By the Political Code boards of education are given power, among other things, "to prescribe and enforce rules . . . for their own government," and to "transact their business at regular or special meetings"; to "manage and control the school property within their districts"; to purchase various kinds of personal property necessary for the use of schools; "to rent, furnish, repair, and insure school property"; "to make conveyances" of all school property sold by them; to employ teachers, janitors, "and other employees of the schools"; and to do other things involving contracts. (Pol. Code, sec. 1617.) It is quite apparent that in performing many of these duties the board may not be able to escape litigation. It may be sued on a contract for supplies where the contractor had violated the contract, and where it is the plain duty of the board to refuse payment; it may be sued to recover a school lot or other property under its control; it may be compelled itself to institute an action for the protection of such property, or to remove obstructions in the way of performance of its duties. The records of this court show numerous instances of litigation into which boards of education have been forced, and the right of such boards to sue and be sued has been universally recognized. See cases cited in the opinion of the court in Mitchell v. Board of Education, 137 Cal. 375.) From the nature of the duties imposed upon the board, as above stated, and its right to sue and its subjection to the burden of being sued, it has the clearly implied power, in certain cases at least, to employ an attorney to prosecute or defend an action or proceeding to which it is a party. And we think that the action described in the complaint was a proper case for the *Page 460 exercise of that power. The attempt of an unauthorized intruder, by legal proceeding, to force himself upon the board, and participate in its deliberations and acts, was something which it was the duty of the board, in its collective and corporate capacity, to resist. It was not a matter merely affecting members of the board individually; it did not propose to oust any individual member; it did not present a contest between two persons as to their respective hostile claims to a particular seat in the board. It aimed to change the very nature and constituent parts of that body, and to prevent it, as legally constituted, from the regular and orderly performance of its duties. It cannot be successfully contended that it was not the duty of the board to resist this attempt, or that in such cases it should, by default, allow as many persons to be thrust upon it as might choose to apply. It was its duty to the public to preserve its integrity and to itself perform the duties intrusted to it by the people under the law. The provision of subdivision 20 of section 1617 of the Political Code, limiting to some extent the expenses of litigation, applies only to school trustees who are alone named, not to boards of education. In Kennedy v. Boardof Education, 82 Cal. 489, in answer to the contention that because section 1617 provides that "no board of trustees shall enter into" a contract with a teacher beyond a certain limited period, therefore a board of education could not do so, the court said: "This section contains no limitation as to the time for which a board of education in a city may employ a teacher. There is such a limitation, but it is confined in terms to the boards of trustees."
It is contended that even if the board had the power under the Political Code to employ counsel, such power was destroyed by a provision of the municipal charter of the city and county of San Francisco touching the duties of the city attorney. That provision, however, is only that "in addition to the power conferred by the general laws of the state, the board of education shall have power . . . to require the services of the city attorney in all actions," etc. This is not an attempt to curtail the power of the board under the general laws of the state; it only attempts to enlarge that power. Moreover, in the case at bar, the board did request the services of the city attorney, and he refused them. (It *Page 461 seems that the city attorney looked upon the case as one between two city officials, and that it was not his duty to appear for one as against the other.) But it is clear that the right of the board to have counsel could not be cut off by the refusal of the city attorney, for any reason, to appear for it. Moreover, if the charter provision could be construed as intending to restrict the board to the city attorney as its counsel, the right of employing counsel, which the board has under the general laws of the state, could not be thus destroyed. A school district derives its powers and functions from the Political Code, the general law of the state; and those powers and functions cannot be destroyed or curtailed by municipal authority. (Kennedy v. Miller, 97 Cal. 429; Bruch v. Columbet, 104 Cal. 350; Mitchell v. Board ofEducation, 137 Cal. 372.)
For the foregoing reasons I think that the case described in the complaint — at least as presented by the complaint — was one to which the implied power under the code to employ counsel applies, and that the demurrer to the complaint should have been overruled; whether or not the appellant could have made any defense on the merits is a question not before us. The legal aspect of the question involved here is not affected by the suggestion that the conclusion here reached gives to the board the opportunity of abusing its power of employing counsel; the legislature, if it sees fit to do so, can restrain that power by limiting it to enumerated instances.
Henshaw, J., and Beatty, C.J., concurred in the dissenting opinion.
*Page 462Rehearing denied.