Ross v. Board of Education
Before: Lennon
Synopsis
Board of Education—Storekeeper Employed upon Monthly Salary —Want of Power to Dismiss During Month and Apportion Salary.—The board of education of the city and county of San Francisco, after employing a storekeeper from month to month upon a monthly salary, has no power to dismiss him without cause, pending any month, and to apportion his salary for such month to the part of the month preceding his dismissal, and thus deprive him of his full salary for such month. The only power of dismissal without cause is at the expiration of a monthly term of employment.
Id.—Bulb as to Monthly Term of Employment Applicable—Construction of Code.—The ordinary rule that an employee who is employed by the month is entitled to his salary for the full month, when he is discharged without cause before the expiration of the month, applies in case of employees of a school district or of a board of education; and there is nothing in section 1617 of the Political Code, defining their rights and duties, which exempts their contracts of employment of other persons than teachers from the operation of the ordinary rules of law applicable to the interpretation and enforcement of contracts of employment in general.
Id.—Breach of Monthly Contract—Action for Damages—Bembdy by Mandamus.—Though an action for damages would lie for breach of a monthly contract of employment by a board of education, yet as such remedy would not be equally as convenient, beneficial and effective as the remedy by mandamus to compel the board of education to draw upon the school fund for the residue of the salary wrongfully withheld by them in breach of their official duty from the salary of the storekeeeper employed by them upon a monthly salary, that remedy will lie upon his petition therefor.
Id.—Discharge Without Cause Properly Determined by Trial Court. Upon petition for the writ of mandamus allowed by the' trial court, that being the only adequate remedy available to the petitioning plaintiff, the question as to whether he was discharged without cause and in violation of the contract of employment was properly tried and determined in the court below, and its judgment enforcing the writ of mandate will be affirmed.
LENNON, P. J.
In this proceeding the plaintiff was awarded a peremptory writ of mandate, commanding and compelling the defendants, in their official capacity as members of the board of education of the city and county of San Francisco, to approve his demand upon the common school fund of the school district of said city and county in the sum of $100, which it was alleged was the balance due him for salary under a previously existing contract, whereby the plaintiff was employed by the defendants as storekeeper for said board of education. In the court below the defendants interposed a general demurrer to plaintiff’s petition for a writ of mandate, specifying as ground of demurrer only the insufficiency of the facts stated to warrant the issuance of the writ. Upon the demurrer being overruled, the defendants filed an answer, which in effect admitted that all of the allegations of the plaintiff’s petition were true. The case comes here upon an appeal from the judgment and upon the judgment-roll alone.
The petition for the writ, after alleging the facts necessary to show the legal entity and powers of the defendants as an integral part of the state’s educational system, pleaded the contract whereby the plaintiff was employed by the defendants from month to month at a salary of $150, payable monthly on the first day of each and every month, and that thereafter in the month of September, 1909, and before the expiration of the month, the defendants without cause discharged the plaintiff from his position. Thereafter, the petition alleges, the defendants, upon presentation, approved plaintiff’s demand against the common school fund of the school district of the city and county of San Francisco for the sum of $50 as salary for one-third of the month of September, 1909, but refused to approve said demand upon said fund for
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the $100 additional, claimed as the remainder of the salary-due plaintiff under his contract for the balance of said month of September.
No question of want of funds is involved in the defendants ’ refusal to approve plaintiff’s demand.
Although the cause of action set out in the plaintiff’s petition is founded upon the contract, the prayer of the petition is framed upon the theory that upon proof of the contract and its breach the defendants can be compelled by
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