Wallace v. Board of Education

McCOMB, J. From a judgment denying his application for a writ of mandate to compel respondents to (1) reinstate him to a position he had formerly held with the board of education, and (2) draw a warrant for salary alleged to be due him, plaintiff appeals.

At the time of the rendition of the judgment from which the appeal is taken, the Honorable Emmet H. Wilson, who presided at the trial, filed with the clerk of the superior court a memorandum opinion in which he clearly set forth the pertinent facts, the issues, the principles of law involved, and the reasons for the judgment. We are in accord with the views therein expressed, and we adopt the opinion of Judge Wilson as and for the opinion of this court. It is as follows:

“Mandamus to compel the defendants to reinstate plaintiff as building engineer in the Los Angeles City School Department.

[614]“Defendants having determined that plaintiff had reached the retirement age of sixty-seven years, that being the age at which compulsory termination of service is prescribed by the retirement system of the Los Angeles City School Department, retired him from service as of June 30, 1941. (See § 5.773a, Sch. Code; Stats. 1939, ch. 620, p. 2038.) Plaintiff now claims that he was born on September 11, 1877, and therefore had not reached the retirement age when his service was terminated.

“Under date of June 13, 1935, plaintiff filed with the Personnel Section of the Division of Service of defendant Board of Education an employee’s confidential personal report, verified by him, in which the date of his birth was written as September 11, 1871. The figures “1871” have been deleted and “1873” substituted. (Plaintiff’s initials appear opposite the changed numerals. He testified that he made the change at the time the statement was filed. In the margin the following appears written with red pencil: “9-11-1873; Statement of Divorce of father dated Nov. 27, 1882 seen by RRJ 9-28-39.” This notation, while not positive evidence, is at least an indication that the change was made at the date written in red and not at the time the document was filed, as testified by plaintiff. In his application for enrollment as a member of the retirement system of the School Department, verified January 25, 1938, plaintiff gave his birth date as September 11, 1874. A line is drawn through the figures “1874” and “1873” substituted, plaintiff initialing the change. Opposite these figures appears the following in red: “9-1871 CR corrected.”