SCHAUER, J., Dissenting. After detailed study of the record and the pertinent law in this case I am in accord with the scholarly and forthright opinion authored for the District Court of Appeal by Justice pro tempore Coakley, and concurred in by Presiding Justice Bray (Cal.App., 1961), 11 Cal.Rptr. 620, and by reference adopt it as explanatory of the reasons why I cannot join my associates in affirming the judgment of the superior court.
Although Justice Coakley’s opinion is fully adequate and impelling to the conclusions reached, it, of course, was written before the opinion of my associates. In view of the importance of their ruling to the school children of California, to the parents of those children, to the members of the Legislature and to the great body of law abiding dedicated teachers who have not been convicted of sex crimes, it appears proper to add emphasis to those facts and those aspects of the law which in my view convincingly refute the position of the majority.
At the outset I emphasize that majority and minority justices alike are in accord as to all principles of law relevant to this ease and that there is no dispute as to the basic facts. The disagreement between us is as to which principles of law in the circumstances should be given controlling effect. Furthermore, the decision (whichever way it goes) will not change any rule of law. Its only real significance lies in its contrasting effects on the two groups of persons immediately concerned; a decision favorable to one group is necessarily adverse to the other.
The majority hold that the subject legislation was intended by the Legislature to have only prospective application to a future group, not immediate application to an existing group. This ruling protects in employment that relatively small group of public school employes who on the effective date of the subject act had already been convicted of one or more of the sex crimes designated therein. By that holding the school children (and the teachers who have not suffered such con[182]victions) are continued in whatever hazards, if any, may follow from retention in school employment of sex-crime convicts. The Legislature, it will appear, found such hazards to be so grave as to require immediate removal of such persons. As this court said in its earlier opinion (DiGenova v. State Board of Education (1955) 45 Cal.2d 255, 259 [2] [288 P.2d 862], the language used by the Legislature “implies that the [teaching] credential should be revoked without the delay which would be incident to a hearing” in order that such persons “should be promptly removed from the classroom and contact with students.” The plaintiff here, on advice of the Attorney General, was so removed. I would sustain the removal.
As I read the subject Education Code sections and their legislative history I am impressed with the conclusion that the Legislature had well in mind the relative values of retrospective (i.e., immediate) and prospective applications of statutes—and the like relative values of forthwith eliminating from public school teachers’ positions all convicted sex criminals as opposed to making the statute operative only as against those persons who might in the future be convicted of sex crimes.
This latter alternative seems to me to be pathetically reminiscent of locking the barn door after the horse is stolen ; the first conviction for which a second offender could be removed under this legislation as the majority construe it could well be for an offense against one of the children.
In resolving the ultimate issue I think we must necessarily consider and at least impliedly answer the following questions: Did the Legislature designate as of the date of its action a class of persons (convicted sex criminals) ineligible to hold teachers’ positions and prescribe a procedure for their immediate removal? Or did it merely prospectively provide for a future class who upon conviction would then become ineligible? For example, did the Legislature find that a school teacher convicted one day before the effective date of the 1952 enactments of enticing an “unmarried [chaste) female . . . under the age of eighteen years, into any house of ill-fame, . . . for the purpose of prostitution” was not a hazard to school children and therefore not properly subject to forthwith removal but that a person convicted of the same offense (violation of Pen. Code, § 266) one day later was such a hazard and subject to such removal? For whose benefit was and is this legislation intended: The school children unquali[183]fiedly? Or the school children subject first to maintaining in the schools that group of teachers who had been convicted of sex crimes? Against what dangers is the legislation intended to protect the children: Only against a prospective danger from prospective teachers who may one by one, in the future become convicted sex criminals? Or, as well, against a present and existing danger from all who had in the past been discovered and convicted and who were then employed in the schools ?
By the obviously implied answers of the majority to the foregoing questions it appears to me that their allocation of relative values differs sharply from that manifested by the Legislature and which is also developed and expressed in Justice Coakley’s opinion and in my own views.
The writ of mandate issued by the court below directs the State Board of Education to reinstate the teaching credentials of plaintiff DiGenova, and orders the Board of Education of the City and County of San Francisco to reinstate him to his position as teacher in the public schools. His credentials had been revoked and he had been discharged when it was discovered from court records that before his certification and employment he had twice been convicted of sex crimes. The issue as indicated by the above stated questions, is whether the Education Code of California as amended in 1952, regardless of the type of teaching certificates previously issued, requires forthwith revocation of credentials and dismissal from employment, of teachers currently employed who had been convicted of sex crimes before the date of enactment of the pertinent code sections as well as those thereafter so convicted. Both for the reasons presented by Justice Coakley and for those hereinafter stated I am convinced that the trial court erred in ordering defendants to reinstate plaintiff, and that the judgment should be reversed.
As recognized in the majority opinion this case has heretofore been before us. (DiGenova v. State Board of Education (1955), supra, 45 Cal.2d 255, 257-260 [1-6].) Because, however, of the importance of showing the intention of the Legislature in enacting the subject legislation a further factual statement is appropriate. As appears from our opinion on the first appeal DiGenova, before receiving his teaching credentials, had been convicted in the municipal court of Los Angeles, once of “vagrancy lewd” and once of a violation of section 41.10 of ordinance 77000 of that city (see fn. 3, p. 258, of the first DiGenova case, supra) for an offense termed [184]“consorting." These convictions, as shown by certified copies of the court records which are attached to defendants’ return and which constitute the sole factual basis for defendants’ actions, occurred, respectively, in 1945 (December 28) and 1947 (May 15). About 20 months after the second conviction, he received his first credentials to teach and became a teacher in the San Francisco public school system. In January 1952 he acquired permanent tenure in that system. In July 1952 following a series of sex crimes against children and an extended study of the possible or probable proclivities of sex crime offenders as employes in the public schools, the Legislature added several sections to the Education Code “relating to persons convicted of sex offenses in respect to employment in the Public School System. ..." (Stats. 1953, 1st Ex. Sess. 1952, ch. 25, p. 389.) The added sections, construed in the circumstances of their enactment, were intended to and do provide for a mandatory and immediate purging of convicted sex criminals from employment in public schools. The character of such legislation is not penal. Rather, it is remedial and procedural; it recognizes an existing source of danger in the schools and provides a remedy.
In April 1953 the State Board of Education renewed DiGenova’s credentials, for a period expiring in November 1956. Shortly after this last mentioned renewal the state and local boards discovered the public record facts of DiGenova’s sex crime convictions and without notice or hearing the San Francisco board dismissed him and the state board revoked his credentials the following month. DiGenova does not now deny—rather, he asserts—the fact of his convictions, as hereinafter related. He does not suggest that he had disclosed in his employment application, or that either board was aware of, his criminal record prior to the latest renewal of his official papers. In December 1953 he instituted this mandamus proceeding, and procured a judgment in his favor on the ground that he could not lawfully be deprived of his credentials and his position “without charges, notice or hearing.’’1 This court reversed and remanded, with the statement that “on retrial plaintiff may show that the boards exceeded their authority in that the convictions were not those con[185]templated by section 12756 [the pertinent 1952 statute, now numbered § 13207] or that he was not the person convicted and thus obtain appropriate relief. Plaintiff argues those questions here but in the trial court he relied solely on the lack of notice and hearing which was the basis of that court’s decision.” (DiGenova v. State Board of Education (1955), supra, 45 Cal.2d 255, 263.)
Remittitur was filed with the clerk of the superior court on November 15, 1955. DiGenova took no steps to set the ease for retrial until September 26, 1958, when he filed a motion to advance retrial date, on the ground that unless brought to trial prior to November 15, 1958 (within three years from date remittitur filed), section 583 of the Code of Civil Procedure required dismissal of the case. At this time he further declared to the court that he wished to rely upon Fountain v. State Board of Education (1958) 157 Cal.App.2d 463 [320 P.2d 899], decided in February 1958. The court below advanced the trial date as requested and, in express and sole reliance upon the Fountain case, ordered appellants to restore DiGenova’s credentials and to reinstate him as a teacher. This appeal followed.
It is the position of the majority that (1) enforcement of the 1952 additions to the Education Code as against theretofore accredited teachers, because of their likewise theretofore accredited status as persons convicted of sex crimes, would constitute retrospective application of the law; (2) that no legislation should be given retrospective effect unless the Legislature has clearly expressed an intention to that end; and (3) that the language used in the circumstances of the subject legislation does not manifest such a purpose.
I do not concede that the application of the remedial statute to DiGenova in the circumstances of this case is a true retrospective application but even assuming that it would be2 I think that the language used by the Legislature, in the circumstances of the facts it found, clearly establishes an intention to make the remedy immediately available to the end of removing as far as possible the existing hazards to children. No contention is made that it was not within the power of the Legislature to provide for retrospective application, or that such application would be unconstitutional.
The general and established rule, upon which the majority [186]rely and to which I subscribe, is not an absolute rule and does not preclude—indeed its specifically stated limitation supports—the view that I take. It is that “statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent.” (Aetna Cas. & Surety Co. v. Industrial Acc. Com. (1947) 30 Cal.2d 388, 393 [5] [182 P.2d 159] ; State v. Industrial Acc. Com. (1957) 48 Cal.2d 355, 361 [2] [310 P.2d 1].) Another statement of the rule is found in Krause v. Rarity (1930) 210 Cal. 644, 655 [11] [293 P. 62, 77 A.L.R. 1327] where the court, in considering the then recently enacted motor vehicle "guest law, ’ ’ stated that “although the legislature has the power to give a statute retrospective operation, if it does not impair the obligation of contracts or disturb vested rights, yet it is to be presumed that no statute is intended to have that effect, and it will not be given that effect, unless such intention clearly appear from the language of the statute. [Citation.]” In East Bay Municipal U. Dist. v. Garrison (1923) 191 Cal. 680, 692 [218 P. 43], which dealt with a “Municipal Utility District Act,” it is observed that “it is a well-settled principle of statutory construction that an act will not be construed to be retroaeive in the absence of either an express declaration to that effect or a very clear implication that such was the intent of the legislature.” (Italics added.)
A narrower and more limited statement of the rule is found in the Civil Code, the Code of Civil Procedure, and the Penal Code, with respect to the provisions of such codes. Section 3 of each of those codes provides that “No part of it [the respective code] is retroactive, unless expressly so declared.” (See People v. Harmon (1960) 54 Cal.2d 9, 25 [20, 21] [351 P.2d 329].) But no similar specification appears in the Education Code, wherein are the provisions now before us. On the contrary, section 10 of that code declares that “Unless the provisions or the context otherwise requires these [§§ 1 through 10] general provisions, rules of construction, and definitions shall govern the construction of this code.” (Italics added.) The general rule of construction thus referred to is found in section 2 of the Education Code, as follows: ‘ ‘ The code establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice.” (Italics added.)
It thus appears plain that the general rule of clear intent (with liberal construction to effect its objects), rather than [187]the narrower “express” declaration, governs with respect to whether the statutes here involved are to be given retrospective application. If the Legislature had intended the narrower rule to apply when considering provisions of the Education Code, it is reasonable to believe it would have expressly so declared, as was done with respect to the other three codes mentioned. “The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citations.] Moreover, 'every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect. ’ . . . [P. 647.] It is not to be presumed that the Legislature used language in a sense which would render nugatory important provisions of the statute.” (Select Base Materials, Inc. v. Board of Equalization (1959) 51 Cal.2d 640, 645 [1, 2] 647 [11] [335 P.2d 672]) ; also Augustus v. Bean (1961) 56 Cal.2d 270, 272-273 [4] [14 Cal.Rptr. 641, 363 P.2d 873].)
“ [I] t is a cardinal rule of construction that words must be given such interpretation as will promote rather than defeat the general purpose and policy of the law ...” and that if possible statutes will be so construed as to avoid absurd applications and consequences. (Department of Motor Vehicles v. Industrial Acc. Com. (1939) 14 Cal.2d 189, 195 [4] [93 P.2d 131] ; see also In re Cregler (1961) 56 Cal.2d 308, 312 [4] [14 Cal.Rptr. 289, 363 P.2d 305] ; Warner v. Kenny (1946) 27 Cal.2d 627, 629 [3] [165 P.2d 889].)
As already stated herein, by the enactment of chapter 25, Statutes of 1953, First Extraordinary Session 1952, the Legislature added several new sections to the Education Code “relating to persons convicted of sex offenses in respect to employment in the Public School System. ...” Such new sections, as hereinafter more specifically shown, appear to contemplate not merely the prevention of adding more convicted sex offenders as teachers in the future, or the discharge of those subsequently convicted of such offenses, but rather, the total elimination of convicted sex offenders from the public schools.
For clarity of reference to arguments in the former appeal, and to cited earlier decisions, it is noted that in 1959 the Education Code sections were renumbered. (Stats. 1959, ch. 2.) However, with the exception of section 12912, there has been no change of substance with respect to any of the code sections added in 1952 which are involved in this ease. [188]Therefore, for convenience the current (1959) section numbers will be used herein although such sections when added in 1952 were numbered under the 1943 numbering system. (For identification of the former (1943) Education Code numbers see Tables, pp. cxciii et seq., Deering’s Code, 1960.) Unless otherwise stated, all section numbers in this opinion refer to the Education Code. The pertinent sections (with italics added) are:
Section 13207: “Whenever the holder of any credential, life diploma, or document issued by the State Board of Education has been convicted of any sex offense as defined in Section 12912, the State Board . . . shall forthwith suspend the credential, life diploma, or document. . . . When the conviction becomes final or when imposition of sentence is suspended the board shall forthwith revoke the credential, life diploma, or document.”
Section 13218 imposed the same duty upon county boards of education, with respect to holders of certificates issued by such boards.
Section 13255: “Governing boards of school districts shall not employ or retain in employment persons in public school service who have been convicted of any sex offense as defined in Section 12912....”
Section 13586: “No person shall be employed or retained in employment by a school district who has been convicted of any sex offense as defined in Section 12912. ...”
Section 12912 (as amended in 1955; Stats. 1955, ch. 874, § 1, p. 1489, at that time numbered 12011.7),: “ ‘Sex offense’ as used in Sections 13130, 13207, 13218, 13255, and 13586 of this code means any offense defined in Sections 266, 267, 285, 286, 288, 288a, 647a, subdivision 3 or 4 of Section 261, subdivision 5 of Section 647, or subdivision 2 of Section 311 of the Penal Code; or any offense defined in subdivision 1 of Section 311 of the Penal Code committed on or after the effective date of the amendment of this section made at the 1955 Regular Session by the Legislature. ...”
Section 13130 as it read when originally enacted in 1952 (and then numbered § 12107) provided that the “State Board of Education shall deny any application for the issuance of a credential or a life diploma or for the renewal of a credential made by any applicant who has been convicted of any sex offense as defined in” section 12912. By the 1955 amendment of section 13130 and addition in the same year of sections 13208, 13219, 13256, and 13587 (Stats. 1955, ch. 874), the [189]Legislature extended to sexual psychopaths the proscriptions enacted in 1952 against those convicted of sex offenses as set forth in the various above-quoted sections. Of this more will be said hereinafter.
At all times here involved, subdivision 5 of section 647 of the Penal Code provided that, “5. Every lewd or dissolute person ... Is a vagrant, and is punishable by a fine ... or by imprisonment. ...” In the court below (at the second trial) counsel for DiGenova declared his client was seeking “to retry the . . . case on the question of the retroactivity of this statute”; that “I want primarily to establish that he was the person [convicted] and the statutes under which he was dismissed were applied retroactively”; that the “one legal issue which remains to be resolved” is that of retrospective application of the statute; and that in 1945 DiGenova was found guilty of “Vagrancy, lewd,” and in 1947 he was “found guilty and sentenced to jail again for a sex offense.” (Italics added.) Thus DiGenova cannot now be heard to assert that he was not convicted of a sex offense within the provisions of the applicable sections of the Education Code.
All of the Education Code sections quoted hereinabove are found in division 10 of part 2 of that code. That division is entitled simply “Employees.” Section 12912, which defines “sex offense,” is found in chapter 1 of division 10, which chapter is entitled “Provisions Applying to All Employees.” Sections 13207, 13218 and 13255 are found in chapter 2 of division 10, which chapter deals with “Certified Employees,” i.e., teaching personnel. Section 13586 is found in chapter 3 of division 10, which chapter deals with “Classified Employees,” i.e., nonteaching personnel.
It is my view that the clear and necessary implication from the particularized specifications of the 1952 statute is that the Legislature intended thereby to rid the public school system of all persons convicted of sex offenses regardless of whether the conviction was before or after enactment of the new legislation.
In the first place, the 1952 act directed state school boards (§ 13207) to revoke the credential and local boards (§ 13218) to revoke the certificate of teaching personnel “Whenever the holder .. . has been [finally] convicted of any sex offense. ...” The language “Whenever . . . has been” (italics added) as used in sections 13207 and 13218 in my view shows in context a plain intent that the sections apply to past convictions. If the Legislature had intended otherwise, it could easily, and [190]to be consistent should, have used language so indicating, such for example, as appears in section 13204, which provides that “Whenever the holder ... is charged with immoral or unprofessional conduct or evident unfitness for service or persistent defiance . . . the State Board . . . may require ... a hearing. ...” (Italics added.) Moreover, sections 13255 and 13586 speak in clear and positive terms in declaring that local boards shall not “employ or retain” teachers (§ 13255) or nonteaching personnel (§ 13586) “who have been [the majority read this as to “who shall hereafter be”] convicted of any sex offense as defined in Section 12912.” (Italics added.) Thus sections 13255 and 13586 appear by clear language to forbid the retention in employment of persons, whether teachers or nonteaehing personnel, who have been convicted of sex offenses. When thus read together the various sections of the 1952 act show a manifest legislative purpose to rid the public schools of all convicted sex offenders, regardless of date of conviction. (Cf. Augustus v. Bean (1961), supra, 56 Cal.2d pp. 270, 272 [4].)
To hold that the act does not apply to convictions suffered before its enactment produces patently absurd and mischievous results. It means that a school employe convicted of a relatively minor sex offense after 1952 must forthwith lose his credential and position upon discovery of the record of conviction, while a procurer, rapist, sodomist or sex deviate, with a teaching credential, whose conviction occurred even one day before the 1952 act became effective cannot be removed under any provision of that act. Further, to give only prospective application to the 1952 amendments makes it appear necessary that similar prospective application be given to the 1955 amendment of section 13130 and the addition of sections 13208, 13219, 13256, and 13587 (Stats. 1955, eh. 874), which provide that "Whenever the holder . . . has been determined to be a sexual psychopath . . .” (§§ 13208, 13219) the state and local boards shall revoke his credential and certificate, and (§§ 13256, 13587) that “No person shall be employed or retained in employment . . . who has been determined to be a sexual psychopath. ...” (Italics added.) The latter section is necessarily read by the majority as meaning “who shall after the effective date of this section have been determined,” etc. To so apply the 1952 and the 1955 enactments will result in the loss of credential and position by a sexual offender convicted after 1952 or by one adjudged a sexual psychopath after 1955, but not by an offender who [191]escaped conviction between 1952 and 1955 by securing a sexual psychopath determination. (See Welf. & Inst. Code, §§ 5500 et seq.) No such unreasonable and absurd intent should be attributed to the Legislature.
And that the Legislature would have declared that the 1952 act should operate prospectively only, if it had so intended, appears from the language which in 1955 it added to section 12912 when (as then numbered § 12011.7) that section was amended to provide, immediately following the words “Penal Code”: “or any offense defined in subdivision 1 of Section 311 of the Penal Code [indecent exposure] committed on or after the effective date of the amendment of this section made at the 1955 Regular Session by the Legislature. ...” (Stats. 1955, ch. 874; italics added.) The fact that this 1955 language (of eh. 874) directing prospective application was limited to only the one designated offense of indecent exposure, as well as that no such language (directing prospective application) was included in the 1955 sections (also found in ch. 874) which extend to sexual psychopaths the program to eliminate sexual offenders from the schools, provides a further affirmative indication of legislative intent that as to the other listed sex offenses (including that of which DiGenova was convicted) the date of commission or conviction was and is immaterial. (See Bellman v. County of Contra Costa (1960) 54 Cal.2d 363, 368 [1] [5 Cal.Rptr. 692, 353 P.2d 300] ; California Emp. Stab. Com. v. Payne (1947) 31 Cal.2d 210, 213-214 [1] [187 P.2d 702] ; Board of Social Welfare v. County of Los Angeles (1945) 27 Cal.2d 90, 97 [3] [162 P.2d 635].)
In this connection it may be further noted that the Legislature found no difficulty in expressing its intention in specific language in section 290 of the Penal Code, which since 1947 has required the registration of any sex offender “who, since the first day of July, 1944, has been or is hereafter convicted in the State of California of the offense of . . .” (Italics added.) And as pointed out by defendants, it will be an added absurdity that one convicted between 1944 and 1952 and required to register as a sex offender under that section (Pen. Code, § 290) may nevertheless continue to teach in the public schools, as will occur from refusal to apply retrospectively (i.e., to the conditions which the Legislature found to currently constitute an existing danger) the Educational Code provisions now before us.
[192]Further, the rule is that if courts are doubtful as to the meaning of a statute they should adopt that interpretation which is in accord with the legislative committee reports dealing with the legislation. "'Committee reports and explanatory statements of members in charge, made in presenting a bill for passage, have been held to be a legitimate aid to the interpretation of a statute where its language is doubtful or obscure.’ ” (Southern Pac. Co. v. Industrial Acc. Com. (1942) 19 Cal.2d 271, 275 [1a], 278-279 [2] [120 P.2d 880].) “In the absence of compelling language in the statute to the contrary, it will be assumed that the Legislature adopted the proposed legislation with the intent and meaning expressed by the [Judicial] [C]ouneil in its report.” (Hohreiter v. Garrison (1947) 81 Cal.App.2d 384, 397 [5] [184 P.2d 323].)
Defendants in their brief have referred by title and date to “five comprehensive Reports of the Assembly Subcommittee on Sex Crimes.” The Preliminary Report of this subcommittee, issued in 1950, relates in its foreword that “Two small children were murdered by sex fiends in Southern and Central California in the fall of 1949. The publicity of these murders focused the attention of the public upon sex crimes and sex offenders. There was much public opinion that the size of the sex crime problem was such that existing legislation and techniques of control were inadequate,” and that the subcommittee was appointed in November, 1949. “It has been demonstrated to the subcommittee that the problem of sex crimes has two major aspects. The first and foremost is the protection of the community from the sex offender.” The Preliminary Report then relates, among other things, that (the italics throughout the following quotation being those of the Legislative Subcommittee) : “ ‘Sex Offender’ is a past-tense word; it really means past sex offenders. The sex offender is someone who has in the past indulged in sexual conduct for which he was subject to potential prosecution.
“Only a portion of the past sex offenders are reported sex offenders____
"Only a portion of the reported sex offenders are arrested sex offenders. . . .
“A still smaller portion of the past sex offender group is made up of convicted sex offenders. ...”
Appended to the 1950 Preliminary Report is a statement of Dr. Alexander J. Stoddard, Superintendent of Los Angeles City Schools, Los Angeles City Board of Education, which includes the following (italics in this quotation are added): [193]"The schools should provide a clean, wholesome environment for growing boys and girls. . . .
"There should be a most careful screening of all employees, both applicants and in-service, with rigid elimination of any who manifest or have a history of aberrant sexual behavior.
"We try to do this effectively but further precautions are being taken to discover such histories. . . .
"Every possible precaution should be taken to provide a program for the early recognition by school personnel of any signs of... deviant sexual behavior. Adequate provision should be made for the prevention of the repetition of such abnormalities. . . .
"Every precaution should be taken to safeguard children from potential or actual sex criminals. ...”
In August 1952, the Assembly Subcommittee on Sex Crimes reported among other things that "A review of the Education Code relating to person [s] convicted of sex offenses in respect to their employment in the Public School System and to certification documents in connection therewith reflects that the laws are not sufficiently clear to assure that such a person could be prohibited from continuing to be employed in the Public School System of the State of California. Your committee unanimously agreed that a person convicted of a sex offense should not continue to be employed in the Public School System. The over-all solution to this problem should be severely handicapped if a convicted employee of the School System is merely allowed to terminate from one school district and to then obtain employment at another school.
"Accordingly, Assembly Bill No. 31 was passed by the California Legislature at the First Extraordinary Session, 1952, and became effective on July 2, 1952. The text of this law is as follows: ...” (Italics added.) The text of the act with which we are here concerned (eh. 25) is then set out in full, including, of course, sections 13255 and 13586 which provide that persons who "have been convicted” of the specified sex offenses shall not be "employed or retained” in the public school system.
This 1952 report of the Assembly Subcommittee, concurred in unanimously by its members, followed a two-year study of the problem of sex offenses. Yet the carefully studied emphasis of the unanimous committee that " ‘Sex offender’ is a past-tense word; it really means past sex offenders,” etc., is coolly brushed aside by the majority. In my view the report, together with the language of the additions to the Education [194]Code, leaves no doubt that in adopting chapter 25 the Legislature intended to rid the public schools of all convicted sex offenders regardless of whether their conviction occurred before or after the effective date of the act.
As has been hereinabove mentioned, in a strict legal sense application of the 1952 act to DiGenova is not a true retrospective application, and in any event is not unlawful. The subject act is remedial to the end of protecting the children of the public schools. To that end—and to that end alone—it simply designates a class of persons (those convicted of specified sex crimes) all of whom are prohibited from employment in the schools. The common denominator of the class is that each member has been convicted of a defined sex crime. Each of such persons is as a matter of law made ineligible to hold the position of teacher (or certain other positions) in a public school. This classification is reasonable. It applies alike to those previously, and those subsequently, convicted of the specified crime. The mere fact that tenure in a teaching position is held does not make application of the statute unlawful. There is nothing in the Constitution, the statutes or decisional law which precludes enforcement of the classification. In this connection it is noted that at all material times Education Code, section 13269 (or its predecessor §13007), has provided that “All employments under the provisions of Sections 1000 and 1001, Sections 13113 to 13116, inclusive, Sections 13252 to 13312, inclusive, Sections 13314 to 13318, inclusive, Sections 13320 to 13326, inclusive, and Sections 13328 to 13337, inclusive, shall be subordinate to the right of the Legislature to amend or repeal Sections 1000 and 1001, Sections 13113 to 13116, inclusive, Sections 13252 to 13312, inclusive, Sections 13314 to 13318, inclusive, Sections 13320 to 13326, inclusive, and Sections 13328 to 13337, inclusive, or any provision or provisions thereof at any time, and nothing herein contained shall be construed to confer upon any person employed pursuant to the provisions hereof a contract which will be impaired by the amendment or repeal of Sections 1000 and 1001, Sections 13113 to 13116, inclusive, Sections 13252 to 13312, inclusive, Sections 13314 to 13318, inclusive, Sections 13320 to 13326, inclusive, and Sections 13328 to 13337, inclusive, or of any provision or provisions thereof.” The power of the Legislature over the public schools is, of course, held to be plenary, subject only to any constitutional restrictions. (Hall v. City of Taft (1956), 47 Cal.2d 177, 180-181 [1] [302 P.2d 574].)
[195]It must necessarily be recognized that, as hereinabove suggested, the statute with which we are dealing, which is designed to eliminate sex offenders from the public school system, was not intended nor is it to be considered as punitive legislation directed at exacting further penalties from past offenders. It is not penal in any respect. Rather, as above mentioned, its aim is the protection of the school children from those convicted of, or in the ease of sexual psychopaths disposed toward, sex offenses, whether of the nature of rape, sodomy or incest or of the perhaps less serious per se lewd vagrancy of which DiGenova was convicted. As declared in Bates v. Board of Education (1903) 139 Cal. 145, 148 [72 P. 907], quoted with approval in Stuart v. Board of Education (1911) 161 Cal. 210, 213 [118 P. 712], “The public schools were not created, nor are they supported, for the benefit of the teachers therein . . . but for the benefit of the pupils and the resulting benefit to their parents and the community at large.” Further, of course, “The whole system of legislation regulating the educational machinery is based upon the consideration of the welfare and best interests of the children. The proper regulation of tenure in office and other rights of teachers were also properly considered and regulated, but the fundamental purpose and primary object of the legislature was the consideration of the welfare of the children. This fundamental purpose must not be lost sight of by courts in the construction of legislation dealing with our educational system.” (Knickerbocker v. Redlands High School Dist. (1942) 49 Cal.App.2d 722, 727 [4] [122 P.2d 289], quoted with approval in McGrath v. Burkhard (1955) 131 Cal.App.2d 367, 377 [4b] [280 P.2d 864] ; see also Goldsmith v. Board of Education (1924) 66 Cal.App. 157, 168 [5] [225 P. 783].)
It may also be mentioned that, as said by this court in Coca Cola Co. v. State Board of Equalization (1945) 25 Cal.2d 918, 921 [1] [156 P.2d 1], “Although not necessarily controlling, as where made without the authority of or repugnant to the provisions of a statute, the contemporaneous administrative construction of the enactment by those charged with its enforcement and interpretation is entitled to great weight, and courts generally will not depart from such construction unless it is clearly erroneous or unauthorized.” See also Mudd v. McColgan (1947) 30 Cal.2d 463, 470 [4] [183 P.2d 10]. On July 1, 1952, one day prior to the effective date of chapter 25, the attorney general rendered his opinion unequivocally interpreting the 1952 act as operating retrospec[196]lively and requiring the revocation of the credentials of a convicted sex offender regardless of the date of conviction and specifically including convictions prior to July 2, 1952. (20 Ops. Atty. Gen. 10.) Defendants have stated both in their briefs and in oral argument before this court that since July 2, 1952, the state board continuously followed the Attorney General’s opinion which, as already indicated herein, I believe correctly interprets the legislation in question.
As to the generally recognized duty of this court in construing remedial legislation—and it cannot be doubted that the 1952 amendments to the Education Code are remedial— we said in Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 434 [9] [296 P.2d 801, 57 A.L.R.2d 914], “Such a law [the general automobile financial responsibility law] is remedial in nature and in the public interest is to be liberally construed to the end of fostering its objectives. (See Wheeler v. O’Connell (1937) 297 Mass. 549 [9 N.E.2d 544, 111 A.L.R. 1038, 1041].) As said by Mr. Justice Heydenfeldt for this court long ago, and still the law, ‘The rule of law in the construction of remedial statutes requires great liberality, and wherever the meaning is doubtful, it must be so construed as to extend the remedy. ’ (White v. Steam-tug Mary Ann (1856) 6 Cal. 462, 470 [65 Am.Dec. 523] ; see also Cullerton v. Mead (1863) 22 Cal. 96, 98 ; Cormerais v. Genella (1863) 22 Cal. 116, 125 ; Davis v. Hearst (1911) 160 Cal. 143, 188 [116 P. 530].)” If we respect these principles in construing automobile financial responsibility laws it would seem that our school children should be entitled to at least equal consideration. (See also Estate of Patterson (1909) 155 Cal. 626, 638 [102 P. 941, 132 Am.St.Rep. 116, 18 Ann.Cas. 625, 26 L.R.A. N.S. 654].) The applicability of this principle to the case at bench is emphasized by the fact that the Education Code specifically directs (§2) that “its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects. ...”
In view of what has been related there is no doubt in my mind that the Legislature found that the continuance in employment of theretofore, as well as prospectively, convicted sex criminals in the public schools in any of the designated capacities unnecessarily imposed grave danger to school children. There can be no doubt either that the Legislature had the power to classify such persons as ineligible (immediately and continuingly) for employment in the public school system. Since the Legislature found the present danger of employing [197]such persons and had the power to direct their forthwith removal, it seems that the majority of this court, by clear implication of their opinion, convict the members of that Legislature of a serious breach of responsibility.
I speak in defense of all the members of the Legislature who participated in the study which preceded, and in enacting, the subject Education Code sections when I say that to me it is perfectly clear from the language they used (and in the circumstances of its use as made manifest by the committee report) that they did not intend that the schools should retain in employment persons who had previously suffered sex crime convictions of the types enumerated; rather it was their intention that the imminent hazard to the children of employing such persons should be eliminated, whether the convictions, had already occurred or should take place in the future.
Plaintiff relies upon (and the majority cite) Fountain v. State Board of Education (1958) 157 Cal.App.2d 463, 469-473 [2-7] [320 P.2d 899], in which this court denied a petition for hearing. It is established law that the denial by this court of a hearing "is not to be taken as an expression of any opinion by this court, or as the equivalent thereof, in regard to any matter of law involved in the case and not stated in the opinion . . . nor, indeed, as an affirmative approval by this court of the propositions of law laid down in such opinion. . . . The significance of such refusal is no greater than this—that this court does not consider that the interests of justice, or the purposes for which the power was given, require its exercise in the particular case.” (People v. Davis (1905) 147 Cal. 346, 350 [81 P. 718] ; In re Stevens (1925) 197 Cal. 408, 423-424 [241 P. 88].) And as pointed out in Cole v. Rush (1955) 45 Cal.2d 345, 351, fn. 3 [289 P.2d 450, 54 A.L.R.2d 1137], “The significance of a denial in any particular case is also to be understood as further qualified by the fact that under the Rules on Appeal a denial may mean no more than that a ground which we deem adequate or impellent for ordering a hearing has not been brought to our attention. (See rule 29, Rules on Appeal.) ”
The opinion of the District Court of Appeal in Fountain, insofar as relevant to the issue before us, makes an excellent presentation of the basic proposition that statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent. As hereinabove stated I am in full accord with that proposition but for the [198]reasons which I have tried to both elucidate and document am satisfied that here the legislative intent is made clear. Furthermore, as I have emphasized, the character of the legislation in question is remedial (for the protection of school children) not penal (to further punish the sex convict). This point apparently was not adequately, if at all, presented to the District Court of Appeal. I therefore do not find persuasive in this case its final proposition that (p. 473 of 157 Cal.App.2d) “As between a construction of the law which would penalize him. [the sex convict teacher] without a hearing and one which would afford him a hearing and accomplish the full purpose of the law, the latter is to be preferred.”
Defendants also contend that the issue of retrospective application of the statutes here involved was determined adversely to DiGenova in our earlier opinion (DiGenova v. State Board of Education (1955), supra, 45 Cal.2d 255), and that under the doctrine of law of the case DiGenova is bound by that determination. For the reasons cogently stated in Justice Coakley’s opinion prepared for the District Court of Appeal (supra, 11 Cal.Rptr. 620), I believe this contention is likewise meritorious.
I would reverse the judgment with directions to the trial court to enter judgment for defendants denying the writ sought.
McComb, J., concurred.
At the hearing in the trial court on that occasion plaintiff's counsel stated “that the only question involved was that the revocation of plaintiff’s credentials by the state board and his dismissal by the San Francisco board were had without charges, notice or hearing.’’ (DiGenova v. State Board of Education (1955), supra, 4.5 Cal.2d 255, 258.)
This assumption as to retrospective application is carried forward in the discussion which follows, except where otherwise indicated.