15 P.2d 774 | Cal. Ct. App. | 1932
THE COURT.
Petitioner has been employed by respondents continuously since January 22, 1923, as a teacher in the day high schools of the city and county of San Francisco, and continuously since January 16, 1927, as principal of the Humboldt Evening High School. On May 4, 1932, respondent Board of Education passed a resolution purporting to dismiss petitioner from his employment as principal of the evening school, and this proceeding was instituted to compel the board to annul that resolution and to restore petitioner to his original status.
The distinction between this case and Cullen v. Board ofEducation et al., ante, p. 510 [
The rights of this petitioner cannot be decided on the limited ground urged by respondents in the Cullen case but must be decided upon the broad ground whether any high *516
school principal in the San Francisco district is entitled to protection either under the State Tenure Law or under the municipal charter. In January, 1890, our Supreme Court interpreted the provisions of section 1793 of the Political Code as granting tenure after election to a principal of an elementary school. (Kennedy v. Board of Education,
As this section related only to those who held "city, or city and county" certificates, a state-wide teachers' tenure was provided in 1921 by amendment to section 1609 of the Political Code. Therein we find the first mention of principals in the limitation of the power of boards of education to dismiss "permanent teachers, principals, or supervisors of special subjects" except for cause and a public hearing. In Bland v.Board of Trustees,
This limitation was carried into the School Code of 1929 (sec. 5.501) and so far has not been given judicial interpretation. The petitioner herein argues that the words "administrative or supervisory position" relate only to those positions in the executive branch as distinguished from those in the teaching branch. Respondents do not argue the point other than to say that the points of law involved in this case are the same as those inCullen v. Board, etc., supra. That this is not so must be obvious as Cullen was a classroom teacher in both schools and the question of the rights of a principal was not properly raised in that case. For this reason we said in the Cullen case that it was unnecessary to decide whether the petitioner's rights were governed by the School Code or by the municipal charter as both statutes were identical in their application to the facts of that case. In this case we purposely refrain from determining the application of the School Code to the principals in districts outside of San Francisco and confine our judgment to the facts presented in the petition.
For the purpose of this decision only we may assume that the School Code does not cover principals generally and we hold that the rights of the petitioner in the instant case are governed by the San Francisco charter, and that the charter is a constitutional enactment in relation to this subject.
[1] Section 135 of the charter (Stats. 1931, pp. 2973, 3057) provides that "All teachers, heads of departments, vice-principals, principals, supervisors and directors shall be classified as permanent employees in their respective positions after they have been successfully employed in such positions in the school department for a probationary period of three years. In the absence of any action to the contrary by the board of education at the end of the third year of such employment, the classification shall be considered as permanent." Prior to the approval of this charter, section 5.405 of the School Code was enacted providing that "Nothing in this Part shall be construed so as to repeal or negate any provisions concerning employees of school districts contained in the charter of any city, county, or city and county, heretofore or hereafter adopted and approved in conformity *518 with Article XI of the Constitution of this state." The charter was approved by the legislature on May 5, 1931. On June 9, 1931, the legislature enacted numerous amendments to the School Code including the following addition to section 5.502 heretofore quoted: "This section shall not apply to persons employed in administrative or supervisory positions in a district situated within, partly within, or conterminous with the boundaries of, a city or city and county where the charter, if any, of such city or city and county provides otherwise." Thus we find a clear legislative intention to permit municipal charters to regulate the tenure of certain employees of conterminous districts combined with a contemporaneous construction running over a period of time far in excess of that fixed for the determination of permanent tenure.
[2] But respondents argue that these provisions of the charter are unconstitutional because the maintenance of the public schools is a "state affair" which cannot be governed by a local charter. They cite Kennedy v. Miller,
It is our conclusion that there is no conflict, but that the charter is "in furtherance of the purpose of the general laws of the state". The so-called State Tenure Law granted tenure during good behavior to all classroom teachers after a fixed period of service. It may have been contemplated *519
that in many of the smaller school districts it might not be practicable to place principals in this classification, but that, in the larger districts which were conterminous with the boundaries of chartered cities permanency in the employment of school principals would be desirable. But, whatever the purpose of the legislature may have been, it must be apparent that the charter provisions are not in conflict with, but are "in furtherance of the purpose" of the general Tenure Law. The latest expression of the Supreme Court upon this general subject is found in Whitmore v. Brown,
A slightly different line of reasoning brings us to the same conclusion that this charter provision is constitutional and controlling in this instance. When the charter was approved the code section limiting the appointment of principals to a period of one school year had been repealed. The School Code then, as now, read "Boards of school trustees, and city, and city and county boards of education shall have power and it shall be their duty to employ a principal for each school under their control." (Sec. 5.410, School Code.) Under section 5.500-2 these boards were required to classify as permanent employees those who had served the probationary period. If section 5.502 exempted principals from this classification it did so with the qualification that municipal charters might include them, and, if the general law did not grant them permanent tenure, it did notlimit their term. Hence, in so far as principals in charter cities are concerned, it was competent for the city to make their tenure a municipal affair which the Supreme Court in the Whitmore case said could be done in those instances where the city is "acting in promotion and not in derogation of the legislative school plans and purposes of the state". The instant case is closely akin to Malaley v. City of Marysville,
Our conclusion is that section 135 of the San Francisco charter is wholly consistent with and in nowise in derogation of the general purposes of the State Tenure Law and that, in adding principals and vice-principals to those who are protected from dismissal without cause the city has merely furthered the general purposes of the state act (or clarified that act, as the case may be) without taking anything away from its principles or purposes.
[3] In this connection we should add that we are not impressed with respondents' insistent argument that our judgment grants double tenure to these teachers and principals. Bearing in mind that for more than forty years the rule of the Kennedy case that they are employees and not officers has stood unchallenged we must interpret the word "position", as used in the school law and in the charter, as applying to the "employment" of the individual. If they were officers the term "position" would be interpreted with greater strictness as to the term, duties and place of employment. But, generally speaking, these factors do not control the relation of master and servant, or employer *521 and employee. The latter may be assigned to such duties within his employment as the employer may designate. Here the employer assigned the employee to teach in two separate school buildings and permitted him to continue in that service beyond the probationary period and to become classified as a permanent employee — not for a part of the service only — but for all. The tenure, therefore, runs to a position of employment, orservice, of equal grade and rank to that to which the statutory classification has applied, and such is the settled rule of the Kennedy case.
It follows that, when respondents removed the petitioner from his position of principal of the evening school without cause and without a trial, they acted without right or power.
Let a peremptory writ issue in accordance herewith.
A petition for a rehearing of this cause was denied by the District Court of Appeal on October 29, 1932, and the opinion was modified to read as above; and an application by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 28, 1932, and the following opinion then rendered thereon:
THE COURT.
The petition for hearing is denied.
In denying a hearing, however, we withhold approval from that portion of the opinion of the District Court of Appeal which holds that the two employments of petitioner constitute but one position. *522