Beard v. Webb

BURNETT, J.

It appears that petitioner is an optometrist duly qualified and licensed to practice as such under the laws of the state of California; that on March 17, 1916, the board of education of the city of Sacramento employed petitioner as such optometrist, at a salary of one thousand six hundred dollars a year, to examine pupils of the public schools of said city in order to discover any visual defects of said pupils in order that such defects, if existing, might be

corrected;

that petitioner ever since has been and now is so employed, and has fully performed all services required of him by reason of such employment; that respondent during all of said time has been and is now the county superintendent of schools of Sacramento

County;

that on or about the twenty-eighth day

[333]

of July, 1917, said board of education of the city of Sacramento made its order upon said Caroline M. Webb, as such county superintendent, to draw her requisition upon the county auditor of said county for the payment of the salary due petitioner for the month of July, 1917, for services performed under said employment, but respondent refused, and ever since has refused, to draw said requisition; that similar action was taken by said city board of education on August 30, and September 30, 1917, but respondent likewise refused, and still refuses, to honor either of said orders for requisitions. The prayer is, therefore, for a writ of mandate to direct respondent to forthwith draw her requisition on the county auditor for the sum of $399.99 for payment of the salary due petitioner for services performed as such optometrist for the months of July, August, and September, 1917.

The facts are not in dispute. The whole controversy is as to the authority of the city board of education to employ an optometrist to perform such services. The solution of the question depends upon the construction of chapter 598 of the Statutes of 1909 (Stats. 1909, p. 908), being “an act to provide for health and development supervision in the public schools of the state of California,” considered in connection with subdivision 21 of section 1617 of the Political Code, approved subsequent to the approval of said chapter 598. Section 1 of said act provides: “Boards of school trustees and city boards of education are hereby authorized to establish health and development supervision in the public schools of this state and to employ an examining staff and other employees necessary to carry on said work and to fix the compensation for the same. Whenever practicable the examining staff for health and development supervision in the public schools of the state shall consist of both educators and physicians.” Section 2 enumerates the purposes of supervision, one of them being “to secure the correction of developmental and acquired defects of both pupils and teachers which interfere with health, growth and efficiency, by complete physical examination. Said examination shall occur annually or as often as may be determined by the board of school trustees or city board of education.” Section 3 provides for the qualifications of the examining staff. The said subdivision of the Political Code authorizes the boards of education “to give diligent care to the health and physical development of pupils,