83 P. 1081 | Cal. Ct. App. | 1905
Plaintiff petitioned for a writ of mandate to compel the defendant to admit plaintiff to the use and enjoyment of the position and employment as vice-principal of the Fairmont Intermediate Grammar School of the city and county of San Francisco. A demurrer to the complaint was sustained, and judgment thereupon entered in favor of defendants. The appeal is by plaintiff from said judgment.
It is alleged in the complaint that plaintiff was regularly elected by the board of education of the city and county of San Francisco to the position of vice-principal of the Fairmont Intermediate Grammar School on the twenty-eighth day of December, 1898. On the fourth day of January, 1899, the said board adopted another resolution removing her from said position, and when on the eighth day of January, 1899, she appeared at the school and demanded the right to enter upon the duties of such position, the right was refused her by the defendants, and she has never been allowed to enter into said position or to enjoy the emoluments thereof. It also appears that before and ever since the dates mentioned she has held a position as teacher in a grammar grade in another school of said city and county. This action was commenced August 23, 1902, more than three years after the accruing of her alleged right. Defendants demurred, pleading insufficiency of facts, and the bar of section 339, subdivision 1, and section
The liability of the defendants to this action depends upon the provisions of section 1793 of the Political Code. If it were not for such statute the board of education would have the right to transfer or remove teachers, being answerable only in damages for a violation of contract in cases of employment for a fixed period. (Kennedy v. Board of Education,
We are also of the opinion that plaintiff's right of action is barred by laches. She did not bring this action for more than three and one-half years after she was removed from the position she claims. During one year of this time, as appears by her complaint, some one else filled the position, and during none of the time has the public received the benefit of her services for which, if reinstated, she expects the public to pay. In New York state a similar law exists as to the removal of certain public officers, and in that state it has uniformly been held that a person claiming to have been unlawfully removed is guilty of laches, unless he brings his action for a writ of mandate promptly. In Murphy v. Keller,
The judgment is affirmed.
Harrison, P. J., and Cooper, J., concurred.