Davidson v. Baldwin

[734]

SMITH, J.

Application in the court below for a writ of mandate to the county superintendent of schools requiring him to draw a requisition on the county auditor against the special school fund in favor of the plaintiff for the sum of $166.66, claimed by the plaintiff as salary due him for the month of June, 1905. The plaintiff had judgment, and the •defendant appeals.

The case is this: By the charter of the city of San Diego, of education was authorized by subdivision 2 of article VII “to appoint and employ a superintendent of schools,” etc. appoint and employ a superintendent of schools,” etc. (Stats. 1889, c. 20, pp. 643, 712, 713), and under this provision the plaintiff was elected as such on the fifth day of May, 1902, for the term of four years, at which time the salary of the office had been fixed at $2,000 a year. But by an amendment to the charter February 3, 1905, article VII was amended so as to contain three sections only—the first providing generally for the school system of the city; the second for the constitution of a board of education, in which “the government of the San Diego school district shall be vested”; and the third as follows: “The duties and powers of the board of education shall be such as are now or may hereafter be enjoined and conferred on boards of education in city and school districts by the laws of the state of California.” (Stats. 1905, c. 11, p. 918.) It is recited in the findings and judgment that it was agreed by the counsel in open court “that the only issue in the case is as to the effect” of the resolution of the board of May 5, 1902, by which the plaintiff was originally elected superintendent; as to which it is found by the court, in effect, that the plaintiff was by the resolution duly elected superintendent, and that he has ever since been and is such. It is now urged by the appellant’s counsel (1) that there was no statutory authority for the original election; (2) that, if the power to elect given to the board of education by the original charter was valid, the plaintiff’s- election could not survive the repeal of the provision giving that power; and (3) that, in the absence of statutory provisions vesting the power of election in the board, there was no such implied power. The questions thus raised will be considered in the order stated.