Harby v. Board of Education

HALL, J.

Plaintiff petitioned for a writ of mandate to compel the defendant to admit plaintiff to the use and enjoyment of the position and employment as vice-principal of the Fairmont Intermediate Grammar School of the city and county of San Francisco. A demurrer to the complaint was sustained, and judgment thereupon entered in favor of defendants. The appeal is by plaintiff from said judgment.

It is alleged in the complaint that plaintiff was regularly elected by the board of education of the city and county of San Francisco to the position of vice-principal of the Fairmont Intermediate Grammar School on the twenty-eighth day of December, 1898. On the fourth day of January, 1899, the said board adopted another resolution removing her from said position, and when on the eighth day of January, 1899, she appeared at the school and demanded the right to enter upon the duties of such position, the right was refused her by the defendants, and she has never been allowed to enter into said position or to enjoy the emoluments thereof. It also appears that before and ever since the dates mentioned she has held a position as teacher in a grammar grade in another school of said city and county. This action was commenced August 23, 1902, more than three years after the accruing of her alleged' right. Defendants demurred, pleading insufficiency of facts, and the bar of section 339, subdivision 1, and section 338, subdivision 1, of the Code of Civil Procedure. We think the action is barred by the provisions of subdivision 1 of section

[420]

338 of the Code of Civil Procedure. That the statute runs against applications for writs of mandate cannot be disputed, and it commences to run when the claimant is first deprived of his right.

(Barnes

v.

Gilde,

117 Cal. 1, [59 Am. St. Rep. 153, 48 Pac. 804];

Barber

v.

Mulford,

117 Cal. 356, [49 Pac. 206];

Jones