I concur in the affirmance of the judgment, on the ground solely that it was the duty of the board of education to require, and to take all necessary measures to compel, the city attorney to defend, as it was his duty to do, the suit brought against it by Kingsbury.
The charter of San Francisco in this respect provides that the board shall have power "to require the services of the city attorney in all actions, suits, and proceedings by or against the board of education." This is a plain requirement that the board shall demand his services, and that he shall respond to the demand. His simple refusal did not authorize the board to engage other counsel. A charter requirement whose obvious purpose is to prevent the board *Page 459 from using moneys primarily devoted for educational purposes in paying expenses of litigation is not to be so lightly brushed aside. If such construction is to obtain, the charter provision would be rendered nugatory, and a simple demand and refusal would be sufficient warrant to the board to override the law.
Whether the board under any circumstances would have the implied power to employ counsel is, to my mind, not here involved. No peculiar circumstances are shown in the case which makes its consideration necessary, and it will be time enough to dispose of that question when it arises.