Kennedy v. Board of Education

McFarland, J., dissenting.

I dissent. In my opinion, respondent shows no right, either by mandamus, quo warranto, or other proceeding, to compel the board of education to oust the present principal of the North Cosmopolitan Grammar School, who has occupied the place now for a year and a half, and put the respondent in her position. Certainly a doctrine so destructive of the discipline, unity, and efficiency of the public school system, should not be entertained, unless the statutory language upon the subject is so absolute as to leave no room for the play of ordinary and well-settled rules of construction.

If respondent’s relation to appellants was merely one of employment, then, of course, mandamus would not lie. (And subdivision 7 of section 1617 of the Political Code, speaking of the relations between school officers and teachers, uses the words “ employ ” and “ contract.”) No one ever heard of an employer being compelled, by a judicial writ, to retain an employee in his service. The remedy in such a case is an action for damages for breach of contract. On the other hand, if the position was an office, then in the first place, as it appears that another person is in the possession of the office claiming a right to it, mandamus would not lie to oust her; the remedy would be the statutory action to determine the right to the office between the two contestants. But, in any event, respondent would have to sho,w that she is entitled to the office for some definite term which has not yet expired; and this she utterly fails to do. The only pretense which she makes in this regard is to present the theory that the term of her office is “ for life,” to be forfeited only by such gross misconduct, or by such utter failure of qualification, as would warrant an extreme proceeding in the nature of impeachment. If there be any statutory provision that must necessarily bear that construction, such provision — considering the position an office—is in contravention of section 6, article 20, of *496the state constitution, which.provides that the term shall not exceed four years. But in my opinion, there is no statutory provision bearing such a construction.

It is admitted that “ section 1617 of the Political Code confers upon boards of education unlimited power to employ teachers, and contains no strictures upon their right to dismiss or remove for or without cause”; and that if this section stood alone, respondent could not maintain the proceeding. And respondent’s case is based on section 1793, which provides that teachers, “when elected, shall be dismissed only for violation of the rules of the board of education, or for incumpetency, unprofessional or immoral conduct.” And the whole stress of the argument rests on the construction to be given the words “ when elected ”; and the construction given by respondent is, “elected for life.” But is there any other nook or corner in the whole body of our statutory and constitutional law in which “elected” means “ elected for life ”? Why should a meaning be given the word here which it bears nowhere else, and which is in the teeth of the constitution itself? Considering the position of a teacher as an office, then, in my judgment, the word “elected” should be given its ordinary and constitutional meaning, namely, chosen for some definite term. And as respondent has not shown that she is entitled to any unexpired term of the alleged office or employment, she, in my opinion, shows no right which can be enforced by mandamus or otherwise.