Marion v. Board of Education

Garoutte, J.

This is an application for a writ of mandate to compel the respondents herein to approve and allow the demand of appellant Eunice D. Marion, as a teacher of the school department of the city of Oakland, for salary from July 31,1889, to and including the twenty-eighth day of February, 1890, for the sum of seven hundred dollars, and to compel the defendants to draw a warrant for the payment of said claim. Petitioner was nonsuited in the trial court upon the grounds, among others, that she was employed or elected by respondents as a teacher for a certain definite time, and.that period had expired prior to the time for which she now claims salary, and upon which claim she attempts to support this proceeding.

The motion for a nonsuit was properly granted upon the ground stated. Petitioner was an applicant before the. board of education for a position as teacher in the public schools of Oakland, and the records of the board of May 29, 1886, disclose the following: “ The board then went into executive session for the election of teachers for the ensuing year,” and thereupon certain' teachers were declared elected, — among others, the petitioner. Under this order of the board she began teaching, and continued in the same position during the years 1887 and 1888. In 1889 the board elected another teacher to fill the position she had previously occupied, and this proceeding resulted: At the trial she introduced no evidence indicating her employment or election by the board as a teacher for the years 1887 and 1888, other than the action of the board already stated, but insisted that her election in the year 1886 was an election for life, subject to removal for cause, as specified in section 1793 of the Political Code.

The case of Kennedy v. Board of Education, 82 Cal. 483, is the leading authority in this state bearing upon this question, and it is there decided that the election of a teacher for no specified period of time, under section 1793, is an election for life, subject, to dismissal for any of the causes mentioned in said section. That case goes quite far enough, and the principle here insisted upon carries the doctrine away beyond anything there declared. In the Kennedy case, the election of the teacher was for no stated, definite time, and it was not held in that case that the board had no power to elect for a certain definite period. Under its general powers, the board of education is authorized to enter into contracts with teachers, and fix their compensation and term of employment. If the board should employ a teacher for one year, it would be absurd to say that it could not dispense with the services of such teacher at the end of the year. In the present case, whatever doubt may surround other elements of the transaction between these parties, the time for which petitioner’s services were secured was fixed and definite. The board so understood it;, for its record so discloses the fact. She,,taught under that authorization of the board. She entered the school-room, performed her duties, and drew her salary under that resolution; for there was no other. And even conceding that she labored under a resolution, not knowing some of its terms, and honestly supposing she held a life position, her mistake in this regard could avail her nothing in the present proceeding.

While the statute, as construed in the Kennedy case, gives the teacher a life tenure when elected without specifying the term of service, we see no reason why a board of education has not the power to elect a teacher for a month or for a year. Conceding an election to presuppose an office, and that a teacher’s position after an election is an office, the statute does not fix the term of such office, and while there might possibly be valid objections to fixing the tenure for a long period of time, there would seem to be no want of power in the board to fix the term for a period of time of as short duration as it might see fit. Under the Kennedy case the board of education of Oakland had the power to elect petitioner for life, but its power was not exercised to that extent, and her election, by explicit terms, was confined to a period of one year. We find nothing in the law denying the right of the board to exercise such a power. Again, we see no necessity of indulging in fine distinctions between the hiring of a teacher by special contract, and the election of a teacher under this provision of the code. There appears to be no reason in saying that if a board of education desires to secure the services of a teacher for a month or a year, such teacher must be hired by a special contract, and cannot be elected; for if elected, a life tenure is created, even against the intentions and wishes of all parties concerned. We think the law was not enacted with such ends in view.

If we concede petitioner’s position to be true, that the board had no power to elect for a year, then her cause still remains without merit, for the action of the board in electing her was void, and no election whatever was had. Consequently, she was teaching at the mere pleasure of the board, subject to be discharged as any other employee without a fixed term of employment.

For the foregoing reasons, let the judgment and order be affirmed.

Paterson, J., and Harrison, J., concurred.