. of this adopt a portion following portions as of this opinion the opinion trial court:

“In my opinion there is right no doubt as to the Board’s to sue teachers, and therefore none right as to its deduct money admittedly owing to legal them. The doctrine which the charging Board based its action in back the overpayments, justifies and now action is recognizes mistake. The law and deals with two kinds of mistake,—that of and that of general law fact. aAs rule legal mistake of is of consequence, just law no igno rance of the law is no excuse. fact, however, Mistake of general rule good ground furnishes a for relief. More over, mutual, mistake need not be or known to or shared party receiving money. Money paid under negligent mistake fact back, be recovered however may been, party paying may making mistake, un have payment change less the position has caused such

725 unjust require him to "re- it would party the other Miner, (National 167 Cal. Bank v. fund. of California P. 27].) [140 whether question it is a close “Now in these cases persons by have by the Board been made claimed errors paid whereby the teachers were employed by the department, (according Board) to the more than were entitled As or of law. the various mistakes of fact mistakes question be dealt with. herein this will cases are discussed point that, however, it sufficient out Preliminarily, is paid by by mistake generally money is out speaking, where government mistake agency (whether by state or many law) back fact mistake of it can be recovered or private a where, if out an individual or paid instances corporation it not be. could it, this, theory underlying

“The and the reason funds,— funds,—trust paid are public funds out who can deal with not the of an individual property pleases. them he paymaster of

“Take an illustration case where the department interpretation of a section erred legal enactment such School Code other and because interpretation than under the paid erroneous a teacher more rightly interpreted would be coming law her. This law. mistake of clearly il- “A comparatively recent case Massachusetts (Norfolk County Cook, Mass. 390 lustrates the rule. v. 650].) 1913B was clerk of N.E. Ann.Cas. Cook [97 at Ded- County County. county Norfolk seat was Court of day from journeyed ham. Cook lived at each Weymouth, and allowing there to the There law courthouse back. necessary travelling claimed the expenses, clerks and Cook expenses daily trips County his Commissioners court, sup- ‘It says allowed ‘to have been them. seems’ payment posed parties all that the statute authorized the good question of these no faith.’ Here bills. There is of their County plain was a of law. and the "Commis- mistake Cook held that law. Later simply sioners misconstrued the whereupon "the statute did not the- authorize payments, refused, county Cook, he repayment by demanded which ‘The County sued. The court in that case held county defendant authority pay, and the treasurer no ho right money.’ to receivé this following excerpt

“The from the decision should be read with care: “ commissioners ‘His next is county contention adjudicated as court that the money him, due was and that adjudication county. such is upon conclusive But this is not they tenable. So as acted within they far the statute language plain acting were its simply auditors, and so they acting far as they outside the statute were act- ing jurisdiction.’. outside their following

“And the also points should be noted well for it exceptionally out clear unambiguous language reason exception,—the for the reason say, is to awhy governmental agency can sue and money paid recover back (despite mistake fact) the fact that it is not by mistake of where an individual cannot do so. “ ground ‘As last defense of the defendant invokes protection his money voluntarily paid rule under no mistake as to the facts cannot be back. He recovered takes position that even if the transfer the money of from the treasury county pocket illegal, his if and even he neither then nor has any equitable right it, since still he will invoke this technical rule keep of law to money if he can. stopping Without to comment aspects ethical proceed such a defense we to consider its legal aspects. “ general ‘The rule very is of application indi- between viduals. An dealing individual money. If, is with his own to avoid facing trouble him in shape of a or in lawsuit any form, other he knowledge with full of the facts and not under compulsion voluntarily but pays has money, out he right his waived to contest validity is of the claim. He dealing with his money own as a principal. He can do as he chooses with it and is to no public answerable one. But dealing officers are money which not is their own and over powers subject which their are to well known limitations. They can pay when requires the law permits, they pay cannot when it forbids. far they So act within their powers public, agents they are, whose must abide the consequences. But beyond they when act powers their not bind principals. payment do money (cid:127) this case not the act of the simply un- county, authorized act public voluntary of a It was not the officer. payment money by owner, no by one who Had but- by the not authorized in it and who interest beneficial chief Manifestly one of payment. to make principal To wanting. rule is application conditions for such apply; things rule does such condition cases.) weight authority.’ (Citing great is the 651-653. pages annotation at “See also the subject is State Iowa v. the same leading “A case on 345]; where 292, 13 Ann.Cas. Young, N.W. 134 Iowa [110 both cases cited subject and numerous fully discussed It comes following it. the annotation the decision cited, just case Massachusetts to the conclusion as the same process rea the same and arrives at conclusion soning. Arnold, 134 N.W. County Jones Iowa

“See also v. [111 Contracting Katz-Craig 973], County v. Pocahontas of Co., 1313, N.W. 181 Iowa 1323 422]. [165 in state the case applied rule was this “The trust fund P. City Hickey, Cal.App. 90 616 of Petaluma v. 613]. [266 of upwards City $3000 out of paid There the of Petaluma had paid out under get money it The had been sued to back. nor mistake of fact made it neither a which circumstances trust fund and law, money of was a but it was held that paid had become person to whom it had been however, recover, involuntary City could not trustee. The brought time,— single suit reason that it had not of statute theory being its claim on the trust barred limitations. Wadham, 611, 162 620 Puterbaugh

“The case of v. Cal. rule, applies the same tacitly recognizes P. 804], [123 salary.” from holding deductible past overpayments to be 69-131; part here (Opinion quoted pp. Br. entirety Res. quoted pp. 76-81.) Res. Br. following above, the cases

In addition to the cases cited governmental under agency hold money paid out payee: from the may either mistake or recovered of fact law 631]; 550 Board, Cal.App.2d 23 P.2d Foster v. Pension [73 727]; McDonnell, 288 N.W. City Duluth 61 Minn. v. [63 of 33 Belfield, 58 N.D. Chrysler City Light & Power Co. v. of Dist. Independent 871, 1337]; 63 A.L.R. School N.W. [224 1076]; Inhabitants 6 282 P. Mittry, No. 39 Idaho v. [226 151]; 240 Me. A. City Benoit, 128 v. [147 Biddleford 77, 33 L.Ed. Barlow, 271 132 U.S. S.Ct. United States v. [10 728

346]; States, Wisconsin Central R. Co. v. United 164 U.S. 45, 190 41 399]; Golden, S.Ct. L.Ed. Haralson County v. [17 104 Ga. 19 good S.E. It should be added that the [30 380]. faith of the iu payee way no affects applicability of the (Smith el, 1078, above rules. Rub 422 v. Ore. P.2d [13 644]; Lodge, A.L.R. Grand v. A.O.U.W. Minnesota Towne, 136 344].) Minn. N.W. L.R.A. 1917E [161 teachers, error, all other urge ratings having given, although that the been once based error, final, and, on are in any event, the board estopped challenging, ratified, or that has board ratings. dealing It should be not here noted that we are ratings given by after full board examination the facts That problem board. will here be discussed after. We are here dealing with errors of employees of in applying board the will of the board as disclosed its resolutions salary schedule. The so-called “me chanical error” cases employees were the result of erroneously interpreting board salary passed schedule by the or in interpreting board some resolution of the board. Certainly, urged successfully employees cannot be that the in rating paying teachers and in interpreting judi the resolutions of the acted in a quasi judicial cial or capacity so their determinations judicata. would necessary import become res Yet this is argument point. of the teachers on this fallacy arguments same exists based estoppel urged It is that, ratification. erroneous however the interpretation by employees schedule and other resolutions may been, of the board the board have depart should have paymaster’s known what manner the ment violating urged It resolutions. is that the also records board, of the board open to the and that such records revealed true The above cited cases situation. beyond establish doubt that the absence of unusual cir cumstances illegal public present payment here of funds cannot recovery be nor estopped. ratified can be There is no doubt a modern tendency estoppels against to invoke public authority (La in exceptional circumstances. Societe Emp. Francaise v. Cal.App.2d 56 534 Com., [133 California 47]; P.2d Superior Court, 3 309 Times-Mirror Co. v. Cal.2d 547]; Angeles, P.2d City McGee Los 6 Cal.2d 390 [44 v. of County Angeles, Angeles Los Los v. 925]; City P.2d [5 of But these P.2d 138, 370].) A.L.R. 9 Cal.2d [72 There of facts. most unusual sets all involved will not be estoppels that general rule is that is no doubt in rare agencies except its against government or invoked 19 Am.Jur. (See cases collected unusual circumstances. pre here are 818, 166.) unusual circumstances p. No § errone employees of the board simple ease It sented. illegally paying ously the will of board interpreting We conclude lawfully entitled. money out to those not cases, the error mechanical this, as in all the other well lawfully could recover error, discovering board by the statute period for the not barred payments illegal teach to restore the limitations, and, course, required ratings. proper ers to their involved year” cases. “frozen court, trial here involved the group As to the of teachers error, year” mechanical “split cases, there was held right re- without and for reason the teachers were prospectively. deductions, cover the re-rated the em- found, cases, trial court group as to this ployees board, interpreting the applying schedule, as disclosed contrary acted will of by the resolutions the board. As already has pointed out, schedule for gave 1930-1931 a substantial raise salary each

ratings relating junior to senior and high schools, gave no such elementary similar raise to teachers. The de- give high termined school teachers both raise year and the usual one in rating advance would result giving those teachers more of an increase than the board intended. prevent To this result the board determined to “freeze” high the status of the school one —that is, keep ratings their service status for 1930-1931 identical existing with those in 1929-1930. Inasmuch as the elementary teachers raise, did not receive a their service ratings status “freezing” were not frozen. The resolution adopted May 21, 1930, and reads as “All follows: high senior identical resolution was [an adopted relating High to Junior School with less teachers] than twelve placed service shall be beginning July, on the corresponding new schedule schedule, adoption the date service status as of of this according to requirements and shall advance thereon forth, except effective set no event shall a teacher dates in the a salary now suffer reduction of virtue service adoption of the new schedule.” elementary Many of cases now discussion involve under high junior were to the senior who transferred 1, July 1930. If those teachers had remained schools effective year have elementary in the advanced division would rating. place one employees board’s advanced them The rating notwithstanding high The transfer school. teaching experience years’ result two was that teacher with 1930-1931, junior high rating second remained on junior elementary high but teacher transferred rating years’ elementary third experience with two received higher salary than the junior high schedule, getting on the high. junior experience teacher entire had been whose placed the same basis re-rating The such transfers on “frozen.” junior high as those teachers and were who were group in this were elementary Other teachers involved ratings did July 1, Salary 1931. transferred effective as of it is obvious year perfectly not freeze 1931-1932. But for the advanced elementary was, example, if an teacher (which per- rating second to third for 1930-1931 high fectly transferred to proper) then, when she be commencing July 1, if she were to division rating, year ahead advanced fourth she would one junior years ex- of similar high or senior school teacher high school. perience all experience of whose exactly That is of the board did. employees what the de- The entrants situation new same existed as to partment. given credit each Outside a result teaching one. As experience, of their less outside salary one schedule placed such new entrant depart- Francisco high ahead of the San school teachers in teaching had been equal experience ment with entire whose high done in the Francisco schools. San A similar somewhat situation existed as offi- to attendance cers. Before 1930-1931 their separate schedule was mid- way elementary between junior high. sched- junior ule of placed 1930-1931 them high on the schedule.' employees did “freeze” ratings, board’s if place. one an attendancé permitted an advance of Thus rating, officer had second she was advanced to third high given junior salary rating teach- same third 1929-1930 who, Thus an officer for had sec- ers. attendance high rating junior less than teacher with ond a received paid second in 1930-1931 on the basis of third rating, junior high receiving junior high rating, more than equal experience. teacher with re-rating groups place

The of 1932 reduced these one several rating give provided year, in so as one frozen them recovery overpayments. approved court The trial board, holding of these teachers these actions of the that all year. in the schedule for one should have been frozen That this seems obvious. determination was correct considered, purpose freezing resolution is When of the be groups clear intended to included it seems that these were group. predicated upon conclusion in the frozen Such whole, than 1930-1931 rather scheme schedule as a For any particular upon provision of the schedule. rea upon “split under the sons and the authorities discussed year” portion judgment should be affirmed. vice-principal The cases. category

This includes four vice-principals. problems The here grow involved also out of the salary 1930-1931 schedule. Under that vice-principals given schedule rating were a the teacher’s rating service status schedule, and in addition to the teacher’s rating for that received a flat sum of per year addition, except $300 B, elementary Class schools, where per $240 additional was received.

The adopted by schedule for 1930-1931 was on May 21, 1930. vice-principals In reference to provided,: schedule “All vice principals, except those B, elementary schools, Class who shall not have had at the adoption time respective of this schedule the service status as listed year ratings], above and 15th shall [14th receive the salary, on the their respective new schedule for groups, year, teacher years three in advance for their 1929-1930 plus A per $300 service status annum.” similar provision applied B, elementary' vice-princi- Class pals, except $240. that their raise flat was to be It will be schedule, vice-principals noted under this “at the time adoption already of this had not schedule” who rating, for 1930-1931 maximum were receive reached rating plus an additional sum of either three-year jump year. per $300 $240 or vice- vice-principals

The four here involved were not schedule.” principals adoption the time of the of this “at They May 21, appointed vice-principals after were year 1930-1931, either for the school the school gave paymaster nevertheless these four vice- 1931-1932. three-year rating appoint their principals advance ment, in addition to increase to which the flat sum appli undoubtedly clearly entitled. This was an erroneous cation of the had determined that schedule. three-year jump extra raise should limited of a May 21, That those service on 1930. classification was already theory vice-principals based on most experience positions in service had and were big rating. jumps extra raise of Act entitled three ing newly powers, its well within board determined appointed vice-principals inexperienced and therefore were clearly paymaster not entitled to this consideration. The rating acted in violation of the board’s mandate. The as board, the group here therefore erroneous. The involved was “split fully reasons discussed connection year” cases, and properly overpayments, collected back placed ratings. The properly persons their proper these judgment them. should be affirmed Gases where the teachers error. admit Foley, Murphy, the cases of Nellie Frances Jimi- Edna Herrington, Dorothy Peabody, nez counsel Reilly and Ruth purely the teachers admits mechanical error was that a ratings by employees made in the board. To group Betts, should be .not added Emma mentioned brief of the teachers.

As to trial that “for these teachers the court found unexplained “through some all,” reason or for no reason at mistake, wholly some clerical error and unex which plained,” unexplained or “for some reason and because inadvertence,” error,” clerical or because of “error and paymaster gave higher rating these than teachers a example, entitled to under the For resolutions the board. by Foley given rating teacher fifth resolution Nellie erroneously placed paymaster her 1926. The year. other seventh The five cases are similar. These cases furnish examples purely the clearest the record of by mechanical errors which the teachers involved were overrated. The properly overpayments recovered the teachers, made to these properly them in 1932 re-rated by placing them proper rating. on their judgment to them should be affirmed.

Miscellaneous cases.

The teachers list persons heading. five under this As con- board, tended and as court, found the trial all five of these categories cases fall one within or more hereto- fore or hereafter discussed.

Perry Kittredge for school year 1924-1925was entitled rating calling to a salary. paid $1800 He was at that rating February, until unexplained when for some rea- son he was rating by raised to paymaster the next $1900 per year. any There is no evidence resolution war- ranting the raise in rating, any no practice evidence of or custom of raising thus mid-year. teacher This clearly the result of some wholly mechanical unex- plained paymaster’s error department.

The board admits that Charlotte Morton be in should “non-uniformity” group, rulings hereafter discussed. The hereafter made as to group apply will to this teacher.

Mary Rossi falls both year eases, within “frozen” here- discussed, tofore cases, the “nine rule” months hereafter respective rulings discussed. The group there made as to each shall apply to this teacher. Kathryn Courtright eases of fall Coles Eloísa

within the “nine “split year” months rule” cate- gories, and respective rulings categories made as to those apply shall to these two teachers.

Conclusion as to mechanical cases. error

The above groups constitute the main found the trial court to fall within category. the mechanical error We are (those convinced as that to all of these cases mentioned as specifically above well those as mentioned but forth set findings in court) correctly of the trial the trial court overpayments determined that properly on error were based period collectible for limitations, within the statute and that powers placing the board acted in well within its

these teachers prospectively rating they in the would have in been had error not occurred.

“Nine months rule” cases. this falling contends that the teachers within board error

group should classified with the mechanical also be depends problem solution of here involved cases. The adopted rule interpretation given to be proper correctly employees If of the inter- board. board ratings proper, preted given rule the these teachers were this hand, if no On the other the em- error committed. ployees rule, then error misinterpreted of the board same and the should follow the course was committed mechanical error eases. other no question had The trial court found rule It group. therefore found application to the teachers this ratings given employees these teachers words, had that no error board were correct—in other no Accordingly, ruled that over- the trial court committed.. teachers, these that the payments been made as to had salaries, right legal any sum from their had no to deduct for all sums teachers were entitled to refund these this portion from appeals so deducted. The had held, however, that the board judgment. The court trial prospec- classify purposes, power group, this for teachers tively, properly re-rated these it had judgment. this appeal portion 1932. The teachers twenty-five findings According there are depart- all group. They are teachers who were took leaves part and then taught for ment who year that these portion of absence. adopted taught than nine months. The board was less guide employees its 11,1925, to August certain rules on fol- These read as by the rules. rules in the matters covered lows : Teaching Experience Elsewhere

“Credit Other Classes Schools. ‘‘ teaching and for teaching experience elsewhere Credit may graded sal- of schools experience other classes adjustment as follow: ary purposes than three of.successful “(A) less Teachers with elsewhere, positions, teaching .appointed experience (cid:127) Schools, in teachers the San Public shall receive Francisco salary year Salary for first provided an annual of years’ experience three receive Schedule. Teachers with shall schedule; second salary provided year in the of the with years’ experience year schedule; in the third with four of schedule; years’ experience year in the of the five fourth schedule; years’ year fifth of the experience with six ’ schedule; years experience year in the with seven sixth eight year the sched- years experience with in the seventh of eighth year; years’ experience in with ule; nine with more years’ experience year; ten in the ninth eleven or years experience year. in the tenth

“(B) Elementary school teachers in the San Francisco Department assigned School when- teaching positions in high schools shall receive credit salary for adjustment year year teaching experience for for all in the San Fran- Schools, cisco year not to exceed the tenth high salary High school schedule. schools here used include junior, high part-time and schools. “(0) junior high Teachers school when assigned part-time high school, school or the teachers part-time high assignéd high school to the school, shall year year credit teaching experience receive for for in the junior high or in part-time school.

“(D) Credit on the basis of years two for may one be given experience industry for vocational or in commerce to teachers of industrial or commercial branches when such in- experience commercial directly dustrial or related to the teaching proper preparation respective in the industrial branches, provided or commercial that the total of such credit position shall not entitle the teacher to a salary higher than year tenth the schedule. “(E) Evening teachers, assigned school when to duties as schools, shall day be entitled credit on a evening years’ teaching basis of two for one day schedule for schools. “(F) given Not than one shall more credit teaching experience during year, one and no credit shall be given during nine for a term of of less than months service one year.

“(G) adjustments on asking Teachers account teaching experience Superin- must file with the elsewhere satisfactory

tendent experience evidence such months, and the where such places experience was ob- ’’ tained. precise question presented F, supra, Rule is whether applied ab- took leaves department who sence, only it entrants into applied or whether to new department, experience. pay- rating their outside only master to entrants. interpreted apply the.rule new to returned, they Accordingly, leave, on when as to the teachers rating although paymaster year advanced them one in which taught full in the they had not nine months this inter- agreed trial leave was taken. The court with to application F” had no pretation, holding that “Rule all out that teachers pointed teachers on leave. It should be paymaster. similarly were so treated situated given rule agree interpretation We with Judge Goodell it trial his opinion second court. agree his length. problem at We with discussed this some of this analysis. opinion adopt part therefore as We opin court’s second following portions court the of the trial ion: F it of Rule seeking meaning

“In the true intent and company analyze in whose certainly proper to the six rules it is found. only new to reading apply

“A A it of Rule can shows word, In a entering Department. Francisco teachers San good are as says teaching here experience that three to hundreds four was referred elsewhere. This rule during times the trial these cases. exclusively hand, clearly to B,

“Rule the other refers Department already teachers settled in the San Francisco part- high, junior (elementary) ‘assigned’ who either are to high high school proper. time or B, provides C, following the announced principle “Rule part-time to high assignment junior position for the from a high high to high high part-time or from proper, school proper. entering the D, to new teachers again, only “Rule relates have who taught Department who have before never subject,—industrial specialized training particular teach. engaged commercial,—which they to then are n E, dealing evening schools are “Rule who ‘assigned’ day schools, seem designed would to be for intra- department changes, C, as in B Rules for the framers ‘assigned’ just rule have used word in E in B might did It rating and C. also held to relate to the aof very good newcomer for the reason that a newcomer Department should not enter the on more terms favorable Department than one already ‘assigned’ iswho duty one to another. clearly

“Rule entering G has do with new Department. It is simply procedural provision, auxiliary A Rules D. brings

“This F, us a consideration Rule which reads in its first part,— “ ‘Not more than given one credit shall be teaching during year.’ one part

“This sentence would seem to be addressed A D, Rules for in the new defini- teachers the tion of year’s teaching what is a para- would seem be of mount importance.

“The last nineteen sentence, words with which we are if chiefly, entirely, concerned, not are ‘and no credit shall given be a during term service less than nine months for of of year.’ one ‘‘ phrase, This it me, seems to must to likewise be addressed A Rules phrases and D. The up two which make the sentence seem, would naturally, clarify to be intended to and define years experience and make more definite, the with which of deals,—to Rule A show, words, in other those how computed. be should

“Granting, however, language applies that the of Rule F E B, to well, by any 0 as it does means follow that .and it eighteen apply was intended to to such as the [later found be twenty-five] to now under consideration.

“In place, very the first tenor of the resolution excludes thought. such Such is to idea excluded even without resort the title or heading of the resolution. It does not purport to measuring deal with year, intra-department, as of far normal or salary scale is ordinary advancement purports (a) concerned. It only deal with cases of new entering- Department teaching either or experience (b) Department vocational back of them 738 ’ ‘ shifted, assigned, transferred, from one promoted, Department

division of the another. absence, of or leaves, suspen- “The ideas leaves of sick or sions, last. idea are nowhere to be found first to measuring of defining or for of advance- purpose above, ment from one is no- status the next expressed, implied. where or

“But, beyond said, meaning what some above and has been given heading weight must to the title or of the reso be : reading lution for teaching experience follows Credit ’ heading elsewhere and other classes of schools. This ex presses ideas, two distinct more. And the introduc no ‘ experience tory repeats teaching sentence for else Credit teaching experience for of schools where and other classes ’ may graded adjustment purposes as follows: be “When, says that therefore, Rule F ‘no credit shall given during than for a term service of less nine months heading: year’ this, paraphrase one it not mean does In computing teaching experience elsewhere and ‘Credit for Department within this credit other classes schools’ ‘no given shall be a term than nine months service less year’? during one words, cognate heading, and F, in other

“Rule vice versa. ‘‘ doubt In the of statutes where there is construction may be ambiguity, law in that resort is settled this State 145, headings. the title and section 23 Cal.Jur. sec. p. They not conclusive 770; are pp. sec. 772-773. legisla means, legitimate arriving at any but are aids It that the headnote of recently tive intent. has been held part of the ‘may be considered section of Political Code ’ (Southlands Co. interpretation. itself, purposes code 521].) P. City Diego, San v. Cal. [297 “ statutory then, headings may part of If, be considered and mean intent seeking the true enactments themselves real law, it in our search for ing would seem that of the proper only permissible F but of Rule it is intent rules themselves. heading part of the parcel read the as that the Board my in read, little mind When there is doubt so subjects men the two apply these seven rules intended heading, in the and to no others. tioned bearing upon rule has introduced evidence “No been subject consequences absence or the leaves of thereof. stands, then, group, “As the teachers in this the record they along from their when returned leaves went on year thereon automatically advanced schedule they they the same as would have advanced had been teaching continuously. They paid were at the advanced rate. year. opening A contract made each school new on Apparently practice to treat teachers who went way. (save on leave There is no evidence to show cases) in one or that some teachers two isolated were thus while there was a coalescence treated others following return with of their absence. “I if have no doubt that such had been coalescence practice compelled settled not have teachers could them, Board to advance employee paid whether an is during absence, or whether he shall be advanced spite line of seniority absence, retarded, kept of an or or standstill, at a employer employee, is all a matter between purely agreement matter understanding between them. absences, A nine months covering rule such counsel for is, defendants contend this proper enough would abe rule for the adopt, Board to rule, absence such any showing of discrimination it seem would that the ad vancement automatically which the teachers received should stand, in (as noted) they view of the fact that already paid during intervening years higher at the rate and their contracts therefore became executed contracts for those years. goTo place back and them on a lower rate would making amount to the retroactively of new contracts after the commencement year.” (Judge of the new school opinion Goodell’s printed second in Res. pp. 132-194; Br. part quoted appears above Br. pp. 165-171.) Res. already

As board, indicated the determined applied Rule F leave, accordingly the board deducted from the salaries these teachers the amounts such teachers had paid alleged as a result of the error paymaster in advancing ratings these teachers in any year taught less than nine months. The court, trial pointed out, above for the reasons stated opinion in its above quoted, that the paymaster held had cor rectly interpreted the rule. It found “that F said Rule was not intended to apply, and did not and apply, does not to teachers who, reason of absence, taught leaves of less during F any year, hut that said Bule than months one nine to, does, rating of teachers apply to the intended The upon original! Department. into the entrance finds, therefore, that said reductions deductions Court are, and each made, were that said teachers improperly is, amounts so deducted.” of them recover back the entitled to judgment We the agree finding portions with this and the of from appeal that the of the board based thereon. We find portions finding the is judgment the of on above the based judgment should merit, portions without that these of be affirmed. group appeal already pointed out,

As the teachers this judgment writ portion of denies them power to ground of mandate that the had the on the commencing re-rate with prospectively, these teachers year arguments school this 1932-1933. The advanced issue “non- are identical those advanced the so-called with uniformity” question cases, The of hereafter discussed. power fully discussed prospectively to re-rate the board opinion dealing “non-uniform- portion this ity” dealing with the portion judgment cases. The re-rating question of as propriety prospective of the present reversed group must be teachers involved fully set forth in discussion of the non- the reasons uniformity cases.

Full time teacher rule. problem

Six are in here involved group. this The grows interpretation adopted proper of the a resolution out pertinent 1925. far as here that on June So resolution reads: Salary upon Contingent “New . Funds Schedule . .

Being Through Provided from the State Local Tax Bate. provisions Salary

“Under the Schedule and governing placing rules teachers now in service receive, Schedules, . all full time teachers . . will dur- new ing (1925-1926) less the next an increase not school during than above that which received $360 1924-1925____” question depends upon proper here inter- involved pretation time phrase “full teachers” the above employed “sub- six teachers had been These resolution. formally “probationers” stitutes,” employed resolu- after above August 17, 1925, until several months six that these adopted. determined paymaster tion teachers” at the time the resolution “full time teachers were 1925) to the (June 16, and therefore entitled adopted board, accordingly. be The “big raise,” and rated entitled “full these six were not 1932, determined that teachers 16, substi- they time teachers” June because were tutes, according to be rated the above were entitled that paymaster error, that and resolution, had made be overpayments should deducted from salaries. prospectively. trial board also re-rated the teachers basing court, holding ground solely its on the these reasoning substitutes, teachers were substitute a as teacher, a a full agreed matter law is not time board, a held case of mechanical or clerical error, judgment accordingly. entered its The teachers appeal judgment from the whole of insofar it affects as them.

It is conceded all appeal concerned on this the so- raise” “big provided called for in quoted the above resolu- tion applied probationers regular teachers in the de- partment July 1, on June 16 words, it is 1925. other probationers conceded that regular teachers “full are time teachers” meaning It is within resolution. equally apparent that one who is a substitute as that teacher, term is usually used, not a full Normally time teacher. a employed substitute teacher is part-time on per a diem basis temporarily replace regular absent, a teacher who is normally a regular assign- substitute teacher has no school ment. The evidence shows that fifty about were substi- there type of this employed by tutes the department period in question. If the six teachers here involved had been sub- stitutes type of this they there would be no doubt that were not full time teachers, and were therefore not entitled to “big But raise.” there are some unusual facts in relation to these teachers which demonstrate that these teachers were “full time teachers” used, as those terms are ordinarily they as were used in the above resolution.

These employed teachers were under a resolution of the board of November 12, 1924. It provided: positions

“Resolved: That in this appointed teachers department remaining portions for the of the current school at the to which appointed be as substitute teachers probationary teachers; be entitled as would That

“And Further Resolved: all such substitute probationary will be as considered classification at the present end of the term.” although teachers, appointed

Thus these “as substitute teachers,” teachers,” paid “probationary and at were “present” term “considered for classi- end of were teachers, Each probationary fication as teachers.” of these assigned substitute, particular unlike the usual to a these'teachers, existing. to fill vacancy school a there Each substitute, paid regular if unlike the usual teachers, probationary she teacher. Each of these taught continuously substitute, unlike the usual full time and 1924- appointment from the date her until the close of the assigned. year, at the school to which she had been substitute, Each of teachers, these unlike usual received pro pay rata for the summer of 1925. These vacation August formally appointed probationers teachers were 1925. the practice that of

The evidence also shows under the existing superintendent of em- board then the schools was powered appoint the usual substitute without consultation to by other or formal action the board. Probationers and full six teach- appointed time teachers were the board. These Moreover, the appointed by ers were resolution of the board. group subsequently “permanent” in this made teachers were Aebli, of teachers by board Miss one the resolution. appointed May 13, 1927. group, example, was so practice of the at that time Under the law and before probationer teacher was classified two This permanent eligible she was to the rank of teacher. board, full facts be- demonstrates 1927 the with the that pro- in fact a it, fore determined that Miss Aebli had been the 13, 1925, a month before May bationer least since at 1925, 16, adopted. resolution of June type of the That to include teachers the intended teachers” designation “full time here involved within the super testimony Gwinn, of Dr. amply demonstrated the of November of at the time the resolutions intendent schools 12, 16, 1924, 1925, adopted. June He testified were type that the vacancies of the to which these teachers were normally appointed by probationers, have filled would been but that of the opinion the members board were of the that growing department fast, appoint the too and wanted to probationers substitutes instead of be so that could dis-. charged any the at time if need did not exist. continue money “big He also testified that had been raise” supervisors, made available that the board of that give “big board wanted to that were raise” all then carefully service. The board of education framed reso lution of 16, 1925, accomplish that June also result. He it understanding testified that intent was his of the his intent the board appointed that so-called substitutes spring “open” positions, appointed pro bationers in the fall of within the included resolution; June 16th pro that these teachers “were in fact erroneously bationers (Rep. termed substitutes” Tr. 2008); that he believed “that the intent was to rule” include teachers type of the here involved as “full time” teachers; practice that giving to these teachers the “big raise” “must been the knowledge have practice Board that interpretation that would confirm the I ; that taken in (Rep. 2012) have this matter” that Tr. terms time” “full were intended to include “all substitutes who were still substitutes the end of 1924-1925 school term following probationers term,” and came back as they taught every expression that is if day, “that is what the ‘full time’ meant . irregularly . . and did not teach because irregular of teachers—I believe absences that intent of rule have those should advantage raise, extra because Board’s resolution subsequent that at November said some time the Board give (Rep. would consideration Tr. classification” 2013); he prepared paragraph the “full time” salary schedule; expressly reason use he did proba appointed words “substitute later teachers who were I tioners” “must have . . . that understood interpreted Board meaning so of the rule. There was considerable discussion application about individuals, schedule a whom—as to which ones had as right that increase.” under resolution to have (Rep. 2017.) Tr. that phrase

It must be overlooked used 16, 1925, “all the resolution of June full phrase “perma The board not use time teachers.” did it probationary nent teachers” as it would have had “big intended that raise” should be limited to such Dr. and the members of the board were teachers. Gwinn thoroughly proper designation familiar with the of each class They of teacher. knew the differences between substitute testimony probationer, and full time teacher. The above they advisedly, phrase demonstrates “full used time” who in fact intent to include those substitutes were 1925, disputed full time teachers. It is not June each of in fact “full time” these teachers was a teacher particular regularly assigned the sense that were regular vacancy. fill a Their services continu capacity spring ous until the close term They probationers. 1925. started the fall term that every sense of the these teachers were “full time word teachers,” clearly so-called opinion, entitled to the our “big so, being raise” of 1925. This no error was committed employees classifying the board in these teachers. so any alleged entitled, therefore, The board was not to deduct overpayments entitled from their salaries. These teachers are judgment improperly for the amounts deducted judgment, The insofar them this their salaries. denies relief, judgment denies must be The also these reversed. ground mandate on the the board a writ of legal argu power prospectively. re-rate The them those ad ments this are identical with advanced on issue “non-uniformity” cases hereafter vanced in the so-called dis fully portion cussed. For reasons discussed the there judgment group writ denying the teachers mandate must be reversed. “non-uniformity” cases. seventy-five prob- group

This some teachers. The includes in- fundamentally lems here differ from the cases involved volving mechanical error. The latter all involved situa- regula- adopted rules and tions where the board had certain tions, regu- employees, of those rules and and the in violation rating. lations, gave involved an erroneous category all deal cases involved now under discussion itself, pow- with situations where the board the exercise it, granted group ers rated the teachers. all involved This past experience prospective of the the of evaluation taught School not theretofore the San Francisco who had experience, teaching On of Department. past the basis newly given rating on the vocational, a hired teacher was ratings These made in first instance schediile. were the employees upon the of the based information se- find- applicant from the from other sources. The cured ings together facts, all employees, of board’s the the reported composed the were then to a committee of three of personnel members of the board and known the committee. findings then reported This committee its and recommenda- then adopt tions to the board. The board would a resolution given fixing applicant the was to be the for her experience. group teachers in this outside As to all of the board, acting powers trial held that within its court discretion, ratings fixed these when the teachers were hired, committed, that no error had the terms hiring accepted the contracts of fixed board and applicants, and that these contracts were valid. For these reasons the court held that the board was without power ratings retroactively, to reduce and that the board power alleged overpayments without to deduct from Accordingly, granted salaries of these teachers. it these teach- judgment improperly ers for the amounts deducted from their respective appeals salaries. The board por- judgment. tion that, court then held The future, re-ratings theory 1932 were The valid. lawfully trial board in 1932 court was could exer- facts, lawfully its cise discretion on the same could reach lawfully different valuation coiild of outside experience^ position teacher a contract offer the and new based on teacher, valuation, that, accepted by new when binding court, therefore, contract arose. The deiiied these ratings. teachers a writ of mandate restored to their to be old appeal portion judgment. from this already out, pointed As all of these cases involve teaching experience, evaluation of outside either or voca tional, department. All of new entrants into the concerned appeals on these power admit that the board has to determine policy adopted that should be reference to such evalua tion. Thus the ap board could determine to evaluate each plicant’s experience giving case, the facts of each con- only to the number

sideration actual such experience, experience, also to the nature applicant’s personal abilities, attainments etc. adopt could determine fixed rules that would likewise regardless particular appli- to all some eases apply or peculiar abilities, cant’s and unusual determine could power- apply policies. a mixture of these It two any given for to determine whether credit at all should be realm of experience, determine, or to within outside given reasonableness, whether credit should be for certain for types experience of not others. These are matters course, within the which rest discretion of the board. Of once powers and policy adopted, is the board must exercise its apply policy adopted fairly and without discrimination. undoubtedly change has power, prospectively, The board to regard. in policies its

An that times examination of evidence shows at various policies men- adopted the board all of various above has evaluating experience. to Prior tioned reference outside August positive to 1925 the no fixed rules board had evaluating experience. that for such The evidence shows practice to to prior that the uniform the board was date rating according evaluate each to the facts disclosed teacher’s being weighed particu- by application, her each case as to the A lar number the teachers here involved facts. substantial department policy while this was effect. entered August acting discre- board, In of 1925 well its within tionary adopt certain which powers, determined to rules experience to These outside was be thereafter evaluated. ‘ supra, in ‘nine quoted, have the discussion of the rules be repeated and need not here. It will month rule” cases be August, adopted by the board in policy noted that the give rules, is to policy far as disclosed so “teaching elsewhere” for entrants each new credit elsewhere, taught a maximum they one with less (Rule A.) ten Rule D “credit on years. But under credit may given years vocational the basis of one two experience commerce,” industry or when such experience teaching directly related commercial industrial of ten credit teacher, a maximum position sought rules are the above years. It will be at once noted experience teaching experience or vocational limited either

747 Many industry or commerce. involved in applied position this group, when first for a San experience 1932 of a Francisco between had had type categories provided by not included within the the rules. employees. these, apply As to board and continued to its policy August, 1925, that had prior existed weigh particular each case on its facts. was the uni- That policy during Moreover, par- form this period. board ticularly experience, as to vocational outside the board did rigidly apply newly adopted to all rules cases. From very employees first the board and its discovered that if the were rigidly applied they rules would be unable many secure specially qualified persons as teachers that the employ. desired to result, board, As a from the very first, adopted practice liberally uniform constru- ing rules, applying its cases, its rules to the normal a particularly qualified where teacher specially desired for a special position, weighing particular qualifica- her tions, her accordingly. words, other between adopted policy partially based general on the rule partially doctrine and on the based indi- vidual qualification doctrine. Most of the teachers here in- volved were rated entry department into the ac- cording policy. to this

In 1930 the experience outside rules of 1925 were modified respects, some and repealed were entirely. Thereafter, as entrants, to new board, acting its within powers, grant determined to no credit all at for outside experience. ,When Owensby, in 1932, came to consider the teachers in this group he determined in opinion his these teachers given had been high too rating ap- because of in an error plication of the words, rules. In other even as to group hired before August, 1925, to whom the rules adopted then clearly had no application all, he determined that under the rules of August, 1925, rigidly strictly applied, and these given teachers had been high rating through too an error, no different in substance from the mechanical error cases heretofore discussed. Accordingly, he recommended to board, and the board adopted his recommendation, all teachers be should re-rated downward both prospec- these. tively, and retroactively two-year for period.

The trial court in found, effect, that no error had been rating the board originally these teachers—that made ratings and fixing original powers, its their acted within rating a valid contract was that as each teacher advanced held inasmuch entered into teacher. It was with that fraud, mistake, error, there could not was no or the board completed alleged attempt redraft contracts recover and completed. years overpayments for of work that were those finding as follows The exact of the trial court this issue is on (Finding 31): “The Court finds that the action said re-rating seventy-five reducing Board in 1932 in said and for teachers had legal that said reason given standing instance, not because the first their inadvertence, of clerical in the exercise of discre- error or judgments judgment, tion and erroneous said and however may appeared have to be the Board as was constituted said the basis conclusions had nevertheless formed Department the contracts between said teachers and said Department all into years entry the school their 1931-1932, re- including attempt and and to then such legal attempt retroactively be, effect, to ductions would new several make after contracts the commencement Accordingly period. intervening said within seventy-five Court finds is entitled that each said so County to recover the amounts City back from said charged respec- back, opposite set which amounts are finding tive names in 29.” holding.

We are in hearty this rea- accord with ably by trial holding fully sons stated judge opinions. adopt part in his of our two therefore We opinions: opinion following portions of these “Each judgment and dis- them involved the exercise cretion department officer the first instance ultimately. judgment Board Education Such were, subject to, governed by however, discretion designed the rules to in- adopted in rules were which uniformity. going history expe- sure a teacher’s over rience officer, upon certain credits would one which given might there if be a difference were be- opinion remains, however, ing by somebody carried The fact else. particular employed teacher in a definite class group, concerned, so at a far as schedule was def- salary inite rate. each as such teacher automati- .And

749 higher a new contract the next bracket eally into advanced until according to the new rate. And so it went made composed per- of somewhat different Board, 1932, when in some uniformity rules had been sonnel, concluded that ratings made. disregarded or violated and new throughout kept must mind this discussion be A'distinction or errors mechanical clerical errors and between judgment In the arising exercise and discretion. from the simple, you pure case have mistake and former a know, knows, the mistake teacher who benefits should and that she than is getting it is a mistake is more she to, that, later, sooner or probably entitled she will have overplus. On pay back the the other hand facts where weighed judgment (even though a have been arrived at erroneous) judgment may there be has been a definite meeting department teacher, of minds between the and the good a contract has been made. “ When, therefore, in 1932 charged the teacher was being back with difference between what she paid thought ought what the Board in 1932 she paid, have been (or attempt make) net result to make con a new her, tract a rate, years reduced for the two just elapsed, so, which had course, and to do after two opened.” discussing After relating the facts to several of' the teach ers, length holdings trial court discussed at in Fidler Trustees, Cal.App. v. Board 912], P. [296 Sims, Abraham v. Cal.2d 698 P.2d It concluded [42 1029]. its discussion of these cases as follows: principles just

“What gleaned are to be from the two eases discussed?

“First: That a teacher’s is employee, status employer being Board; the School the relationship between the teacher and the relationship arising Board out of con- ; tract of, “Second: That under the law California the School right, has acting good Board faith and in the exercise of a discretion, sound teacher, reduce the not- withstanding the permanency tenure; of the teacher’s

“Third: That such a reduction cannot made after the beginning aof school year.

“How do principles non-uniformity these bear cases now under submission?

750 City Attorney upon following

“The relies the lan guage found Section 5.734 of School the Code. ‘Uniform may in any allowance be made schedule of years salaries training years establishing service,’ and for a principle as uniformity controlling parties all litigation. to this argues that, He from this the teachers when were rated the first by Department, instance the they were rated according uniformity rule, to this and that therefore the beyond power (ultra vires); Board its acted in 1932 when them, re-rating reducing action taken the and agents doing its simply they Board and what should according to instance, namely, acting have done in the first uniformity the rule of laid down section 5.734. ‘‘ authority in goes There is this State which far no so Moreover, hold in line this with contention. the fact must be faced when the acted respect Board rating they of teachers the first instance when were em ployed acting, agency as ‘an Board was administrative (Grigsby King, created statute’ v. Cal. [260 789]) power charged duty P. invested with the and with the public fix paid compensation persons ‘to and order requiring qualifications, employed service certification fixing (Section Code). 5.731 School In such boards . . .’ enjoined by compensation this the Board Section 5.734 in any make ... ‘Uniform allowance schedule of years training and for of service.’ certainly “It is not to fix ultra vires for Board expressly compensation teachers, for section 5.731 of new says power perform very precisely that it shall have this and duty. But, argue, they must this counsel defendants ex 5.734, perform duty according ercise power and this e., according they i. if rules, do not do so uniform acting beyond powers—ultra other are vires. In vires, words it is not what the Board does that is ultra way rating in which it it. of teachers does Now judgment Presumably Board exercises its discretion. when first the teachers were rated Board considered having uniformly. In 1932 rating when been made personnel, tribunal, re-rated same but with somewhat different teachers, judgment, Board in exercise of its de rating cided that the first been uniform. other had not its of several words, the same tribunal decided that own acts not- upset, be ultra vires should been years before had original resulting from the withstanding contracts contracts. had become executed deputy employed X teacher was

“At the time when Board told officer of the authorized superintendent or other year teacher at employed as a third her that she would made between year, a contract was $1584 ' At the com- year at that rate. Board X for that and Miss automati- year, she went mencement of the next school when Depart- cally $1680, made a new contract was between each suc- ment the new rate for herself, on, so ceeding year. made has

“The reference California eases to which in exercise of a sound power, hold that Board has teacher’s acting good faith, and in to reduce a discretion school any time salary, but that reduction cannot be made at such (July 1st) when opening year after the of the school and made a teacher at a fixed Board has contract with given these salary. rate of It to me to follow from seems that principles when, that in X notified teacher year position $2364 she had been from eleventh reduced Board year position to tenth and was billed $2208 salary higher for in and the difference between the two-year the re-rat- period preceding lower for the next ing, logical retroactively her net result was to reduce salary in several school year, after the school and some eases in years, commenced, had in of the rule down violation laid the Fidler and Abraham cases. charged at that time only

“The teachers were not back two-year accruing period, with the difference within May and June of notified their salaries lower, higher rate, at the would be at the rather than change thereby bringing in home the teacher notice of salary year. From what opening rate after the just that, my opinion, has it in naturally been said follows non-uniformity cases charging teachers in the back to the (and all) referring I errors at am cases of mechanical served, it substance was not warranted for the reason that teach- to reduce the practical purposes, and effect and for all opened.” salary question er’s had after the school sup- judge holding his second The trial reaffirmed this following ex- opinion. doing gave he plementary In so ample : position. applied Department X in to the

.“Miss qualifications truthfully her educational She stated what had had been, may be that teaching experience had she tutor- training well, had done some experience office remarked, might It be ing, taught in private or had school. many virtually as varieties parenthetically, there are teachers. there are experience shown this record hearing her teacher, after deputy who interviewed this judgment and discre- story, decided, in his the exercise of year fifth tion, placed on the she should be paid schedule, Department and was and she entered the automatically year at that In 1927 advanced rate. she rate, the sixth in 1928 the seventh, on until and so 1931 when be, course, she would year. the tenth 1932, when the re-rating on, case,—along carried her others,—was scores of re-examined and reviewed light of the rules of the adopted Board which had been before she It entered. was then determined that in Board 1926 she by, say, had been years,—in over-rated let us two other words, that designed rules which adopted for uniformly valuing weighing teaching expe- rience had followed,—and not been that she then, should uniformity, interest of years. reduced the same two Accordingly, X teacher found herself in the school com- mencing July 1, 1932, on the ninth yéar of the schedule instead of on the eleventh. . . . Notices of these reductions rating in pay deductions were sent to the teachers before the opening year July new school 1,1932-June 30,1933. “ It in decision, authority was held the first the of the cases cited, of our sepa California courts therein rate had contracts been July made on 1st of each of the school years from 1926 to 1931 inclusive, at the higher rate, and that when the in Board 1932 attempted to lower that rate it was attempting retroactively to make new contracts,—after respective opened. had It follows this, for the reasons already given, that if this Court had been convinced that Board had certain cases de parted from its rules, own had, Board nevertheless, exer cised its own discretion in the matter and that discretion could not disturbed Court action.”

For the given reasons by the trial court it is clear that portion this judgment should be affirmed. its acting under board, court held trial But power, includes salaries, fix which power

undoubted of teach- raise salaries as to well case, in a lower as proper classify these power status, had permanent ers with fu- and, to the as salary purposes, seventy-five teachers salary. lower ture, contract offer the teachers a (Finding is follows this issue trial court on finding of the 32): “ seventy-five sent said notices finds that said Court whose (with exception of the six teachers teachers 1932, re June, May and finding 33) are discussed 1932, notifying teachers 1, said July them before ceived as, ratings salaries sufficient said reductions constituted, contract for the school of a new offer right, power, au 1932-1933 and that it was within jurisdiction Board to the salaries thority and of said reduce (with dis exception of said six teachers said teachers finding 33) prospectively cussed for the future and long (as were) before the as said reductions made these year, fairly commencement made new school and were arbitrarily and not this connection the capriciously. reducing said purpose Court finds Board seventy-five (with teachers exception teachers of said six finding commencing 1, 33) July 1932, discussed in future, uniformity in ratings was to effect and fairness within the Department had, opinion and to remove what seventy-five (with 1932], said given Board teachers said [in exceptions noted) advantage last over other an unfair Department, that said neither in said action was arbitrary capricious. Accordingly nor the Court finds (with seventy-five finding none of said named in the exceptions any last order noted) entitled to mandate or directing this Court teachers to the restoration said they occupied status which said theretofore schedule, July 1, any judgment or to after money 1, July paid over or above what have since 1932." agree We do not holding and are of the

opinion that the portion judgment based must thereon be reversed. question

The real presented is whether the in 1932 had power to review the service ratings status of these teach-

754 ratings given,

ers after cases where the original ratings error, mistake, fraud, were not based on or classify, given, were valid when to re-rate solely purposes, group because of teachers the board as it original ratings in 1932, existed believed the were too high. In opinion our such a has no reasonable classification basis, beyond arbitrary, is unreasonable and and was power of the board. possesses

There can be no doubt but that board power to reduce salaries at the commencement of a school year, permanent even employees tenure, provided that there is pro a reasonable basis for such reduction and vided the unreasonable, reduction is not the result of ar an bitrary, capricious (Cleeves Education, act. Board v. 22 Cal.App.2d 645]; 183 P.2d Fidler v. Board Trus [70 tees, 112 Cal.App. Sims, 296 2 912]; P. Abraham v. Cal. [296 2d 698 1029]; P.2d 113 800; Annotations 110 A.L.R. [42 1495; A.L.R. 1298.) 127 power A.L.R. But this is not un limited. The power against any board has no to discriminate It pick teacher. cannot out some teachers in particular (cid:127) category, change functions, classify without a in duties or that group purposes different from others same category (Fry Education, v. Board 17 753 Cal.2d 229]), P.2d arbitrary, [112 nor can it reduce salaries in an capricious, or (Kacsur unreasonable manner. v. Board of Trustees, 18 Cal.2d 593].) P.2d [116 present attempted case the board to re-rate these teachers in 1932 represented it, because it was it believed, that an error had been committed when these teach- ers were originally board, rated. The as it was then consti- tuted, believed that the board, itas was constituted between had committed error, no different in sub- stance from the mechanical error eases above discussed. The trial court properly has that, originally held rating these teachers, the board acted powers, legal within its and that no error was in fact committed. Thus the entire basis which the purported act in 1932 found not to exist. purported correcting to be what believed in 1932 was an error of an earlier board. When it is held that no error was in fact committed, the foundation of the board’s destroyed. classification is Although attempt of the board classify seventy-five these teachers was thus based on a and the law facts misapprehension of true fundamental its now claims applicable them, the board nevertheless in the board’s fallacy The upheld. classification should be just what was position consider is we demonstrated when in review purported done At that time the board 1932. that, opinion, in case, the facts its in each concluded in each misinterpreted misapplied 1925 rules had been high, case, original rating had been too determined that the prospec- downward, both thereupon and re-rated the teacher rating in 1932 de- tively retroactively, and board entering given upon termined the teacher have been should operated. this department. A how examples few will show Marjorie 23, 1925, on June as appointed, Cushman was 1, probationer 1925-1926, July effective year for the school 1925, rating. out- eighth year with an She had seven given side full teaching experience. She was credit creditable undoubtedly for a correct experience. this outside This was rating it then existed. policy under the uniform board as August, 1925, In 1932 the that under the board determined rules, originally placed this teacher should on have eighth sixth re-rated rating, for that reason instead of 1932, by in prospectively her Thus the board downward. teacher, erroneously to this applying August, 1925, rules employed, when was those when she rules were in existence her, sal- her, application and thus no reclassified had rea- improper ary purposes, completely for a erroneous employed son. to all teachers reasoning applies This same prior to 1925. August of example

Another as to re-rating illustrates how the 1932 applied to employed subsequent those teachers August, in 1925. Lois appointed probationer Woods was department year of texts and libraries maximum tenth rating 1928. At than time this teacher had more years’ experience eleven librarian in public as various such libraries. 1925 are silent how rules as to experience teacher Obviously should classified. this teaching experience neither experience outside nor outside rules 1925 “industry and commerce.” That all the sep- purported board, considering to cover. The her ease arately, as then its her credit policy, give determined ex- library experience teaching her if it were outside rating. Accordingly, perience. her a tenth gave undoubtedly powers acted its discretion within be- obviously a rating teacher. There difference so this is only industry experience tween and commerce which desires, teaching position applicant related to the experience identical performed outside to be 1928, department. rating then, This when made legally until up binding on the board. determined, erroneously, the board status, had committed an error in her tenth rating at library and held that the work should have been credited experience. this vocational It therefore determined that at department come in 1928 teacher should have into the 1932, pur- tenth, and, accordingly fifth instead of rating, her ported to from twelfth reduce to seventh per year. situation $600 reduction of over This same large group category exists as to the included within apply type where the rules did not to outside experience.. given examples many Other could be in which the board between 1925 and 1932 liberally construed its 1925 rated in rules and teacher then accordingly, and 1932 the board strictly construed its rules and purported to re-rate teacher downward. general

The same situation existed as all those within to the “non-uniformity” category. board based upon theory the that original rating the was erroneous and in rules, violation of purported the to reduce these teach- ers in accordance with what it erroneously thought the rules required. The trial held, correctly, court and, has we think that original ratings were within board power and binding upon it. For that reason board it held that the had improperly attempted retroactively. to apply re-rating its Once this determined, is the entire basis of the board’s re- rating falls, and the arbitrary character of the be- re-rating comes apparent. Thus, if a teacher, Woods, such Lois as was properly given year tenth rating in 1928, and if for year 1931-1932 she properly year given twelfth rating, how can she be classified properly year seventh for 1932-1933? What the action of the is board amounts to prior that beginning to year it the school 1932-1933 determined that all properly twelfth classified year year rating for 1931-1932 “frozen” in should be status for that .Woods, 1932-1933. But as to Miss similarly the others situated, that board determined they be classified as should seventh rating, solely because committed erroneously, that error felt, an board uphold classification seeking to is in 1928. Thus the board out singles which and one premise, based erroneous classify seeks purposes, teachers for certain All group. status differently in their others them from all in- few, A that status. status remained in others twelfth situated, reduced were similarly those cluding Lois Woods and hours functions, or duties, any change in rating, without of service. says, found,

The board the trial court good “uniformity.” attempt done in a accomplish faith Uniformity Just is that is entirely what meant not clear. with power ? The deter- what law vests board with the mine times policy. already As at pointed out, various evaluat- adopted board policies has different reference to change ing experience. Obviously, any outside time there is a policy, uniformity a lack of creates sense one department teachers who become while members of who policy differently is effect treated from teachers are department become members is policy while a new a school “uniformity” effect. Such lack of as inevitable progresses periods accord- needs of various attempt- ingly changes policy. its in 1932 outside ing uniformity ratings overall secure based experience. very year repealed the board de- rules and determined that to all new entrants in experi- partment no all given credit should outside at at- very'time ence. Thus now claims it was the board strictly tempting uniformity applying secure overall first regardless 1925 rules to all teachers, of when employed, uniformity making impossible it was overall changing experience. its policy entire as to of outside evaluation

If the position taken now correct, the board is it would mean that beginning any year at the 1932- school since board, purporting the over exercising powers to be its salaries, and in an endeavor to secure “uniformity,” could every have department determined that teacher in the should given any not have been credit experience all for at outside (in every accordance existing policy), its and that department teacher should her rat have status service ing reduced accordingly for the future. That what board would have to do did it desire to secure “uni absolute formity.” If a.school board service change could thus rating

status of those already department every time personnel happened of the hoard every time change, or change members of the board policy, determined to security teachers would employment have no at all in their seniority rights. and in their There can doubt but be no that impose the board could a horizontal on cut all those ratings. within certain This several was done that resolutions “froze” the salaries of certain teachers certain years. against protected any But are teachers arbitrary rating. reduction in rank or When board adopted policy has once and, mis fraud, without or error take, rates a teacher policy, although under may change policy department, its as to new entrants into the it has no power later to teach go back and review that case, er’s and to re-rate that teacher prospectively, theory original rating high. was too The having lawfully acted once a teacher has exhausted power subject its over that matter. theory findings court, trial of the disclosed in the as quoted, trial

above portion disclosed of the dissent, board, court’s opinion quoted in was that prior beginning year, power to the has the any offer salary, teacher at any a contract and if the teacher accepts by into continuing teach, contract a valid comes opinion existence. For this reason trial court capri- arbitrary reclassification of 1932 was not cious, in good was made faith. It should be noted that the trial court’s opinion pre-

pared before the dates of the decisions of the Supreme Court in Fry v. Board Education, 17 Cal.2d 753 P.2d [112 229] and Kacsur v. Board Trustees, 18 Cal.2d 586 P.2d [116 Fry case, by necessary implication, 593]. Kacsur and the case, express ruling, held that the board did not have un- power limited to offer teachers, reduced permanent salaries to offer, if which the teacher to teach, continued became a valid holding contract. The of the Kacsur opposed case is directly theory to the trial court in the instant cases. In board, Kacsur May, case the 1938, permanent offered two contracts new reduced salaries for the school commencing July teachers, 1938. The did the cases, protested, instant perform assigned did for the school duties 1938-1939. case The board in that made the contention that valid contract had exist- come into eases. of in the instant holding tenee—the exact trial court the salary It urged particular was that a teacher’s the amount of the ,was contract, improper a it matter of and that was others salary salary teacher of refer to her former or the to in that sal- attempt in to the department show offered recogniz- ary Supreme after discriminatory. Court, was The ing salaries, stated may that fix general rule board of power ,(p. 592): “However, are there limitations teachers. change permanent boards trustees of of to salaries One in Abraham ‘legal consequences’ of referred dis- case, not be supra, fixing is that of salaries must criminatory, The arbitrary or unreasonable. above cited agencies all qualify general power so administrative to fix of this permanent teachers. the salaries Because com- qualification necessarily that there must follows be pre- parison the salaries other teachers or salaries years. done, qualification vious If this could not would be meaningless.” attempted

The Court then that the board Supreme held had differently salary to classify teachers, purposes, these two similarly attempted situated others and had to reduce paid these teachers below the level others This, held, law, same it was as a dis- category. matter criminatory, and the decision con- of the trial court to the trary, reversed. situation, cases, in the instant similar that exist

ing Owensby, Kaesur case. studied indi vidually the cases of these 75 teachers. As to each of them classifying he error had made determined some been they department—that these when first teachers entered existing some had been He informed the rule violated. so board, board, on this acting representation, be lieving good committed, faith that such had been errors reclassify each purported prospectively and retro teacher actively. held, part trial court and we are affirming had that no committed—that judgment, error validly all rated these teachers were when entered the only if an error had But it been committed department. reclassify have power that the would had teach these differently change functions) duties (without ers group. in their status service What from other say although com no did was error trial court teachers, original classification these mitted than offer lower to these power mat category. aAs teachers in their same offered other fully Kacsur law, for the reasons stated ter of capri cases, arbitrary Fry classification supra, such cious, and unreasonable. changes pointed

It out that should be no in duties or func- or hours were tions of work involved the reclassification particular of 1932. in a con- rating Teachers service status work perform functions, tinued the same duties and to hours, rating, the same as all others in that reduced rating for pointed to a lower the above reasons out. significance given Some must be the status service de Seniority rights of a teacher. department the subjected to pend upon rating. A may teacher not be being is rights every policy of those divested time a new adopted by the board. reasons, the classification,

For prospectively, these the teachers in- group in this 1932 must held be to have been valid, must portion judgment and the the thereon based be reversed.

There the trial held are several in which court retroactively the board could re-rate the teachers either or prospectively. cases, be- The court held that as to these estopped case, cause of to the peculiar facts each re-rating from the teachers nec- involved. We do not find it holding essary propriety pass to on of the trial court's event, estoppel. insofar as cases, any it is based on These “non-uniformity” group fall within the discussed. above holdings holding to these will as teachers follow category. to made as judgment to that This means the them should be affirmed. on major

This of all disposes problems of the involved appeals. From all these what has been follows that said portions judgment appeals of the which the from should concerned, appeal far be affirmed. So the teachers is judgment should portions appeal all from which following: except be affirmed (a) portion judgment denying That heading “Nine months a writ discussed rule” eases under ratings be prior of mandate to be restored to their should reversed. judgment teach-

(b) portion denying That to the rule” heading “Full ers under time teacher discussed salaries, right the amounts to recover deducted their ratings, prior their restored to mandate be and writ of should reversed. be

(e) judgment denying That portion of to the heading cases” ‘non-uniformity’ discussed under “The prior right to a writ of mandate to restored their ratings reversed. should be ordered;

It the teachers recover their costs on so costs appeal board; each side to bear its or own appeal teachers. Ward, J., concurred.

KNIGHT, J., con Concurring Dissenting. my It is clusion that the trial sus court’s decision herein should be particulars. por tained in all I dissent from therefore those majority opinion tions which direct reversal as groups the three specified. teachers therein noted, As will be principal majority point on which the opinion disagrees with the trial court’s decision relates validity the of the 1932 re-rating by the insofar school board prospective operation as its the teach- groups affects three ers in included the reversal, order of and referred which are to throughout the record “non-uniformity” as the cases.

At time the controversy this arose, approxi there were mately three thousand employed in San Fran- the cisco Department, School appears and it from the record that number prior an- to or one reason other, 189 the teachers whose status is in con- involved these solidated actions had been given higher salary than ratings other teachers experience, with the same in- both outside and side of the San Francisco the Department, School and in group same brought classifications. This finally condition investigation about and de- teaching audit of the entire partment. It consumed months, several and was made Owensby. Wilbur Thereafter, S. in 1932, and the school adopted report his and recommendations, the re-rated teachers, readjusted 189 and accordingly. The salaries board claimed that these ratings operated retroac- reduced tively prospectively. as well as As the “non-uniformity” to trial cases the court held that not re-rating did operate retroactively, operate but did prospectively, in and holding so found as a fact that the 1932 re-rating made was good faith, in discriminatory, was not or arbritary, majority any free

capricious, and fraud. was same trial opinion repudiates finding, and court’s is basis, “no re-rating has reasonable facts holds power of beyond arbitrary, unreasonable and and fully my opinion record sustains the Board.” finding. trial court’s over a spread year, trial and in deciding contro-

versy judge the trial filed two written he opinions, wherein and reviewed discussed- and the facts and elaborately law opinions care. The two great are set forth in brief education, printed cover filed the board and some pages respect question thereof. With as to whether judge and re-rating the 1932 unreasonable arbitrary the part: in said subject, only question

“In connection with this not in re-rating remains whether or in 1932 the Board good acted in faith and in the exercise of a sound discretion. finding prepared I make of fact re- am that when the in 1932 the Board and done its officers em- ployees good acted in exercise of a discretion, sound any faith, any against discrimination favor or without but, or teachers, fact, attempt fide teacher a bona equalize off status of level all department. investigation “The auditing work which led to re-rating long had taken a time and was Mr. conducted Owensby, Wilbur S. who was the principal witness in litigation. Owensby Mr. testified each one of the cases he had a thorough he showed that detailed grasp each individual case. He testified each rea- case as the' subjected re-ratings; cross-examination, son for the he was every and the court opportunity whether determine subject he not was informed as to his and whether or impartial judicial he was in his attitude. The took many days trial, spread period approximately over year, a and during the entire time the there was in nothing Owensby of anybody attitude Mr. or of be- who testified on anything half of the defense to highest good indicate but faith, sincerity, a impartiality, give and desire to each teacher exactly coming what was or her, nothing him more and may opinion less. There as nothing difference of a wide investigation re-rating in to whether or not 1932 and the un- necessary justified. There thereon consequent was or is a respect doubtedly opinion of with wide difference a number original ratings of impropriety or of the propriety There are the court. of teachers whose cases before differences honest difference of But those opinion, no doubt. did opinion judgment who upon based officers arise might rating re-rating matters which are and/or any any time, under within board or tribunal at and theirs. judgment authorities a court cannot substitute its not solely in The court is concerned with whether or this case any in arbi- good made in not reductions were faith and discriminating trary capricious or manner or with a view re- any against any. in favor teacher or teachers or under rating undertaken, in out and, my opinion, was carried possible off, humanly far fixed determination to level as do other so, litigation in teachers involved status, department occupied less favorable who throughout and trial noth- entire course of the there was other ing any Owensby the attitude or demeanor of Mr. or testimony great or in the defense witness volume unfairness, documentary any mass of evidence indicate Mr. favoritism, faith arbitrariness or bad whatsoever. handling Owensby logical as consistent, was and fair in his his and grouping of the different as he accurate in was remember, computations far figures. And can so as I faith plaintiffs challenged good no counsel time his or impartiality. pre- It plaintiffs is true that counsel for senting representing his cases decided his clients took contending re-rating issue principle, with the a matter of in- that the ratings in the first given board was bound stance, faith, there no of bad favoritism was claim re-rating. presented partiality in the process of The case dia- outset, conflicting from the and now two presents, rat- theories,—the metrically opposite plaintiffs’ being that a stand, ing that a once made-must the defendants’ con- ‘uniform’ under section 5.734 results in an ultra vires done binding tract which is not the board. What was au- Owensby then to the constituted Mr. submitted action became of education his thorities the board officially matter action, re-rating done as a re-rating action. The was done which, already discussed, policy out carrying policy fact judgment board, proper view 764 in resulted ratings teachers given the to the

that advanced the being which, judgment given positions the teachers advantages other board, over gave preferences them and similarly situated. teachers indicated, already reasons am prepared, “For these I faith in 1932 finding good that Board acted to make a the 1,1932.” commencing July it reduced the salaries when judge expressed, trial conformity In with the views thus re-rating and finding entered a to effect that arbitrarily fairly and not reductions “were made ’’ capriciously. As supporting opposite way ex by conclusion and majority amples opinion selects two individual cases large those of the number of after involved, teachers and commenting on say: those two opinion cases the goes on to “Other examples given be could of the many in which the Board 1925 liberally between and 1932 construed its rules and accordingly, rated a teacher and then in 1932 strictly Board construed its re-rate purported rules to a teacher downward.” obviously contrary This is to judge; view of the trial attempt to forth set opinion all the facts and revealed circumstances may record which sustaining taken as trial court’s view would result it furthermore, an task; interminable unnecessary would seem to be to do so in well set view the tled governing rules reviewing with chal dealing courts lenged findings of It analysis fact. seems to me that a fair of the facts as are set forth trial and discussed opinion court’s will sought demonstrate that that was all be done the re-rating place in the teachers volved in the “non-uniformity” groups on an uniform equal, basis with the teachers, other In pay accordingly. them words, other appear it would the other in the teachers department were the ones rat against discriminated given ings appellants prior to the re-rating; trial court effect so finding found. part reads: “In this connection the Court finds that purpose reducing seventy-five Board in said (with ex ception said six teachers 33) discussed in com finding mencing July 1, 1932, the future, effect uniformity fairness in ratings Department within the remove and to had, opinion what in the of said Board 1932], given said [in seventy-five (with exceptions noted) last an un Department, over other advantage teachers in said fair ’ capricious. said action was arbitrary neither nor Board opinion “. . majority . It is stated it in 1932 because these teachers attempted re-rate com- believed, it, error represented rated”; originally whereas mitted these teachers when re- ratings the previous the trial found that the court it seems the and proper power; sult of a exercise of board’s re-rating 1932 argued that in of the case the to be that state matter a capricious to and is shown be unreasonable upon to question trial court was called law. The real the re-rating in fact the 1932 determine, however, was whether facts arbitrary; are since was unreasonable or and there finding negative by tending support the to the shown record effect, well under court, trial court that this made the to regardless of finding, rules, should sustain what- settled may have been entertained board. ever belief majority opinion appears go to even further than hold- arbitrary, ing re-rating that 1932 was unreasonable and a has declaring adopted the law to be that when board once policy, fraud, group or mistake rates a and without error may change policy, although teachers under that board it no policy department, its to entrants into the has new power years prospectively some later re-rate those teachers rating original high”; “on theory that the too that lawfully having once “The Board acted teacher subject its that This power has exhausted over matter.” , would seem somewhat at variance with those ex- view to be pressed in is forepart opinion, it stated wherein applicant’s power the board full to evaluate each has experience case, giving upon the of each consideration facts experience, only the number of of such personal experience, applicant’s nature of that and abilities; adopt and likewise to fixed rules attainments regardless particu- all or some cases” apply would “to it abilities; or could applicant’s peculiar lar and unusual then policies; opinion mixture two apply a of those goes say: on “These matters which rest within are adopted, course, policy the Board. once discretion Of powers apply policy its the Board must exercise The Board un- adopted fairly discrimination. without change policies power, prospectively, its doubtedly has (Italics regard.” added.) 766 goes to hold shown, majority opinion on

However, as ratings original are based on appears that unless thereafter, mistake, power has no fraud, error or unfair, ratings inequitable, original are upon finding that its reclassify; and on discriminatory, to re-rate fact in those circum agree the trial court that that issue I with long so course power to re-rate stances the board has faith good re-rating is made as the and reclassification dealing this fea arbitrary. is not unreasonable or extensively opinion in its first the case the trial court ture Trustees, 112 Board Cal. of Fidler v. discussed the eases Sims, Cal.2d App. 912], P. and Abraham v. [296 say: 1029], P.2d and then went [42 just the two principles gleaned “What to be are discussed ?

“First: that a teacher’s status is that of an employee, the employer board; being the school the relationship between the teacher and the is a relationship arising out of con- ; tract

“Second: under law of California school board acting a right, good has faith and of a the exercise sound discretion, salary teacher, to reduce the of a notwithstanding permanency tenure; of the teacher’s

“Third: that such reduction cannot be a made after the beginning a year.” of school

Later on the court said: just

“While I entertain the respect views discussed to with immunity a retroactive in cut salaries after the opening of any year, school there another feature of the case I which equally have decided views which will in result denial petition a a for writ of mandate compel to a (upward salary restoration to yearly or they status which enjoyed cut). before the “ prayer petition of each ease is that the Board of Education be ordered to on the restore records and rolls of Department the School respective higher teachers to the rating or status which had held before the re-rating in respect 1932. With phase to this study the ease a careful of the ease leaves that, me in no doubt at all while the Board power Education had no retroactively to reduce sal aries which had been paid up including 1932, to 30, June had, it under the authority of the California full power salary authority put the teachers on a new basis for to By though resulted the future even a reduction. standing year to reducing $2436 teacher from a twelfth a standing effected year naturally the Board $2208 tenth ensuing years, teacher’s rate reduction made, for all to rating was come. and until a further this, provided it could do the reduction repeating, Without 1st,' 1932. July was made before practice? reduction work out actual

“How did this May or were sent to the teachers June of notices language conveyed plain unmistakable them in to salary rating, status, and therefore the teacher’s fact to ef- While the notice not sufficient had reduced. was services, sufficient past reduction was fect a retroactive commencing with the new school notify that, the teacher be, 1932, say, let July her would us $2208 With that notice hand teacher $2436. instead of regular opened upon her duties when entered True, might 1932. the teacher have mental summer of injustice re- a sense of at the reservations and entertained seeing compensation, purpose and a firm about duction her litigating ultimately lawyer possibly it and about that the did cases, the fact remains teacher done these signified acceptance her of it the contract but refuse 1932, leaving it during and to sub- continuing teach after litigation she continue sequent to determine whether should her rate or or whether contract get $2436 be restored them, any come to teachers, Had $2208. would be teaching go refused back to the school board and have been confronted figure, reduced the board would or of giving she asked for the teacher what the alternative of any than refusing pay her more adhering ruling to its contract, salary. It a matter and reduced the re-rated But contract entered into. hold, and a new the cases out in May the notices sent said, it cannot view of be year $2436 a contract was for of that the new June only compensation would be that the when the notice said continuing action, resuming or The teacher her $2208. at the reduced as tendered duties, accepted her the contract or the future whether leaving it to determined rate, be higher not to the rate. entitled she was holdings, between these inconsistency “There is no 768 holding

Fidler and distinctly Abraham eases to the effect salary that during year, reductions cannot be made school or after a year opened, school has that reductions can made opening any year. school For these before it reasons will follow of man- petitions writs compelling date the Board of Education restore the teach- higher ers to the status occupied had before 1932 they will be denied.” majority opinion foregoing por- seems to construe the

tion of the trial holding court’s decision sole that the basis for its conclusion the reclassification of 1932 arbitrary capricious in good and was made faith was prior beginning to the year accepted the school the teachers contracts to salary, teach at the therefore reduced and that respect the trial decision in conflicts the deci- with pourt’s Fry sions Education, rendered Cal.2d 753 v. Board 229], P.2d Trustees, and Kacsur Board v. Cal.2d [112 But appear P.2d that this is a would mis- [116 593]. construction of decision, the basis of the trial for it court’s clearly respect is therein stated: “With to this phase of case a careful study leaves me in no doubt at all case that, while the Board of Education had to retroac- power no tively reduce up, which in- paid salaries to and cluding 30, 1932, June it had, authority under Cali- authority power put cases the teachers on a fornia full though new basis in a even that resulted future (Italics added.) reduction.” majority

The other portion opinion which I agree reversing am portion unable to is that trial court’s relating decision “full falling within time teacher” my opinion rule. facts shown record support appears conclusion reached the trial It court. therefrom, among things, “big other that the so-called raise” resolution adopted 16, 1925, of 1925 and read on June ‘ Contingent upon being as follows: provided funds from the through State local tax rate, provisions under of this governing under placing schedule and the rules teachers now service full schedule, the new all time teachers, supervisors supervisors all principals, and assistant day during school schools, will receive next 1925-26, an increase of not less than above which $360 during 1924-1925, received apart odd in order added subtracted to fit the teachers’ amounts ’’ determining exactly salaries in into new schedule. And classification, the status of the teachers embraced within this in “I am part: the trial court said the six satisfied ‘big group in this were no raise’ mote entitled to the in 1925 not than were other substitute teachers who did not, In I words, it, they receive it. other see were 16, 1925, June ‘in time They service’ as ‘full teachers.’ given probationer August status until 1925. The reso lution reads that teachers are to the increase $360 entitled they ‘above that during which received 1924- 1925.’ why This another is reason not in increase was paid rate, tended for substitutes month at one one the next another.

“These six will cases have to treated as where be clerical error the teachers received advance which were not entitled.”

In referring previous adopted by to the resolution 1, 1924, board on November which the reversal seems to based, be the trial court held effect that said resolution did not alter the situation because was adopted it months seven “big before the raise” or “full time” adopted. resolution was It me, therefore, would seem to of these facts view question group status of teachers was cor- rectly disposed the trial court. it inappropriate emphasize conclusion does not seem

that the main issue as to re-rating whether was or arbitrary capricious was not question fact, involved a that being one, necessarily, so for the determination of the trial A reading court. of the two filed opinions by the judge scrupulous trial at once will disclose the taken care him in going through lengthy assigning record individual their respective groups in accordance testimony; I nothing record, have found or in majority opinion, my judgment which shows that any part decision of his unfair fact or unsound law. opinion my particu- Therefore in be all should sustained in lars. hearing by appellants’ petition

Defendants for a Supreme Shenk, '30, J., was denied March 1944. Court Schauer, J., hearing upon ground voted for a judgment opinion entirety. should affirmed its

Case Details

Case Name: Aebli v. Board of Education

Court Name: California Court of Appeal

Date Published: Feb 2, 1944

Citation: 145 P.2d 601

Docket Number: Civ. 11824

Court Abbreviation: Cal. Ct. App.