VALENTINE, J.,
pro tem.,
Dissenting.
I dissent. It is unthinkable that the legislature should intend to enact any provision which would make the financial interests of a teacher paramount to the best interests, welfare, and proper education of the school children. The whole system of legislation regulating the educational machinery was based upon consideration of the welfare and best interests of the children as the original and fundamental purpose, The proper regulation of the tenure of office and other rights of the teachers was also properly considered and regulated—but the original purpose and fundamental idea was the consideration of the best interests and welfare of the scholars. In every act of the legislature relating to education, where the intention is not clearly expressed, it must be assumed that the fundamental purpose and primary object of the legislature was to consider first this welfare and best interests of the children. Every act of the legislature attempting to regulate the machinery of the system of education must be construed with this elementary and fundamental purpose and intention in mind. No person incompetent, or an improper teacher, for any reason, should be permitted to teach the children. The legislature has im
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posed the duty and responsibility of determining and deciding who are and who are not such qualified teachers upon the trustees of the school board. They have this right, duty and responsibility and their decision is final in this regard. It is true that the act under consideration is known as the Teachers Tenure Act and that the purpose of the legislature undoubtedly was to protect the teachers and to fix clearly their rights as to their employment as such, but the teachers are employed as a part of the whole scheme and for the purpose of educating the school children. So that in the instant case we have this situation, if we accept the construction of the statute of the prevailing opinion, that after the board had decided that the appellant should not be re-employed as a probationary teacher, they neglected to register the written notice of such decision which was mailed to her on June 8th, two days before the date fixed in the act, and although she had actual verbal notice of this action of the board two days after it was taken, and on the last day of the school year, nevertheless the appellant may insist upon her right to teach and the school children must be taught for another year beginning the following September by a teacher who has been declared, at least by implication, an incompetent or improper person to teach them. It must not be understood that this implies in any way any reflection upon the appellant, in this ease personally. The record discloses only a local neighborhood controversy, important, no doubt, to the local persons and factions involved. But the court may not concern itself with such matters and must only consider the principles of law involved.
In the instant case the mandatory act was that the Board of Trustees must decide whether or not the appellant was qualified as a teacher and should be re-employed for another year. They decided she should not be so re-employed. The record does not disclose why, but the board had the responsibility, the duty and the power to decide this and their decision was final. This was the determination of the fundamental question involving the best interests and welfare of the children. After deciding this the statute imposed on them a further duty—to consider the interests of the teacher by giving her notice of their decision that she was not to be re-employed for the succeeding year, so that she
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might have ample time to govern herself accordingly and make other arrangements. The legislature provided two methods of giving this notice—either by written notice served personally, or by written notice sent by registered mail prior to June 10th.
In the instant case appellant had actual verbal notice two days after the action of the board, and a written notice mailed on the 8th of June, which, it must be admitted, would have been a sufficient compliance with the statute if it had been registered. So in the last analysis appellant’s cause of complaint as to not having received a notice as prescribed by the statute is that the written notice, mailed to her on June 8th, was not registered. In what respect can she claim to have been misled or damaged! There is no such showing made here. The requirement for the return of a registry receipt would seem to be for the convenience of the board rather than the teacher.
(Buswell
v.
Supervisors, etc.,
116 Cal. 351, at p. 354 [48 Pac. 226].) The case of
Owens
v.
Board of Education,
68 Cal. App. 403 [229 Pac. 881], cited in the prevailing opinion, has, in my opinion, no application here. In that case no question as to the sufficiency of the notice of re-employment was raised. It was assumed that the notice was sufficient. In the instant case the question of the sufficiency of the notice is the main question involved.
The fundamental principle involved in cases of statutory construction, like the present, as the writer understands it, is—who did the legislature intend to protect? And so in the case of
Gleason
v.
Spray,
81 Cal. 217 [15 Am. St. Rep. 47, 22 Pac. 551], also cited in the prevailing opinion, the court justly and equitably held that the intention of the legislature was to protect the wife in the enjoyment of her rights in the homestead. In the instant case, the school children are to be first protected in their right to have a competent, properly qualified teacher to teach them, and upon the Board of Trustees is imposed the right and the duty to decide who is so qualified as such a teacher. After they have discharged this duty, then, in justice to the teacher, they must give her such reasonable and timely notice if they decide she is not qualified (as stated above) as will enable her to make other arrangements. Appellant had such notice in the instant ease. The arbitrary date
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of June 10th for this notice to be given has no significance as a particular date. The legislature might have fixed June 15th, or June 20th, as an indication of the time which they considered would be reasonable.
The paragraph in the statute which provides the procedure for dismissal contains two sections. In the first sentence it is provided that the board may give notice by June 10th that the teacher’s services will not be required. There is no question but that notice was given in due time to appellant. The next sentence of the paragraph provides a method for serving the notice which, if followed, will be deemed sufficient. It might well be argued that the statute does not provide that it is obligatory to give the notice in the manner suggested—nor is it provided that actual notice given in some other manner will not be sufficient, and that it “none the less fully served the purpose for which it was designed.”
(Shorr
v.
City of Azusa,
38 Cal. App., at p. 712 [177 Pac. 515].)
The determination of the teacher’s qualification to teach is the fundamental consideration and this is mandatory; the giving of the notice of this determination is directory. In
People
v.
Lake Co.,
33 Cal., at p. 492, the court says: “The books are teeming with eases in which the court has come to the aid of the legislature, and by construing one provision of an act as mandatory and another as directory, so as to make them harmonize with the principal purpose of the act, have made its operation possible.”
(McCrea
v.
Haraszthy,
51 Cal., at p. 150;
Hart
v.
Plum,
14 Cal. 148.)
In
People
v.
Cook,
14 Barb. (N. Y.) at p. 290, the court says: “Whether these other provisions of the statute, which have not been strictly observed in this case, are to be regarded as directory or mandatory or not, must depend upon a sound construction of the nature and object of the requirements.”
The judgment should be affirmed.
A petition by respondents to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 19, 1928.
All the Justices present concurred.