Barthel v. Bd. of Educ. of San Jose

SLOSS, J.

The plaintiff, in November, 1902, applied to-the superior court of Santa Clara County for a writ of mandate requiring the board of education of the city of San Jose,, and its members, to admit plaintiff to the position of principal of the Washington School in said city, or an equivalent position, and to draw its order upon the proper officer-directing the payment to plaintiff of three months’ salary as. such teacher. Plaintiff’s claim was that he had in July, 1902, been elected and employed as a teacher in the San Jose school, department, and that the defendants had prevented him from performing his duties as such teacher. The salary claimed was at the rate of one hundred dollars per month for the-months of July, August, and September, 1902.

An alternative writ issued, and, the defendants answering,, the matter came on for hearing. The court made findings, upon which it entered judgment awarding plaintiff a peremptory writ of mandate as prayed. This judgment was entered, in November, 1903. In the meanwhile, the plaintiff had at. the expiration of the school year been duly removed by the-board of education. These facts were shown to the court, by the defendants, and, upon their motion, an order was made-limiting the writ of mandate so that it omitted any direction requiring the reinstatement of plaintiff, but merely directed the board to draw its order upon the proper officer for the payment to plaintiff of the three months’ salary claimed by him.

The defendants appeal from the judgment. There is no-bill of exceptions, and the sole question is whether, upon the:

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facts alleged and found, the plaintiff was entitled to the writ directing the payment of the salary in question.

That the findings are responsive to the issues made by the pleadings is not questioned, and it will be sufficient, therefore, to briefly state the facts as found. On July 2, 1902, the board of education of the city of San Jose duly granted to plaintiff a city grammar-grade certificate, authorizing him to teach in any of the common public schools of said city. On the same day, and after the granting of said city certificate, plaintiff was, by said city board of education, duly elected and employed as a teacher in the schools of said city, "without any term specified.” He had, on the thirtieth day of June, 1902, and again on the second day of July, 1902, prior to the granting of his city certificate, by separate orders of the hoard, been elected and employed as a teacher in the school department for the school year ending June 30, 1903, and had been assigned to the position of principal of the Washington School. The salary attached to such position was twelve hundred dollars per year, payable in equal monthly installments.