Stockton v. Bd. of Educ. of San Jose

ANGELLOTTI, J.

This is an appeal, on the judgment-roll, from a judgment denying the application of plaintiff for a writ of mandate compelling defendants to admit plaintiff to the use and enjoyment of her alleged right to act as a teacher in the school department of the city of San Jose.

The plaintiff has never held a “city” or “city and county” certificate, and therefore does not come within the provisions of section 1793 of the Political Code, providing that holders of such certificates, when elected, shall be dismissed only for insubordination or other causes. No other provision of the general state law applicable to common schools is cited as precluding the board of education of the city of San Jose .from removing plaintiff at its pleasure, and plaintiff bases her claim entirely upon certain provisions of the charter of such city as originally adopted and as they existed until amended in the year 1901 (Stats. 1897, p. 592), contending that she was regularly elected a “permanent teacher” of the school department within the meaning of such provisions, and that she has never been legally removed from that position.

In view of the fact that the San Jose charter provisions relative to the

status

of teachers, and the right and manner of their removal, were materially amended in 1901 (Stats. 1901, p. 957), the question as to the proper construction of the original charter provision is no longer of general interest, and affects only those who, like this plaintiff, may have been retired thereunder.

As originally adopted, the charter provided in section 5 of article IX that the powers and duties of the board of education are as follows: “Third—To employ, pay and dismiss teachers, janitors, school-census marshals, and such persons as may be necessary to carry into effect the powers and duties of the board, and to fix, alter, allow, and order paid their salaries or compensation, . . . provided, that no election of a teacher or other person employed by the board shall be construed as a contract, either as to the duration of time or

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amount of wages of such person.” It further provided for a standing committee on classification, to consist of two members of the board of education and the city superintendent, the duties of the members of which were, among other things, to make themselves thoroughly acquainted by personal inspection with the work of every employee of the board, and to máke a written report to the board at least twenty days before the close of any school year, and to therein “distinctly state what employees shall, in their opinion, -be retained for the ensuing year.” (Charter, art. IX, sec. 13.) It was further provided by section 14 of article IX as follows, namely: “No teacher shall be elected or appointed to a position in the school department except in technical or industrial schools that may be established, or as special teacher of some branch, who does not hold a California primary or grammar grade certificate, in full force; and no one shall be elected to a permanent position who has not taught successfully at least one school year in the schools of the city. All teachers thus elected to permanent positions in the department, who are reported upon favorably by a majority of the committee on classification, shall retain their positions for the ensuing year without re-election, and shall be removed only for cause. No teacher shall be removed from a position held in the schools of the city, except by the votes of four members of the board. ...”