CARTER, J. I dissent. I believe that the salary schedule adopted by the Sacramento School Board is discriminatory and unreasonable.
The opinion of the court in stating that appellant’s teaching credentials or tenure of position is not here involved, and confining discussion of the controversy strictly to the power to adjust and reduce compensation, is entirely oblivious of the fact that the effect of such' salary manipulation as here sought to be practiced, can only be to deprive the teachers of this state, of rights protected by their grant of a life diploma by the State Board of Education, and to impair rights heretofore guaranteed by the provisions of the School Code providing for the permanent tenure of teachers.
Sections 5.260 to 5.281 of the School Code provide for the granting of life diplomas, authorizing the holder to serve for life in the public schools of this state, in the capacity therein specified. Appellant, in 1932, was awarded such a life diploma, the state thereby recognizing her qualifications to teach. Sections 5.270 to 5.281 of the School Code provide for the issuance by county, or city and county boards of education, of a permanent certificate to the holder of a life diploma, upon the successful completion of the number of years of teaching prescribed therein, which entitles the holder to teach in that county or city and county during the life of the holder. The question, then, immediately presents itself, as to the value of such a life diploma, or certificate, if the teacher’s salary may intermittently be diminished, by the infliction of penalties, upon failure to meet superimposed study requirements.
As to teachers’ tenure, it is the declared policy of this state (Sch. Code, §§ 5,500-5.504). “The legislature has conferred upon teachers, under specified circumstances, a vested right [447]to bé so classified and to teach as permanent instructors, in the particular district where this right has been secured.” (Dutart v. Woodward, 99 Cal.App. 736 [279 P. 493]; Davis v. Gray, 29 Cal.App.2d 403 [84 P.2d 534].) We are not here concerned with the soundness of that policy. (Dutart v. Woodward, 99 Cal.App. 736, 739 [279 P. 493].)
The rule making power of a local school board is limited to those rules and regulations which are reasonable, uniform in treatment, and not in conflict with existing law. (Fry v. Board of Education, 17 Cal.2d 753 [112 P.2d 229]; Kacsur v. Board of Trustees, 18 Cal.2d 586 [116 P.2d 593]; Dutart v. Woodward, supra.) We are justified in saying as a basic premise, that anything which would work to undermine and destroy the declared policy of tenure is unreasonable. The salary schedule here under consideration, does just that.
While the provisions of the School Code, providing for permanent tenure of teachers, guarantee to the public retention of those teachers who have demonstrated their fitness (Hogsett v. Beverly Hills School Dist., 11 CaI.App.2d 328 [53 P.2d 1009]), such statutes also have a reciprocal purpose, looking toward benefit of the teachers, giving a measure of security to those who have served as teachers for the probationary period. (Board of Educ. of Jersey City v. Wall, 119 N.J.L. 308 [196 A. 663]; State ex rel. Bass v. Vernon Parish School Board, (La.App.) 194 So. 74.) And it cannot be doubted, that the latter was the motivating factor in the enactment of our tenure law. Tenure, therefore, not being merely an instrument whereby a teacher may continue the enjoyment of teaching, but the basic element therein being the right to receive a compensation commensurate with the status he or she has attained by virtue of his or her years of study, preparation and past experience, thousands of teachers throughout this state have as a consequence thereof conformed their mode of living to the salary levels which they have been led to believe they were assured as an incident to their tenure status. It is true that a teacher has no vested right to a particular salary, and that such salary may be changed by administrative authority (Kacsur v. Board of Trustees, supra), but such changes must be uniform, and must have some regard to the actual classroom worth of the teacher. (Abraham v. Sims, 2 Cal.2d 698 [42 P.2d 1029]; Fry v. Board of Educ., supra; Kacsur v. Board of Trustees, [448]supra.) Assuming that the additional educational experience required would have some tendency to increase the ability of an already qualified teacher (it may be here noted that the rule does not prescribe what type of courses shall be taken), by no stretch of the imagination can it be said that failure to take the additional course of study will result in such a substantial diminution in the classroom worth of the teacher, as to justify the salary deductions here contemplated. As applied to appellant, the schedule proposes to reward her, to the extent of $48 if she takes certain additional training, but if she does not take the training she is to be penalized “one annual increment,” amounting to $96 each year “until the condition is met.” If she does not comply with the rule for a period of twelve years, she will be reduced to a beginner’s salary of $1,548. That such lot could befall one who has been given the protective status of tenure is unthinkable. In order to attain tenure, appellant met rigid qualifications, and gave the required number of years of satisfactory service, and in addition thereto has traveled extensively looking toward her professional improvement; these travels being designed to improve her subject of literature, comprising a large phase of the English courses which she teaches. As to her teaching record, the trial court expressly found that she has rendered many years of efficient, satisfactory, successful service in the Sacramento schools, including the years involved in this salary controversy.
There are many circumstances, or reasons, which may constitute good cause for not taking, or entirely preventing a teacher from taking the courses and accumulating the credits demanded, such as sickness, need of recuperation from the school year’s work, necessity of caring for children, inability to transfer residence to a university center, financial reasons, etc., and thus by virtue of the demerit system employed, they will be penalized, while less efficient and less competent teachers who may take the required units of work, and still remain the least competent, will not be penalized. Even if a teacher is physically able to meet the requirements, the rule compels him or her to forego one out of every four vacation periods, the same constituting a part of that teacher’s own leisure time, to fulfilling the conditions imposed.
If the objective of additional schooling be deemed desirable, in order that teachers may keep in touch with modern , [449]processes, or for other reasons, the result could be brought about by other methods, that would not affect tenure, for example, opportunities for advancement, the granting of privileges and other like inducements, rather than by giving demerits, such as result from the substraction process here employed.
This case was originally appealed to the District Court of Appeal of the Third Appellate District and a decision was rendered by that court reversing the judgment' of the trial court and directing the issuance of the writ of mandamus as prayed. The opinion in the District Court of Appeal was prepared by Presiding Justice Adams and concurred in by Justices Peek and Thompson. I am convinced that said opinion contains a correct statement of the law applicable to the facts of this case and I adopt as a part of this dissent the following portion of said opinion:
“Section 5.530 of the School Code provides that boards of school trustees and city boards of education shall have power and it shall be their duty to fix and prescribe the duties to be performed by all persons in public school service in the school district. Section 5.420 provides that they shall employ only persons holding proper credentials and certificates; section 5.730 imposes upon them the duty to fix and order paid the compensation of persons in public school service employed by them; sections 5.541-5.547 prescribe the duties of teachers; section 5.650 provides that no permanent employee of a school board shall be dismissed except for the reasons set forth therein, and sections 5.652 et seq. provide the time and method by which charges must be made and heard. There is no provision in the law for disciplinary action against a teacher short of dismissal.
“It is not contended or even suggested by respondent herein that petitioner is subject to dismissal or that it would be within the power of the board to promulgate and enforce a rule requiring that permanent teachers in its employ continue to take college courses. It is said in respondents’ brief that ‘the question here is not whether the district can require the petitioner to take more training as a teacher in order to hold her position, but whether or not she can be required to take more training or else suffer a reduction in salary.’ Obviously, then, the board is attempting to do indirectly what [450]it could not do directly—that is, compel teachers to acquire additional college units by penalizing them by way of a reduction of salary if they do not. This, we believe, is in excess of the powers of the board. Inasmuch as such boards are quasi-municipal corporations of limited power, they have only special powers which may not be exceeded (23 Cal.Jur. 90; Pasadena School District v. City of Pasadena, 166 Cal. 7, 9 [134 P. 985, Ann.Cas. 1915B 1039, 48 L.R.A.N.S. 892]; Grigsby v. King, 202 Cal. 299, 304 [260 P. 789]). They are powerless to impose penalties—a purely legislative power. (Harbor Commissioners v. Excelsior Redwood Co., 88 Cal. 491 [26 P. 375; 22 Am.St.Rep. 321]; Gilgert v. Stockton Port District, 7 Cal.2d 384, 390-391 [60 P.2d 847].) And such rules and regulations as they may be authorized to make and enforce must be reasonable and not discriminatory or oppressive, or arbitrary. (Dutart v. Woodward, 99 Cal. App. 736, 739-740 [279 P. 493]; Chambers v. Davis, 131 Cal.App. 500, 507 [22 P.2d 27]; Lotts v. Board of Park Commissioners, 13 Cal.App.2d 625 [57 P.2d 215]; McLeod v. State, 154 Miss. 468 [122 So. 737, 63 A.L.R. 1161]; Hutton v. Gill, 108 Ind.App. 1 [7 N.E.2d 1011]; Hutton v. Gill, 212 Ind. 164 [8 N.E.2d 818, 820]; Valentine v. Independent School District, 187 Iowa 555 [174 N.W. 334, 6 A.L.R. 1525]; 24 R.C.L. 575, § 23.) They can promulgate no rules in contravention of statutory provisions, nor accomplish by indirection that upon which a statute has placed a ban. (Fairchild v. Board of Education, 107 Cal. 92 [40 P. 26]; Mitchell v. Winnek, 117 Cal. 520, 527 [49 P. 579]; Dutart v. Woodward, supra.) There can be no arbitrary or unreasonable exercise by the board of its power to reduce salaries or change assignments of permanent teachers. (Abraham v. Sims, 2 Cal.2d 698, 711 [42 P.2d 1029]; Dutart v. Woodward, supra.) And classification of teachers for salary purposes must be reasonable, natural, and based upon a substantial difference germane to the subject, or upon some basis having a reasonable relation to the work assigned. (Hutton v. Gill, 212 Ind. 164 [8 N.E.2d 818, 820].)
“In the case before us the rule enforced against petitioner by the reductions of her salary ignores successful experiences and efficiency as a factor in determining salaries, in contravention of section 5.734 of the School Code; it arbitrarily assumes that a teacher becomes not more, but less efficient [451]with experience; that failure to take additional college work makes a teacher less competent; it also assumes arbitrarily that the taking of any six (or four) units of college work every four yers will restore efficiency (though only by degrees) ; it ignores rating credits acquired under the former salary schedule; it compels a teacher, at her own expense and on her own time, to leave her home and go to a college one semester each four years; it is not a rule governing the conduct of the schools under the jurisdiction of the board, but of the teacher during her vacation from school duties; it ignores every other method by which a teacher might acquire mental stimulus; and in this case it implies inefficiency in conflict with the finding of the trial court of petitioner’s efficiency. It is based upon no classification of either teachers or duties, unless it be contended that teachers are to be classified as those that do and those that do not take the prescribed additional college work; and such a classification would be purely an arbitrary one not based upon qualifications or experience, and could not be justified. (Lotts v. Board of Park Commissioners, supra; Mansur v. City of Sacramento, 39 Cal.App.2d 426 [103 P.2d 221].)
“The rule is arbitrary also in that no basis appears for the fixing of the so-called ‘annual increment’ of $96 deducted from appellant’s salary, no basis for the number of college units teachers are required to complete, and no basis for the requirement that such university courses be taken every four years. If six college units every four years can be required, six units each year can be required; and if a penalty of $96 per annum can be imposed for non-compliance, any other arbitrary amount could be imposed and the advantages of tenure utterly defeated. It does not prescribe what kind of courses shall be taken by teachers, but merely the number of units that must be completed; so a teacher of English, if she so desired, might present six units of hygiene or home economics, kinesiology or Coptic. Though the rules of the board provide that written standards shall be set up by the superintendent of schools to govern training conditions, it is admitted that none such were set up.
“Petitioner did not fail to perform any duty prescribed by the law or the board. It is not contended that she has not kept up to date in her methods; and except for her failure to acquire the requisite college units her salary would have [452]been the same as previously, $2,700. There was no change in her rank or grade, working hours or duties. The deductions were not made because of any inefficiency on her part, but as a penalty for failing to go to school. Respondents in their brief contend that there is no penalty involved; but we note that in the Bulletin issued by the board in September, 1936, it is recited: ‘It was concluded that teachers reaching the maximum should be stimulated to maintain their professional proficiency by continued training. To make this effective, it was agreed that a salary penalty should be imposed upon those failing to do this within a reasonable length of time.’ (Italics ours.)
“Also, the rule as applied to petitioner is discriminatory. The evidence shows that high school teachers of English with as little as ten years of experience were receiving $2,748 per annum, while petitioner, with twenty-nine years of successful experience, was, after the reductions, the lowest paid among such teachers. There was no general reduction of salaries, the only ones reduced being those of teachers who had not complied with the ‘condition.’
“In Kacsur v. Board of Education, 18 Cal.2d 586, 592 [116 P.2d 593], the court said:
“ ‘However, there are limitations on the power of boards of trustees to change salaries of permanent teachers. One of the “legal consequences” referred to in the Abraham case, supra (Abraham v. Sims, 2 Cal.2d 698 [42 P.2d 1029]), is that the fixing of salaries must not be discriminatory, arbitrary or unreasonable. The above cited cases all so qualify the general power of the administrative agencies to fix the salaries of permanent teachers. Because of this qualification it necessarily follows that there must be a comparison with the salaries of other teachers or salaries of previous years. If this could not be done, the qualification would be meaningless.’ (Italics ours.)
“The record there showed that the respondent board attempted to reduce appellants’ salaries from $1,600 to $1,325, practically the minimum allowed by law. No other salaries were reduced; most of them were raised; and the salary of a teacher of approximately the same years of service, experience and qualifications remained the same. The court said:
“ ‘These facts standing alone are sufficient to force the conclusion that the attempted action of the board was un[453]reasonable and arbitrary. The fact that the salary of a teacher of like experience and years of service was not reduced is particularly strong in support of appellants’ claim of discrimination. That there must be some degree of uniformity was recently recognized by this court in the case of Fry v. Board of Education, 17 Cal.2d 753 [112 P.2d 229]), wherein it is stated at page 757; “It must be conceded that, within the limits fixed by the School Code, the Board has discretionary control over the salaries of teachers. (Citing cases.) However, it must also be conceded that the Legislature had enjoined on such Boards, with reasonable limits, the principle of uniformity of treatment as to salary for those performing like services with like experience. . . .” ’
“And in that case the Supreme Court reversed the finding of the trial court that the board had not acted arbitrarily.
“We conclude that the rule of the board requiring petitioner to acquire additional college units or suffer a reduction in salary to which she was otherwise entitled was in excess of the powers of the board. The judgment is reversed and the lower court is directed to issue the writ of mandamus as prayed.”
In my opinion the judgment should be reversed.
Shenk, J., and Curtis, J., concurred.
Appellant’s petition for a rehearing was denied August 3, 1944. Shenk, J., Curtis, J., and Carter, J., voted for a rehearing.