Taylor v. the Marshall , 12 Cal. App. 549 ( 1910 )

This is a petition for a writ of mandate to compel defendants to reinstate plaintiff in the positions of principal of the high school and supervising principal of the grammar and primary schools of the city of Monrovia, from which he was dismissed by them, as trustees of that school district, without a regular hearing. The superior court gave judgment for defendants and denied the writ, and plaintiff appeals from the judgment and from an order denying his motion to vacate the judgment. The order mentioned not being appealable, the case is before us on the appeal from the judgment.

The trial court finds that plaintiff was employed by defendants on July 7, 1906, to fill the positions mentioned, for the ensuing year ending June 30, 1907. That he entered upon the discharge of the duties of these positions and continued to perform them until March 2, 1907, on which date he was discharged by defendants for alleged incompetence, unfitness and misconduct. No charges were ever preferred against him in writing and no formal or any other hearing was given him by defendants on the said charges of delinquency. On February 2, 1907, however, said trustees in meeting assembled advised the plaintiff and discussed with him the unsatisfactory and demoralized condition of the schools under his supervision. He admitted that such condition existed and requested time in which to correct the disorder and rectify the matters wherein the performance of his duties was unsatisfactory, and was given until February 28, 1907, to do so. He failed to make the corrections before that time, and on that date the defendants demanded that he resign on or before March 2, 1907. This he refused to do, and on the last-mentioned day defendants, sitting as a board of trustees, declared the positions occupied by plaintiff vacant. On March 5, 1907, plaintiff appealed to the county superintendent of Los Angeles county for reinstatement, under section 1698 of the Political Code, and after a trial regularly had, at which plaintiff was represented by counsel and presented evidence upon his own behalf, the county superintendent sustained the action of defendants in dismissing the plaintiff.

Plaintiff's application for the writ is based upon the contention that neither of the positions occupied by him in the Monrovia schools was that of a mere employee, but that such positions conferred upon him a right or office which he was entitled to use or enjoy, and that he had been unlawfully precluded from such enjoyment by the defendants. (Code Civ. Proc., sec. 1085.) He has exhaustively presented the matter upon the authority of a number of English cases which sustain his view that a school teacher discharged without a hearing will be restored by the courts, and that the proper method of securing this result is by mandamus. It is not necessary to distinguish those cases. The peculiar property rights in place and office recognized in England, which are entirely inconsistent with the general rule in force in most of the states of this country, render the English decisions of little aid here. We think, however, the solution of the question before us lies in the construction of our own statutes.

Monrovia, in respect to the employment and discharge of its school teachers, is governed by the general school law affecting cities "not having a city board of education." (Pol. Code, sec. 1617, subd. 7.) Because of this distinction in the statute, the case of Kennedy v. Board of Education, 82 Cal. 483, [22 P. 1042], and other cases decided by our supreme court, involving the construction of the provisions of the Political Code conferring a fixed tenure of office upon city teachers, have no application. This appears to be conceded in effect.

As above stated, plaintiff had a hearing before the county superintendent of schools, which appears to be the only one provided by the code. We see no injustice in assuming that no other trial was intended to be given in the case of a dismissal of a teacher by the board of school trustees. The trustees are seldom men who would feel themselves qualified to act in a judicial capacity, and, as one or more of them would probably be or become the real contestant of the teacher's fitness, the atmosphere surrounding a tribunal so constituted would be so surcharged with the preconceived opinions of its members that a formal hearing would generally be useless. The course pursued by the defendants here in discussing the alleged delinquencies of the teacher with him and allowing him an opportunity to correct them, after an admission of their truth, is certainly all that the law contemplates shall be done on behalf of the plaintiff by the trustees. The word "dismissal," used in section 1698, does not imply a hearing or trial. This word imports summary action. Its use generally implies that the one dismissed is sent away by authority. In a legal sense, it is used to denote the sending of a case out of court without a trial. It is the summary disposal of a case as distinguished from a trial of it. (3 Words and Phrases, p. 2105.)

There is nothing in the language of the section conferring the power, or elsewhere in the statute, to our knowledge, restricting the authority of the county superintendent to act to such cases as have been formally heard by the board of trustees. Thus there was an order of a competent tribunal, regularly made, declaring that plaintiff was unfit to be restored to his former position and sustaining the action of the defendants in dismissing him. This finding and order were as binding upon the defendants as would have been an order directing his restoration. It is apparent that there was no legal duty resting upon them to restore the plaintiff to his position which can be enforced by a writ of mandate.

The remedy of plaintiff, if any he has, is by action on his contract for his salary. This form of action has been recognized by the courts of this state as a proper remedy in such cases. An action will lie against a board of trustees by the principal of schools, whom they have unlawfully deprived of his employment, in breach of his contract, and where it appears that he was ready and willing to perform the duties required and could not and did not obtain other employment, his damages will be measured by the sum he would have received under the contract. (Hancock v. Board of Education, 140 Cal. 554, [74 P. 44].) This would have afforded plaintiff a plain, speedy and adequate remedy at law (Code Civ. Proc., sec. 1086), and the writ was properly denied. In the absence of any suggestion that the question here involved has become moot from lapse of time, we have decided the case. Judgment affirmed.

Allen, P. J., and Shaw, J., concurred.