It is my conclusion that the trial court’s decision herein should be sustained in all particulars. I therefore dissent from those portions of the majority opinion which direct a reversal as to the three groups of teachers therein specified.
As will be noted, the principal point on which the majority opinion disagrees with the trial court’s decision relates to the validity of the 1932 re-rating by the school board insofar as its prospective operation affects the three groups of teachers included in the order of reversal, and which are referred to throughout the record as the “non-uniformity” cases.
At the time this controversy arose, there were approxi mately three thousand teachers employed in the San Francisco School Department, and it appears from the record that for a number of years prior to 1932, for one reason or another, the 189 teachers whose status is involved in these consolidated actions had been given higher salary ratings than other teachers with the same experience, both outside and inside of the San Francisco School Department, and in the same group classifications. This condition finally brought about an investigation and audit of the entire teaching department. It consumed several months, and was made by Wilbur S. Owensby. Thereafter, and in 1932, the school board adopted his report and recommendations, re-rated the 189 teachers, and readjusted their salaries accordingly. The board claimed that these reduced ratings operated retroactively as well as prospectively. As to the “non-uniformity” cases the trial court held that the 1932 re-rating did not operate retroactively, but did operate prospectively, and in so holding found as a fact that the 1932 re-rating was made in good faith, that it was not discriminatory, arbritary, or *762capricious, and was free from any fraud. The majority opinion repudiates the trial court’s finding, and on the same facts holds that the re-rating has “no reasonable basis, is unreasonable and arbitrary, and was beyond the power of the Board.” In my opinion the record fully sustains the trial court’s finding.
The trial spread over a year, and in deciding the controversy the trial judge filed two written opinions, wherein he reviewed and discussed- the facts and the law elaborately and with great care. The two opinions are set forth in the brief filed by the board of education, and cover some 125 printed pages thereof. With respect to the question as to whether the 1932 re-rating was unreasonable and arbitrary the judge said in part:
“In connection with this subject, the only question that remains is whether or not in the re-rating in 1932 the Board acted in good faith and in the exercise of a sound discretion. I am prepared to make a finding of fact that when the re-rating was done in 1932 the Board and its officers and employees acted in the exercise of a sound discretion, in good faith, without any discrimination in favor of or against any teacher or teachers, but, in fact, in a bona fide attempt to equalize and level off the salary status of all the teachers in the department.
“The investigation and auditing work which led to the re-rating had taken a long time and was conducted by Mr. Wilbur S. Owensby, who was the principal witness in this litigation. Mr. Owensby testified in each one of the cases and he showed that he had a detailed and thorough grasp of each individual case. He testified in each case as to the' reason for the re-ratings; he was subjected to cross-examination, and the court had every opportunity to determine whether or not he was informed as to his subject and whether or not he was judicial and impartial in his attitude. The cases took many days for trial, spread over a period of approximately a year, and during the entire time there was nothing in the attitude of Mr. Owensby or of anybody who testified on behalf of the defense to indicate anything but the highest good faith, sincerity, impartiality, and a desire to give each teacher exactly what was coming to him or her, nothing more and nothing less. There may be a wide difference of opinion as to whether or not the investigation in 1932 and the re-rating *763consequent thereon was necessary or justified. There undoubtedly is a wide difference of opinion with respect to the propriety or impropriety of the original ratings of a number of teachers whose cases are before the court. There is an honest difference of opinion, no doubt. But those differences of opinion based upon the judgment of the officers who did the rating and/or re-rating are matters which might arise within any board or tribunal at any time, and under the authorities a court cannot substitute its judgment for theirs. The court in this case is concerned solely with whether or not the reductions were made in good faith and not in any arbitrary or capricious manner or with a view to discriminating in favor of any teacher or teachers or against any. The re-rating was undertaken, and, in my opinion, carried out under a fixed determination to level off, as far as humanly possible to do so, the teachers involved in this litigation with other teachers in the department who occupied less favorable status, and throughout the entire course of the trial there was nothing in the attitude or demeanor of Mr. Owensby or any other defense witness or in the great volume of testimony and the mass of documentary evidence to indicate any unfairness, favoritism, arbitrariness or bad faith whatsoever. Mr. Owensby was as consistent, logical and fair in his handling and grouping of the different cases as he was accurate in his computations and figures. And so far as I can remember, counsel for the plaintiffs at no time challenged his good faith or impartiality. It is true that counsel for plaintiffs in presenting his cases and in representing his clients took decided issue with the re-rating as a matter of principle, contending that the board was bound by the ratings given in the first instance, but there was no claim of bad faith, favoritism or partiality in the process of re-rating. The case presented from the outset, and now presents, two conflicting and diametrically opposite theories,—the plaintiffs’ being that a rating once made-must stand, the defendants’ that a rating not ‘uniform’ under section 5.734 results in an ultra vires contract which is not binding upon the board. What was done by Mr. Owensby was then submitted to the constituted authorities of the board of education and his action became their action, and the re-rating was done officially as a matter of board action. The re-rating was done by the board in the carrying out of a policy already discussed, a policy which, in the judgment of the board, was proper in view of the fact *764that the advanced ratings given to the teachers resulted in teachers being given positions which, in the judgment of the board, gave them preferences and advantages over other teachers similarly situated.
“For these reasons I am prepared, as already indicated, to make a finding that the Board acted in good faith in 1932 when it reduced the salaries commencing with July 1,1932.”
In conformity with the views thus expressed, the trial judge entered a finding to the effect that the re-rating and salary reductions “were made fairly and not arbitrarily or capriciously. ’ ’
As supporting the opposite conclusion and by way of examples the majority opinion selects two individual cases from those of the large number of teachers involved, and after commenting on those two cases the opinion goes on to say: “Other examples could be given of the many cases in which the Board between 1925 and 1932 liberally construed its 1925 rules and rated a teacher accordingly, and then in 1932 the Board strictly construed its rules and purported to re-rate a teacher downward.” This is obviously contrary to the view of the trial judge; but to attempt to set forth in this opinion all of the facts and circumstances revealed by the record which may be taken as sustaining the trial court’s view would result in an interminable task; furthermore, it would seem to be unnecessary to do so in view of the well settled rules governing reviewing courts in dealing with challenged findings of fact. It seems to me that a fair analysis of the facts as they are set forth and discussed in the trial court’s opinion will demonstrate that all that was sought to be done by the re-rating was to place the teachers involved in the “non-uniformity” groups on an equal, uniform basis with the other teachers, and pay them accordingly. In other words, it would appear that the other teachers in the department were the ones discriminated against by the ratings given appellants prior to the 1932 re-rating; and the trial court in effect so found. In part the finding reads: “In this connection the Court finds that the purpose of the Board in reducing said seventy-five teachers (with the exception of said six teachers discussed in finding 33) commencing July 1, 1932, for the future, was to effect uniformity and fairness in ratings within the Department and to remove what had, in the opinion of said Board [in 1932], given said seventy-five teachers (with the exceptions last noted) an un*765fair advantage over other teachers in said Department, and that said action was neither arbitrary nor capricious. ’
It is stated in the majority opinion that “. . . the Board attempted to re-rate these teachers in 1932 because it was represented to it, and it believed, that an error had been committed when these teachers were originally rated”; whereas the trial court found that the previous ratings were the result of a proper exercise of the board’s power; and it seems to be argued that in that state of the case the 1932 re-rating is shown to be unreasonable and capricious as a matter of law. The real question the trial court was called upon to determine, however, was whether in fact the 1932 re-rating was unreasonable or arbitrary; and since there are facts shown by the record tending to support the negative finding made by the trial court to that effect, this court, under well settled rules, should sustain the finding, regardless of whatever belief may have been entertained by the board.
The majority opinion appears to go even further than holding that the 1932 re-rating was unreasonable and arbitrary, by declaring the law to be that when a board has once adopted a policy, and without fraud, error or mistake rates a group of teachers under that policy, although the board may change its policy as to new entrants into the department, it has no power some years later to re-rate those teachers prospectively “on the theory that the original rating was too high”; that “The Board having once acted lawfully in rating a teacher has exhausted its power over that subject matter.” This view would seem to be somewhat , at variance with those expressed in the forepart of the opinion, wherein it is stated that the board has full power to evaluate each applicant’s experience upon the facts of each case, giving consideration not only to the number of years of such experience, but to the nature of that experience, and the applicant’s personal attainments and abilities; likewise to adopt fixed rules that would apply “to all or some cases” regardless of the particular applicant’s peculiar and unusual abilities; or it could apply a mixture of those two policies; and the opinion then goes on to say: “These are matters which rest within the discretion of the Board. Of course, once a policy is adopted, the Board must exercise its powers and apply the policy adopted fairly and without discrimination. The Board undoubtedly has power, prospectively, to change its policies in this regard.” (Italics added.)
*766However, as shown, the majority opinion goes on to hold that unless it appears that the original ratings are based on fraud, error or mistake, the board has no power thereafter, upon finding that its original ratings are inequitable, unfair, and in fact discriminatory, to re-rate and reclassify; and on that issue I agree with the trial court that in those circumstances the board has the power to re-rate so long of course as the re-rating and reclassification is made in good faith and is not unreasonable or arbitrary. In dealing with this feature of the case the trial court in its first opinion extensively discussed the eases of Fidler v. Board of Trustees, 112 Cal.App. 296 [296 P. 912], and Abraham v. Sims, 2 Cal.2d 698 [42 P.2d 1029], and then went on to say:
“What principles are to be gleaned from the two cases just discussed ?
“First: that a teacher’s status is that of an employee, the employer being the school board; the relationship between the teacher and the board is a relationship arising out of contract ;
“Second: that under the law of California the school board has a right, acting in good faith and in the exercise of a sound discretion, to reduce the salary of a teacher, notwithstanding the permanency of the teacher’s tenure;
“Third: that such a reduction cannot be made after the beginning of a school year.”
Later on the court said:
“While I entertain the views just discussed with respect to the immunity of the teachers from a retroactive cut in their salaries after the opening of any school year, there is another feature of the case upon which I have equally decided views which will result in a denial of the petition for a writ of mandate to compel a restoration (upward to the salary rating or yearly status which they enjoyed before the cut).
“The prayer of the petition in each ease is that the Board of Education be ordered to restore on the records and rolls of the School Department the respective teachers to the higher rating or status which they had held before the re-rating in 1932. With respect to this phase of the ease a careful study of the ease leaves me in no doubt at all that, while the Board of Education had no power to retroactively reduce the salaries which had been paid up to and including June 30, 1932, it had, under the authority of the California cases full power *767and authority to put the teachers on a new salary basis for the future even though that resulted in a reduction. By reducing a teacher from a twelfth year standing of $2436 to tenth year standing of $2208 the Board naturally effected a reduction of the teacher’s salary rate for the ensuing years, and until a further rating was made, for all years to come. Without repeating, it could do this, provided the reduction was made before July 1st,' 1932.
“How did this reduction work out in actual practice? The notices were sent to the teachers in May or June of 1932 and conveyed to them in plain and unmistakable language the fact that the teacher’s status, and therefore salary rating, had been reduced. While the notice was not sufficient to effect a retroactive reduction for past services, it was sufficient to notify the teacher that, commencing with the new school year on July 1, 1932, her salary would be, let us say, $2208 a year instead of $2436. With that notice in hand the teacher entered upon her regular duties when school opened in the summer of 1932. True, the teacher might have had mental reservations and entertained a sense of injustice at the reduction in her compensation, and a firm purpose about seeing a lawyer about it and possibly litigating as was ultimately done in these cases, but the fact remains that the teacher did not refuse the contract but signified her acceptance of it by continuing to teach during and after 1932, leaving it to subsequent litigation to determine whether she should continue to get or be restored to $2436 or whether her contract rate would be $2208. Had the teachers, or any of them, come to the school board and refused to go back to teaching at the reduced figure, the board would have been confronted with the alternative of giving the teacher what she asked for or of adhering to its ruling and refusing to pay her any more than the re-rated and reduced salary. It was a matter of contract, as the cases hold, and a new contract was entered into. But it cannot be said, in view of the notices sent out in May and June of 1932, that the new contract was for $2436 a year when the notice said that the compensation would be only $2208. The teacher by her action, resuming or continuing her duties, accepted the contract as tendered at the reduced rate, leaving it to be determined in the future whether or not she was entitled to the higher rate.
“There is no inconsistency between these holdings, the *768Fidler and Abraham eases holding distinctly to the effect that salary reductions cannot be made during a school year, or after a school year has opened, but that reductions can be made before the opening of any school year. For these reasons it will follow that the petitions for writs of mandate compelling the Board of Education to restore the teachers to the higher status they had occupied before 1932 will be denied.”
The majority opinion seems to construe the foregoing portion of the trial court’s decision as holding that the sole basis for its conclusion that the reclassification of 1932 was not arbitrary or capricious and was made in good faith was that prior to the beginning of the school year the teachers accepted contracts to teach at the reduced salary, and that therefore the trial pourt’s decision in this respect conflicts with the decisions rendered in Fry v. Board of Education, 17 Cal.2d 753 [112 P.2d 229], and Kacsur v. Board of Trustees, 18 Cal.2d 586 [116 P.2d 593]. But it would appear that this is a misconstruction of the basis of the trial court’s decision, for it is therein clearly stated: “With respect to this phase of the case a careful study of the case leaves me in no doubt at all that, while the Board of Education had no power to retroactively reduce the salaries which had been paid up, to and including June 30, 1932, it had, under the authority of the California cases full power and authority to put the teachers on a new salary basis for the future even though that resulted in a reduction.” (Italics added.)
The other portion of the majority opinion with which I am unable to agree is that portion reversing the trial court’s decision relating to the cases falling within the “full time teacher” rule. The facts shown by the record in my opinion support the conclusion reached by the trial court. It appears therefrom, among other things, that the so-called “big raise” resolution of 1925 was adopted on June 16, 1925, and read as follows: ‘ Contingent upon funds being provided from the State and through local tax rate, under provisions of this salary schedule and under the rules governing the placing of teachers now in service upon the new schedule, all full time teachers, all principals, supervisors and assistant supervisors in the day schools, will receive during the next school year 1925-26, an increase of not less than $360 above that which they received during the school year 1924-1925, apart from *769odd amounts added or subtracted in order to fit the teachers’ salaries exactly into the new schedule. ’ ’ And in determining the status of the teachers embraced within this classification, the trial court said in part: “I am satisfied that the six teachers in this group were no mote entitled to the ‘big raise’ in 1925 than were the other substitute teachers who did not receive it. In other words, as I see it, they were not, on June 16, 1925, ‘in service’ as ‘full time teachers.’ They were not given probationer status until August 17, 1925. The resolution reads that teachers are entitled to the $360 increase ‘above that which they received during the school year 1924-1925.’ This is another reason why the increase was not intended for substitutes paid one month at one rate, the next at another.
“These six cases will have to be treated as cases where by clerical error the teachers received an advance to which they were not entitled.”
In referring to the previous resolution adopted by the board on November 1, 1924, upon which the reversal seems to be based, the trial court held in effect that said resolution did not alter the situation because it was adopted seven months before the “big raise” or “full time” resolution was adopted. It would seem to me, therefore, that in view of these facts the question of the status of this group of teachers was correctly disposed of by the trial court.
In conclusion it does not seem inappropriate to emphasize that the main issue as to whether the 1932 re-rating was or was not arbitrary and capricious involved a question of fact, and that being so was one, necessarily, for the determination of the trial court. A reading of the two opinions filed by the trial judge will at once disclose the scrupulous care taken by him in going through the lengthy record and assigning the individual teachers to their respective groups in accordance with the testimony; and I have found nothing in the record, or in the majority opinion, which in my judgment shows that any part of his decision is unfair in fact or unsound in law. Therefore in my opinion it should be sustained in all particulars.
Defendants and appellants’ petition for a hearing by the Supreme Court was denied March '30, 1944. Shenk, J., and Schauer, J., voted for a hearing upon the ground that in their opinion the judgment should be affirmed in its entirety.