Denman v. Webster

Appellant applied to the superior court of the city and county of San Francisco for a writ of mandate, requiring the defendant, as such superintendent of schools of said city and county, to draw his requisition upon the auditor of said city and county for the sum of five hundred dollars, to be paid to appellant upon the order of the board of education. The defendant demurred to the petition, the demurrer was sustained, the writ denied, and the petitioner appeals.

The circumstances under which appellant's said services were rendered, as alleged in his petition, were, that in October, 1900, the respondent, as superintendent of schools of said city and county, sued out an alternative writ of mandate to compel the board of education "to admit to its deliberations one W.D. Kingsbury"; that the said board of education made its order upon the city attorney requiring his services in its defense in said proceeding so brought against it; that "the city attorney, denying his jurisdiction to render said services," refused to render the same, and that the board of education thereafter employed appellant to defend it in said proceeding, and that he did defend said board, and continued to do so until March 25, 1901, when judgment was rendered therein in favor of said board; that the board approved his demand for the said sum of five hundred dollars, but respondent refused to make a requisition upon the auditor to issue a warrant therefor, and still refuses to do so.

A copy of petitioner's demand allowed by the board of education is contained in the petition, and it appears therefrom that it was sought in the action against the board to compel it to admit said Kingsbury "to participation in its deliberations and proceedings, as a member of said board."

The demurrer to the petition was properly sustained. The power to employ an attorney to assist in the prosecution or defense of actions or proceedings is not expressly conferred upon the board of education, either by the general state law or by the provisions of the San Francisco charter. Subdivision 7 of section 1617 of the Political Code, which is the only provision of the state law suggested as conferring such power, simply authorizes boards of education and trustees of school districts to employ teachers, "also to employ janitors and other employees of the schools, and to fix and order paid their compensation." This does not authorize the employment of an attorney. The words "janitor and other employees of the schools" refer to persons employed in and about the schools and buildings, in the actual carrying on and maintenance of the schools themselves, and cannot by any reasonable construction be held to include a person rendering legal services to the board of education or board of trustees. Subdivision 2 of section 1 of chapter III of article VII of the San Francisco charter (Stats. 1899, p. 318), empowering the board of education "to employ such teachers and persons as may be necessary to carry into effect its powers and duties; to fix, alter, and approve their salaries and compensation, . . ." is of the same general nature as the provision of the Political Code hereinbefore cited, and when read in connection with subdivision 8 of the same section, empowering the board to require the services of the city attorney in all actions, suits, and proceedings by or against the board of education, cannot be held to expressly authorize the employment of an attorney to conduct the prosecution or defense of an action or proceeding.

It is suggested that the board has the implied power to employ an attorney for such purposes. If it has such implied power, every board of school trustees in the state has the same power, except so far as such board may in any particular case be limited as to the amount of expenditure by a district meeting called under subdivision 20 of section 1617 of the Political Code, for the general powers and duties of the board of education are not materially different in character from those of the board of school trustees, and the prosecution or defense of a legal proceeding may be as necessary for one as for the other. Indeed, the necessities of a board of trustees may be greater than those of the San Francisco board of education, for the charter provides that such board may have the services of the city attorney in all actions, suits, or proceedings by or against the board of education, and it must be presumed that the city attorney would render such service in every proper case.

As has been said by this court, school districts "are quasi-corporations of the most limited powers known to the laws. The trustees have special powers, and cannot exceed the limit. They are special agents without general power to represent the district." (Skelly v. School Districts, 103 Cal. 652-659.) No general power such as had been conferred on the board of supervisors in the case of Hornblower v. Duden, 35 Cal. 670, — viz., "to do and perform all such other acts and things as may be strictly necessary to the full discharge of the powers and jurisdiction conferred on the board," — has been conferred on the San Francisco board of education by either the state law or the charter. We are of the opinion that neither boards of education nor boards of school trustees have the implied power to employ an attorney at the expense of the city or school district. Assuming, however, that such implied power may exist under certain circumstances, from the necessities of the case, the petition in this proceeding did not show any such circumstances, for it entirely failed to show that the proceeding wherein the attorney was employed was one involving any interest of the city, which it was the duty or even the right of the board of education, as a board, to defend. Merely because some one chooses to make the board of education a party defendant in an action or proceeding, it does not necessarily follow that some interest of the city is involved, or that the board must defend. Whatever powers and duties the board may possess, it is not one of its functions to litigate as a board the question who are entitled to seats as members of the board. Such a question is a question between those asserting diverse claims in regard thereto, and the city has no such interest therein as entitles the board of education to participate in the dispute, much less to expend school money in so doing. So far as the petition for a writ herein shows, the proceeding in which petitioner was employed was instituted solely for the purpose of having it determined whether or not the W.D. Kingsbury named therein had the legal right to participate in the deliberations and proceedings of said board, as a member thereof. Kingsbury, or Webster for him, chose that method of obtaining an adjudication as to his legal right to a seat in the board. The question was who were the members of the board of education, the same question in character that would be presented in any contest between persons for any particular office. The contest here was in reality one between certain individuals claiming to be the only members of the board and another individual claiming to be also a member. There is nothing in the law that either expressly or impliedly authorizes the board to participate as a board in the determination of such a question; and the mere fact that the board was made a party defendant could not confer such authority. Regardless of all other questions involved, the board, having no function to perform in the matter, could not legally require the services of the city attorney, or employ counsel at the expense of the city.

The judgment is affirmed.

Van Dyke, J., concurred.