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District Court of Appeal, Second District, Division 1, California.


Civ. 9887.

Decided: November 08, 1935

W. A. Alderson, of Los Angeles, for appellant. Everett W. Mattoon, Co. Counsel, and Ernest Purdum, Deputy Co. Counsel, both of Los Angeles, for respondents.

Plaintiff seeks the mandate of the court requiring respondent school district to classify him as a permanent teacher. Plaintiff's rights are governed by his contract with the board and by section 1609, subd. 3 (e), Political Code (St. 1927, p. 1913), under which it was the duty of defendant board to classify plaintiff as a permanent teacher if he had been “successfully employed by the district for two or three complete consecutive school years,” as a probationary teacher. The three-year period applies under the provision of the section that the classification shall be made at the end of either the second or third year of the employment, at the option of the governing board of the district, no classification having been made at the end of the second year. The complaint alleges and the answer denies that plaintiff was so employed.

Respondent admits that the second and third years' services were complete, but contends that the first year's service (1928-1929) was incomplete. The court found that plaintiff's contract contained, among other provisions, the following: “To all Probationary Teachers: According to the California School Law, a teacher who enters a School District must successfully serve as a probationary teacher on a probationary contract for two full, consecutive years. In order to count as a full school year, it is necessary to teach a minimum of one hundred ninety-five days. A teacher who serves less than one hundred ninety-five days in a school year cannot receive a permanent contract at the end of two years, but must continue to serve on a probationary contract until the requirements are met. However, the increase in salary can be earned by two years of service of not fewer than one hundred fifty school days each.”

There is no statutory provision as to the number of days of teaching required to make up a complete school year as that term is used in said section 1609. In Los Angeles City High School District 200 days was adopted as the maximum number of teaching days in the school year and under rules of the board 195 was fixed as the minimum number of days of teaching with which the teacher must be credited to make up a complete year. In addition thereto, under the rules of the board, half pay was allowed for sick leave for not exceeding 10 days during the school year, and full pay for not exceeding 10 days when the teacher should be quarantined, not exceeding two such periods in a school year, and in certain other cases, not material here, full pay was allowed.

During the year 1928-1929, plaintiff was credited with 184 days' actual teaching and was absent 16 days, all on account of illness. He was credited with 4 days out of the 16 on account of being quarantined and he was given a further credit for 10 days' absence on account of illness, at half pay, or 5 full days. The remaining 2 days were charged against him as unexcused absences. This credit of 9 days brought his total of paid teaching days to 193, or 2 short of the required minimum. It was upon the ground that this year's service was incomplete that the board refused to give him a rating as a permanent teacher and judgment went against him in the trial court.

Under its general powers to govern the schools in the district the board had power to make rules not inconsistent with the state law or the rules of the state board of education. Pol.Code, § 1607, subd. 1, St. 1917, p. 736. It was also the duty of the board to employ teachers, fix their compensation unless otherwise provided by law, and to fix and prescribe their duties. Pol. Code, § 1609, subd. 2, St. 1917, p. 738, § 1609, subd. 5(b), St. 1921, pp. 1664, 1665. The district board, therefore, was fully competent to make the rules here involved, fixing a required minimum number of days' attendance by teachers and a schedule of excusable absences. Such rules, indeed, would seem to be necessary for a proper definition of the teachers' duties of attendance and to provide as well for emergency absences for which the teachers should not be penalized as to compensation or credit for attendance.

The relation between the teacher and the school district is one that is created by contract. Leymel v. Johnson, 105 Cal. App. 694, 288 P. 858; Gould v. Santa Ana High School District, 131 Cal.App. 345, 21 P.(2d) 623; Wood v. Los Angeles City School District (Cal.App.) 44 P.(2d) 644. Plaintiff's several contracts made specific reference to the rules and regulations of the board, the employment being subject thereto. It appears, therefore, that essential terms of the employment to which the parties agreed were that 195 days of teaching service should be rendered each year, computed under the rules of the board, and that if the days of service fell below the minimum requirement, the year in question would not be considered one during which plaintiff was successfully employed for a complete year.

Plaintiff's rights are governed by the contract in all matters in which the law leaves the parties free to contract. There is no conflict between the rules of the board here involved, which were incorporated into the contract, and the state law on the subject. The provisions of the contract, therefore, are controlling. Plaintiff's services having fallen short of a complete year's service were insufficient to meet the requirements of the contract and the rules of the school district and he has failed to comply with the conditions upon which his right to a rating as a permanent teacher depends. Wood v. Los Angeles City High School District, supra.

Plaintiff's further contention that he was successfully employed for three complete years because a contract subsisted throughout each year is untenable. It would be violative of the clear purpose of the law and of the terms of the contract of employment, as well, to allow one holding a contract as a probationary teacher for three successive years to acquire the status of a permanent teacher without having rendered the successful service which furnishes the reason for the probationary period. Neither can we agree that substantial as distinguished from full compliance with the terms of his contract is sufficient to bring plaintiff within the classification he seeks. The authorities cited by him to the effect that illness does not of itself terminate a contract are not in point. The board did not seek to terminate plaintiff's employment, nor does it appear that there existed any ground for such termination. The point is that the required services contracted for were not rendered. Respondent board acted properly in exacting performance upon plaintiff's part and in refusing to give him a classification he had not earned.

The judgment denying plaintiff classification as a permanent teacher is affirmed.

I dissent. I am unable to agree with the conclusion reached herein by my associates to the effect that although no statutory language either expressly or impliedly confers such power, a school board may conclusively, and, if need be, arbitrarily, determine as against the teacher, the question of law as to what constitutes a “complete” school year, as provided by the pertinent statute. It is obvious that, if throughout this state school boards possess such authority, one board (as in the instant case) may prescribe 195 days as a “complete” school year; and that in the exercise of its asserted power in that regard, and for a like purpose, another school board, in perhaps an adjoining school district, may demand a service of only 175, 150, or any lesser number of days; or, going to an extreme in the opposite direction, may require a perfect score. To my mind, neither of such possible situations, dependent upon either whim or caprice on the one hand, or on the other, upon an arbitrary “efficiency requirement,” was contemplated by the Legislature in its enactment of the statute. Manifestly, an operation of the statute such as is proposed to be sanctioned by the prevailing opinion herein will not only prevent uniformity in practice, but will work confusion and inequality as between or among teachers employed in respective school districts throughout the state. In other words, the point is that the statute, although possibly uncertain, nevertheless is the measure of the rights of the parties; that what constitutes a “complete” year necessarily is a question of law for exclusive determination by the courts; and that in consequence it is not competent for a school board to solve any uncertainty that may exist in the language of the statute, to the manifest detriment of a teacher.

Moreover, assuming that which to my mind, as hereinbefore has been indicated, is indefensible, to wit, that the school board possessed the authority to define what should constitute a “complete” school year, it should be apparent that in the instant case, in the exercise of such assumed power, the school board not only adopted an unreasonable rule, but as well arbitrarily enforced it; that is to say, any question of substantial performance by the teacher was entirely ignored. In that regard, may it properly be said that it is either reasonable or consistent that when “quarantined,” up to a credit of 20 days, a teacher shall receive credit for the time that he may be absent from his duties, but that for time when he may be compelled to be absent (for whatever length of time) because of “illness,” he shall be credited for one-half time only, and then only up to a limit of 5 days in the aggregate? If so, it is clear that if only “quarantined,” because of exposure to the disease of smallpox, he might be credited to the extent of 20 days, although if he were actually ill with the disease of smallpox (even if contracted by him in the course of and arising out of his duties as a teacher because of exposure to one of his pupils who was afflicted with the disease), and for that reason was absent for a period of three months, during all of which period of time he was completely, but involuntarily, incapacitated, according to the clause in the so-called “contract” between the school board and the teacher, the latter would be credited for 5 days only. In principle, such a situation forms the basis for the ruling by the school board in the instant case, by which the teacher is deprived of a “permanent” rating. To my mind, such a conclusion is neither just nor reasonable. It would seem fair to assume that in the use in the statute of the word “complete,” the Legislature had no intention to authorize a school board to adopt a rule, or to so provide by “contract” with a teacher, that the latter might suffer an injustice; but rather that all that was contemplated was that the teacher should substantially perform a “complete” school year's work.

SHINN, Justice pro tem.

I concur: YORK, J.

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