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


Civ. 8841.

Decided: January 03, 1934

John J. O'Toole, City Atty., and Walter A. Dold, Chief Deputy City Atty., both of San Francisco (Irving G. Breyer, of San Francisco, of counsel), for appellants. Francis W. Murphy, of San Francisco, for respondent.

The board of education of the city and county of San Francisco and the members thereof appeal from a judgment directing the issuance of a peremptory writ of mandate commanding them to restore respondent to her position and status as a permanent vice principal teacher in the elementary schools of said city and county. In October, 1904, respondent, having served the probationary period of two years, was elected a permanent teacher in such schools, without limitation as to time. On August 16, 1921, after two years' probationary service, she was elected vice principal in such schools, without limitation as to time. Thereafter for ten years she was continuously employed as a vice principal and teacher in various elementary schools to which she was assigned and, as such, performed the supervisory and administrative functions of a vice principal, and also taught classes daily. On August 11, 1931, the board dismissed her as a vice principal, but retained her as a teacher. Such action was not taken for any cause, for which the law authorized the board to dismiss the holder of a permanent tenure.

Respondent's tenure as vice principal, but not as teacher, is here involved. The sole question for decision is whether, under the above facts, she had previously acquired a tenure, which prevented her dismissal except for cause. She contends that section 1793 of the Political Code gave her such tenure upon her election on August 16, 1921. As to this contention, appellants deny that a vice principalship is a position of which the state law permits the acquisition of a permanent tenure. At the time of her election, subdivision 1 of section 1793 read as follows: “The holders of city, or city and county, certificates are eligible to teach in cities, or cities and counties, in which such certificates were granted, in schools or classes of grades corresponding to the grades of such certificates, and when elected shall be dismissed only for insubordination or other causes, as mentioned in section seventeen hundred and ninety–one of this code, duly ascertained and approved by the boards of education of such cities, or cities and counties.” From its enactment in 1881 to its repeal by the School Code of 1929 (section 10.3), the language of this subdivision has remained substantially the same. Anderson v. Board of Education, 126 Cal. App. 514, 15 P.(2d) 774, 16 P.(2d) 272. Such tenure, as had been previously acquired, was a vested right of which respondent was not deprived by such repeal. Gastineau v. Meyer (Cal. App.) 22 P.(2d) 31. Indeed, section 5 of the preliminary provisions of that Code expressly continued such tenure.

Respondent's argument, in support of her contention, rests upon the case of Kennedy v. Board of Education, 82 Cal. 483, 22 P. 1042, followed under similar facts, without further discussion in Fairchild v. Board of Education, 107 Cal. 92, 40 P. 26, and approved, arguendo, in Barthel v. Board of Education, 153 Cal. 376, 95 P. 892. While never overruled, its decision, it has been held, should be strictly confined to its facts. Marion v. Board of Education, 97 Cal. 606, 32 P. 643, 20 L. R. A. 197; Bates v. Board of Education, 139 Cal. 145, 72 P. 907. Decided in 1890, the Kennedy Case holds that the holder of a city and county certificate who had been elected principal teacher of a San Francisco grammar school and who was thereafter transferred to the same position in a school of lower grade, was entitled to a writ of mandate, restoring her to the first position. As therein stated, this decision depended upon the construction to be given to sections 1617 and 1793 of the Political Code. It was determined that section 1617, authorizing the employment of a teacher, limited the time of such employment by a board of trustees, but not by a board of education, and that a holder of the requisite certificate after election as a teacher, without limitation as to time, could be dismissed only for the causes specified in section 1793.

Since an essential factor in that decision was the absence of any time limitation upon the board of education in the employment of a teacher, it is necessary, before applying its doctrine, to ascertain whether the then existing law contains such limitation. The history and exact language of the numerous amendments to section 1617, to section 1609, into which the former was transposed, and to the various sections of the School Code, which superseded the latter, may be found in the cases cited in this paragraph. Section 1617 was amended in 1911 (St. 1911, p. 1362) so as to expressly authorize the employment of a principal. “Prior to 1911 the power to employ a principal was included in the general authorization to employ teachers.” Godward v. Board of Trustees, 94 Cal. App. 160, 161, 270 P. 725. Section 1793 granted a tenure only to holders of city or city and county certificates, but a statewide teachers' tenure was provided in 1921 by amendment to section 1609 (St. 1921, p. 1663). Anderson v. Board of Education, supra. The case of Bland v. Board of Trustees, 67 Cal. App. 784, 228 P. 395, holds that, under section 1609, as amended in 1921, a principal did not have tenure and therefore could be dismissed arbitrarily after the expiration of the term for which he was elected. Under section 1609, as amended in 1927 (St. 1927, p. 1913), the trustees of a school district are not authorized to employ a principal for a longer term than one year. Godward v. Board of Trustees, supra. A person employed both as principal and teacher may, under the School Code, acquire tenure as teacher, but not as principal. Gastineau v. Meyer, supra. In Anderson v. Board of Education, supra, the court purposely refrained from deciding whether a principal in a San Francisco school could obtain tenure under the School Code alone, but rested its decision that he had acquired tenure upon section 135 of the new San Francisco charter (St. 1931, pp. 2973, 3057), which took effect on January 8, 1932, as provided in section 226 thereof. At the time of these decisions, the distinction, noted in the Kennedy Case, between a city board of education and the trustees of a rural school district as to the power of employment of a principal or a teacher had been eliminated.

Although the state law has never specified the position of vice principal, it was tacitly assumed in Harby v. Board of Education, 2 Cal. App. 418, 83 P. 1081, that a vice principal's right of tenure was governed by the law applicable to a principal. Appellants' rules, adopted December 28, 1910, provide for the position of vice principal, and its rules, adopted January 1, 1927, define the duties of a vice principal. These duties are of the same general nature––to wit, supervisory and administrative––as are performed by a principal, although they are more subordinate and less important. A vice principal therefore would seem to be an assistant principal (see Bland v. Board of Trustees, supra) having the same rights of tenure as a principal. But from the above cited cases it appears that, under the law as it stood at the time when respondent claims to have acquired tenure, a principal was not permitted to acquire tenure. Respondent's contention is therefore untenable.

The judgment is reversed.

GRAY, Justice pro tem.

We concur: CASHIN, J.; KNIGHT, Acting P. J.