I dissent from the order denying a rehearing. The result of our judgment is a peremptory mandate to the defendant to perform an act which the law not only does not impose upon her as a duty, but which, on the contrary, it expressly forbids her to do, and the costs of a protracted and probably unnecessary litigation over a trifling demand are thrown upon the only party to the controversy who from beginning to end has strictly obeyed the mandatory provisions of the school law. A more serious result of the *Page 707 decision is that it sets at large and practically nullifies a perfectly reasonable regulation of the statute intended and well adapted to prevent improvident and illegal expenditure of the school funds. Under the law no payment can be made out of any school fund except upon a warrant issued in compliance with a requisition from the county superintendent, and no requisition can issue except upon the written order of the district trustees, and not then unless such order, when it relates to supplies, "is accompanied by an itemized bill showing the separate items and the price of each," or when it relates to teachers' salaries,"unless the order shall state the monthly salary of the teacherand name the months for which the salary is due."
The law says that upon an order lacking this specification "norequisition shall be drawn." (Pol. Code, sec. 1543, subd. 3.) A law could hardly be more clearly mandatory than this, and no provision could be more reasonable. In this case the plaintiff entered into a contract with the trustees for a salary of one thousand dollars for the ensuing school year — without any statement of what the monthly compensation was to be. It is held in the opinion of the court that this was a proper form of contract, and that the law does not require such contracts to contain any provision for monthly payments. It is true that the law does not contain any express provision in so many words, that the contract shall fix the monthly salary, but it is necessarily implied that the monthly salary must be ascertained before any payment can be made. There must be a requisition for the salary before a warrant can be drawn upon the fund, and no requisition can be made except in pursuance of an order stating the monthly salary, and naming the months for which it is due. (Pol. Code, sec. 1543, subd. 3.) Is this law to be nullified by the act of the trustees and the teacher in making a contract which renders compliance impossible? I should prefer to say that the contract should be so framed that it could be performed without any infraction of the law. And the parties to this contract evidently held the same opinion, for by a contemporaneous or subsequent agreement they determined that the school year should be nine months, and that the monthly salary should be one ninth of a thousand dollars. In pursuance of this *Page 708 understanding eight orders were drawn upon the defendant in favor of the plaintiff, — one at the end of each school month — naming the month and stating the monthly salary of the teacher to be $111.10. These orders were all duly honored, but when, at the end of nine months, another order for the same sum was presented, which named no month and specified no monthly salary, the defendant, in strict obedience to the law, refused to issue a requisition. It nowhere appears upon what ground she based her refusal. All that is found by the court is that plaintiff presented the order and demanded a requisition in accordance with its terms and that the defendant refused. Her refusal is justified by her counsel, in this court, upon two grounds, — 1. That the contract was illegal; and 2. That the statute forbade her to draw a requisition upon the order as presented. I cannot see that we are justified in inferring from the order which the argument of counsel has followed in this court, that the second ground was a secondary consideration for defendant's refusal; but conceding that it was, it was nevertheless a sufficient ground, and if, as the court holds, the "informalities" (I should rather say the substantial defects) of the order could have been readily corrected, it was the duty of the plaintiff, before resorting tomandamus proceedings, to have them corrected, and to present his order in a form which would permit the defendant to issue her requisition without transgressing the express mandate of the statute. Very possibly, if a new order had been drawn, accompanied by an explanation that the previous order had misstated the amount of plaintiff's monthly salary, and that one eighth of the amount then called for was due him for each of the eight school months during which he had taught, it might have been honored with a requisition, for on the assumption that the contract was valid, such an order would have protected the defendant, while the order as drawn would have been no protection in itself — in short, no voucher without proof of a number of extraneous facts, which she was not bound to assume the burden of proving.
It is no answer to this to say that the defendant received and filed the order. This neither injured nor misled the plaintiff. He knew as well as she that the order was one upon which she was forbidden to issue a requisition. Neither is it *Page 709 an answer to say that plaintiff was not responsible for the mistakes and omissions of the trustees. If he was not responsible, neither was the defendant, and their neglect of duty did not absolve her from obedience to the law. And since a proper order from the trustees was an essential prerequisite to the action demanded of her, they should have been compelled, if necessary, to perform their duty, before asking the defendant to violate hers.