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District Court of Appeal, Third District, California.


Civ. 6863.

Decided: July 31, 1943

Anthony J. Kennedy and Carl Kuchman, both of Sacramento, for appellant. J. Q. Brown, Dist. Atty., and Wm. A. Green, Deputy Dist. Atty., both of Sacramento, for respondent.

This is an appeal from a judgment denying to petitioner a writ of mandate requiring the Board of Education of the City of Sacramento to pay to her, a teacher of English in the Sacramento High School, the sum of $96 deducted as a penalty from her salary for the school year 1939–1940, and discharging an alternative writ previously issued.

The facts of the case, as found by the trial court, are as follows: The Sacramento High School is under the government of the Board of Education of the City of Sacramento (hereinafter called the Board). Petitioner is a graduate of Stanford University, with a Bachelor's Degree and three semesters of graduate work of 16 units each. On January 4, 1912, she was employed under contract as a teacher of English in the Sacramento High School, and at all times since has been under contract, the last written contract having been executed in 1921, on which year she became a permanent teacher under the tenure act. She has at all times possessed all necessary state and county credentials, including a life diploma issued to her in 1932. During the summer recesses of 1929–1938 petitioner traveled extensively for her professional improvement, her travels including trips to the British Isles, France, Germany, Italy, Japan, Hawaii and Alaska. These travels were designed to have a definite bearing upon particular courses in her subject of literature, and independent research was done and data were collected on the works of Burns, Stevenson, Dickens, Shakespeare, Sheridan, and other authors. Such travels and research complied with a rule of the Board adopted in 1922 allowing “rating units” or credits for training, of which the petitioner accumulated some forty or fifty. That rule was abolished in 1935, at which time a new salary schedule was established.

When petitioner entered into her 1921 contract she was receiving the then maximum salary for high school teachers, to wit: $2,700 per annum, and she continued to receive this salary until July 1, 1939, when respondents reduced her salary to $2,604. A further reduction to $2,508 was made by respondents on July 1, 1940. At all times petitioner's duties and responsibilities have remained the same and have always been successfully discharged by her. Some other teachers of English, with like responsibilities and duties, now receive $2,748 per year. No disciplinary proceedings of any kind have ever been invoked against petitioner, and it is conceded that at all times there has been sufficient money to pay petitioner a salary of $2,748 annually, and of course sufficient for a salary of $2,700. No question is raised as to petitioner's efficiency or competency, and it is conceded that she is fully qualified to teach.

The reductions in petitioner's salary were made under the salary schedule adopted by the Board in 1935, which purported to base salary on years of service. Under said salary schedule in high schools the starting salary was fixed at $1,548 per annum, which should obtain for the first three years. The fourth year the salary was to increase to $1,740, and thereafter increase at the rate of $96 a year until the fourteenth year when a salary of $2,700 was reached. After fifteen years a maximum of $2,748 was to be paid. It was provided, however, as a “condition” to the receipt of the “annual increment” of $96, that during each four year period each teacher must complete “six semester units” “in courses open to undergraduates, or four semester units in courses open only to graduates, in an institution or institutions of four–year college rank accredited by the State Department of Education,” the work to be done “in residence.”

It was further provided that: “(5) Having reached the maximum salary, in order to retain it, the training condition must be met each four year period. If condition is not met by the beginning of the fifth year, the salary will be decreased by one annual increment each year until the condition is met, whereupon one annual increment per year shall be restored until the maximum is again reached.”

The reductions of petitioner's salary were made solely because of petitioner's failure to secure the required semester units during the preceding four years.

On this appeal petitioner contends that California laws relating to credentials give exclusive authority to the State Board of Education to determine qualifications requisite for teaching positions, and grant to one qualified, rights which cannot be impaired by local rules relating to qualifications (School Code, §§ 5.120–5.152); that the salary reductions provided for by respondent Board are penal in their nature, are without authority in law and are in contravention of statutory rights of tenure; that the rights of the Board to fix salaries of permanent employees must be reasonably exercised and may not be exercised in a discriminatory or arbitrary manner, and that when schedules are adopted basing salary on years of training and years of service, there is a mandatory requirement that persons of equal years of training and experience shall receive the same salaries; that section 5.734 of the School Code requires that when a salary schedule is adopted, years of experience and training are the determining factors; and that the rule adopted by the Board reducing petitioner's salary, as was done, is arbitrary in its operation and in its administration.

Respondents in reply assert that even though petitioner's employment is on a contractual basis, it is subject to all reasonable rules established by the Board of Education; that the provisions of the salary schedule in question do not conflict with the authority given by law to the State Board of Education; that the salary deductions made by the Board are not a penalty and are not in contravention of tenure rights; that the law does not require that even when a salary schedule is adopted, teachers of equal years of training and experience must necessarily receive the same salary; and that the rule is not arbitrary or unreasonable in its operation.

We are of the opinion that such a rule is arbitrary, unreasonable, discriminatory and oppressive and in excess of the powers of the Board. Conceding the power of a school board to exercise a reasonable discretion in the matter of fixing salaries (Fry v. Board of Education, 17 Cal.2d 753, 112 P.2d 229), and to reduce the salary of a teacher if such reduction is not arbitrary or discriminatory (Hodge v. Board of Education, 22 Cal.App.2d 341, 70 P.2d 1009), and to make reasonable rules and regulations for the control, management and government of the schools of their district, the rule under consideration does not even purport to relate to the control or management of the school or to the duties of the teachers therein as prescribed by the School Code (secs. 5.541–5.546). The diminution in petitioner's salary is not based upon any lack of efficiency on her part, since the trial court found “that at all times from and after on or about the 4th day of January, 1912, petitioner has successfully served and is now serving as a teacher of high school English in said position in the Sacramento High School”; and “that at all times from and after the 1st day of July, 1939, petitioner has successfully performed and discharged, and does now so perform and discharge the same duties and responsibilities as were performed and discharged by her many years prior to said date.” It is based solely upon the failure of petitioner to fulfill the requirement as to additional college units. It ignores petitioner's years of training, service and experience, though section 5.734 of the School Code provides that “uniform allowance may be made in any schedule of salaries for years of training and for years of service.” It assumes that, instead of qualifying, years of service and experience tend to disqualify––that teachers retrograde with experience, and that the taking of four or six units of some kind of university work once in four years is necessary in order to effect a stay of such retrogression.

Section 5.530 of the School Code provides that boards of school trustees and city boards of education shall have power and it shall be their duty to fix and prescribe the duties to be performed by all persons in public school service in the school district. Section 5.420 provides that they shall employ only persons holding proper credentials and certificates; section 5.731 imposes upon them the duty to fix and order paid the compensation of persons in public school service employed by them; sections 5.541–5.547 prescribe the duties of teachers; section 5.650 provides that no permanent employee of a school board shall be dismissed except for the reasons set forth therein, and section 5.652 et seq., provide the time and method by which charges must be made and heard. There is no provision in the law for disciplinary action against a teacher short of dismissal.

It is not contended or even suggested by respondent herein that petitioner is subject to dismissal or that it would be within the power of the Board to promulgate and enforce a rule requiring that permanent teachers in its employ continue to take college courses. It is said in respondents' brief that “the question here is not whether the district can require the petitioner to take more training as a teacher in order to hold her position, but whether or not she can be required to take more training or else suffer a reduction in salary.” Obviously, then, the Board is attempting to do indirectly what it could not do directly––that is, compel teachers to acquire additional college units by penalizing them by way of a reduction of salary if they do not. This, we believe, is in excess of the powers of the Board. Inasmuch as such boards are quasi municipal corporations of limited power, they have only special powers which may not be exceeded (23 Cal.Jur. 90; Pasadena School District v. City of Pasadena, 166 Cal. 7, 9, 134 P. 985, 47 L.R.A.,N.S., 892, Ann.Cas.1915B, 1039; Grigsby v. King, 202 Cal. 299, 304, 260 P. 789. They are powerless to impose penalties––a purely legislative power. Board of Harbor Commissioners v. Excelsior Redwood Co., 88 Cal. 491, 26 P. 375, 22 Am.St.Rep. 321; Gilbert v. Stockton Port District, 7 Cal.2d 384, 390, 391, 60 P.2d 847. And such rules and regulations as they may be authorized to make and enforce must be reasonable and not discriminatory or oppressive, or arbitrary. Dutart v. Woodward, 99 Cal.App. 736, 739, 740, 279 P. 493; Chambers v. Davis, 131 Cal.App. 500, 507, 22 P.2d 27; Lotts v. Board of Park Commissioners, 13 Cal.App.2d 625, 57 P.2d 215; McLeod v. State, 154 Miss. 468, 122 So. 737, 63 A.L.R. 1161; Hutton v. Gill, 108 Ind.App. 1, 7 N.E.2d 1011; Hutton v. Gill, 212 Ind. 164, 8 N.E.2d 818, 820; Valentine v. Independent School District, 187 Iowa 555, 174 N.W. 334, 6 A.L.R. 1525; 24 R.C.L. 575, sec. 23. They can promulgate no rules in contravention of statutory provisions, nor accomplish by indirection that upon which a statute has placed a ban. Fairchild v. Board of Education, 107 Cal. 92, 40 P. 26; Mitchell v. Winnek, 117 Cal. 520, 527, 49 P. 579; Dutart v. Woodward, supra. There can be no arbitrary or unreasonable exercise by the Board of its power to reduce salaries or change assignments of permanent teachers. Abraham v. Sims, 2 Cal.2d 698, 711, 42 P.2d 1029; Dutart v. Woodward, supra. And classification of teachers for salary purposes must be reasonable, natural, and based upon a substantial difference germane to the subject, or upon some basis having a reasonable relation to the work assigned. Hutton v. Gill, 212 Ind. 164, 8 N.E.2d 818, 820.

In the case before us the rule enforced against petitioner by the reductions of her salary ignores successful experience and efficiency as a factor in determining salaries, in contravention of section 5.734 of the School Code; it arbitrarily assumes that a teacher becomes not more, but less efficient with experience; that failure to take additional college work makes a teacher less competent; it also assumes arbitrarily that the taking of any six (or four) units of college work every four years will restore efficiency (though only by degrees); it ignores rating credits acquired under the former salary schedule; it compels a teacher, at her own expense and on her own time, to leave her home and go to a college one semester each four years; it is not a rule governing the conduct of the schools under the jurisdiction of the Board, but of the teacher during her vacation from school duties; it ignores every other method by which a teacher might acquire mental stimulus; and in this case it implies inefficiency in conflict with the finding of the trial court of petitioner's efficiency. It is based upon no classification of either teachers or duties, unless it be contended that teachers are to be classified as those that do and those that do not take the prescribed additional college work; and such a classification would be purely an arbitrary one not based upon qualifications or experience, and could not be justified. Lotts v. Board of Park Commissioners, supra; Mansur v. City of Sacramento, 39 Cal.App.2d 426, 103 P.2d 221.

The rule is arbitrary also in that no basis appears for the fixing of the so–called “annual increment” of $96 deducted from appellant's salary, no basis for the number of college units teachers are required to complete, and no basis for the requirement that such university courses be taken every four years. If six college units every four years can be required, six units each year can be required; and if a penalty of $96 per annum can be imposed for noncompliance, any other arbitrary amount could be imposed and the advantages of tenure utterly defeated. It does not prescribe what kind of courses shall be taken by teachers, but merely the number of units that must be completed; so a teacher of English, if she so desired, might present six units of hygiene or home economics, kinesiology or Coptic. Though the rules of the Board provide that written standards shall be set up by the superintendent of schools to govern training conditions, it is admitted that none such were set up.

Petitioner did not fail to perform any duty prescribed by the law or the Board. It is not contended that she has not kept up to date in her methods; and except for her failure to acquire the requisite college units her salary would have been the same as previously, $2,700. There was no change in her rank or grade, working hours or duties. The deductions were not made because of any inefficiency on her part, but as a penalty for failing to go to school. Respondents in their brief contend that there is no penalty involved; but we note that in the Bulletin issued by the Board in September, 1936, it is recited: “It was concluded that teachers reaching the maximum should be stimulated to maintain their professional proficiency by continued training. To make this effective, it was agreed that a salary penalty should be imposed upon those failing to do this within a reasonable length of time.” (Italics ours.)

Also, the rule as applied to petitioner is discriminatory. The evidence shows that high school teachers of English with as little as ten years of experience were receiving $2,748 per annum, while petitioner, with twenty–nine years of successful experience, was, after the reductions, the lowest paid among such teachers. There was no general reduction of salaries, the only ones reduced being those of teachers who had not complied with the “condition.”

In Kacsur v. Board of Trustees, 18 Cal.2d 586, 592, 116 P.2d 593, 596, the court said: “However, there are limitations on the powers of boards of trustees to change salaries of permanent teachers. One of the ‘legal consequences' referred to in the Abraham case, supra [Abraham v. Sims, 2 Cal.2d 698, 42 P.2d 1029], is that the fixing of salaries must not be discriminatory, arbitrary or unreasonable. The above cited cases all so qualify the general power of the administrative agencies to fix the salaries of permanent teachers. Because of this qualification it necessarily follows that there must be a comparison with the salaries of other teachers or salaries of previous years. If this could not be done, the qualification would be meaningless.” (Italics ours.)

The record there showed that the respondent board attempted to reduce appellants' salaries from $1,600 to $1,325, practically the minimum allowed by law. No other salaries were reduced; most of them were raised; and the salary of a teacher of approximately the same years of service, experience and qualifications remained the same. The court said: “These facts standing alone are sufficient to force the conclusion that the attempted action of the board was unreasonable and arbitrary. The fact that the salary of a teacher of like experience and years of service was not reduced is particularly strong in support of appellants' claim of discrimination. That there must be some degree of uniformity was recently recognized by this court in the case of Fry v. Board of Education, 17 Cal.2d 753, [at page 757], 112 P.2d 229, 233, wherein it is stated: ‘ “It must be conceded that, within the limits fixed by the School Code, the Board has discretionary control over the salaries of teachers. (Citing cases.) However, it must also be conceded that the legislature has enjoined on such Boards, within reasonable limits, the principle of uniformity of treatment as to salary for those performing like services with like experience. * * *” ’ ” And in that case the Supreme Court reversed the finding of the trial court that the Board had not acted arbitrarily.

We conclude that the rule of the Board requiring petitioner to acquire additional college units or suffer a reduction in salary to which she was otherwise entitled was in excess of the powers of the Board. The judgment is reversed and the lower court is directed to issue the writ of madamus as prayed.

ADAMS, Presiding Justice.

PEEK and THOMPSON, JJ., concur. Rehearing denied; THOMPSON, J., dissenting.