Blalock v. Ridgway , 92 Cal. App. 132 ( 1928 )

The plaintiff filed a petition in the superior court seeking the writ of mandamus to compel the Board of Trustees of the Olive School District of Tulare County, to draw a warrant for certain salary alleged to be due plaintiff as a teacher in said school, and directing them to reinstate her as such teacher. Judgment was entered denying the peremptory writ and this appeal is from that judgment.

The record discloses that appellant was a probationary teacher and acting as the sole teacher of the school during the school year of 1926-1927, ending about May 25, 1927, at a salary of $150 per month for the nine months of the school year. An attempt was made to terminate this employment and not to renew it for the succeeding year. As we view the proceeding, the sole question is whether the attempt was effective, or whether by the provisions of the law appellant was re-employed for the school year of 1927-1928.

Section 1609 of the Political Code in its essential provisions provides that boards of education "Shall have power and it shall be their duty: . . . Second — to employ the teachers as provided in part fifth of this section; . . . provided, that no board shall enter into any contract with such employee, other than teachers to extend beyond the close of the next ensuing school year; except that teachers may be elected on or after May Second for the next ensuing school year and each teacher so electedshall be deemed re-elected from year to year except ashereinafter specified; Fifth — . . . (d) To classify as probationary teachers those persons employed as teachers for the school year, and who have not been classified as permanent teachers, as hereinafter provided, such classification to be made at the time of employment, and thereafter in the month of July of each school year. . . . (i) To dismiss probationary teachers during the school year for cause only, as in the case of permanent teachers, except that on or before the tenth day of June in any year the governing board may give notice in writing to a probationary teacher that his services will not be required for the ensuing school year. Such notice shall be deemed sufficient and complete when delivered in person to the teacher by the clerk or secretary of the governing board of the school district or deposited in the United States registered mail with postage prepaid, addressed to such teacher at his last known place of address." (Italics ours.) And there also follows a provision that in the case of permanent teachers they shall not be dismissed except for cause and then only after a hearing and investigation of the charges.

It appears from the testimony of J.H. Hayes, the clerk of the Board of Trustees, that on May 23, 1927, the board held a meeting, all members being present, at which it was resolved not to employ appellant for the following year; that on the morning of May 25, 1927, Mr. Hayes informed appellant at his home of this action of the board. During the ensuing two weeks appellant discussed this action of the board with Hayes, the clerk, and members of the board, and circulated a petition or paper among the parents stating that they wanted her; this, she says, was done by her upon the suggestion of a board member that if the parents did want her, that it could be taken care of. On June 8, 1927, a written notice was mailed to appellant in Porterville, where she then lived. Appellant testified she received this letter, and there is no contradiction of her testimony, on June 16, 1927. On June 23, 1927, a registered letter was deposited, directed to the appellant, notifying her to the same effect.

The respondents contend that the court was correct in its finding that the appellant had actual notice and that the provisions of the statute were substantially complied with, that the requirements therein contained for the dismissal of a probationary teacher are directory and not mandatory.

[1] The primary rule of statutory construction to which all others must yield is to determine the intent of the legislature. (San Francisco v. Mooney, 106 Cal. 586 [39 P. 852], andCoulter v. Pool, 187 Cal. 181 [201 P. 120].) When this intent is ascertained it will not be departed from if reasonably possible to avoid it. (People v. Merrill, 24 Cal.App. 210 [140 P. 1075].)

In the case of Owens v. Board of Education, 68 Cal.App. 403 [229 P. 881], the court indicates the legislative intent of the act here under consideration. After stating that the statute is known as the Teachers Tenure Act and quoting the provisions pertinent to that case says: "Thus a `probationary' teacher is re-elected and re-employed annually until entitled to classification as a `permanent' teacher, and the board of education is required to report the employment of such teacher annually to meet the terms of the statute and the teacher thereby becomes automatically classified as a permanent teacher at the end of two years of successful service." (Italics ours.) Again, the opinion says: "This contract terminated with the school year of 1921-1922, but was deemed continued in force, unless, before the 10th of June, the board should give the appellant notice in writing that her services would not be required for the following school year." (Italics ours.) Also the court, after stating that the notice was given as required, says: "Nothing appearing from which it could be inferred that a contract under the tenure actarose. . . ." (Italics ours.) [2] It seems to us apparent from this authority and from the language of the act, that the legislative intent is manifest to give assurance to the teaching profession of some degree of certainty in their employment — something akin to civil service in other administrative branches of government. With this intent before us, having in mind that the statute provides that each teacher employed for one year shall be deemed re-employed, except discharged for cause after hearing, or in the case of a probationary teacher, by serving her with a notice in writing on or before June 10th, we conclude that the intent and meaning of the law is as though it read: permanent teachers cannot be discharged except for good cause after hearing, and probationary teachers cannot be discharged except for good cause after hearing, or by serving them with a written notice on or before June 10th, that their services will not be required for the ensuing year. Service of the written notice shall be made personally or by mailing — and if by mail, shall be complete only when deposited in the mail, provided it is registered. [3] It must be apparent that, except for good cause, the Board of Trustees could not discharge a probationary teacher on April 1st, let us say, so as to dispense with her services for the remainder of that school year. It must be equally clear that on June 11th, they could not dispense with her services except for good cause, for the very obvious reason that the law, operating upon their inaction, has brought into being on that day a new contract for the ensuing year which is just as obligatory upon the board as the one which existed on April 1st. It would follow in logical sequence that the legislature declared its intention to fix the tenth day of June as the dead line — to make the giving of a written notice before that time the essence of the thing to be done to effectuate the discharge. [4] In such cases the requirements of the statute must be held to be mandatory and not merely directory. (People ex rel. McKune v. Weller, 11 Cal. 49 [70 Am. Dec. 754].) Another manner of phrasing the effect of the statute is to say that the legislature has defined the limits of the power or jurisdiction of the Board of Trustees to discharge a probationary teacher, and this constrains us to declare that its provisions are mandatory. (Lewis' Sutherland on Statutory Construction, vol. II, 2d ed., sec. 611; Gleason v.Spray, 81 Cal. 217 [15 Am. St. Rep. 47, 22 P. 551].) In the latter case the language of the court is this: "When a statute says an act cannot be done unless performed in a certain mode, the inhibition against performing it in any other way would seem to be, in view of the word `cannot,' meaning an absence of power, to be just as strong and complete as when the statute says that an act, unless done in a certain mode, shall not be valid for any purpose."

This completely disposes of the argument that the provisions of the statute are directory merely, for the reason that the legislature has said in effect that the board "cannot" discharge a probationary teacher except in the mode and manner specified. This they did not do. Oral — informal notice was not sufficient under the law; the written — un-registered notice was not served upon her until received by her on the 16th; and the registered notice was not mailed until after the contract of re-employment had been brought into being by operation of law.

Judgment reversed.

Craig, Acting P.J., concurred.