Kennedy v. Board of Education

I dissent. 1. The position claimed by plaintiff was an office, in every thing but name, but she disclaimed it being such, because to call it an office defeated the life estate under the constitution. But whether it be an office or a mere right to place, it is a franchise, and in it she shows by her own complaint that there is another incumbent,—one holding the place de facto. Mandate is not, therefore, the proper remedy. (People v. Olds, 3 Cal. 167 ; 58 Am. Dec. 398 ; Meredith v. Board of Supervisors, 50 Cal. 433 ; People v. Harvey, 62 Cal. 508 ; Kelly v. Edwards, 69 Cal. 460 .)

2. I cannot subscribe to the doctrine of a life estate in the position of teacher in the public schools, which is *494 the effect of the leading opinion. It is contrary to the entire spirit and intent of the constitution, and of all the legislation of the state, and in my judgment would be most disastrous to the public service. The people of this state require that all their public servants shall be subject to frequent visitation, and at stated intervals to opportunity in the appointing or electing power to determine whether the public service can be improved by change. Full force and effect can be given…

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…

This was a proceeding or action for a writ of mandate to compel the defendants to admit the plaintiff to the place and position of principal teacher of the North Cosmopolitan Grammar School of the city and county of San Francisco, to which she claims the right, and from which she alleges she has been wrongfully excluded by the defendants.

The facts relevant to the points herein considered, as found by the trial court, are substantially as follows:—

In January, 1887, and more than ten years next prior thereto, “plaintiff was, and ever since has been, and now is elected and employed by said board as the principal teacher of said school, which is a public grammar school of said city and county; and during all which time she was and now is the holder of a teacher’s first-grade city certificate of said city and county; and during all that time the salary and compensation for the duties and services of principal teacher of said North Cosmopolitan Grammar School has been and still is $175 per *485 month”; and during all that time “she was and still is eligible as said principal teacher of said school.” That on January 26, 1887, upon application of the plaintiff, the board of education…