70 P. 1063 | Cal. | 1902
Appellant applied to the superior court of said city and county for a writ of mandate requiring the defendant, as such superintendent of schools, to draw his requisition upon the auditor of said city and county for the sum of $500, to be paid to appellant upon the order of the board of education. The defendant demurred to the petition, the demurrer was sustained, the writ denied, and the petitioner appeals.
Appellant also contends that subdivisions 7 and 20 of section 1617 of the Political Code authorized the board of education to employ counsel to defend said action. The first of these subdivisions authorizes boards of education and trustees of school districts to employ teachers, “janitors and other employees of the schools,” and to fix and order paid their eonpensation. The words “other employees” refer to persons employed in or about the several schools and school buildings in like character or capacity to those named. No such position or employment as “attorney of the schools” has ever before been suggested. Subdivision 20 refers to boards of trustees, and not to boards of education.
As to appellant’s contention that the city attorney is a municipal, and not a school, officer, and that the charter can impose no school function upon him, it is sufficient to say that his office and his duties are created and defined by the charter, and that in prosecuting and defending actions by or against the board of education he exercises no “school func
We have seen that no power has been expressly conferred upon the board of education to employ counsel, and we think it equally clear that it has no implied power to do so. This conclusion results from the fact that provision has been expressly made for counsel to represent it, and in case of the refusal of the city attorney to discharge that duty the charter provides for the appointment of another by the mayor during his suspension, so that there cannot be a vacancy in the office of such duration as to imperil the rights of the board. Appellant contends, however, that, even if the city attorney could have been compelled to defend the action, the board would have had the power to employ private counsel, and cites Hornblower v. Duden, 35 Cal. 670. In that case the board of supervisors of El Dorado county employed counsel other than the district attorney in certain important litigation, and this employment was sustained under the general power given to the board of supervisors “to do and perform such other acts and things as may be strictly necessary to the full discharge of the powers and jurisdiction conferred on the board,” and the action of the board was sustained. But no such general powers have been conferred upon the board of education. “Boards of supervisors are creatures of the statute, and the authority for any act on their part must be sought in the statute”: Modoc Co. v. Spencer, 103 Cal. 498, 37 Pac. 483. In that case it was held that the board of supervisors had no power to employ counsel on behalf of the county to prosecute or assist in the prosecution of criminal cases prosecuted in the name of the state, and any allowance for such services created no legal claim against the county. In Merriam v. Barnum, 116 Cal. 619, 48 Pac. 727, it was held that the power of the board of supervisors to employ special counsel to assist the district attorney in the prosecution or defense of suits to which the county is a party did not authorize the appointment of special counsel to advise the board, and mandamus would not lie to compel the auditor to draw a warrant therefor. Mr. Justice Henshaw concluded his
The judgment should be affirmed.
We concur: Gray, C.; Cooper, C.
PER CURIAM.—For the reasons given in the foregoing opinion the judgment is affirmed.