I concur in the order affirming the judgment, but I disagree with the reasoning contained in the majority opinion. It is held therein that the appellant did not acquire tenure as a principal in the San Francisco school system. It is admitted that, under section 135 of the charter, a person employed as principal for three successive years secures tenure as principal. But the opinion holds that appellant was only employed as principal for two years, and, therefore, did not become a permanent employee. The facts show that in 1930 appellant was employed as “teacher in charge” of the Gough School, and in 1931 and 1932 she was employed as “vice-principal in charge” of that school, and was employed as “principal” only in the years 1933 and 1934. The majority opinion holds that the contract of employment determines whether an employee acquires tenure, and that, under the contracts here involved, she was employed as principal only for two years, and, therefore, did not acquire tenure. That is undoubtedly the usual rule. Obviously, a person who is in fact employed as a vice-principal cannot tack the period so served to the period served as *800principal, and then claim that with the consolidated periods he has tenure as principal. But that is not the entire picture of the present case. Appellant served as teacher in the Gough School for many years. She is admittedly competent. In 1930 she was appointed “teacher in charge”. Prom that time until she was appointed principal in 1933, she was the administrative head of that school. After considerable evidence was introduced demonstrating that during those three years she performed all the duties and functions of principal, that she attended meetings called by the superintendent for principals, that she signed, rendered and received reports as principal, and that during all this period she received the salary provided by resolution of the board for principals of schools of the class of the Gough School, the respondents stipulated that during this period appellant “performed the duties that she would have performed had she been appointed as principal . . . We will stipulate that she performed the same duties that she would have performed had she been appointed as principal.” There was no other administrative officer at the Gough School. Unless appellant was in fact principal of the school from 1930 to 1933 the respondent board was guilty of a direct violation of the law. Section 5.410 of the School Code provides that, “Boards of school trustees, and city, and city and county boards of education shall have power and it shall be their duty to employ a principal for each school under their control. ’ ’
Under these circumstances, it seems clear to me that appellant was in fact principal from 1930 to 1933. To hold otherwise is to disregard the admitted facts, and to permit the mere form of the transaction to control its substance.
The majority opinion cites Hogsett v. Beverly Hills School Dist., 11 Cal. App. (2d) 328 [53 Pac. (2d) 1009], as supporting the holding that because the contract did not designate appellant as principal for the period in question, that that is determinative of the question of tenure. In that case the teacher desired to tack on one year served as substitute teacher to her probationary period so as to acquire tenure. During the year in question she was not only designated substitute teacher, but she was also paid as such. The duties she performed happened to be the same as those of a permanent or probationary teacher, but they were also the duties of a substitute teacher. Under such circumstances, the court *801held that the designation in the contract was controlling. But in the present case the duties performed were those of principal, and not of vice-principal or teacher in charge. The salary paid was the salary paid to principals, and not to vice-principals or teachers in charge. The law required that there be a principal appointed for the Gough School. A school board may not evade the provisions of the tenure act by calling the principal’s position by some other name. In my opinion, this case falls squarely within the rule of Briney v. Santa Ana High School Dist., 131 Cal. App. 357 [21 Pac. (2d) 610]. In that case the school board attempted to evade the tenure statute by the contention that for one of the three years in question the teacher had not been formally designated as a probationary teacher in the contract of employment. The duties she performed during that year were the duties of a probationary teacher. The court held that the board was estopped to deny that during that year she was not a probationary teacher, and granted her tenure. Any other rule would permit boards of education obviously and easily to evade the basic purpose of the tenure law. For these reasons, I am of the opinion that appellant acquired tenure as principal.
But this holding does not entitle appellant to a reversal. Section 135 of the charter empowers the board to “maintain such schools as are authorized by the laws of the state . . . and to change, modify, consolidate or discontinue the same as the public welfare may require. ...” Here the board, by proper resolution, consolidated the Gough School with the Sherman School. This, the board was authorized to do. When the two schools were consolidated the position of full time principal of the Gough School no longer existed. Under such circumstances the board, under section 5.711 of the School Code, was authorized to dismiss appellant as principal, even though she was S, permanent employee, for the reason that there had been a discontinuance of the position. There are many cases holding that permanent employees properly may be dismissed upon the discontinuance of the service rendered by them. (Davis v. Berkeley School Dist., 2 Cal. (2d) 770 [40 Pac. (2d) 835]; Fuller v. Berkeley School Dist., 2 Cal. (2d) 152 [40 Pac. (2d) 831] ; Schwalbach v. Board of Education, 7 Cal. (2d) 459 [60 Pac. (2d) 984] ; Walsh v. Board of Trustees, 2 Cal. App. (2d) 180 [37 Pac. (2d) 700].)
*802These eases not only establish the power of a board of education to discharge a permanent employee upon discontinuance of a service, but also establish the power when the service is not entirely discontinued but only the particular mode of rendering that service is abolished. That is this case. The board has decided to discontinue the position of full time principal of the Gough School, and to consolidate that school with the Sherman School. For this reason the judgment must be affirmed.
Appellant’s petition for a hearing by the Supreme Court was denied May 26, 1941.