Denman v. Webster

McFARLAND, J., dissenting.

the Political Code By boards of education are given power, among other things, “to prescribe and enforce rules '. . . for their own government,” and to “transact their business at regular or special meetings”; to “manage and control the school property within their districts”; to purchase various kinds of personal property necessary for the use of schools; “to rent, furnish, repair, and insure school property”; “to make conveyances” of all school property sold by them; to employ teachers, janitors, “and other employees of the schools”; and to do other things involving contracts. (Pol. Code, sec. 1617.) It is quite apparent that in performing many of these duties the board may not be able to escape litigation. It may be sued on a contract for supplies where the contractor had violated the contract, and where it is the plain duty of the board to refuse payment; it may be sued to recover a school lot or other property under its control; it may be compelled itself to institute an action for the protection of such property, or to remove obstructions in the way of performance of its duties. The records of this court show numerous instances of litigation into which boards of education have been forced, and the right of such boards to sue and be sued has been universally recognized. (See cases cited in the opinion of the court in

Mitchell

v.

Board of Education,

137 Cal. 375.) From the nature of the duties imposed upon the board, as above stated, and its right to sue and its subjection to the burden of being sued, it has the clearly implied power, in certain cases at least, to employ an attorney to prosecute or defend an action or proceeding to which it is a party. And we think that the action described in the complaint was

[460]

a proper case for the exercise of that power. The attempt of an unauthorized intruder, by legal proceeding, to force himself upon the board, and participate in its deliberations and acts, was something which it was the duty of the board, in its collective and corporate capacity, to resist. It was not a matter merely affecting members of the board individually; it did not propose to oust any individual member; it did not present a contest between two persons as to their respective hostile claims to a particular seat in the board. It aimed to change the very nature and constituent parts of that body, and to prevent it, as legally constituted, from the regular and orderly performance of its duties. It cannot be successfully contended that it was not the duty of the board to resist this attempt, or that in such cases it should, by default, allow as many persons to be thrust upon it as might choose to apply. It was its duty to the public to preserve its integrity and to itself perform the duties intrusted to it by the people under the law. The provision of subdivision 20 of section 1617 of the Political Code, limiting to some extent the expenses of litigation, applies only to school trustees who are alone named, not to boards of education. In