Birch v. Monroe

FINCH, P. J.

This appeal is from the judgment herein denying plaintiff’s petition for a writ of mandate.

The plaintiff was a teacher in the Willows Union School District during the fiscal year ending June 30, 1923. The board of trustees of the district issued to him an order for the payment of his last month’s salary in the sum of $191.66, payable out of the teachers’ salary fund. The county superintendent duly examined and approved the demand, but the defendant county auditor refused to allow the same. Plaintiff alleged that there was in the funds of the district “a sufficient sum not otherwise appropriated and which sums are applicable to the payment of the claim of your petitioner.” The answer affirmatively alleges “that a balance in excess of one hundred ninety-one dollars and sixty-six cents remains in the salary fund of the Willows Union School District for the fiscal year 1921-22. That .... said defendant has no means of knowing that all of the claims against said salary fund for said fiscal year have been met and extinguished, or that claims against said fund evidenced by requisitions drawn by the board of trustees of said school district, examined and approved by said superintendent of schools, do not remain outstanding and unpaid.” The court found that at the time of the demand upon the auditor there was in the teachers’ salary fund of the district “for the year ending June 30th, 1922, the sum of $1,424.84, and there was in said fund for the

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year ending June 30th, 1923, the sum of $7.21, both of which funds were made up of the school moneys provided for the payment of teachers’ salaries.”

It seems clear that the foregoing affirmative allegation of the answer did not present any issue. Affirmative allegations should be made positively or on information and belief. The allegation here in question does not even state that the auditor believed that there were outstanding claims against the salary fund of the preceding year. It must be presumed that the auditor knew whether there were any such outstanding claims. The salary fund is made up of the money provided by the state and sixty per cent of that provided by the county. Article IX, section 6, of the constitution provides: “The entire amount of money provided by the state, and not less than sixty per cent of the amount of money provided by county, or city and county, school taxes shall be applied exclusively to the payment of public school teachers’ salaries.” Section 1696 of the Political Code provides: “Every teacher in the public school must: . . . Second—Before taking charge of a school, and one week before closing a term of school, notify the county superintendent of such fact, naming the day of opening or closing. . . . Sixth—Make an annual report to the county superintendent at the time and in the manner and on the blanks prescribed by the superintendent of public instruction. Any teacher who shall end any school term before the close of the school year, shall make a report to the county superintendent immediately after the close of such term; and any teacher who may be teaching any school at the end of the school year shall, in his or her annual report, include all statistics for the entire school year, notwithstanding any previous report for a part of the year. The superintendent of schools shall in no ease draw a requisition for the salary of any teacher for the last month of the school term, until the report required by this subdivision has been filed, and by him approved.” Section 1543, subdivision 15, makes it the duty of the superintendent of schools “to preserve carefully all reports of school officers and teachers.” Section 1700 provides: “No warrant must be drawn in favor of any teacher, unless the officer whose duty it is to draw such warrant is satisfied that the teacher has faithfully performed all the duties prescribed in section sixteen hundred and ninety-six.” It is to be presumed that the auditor