Summary
In Keller v. Hewitt, 109 Cal. 146, [41 P. 871], the applicant for mandate showed that he had successfully passed the examination entitling him to receive a grammar grade certificate as teacher, and that the board of education arbitrarily refused to grant it to him.
Summary of this case from Inglin v. HoppinOpinion
Department One
Appeal from a judgment of the Superior Court of Sutter County. E. A. Davis, Judge.
COUNSEL:
W. H. Carlin, and M. E. Sanborn, for Appellant.
W. T. Phipps, for Respondents.
JUDGES: Van Fleet, J. Garoutte, J., and Harrison, J., concurred.
OPINION
VAN FLEET, Judge
[41 P. 872] Appellant made application to respondents, as the county board of education of Sutter county, for a grammar grade certificate as a teacher in the public schools of the county, and upon examination by said board for the purpose, in accordance with its rules, was awarded a percentage of proficiency upon all of the studies, subjects, and matters included in his examination above that required by law and the rules of the board to entitle him to a certificate of the grade applied for; and the board found and decided that petitioner was of good moral character, and in every way fit and competent to receive such certificate. But, notwithstanding this finding and that nothing further remained to be performed by appellant to entitle him thereto, the board arbitrarily and without cause refused to issue such certificate to appellant. After a formal demand for the issuance of the certificate, and its continued refusal, appellant applied to the superior court of the county for a writ of mandate against the board, requiring the issuance to him of such certificate, setting forth with great fullness and detail in his affidavit or petition the facts, of which the foregoing is a brief summary. The superior court sustained a demurrer to the petition, and, upon a failure to amend, entered judgment against the petitioner, from which he appeals.
We think the ruling of the court below was clearly erroneous. The theory upon which that court proceeded in sustaining the demurrer, and that now contended for by respondent, is that the law vests in the board of education the absolute power and discretion to determine in any instance whether a certificate shall issue to an applicant, irrespective of the question of his fitness as shown by his examination, and that its determination in the premises is final and not subject to review by the courts. This view of the law cannot, in our judgment, be sustained. It was never intended to vest in the board of education any such absolute power in the premises. The law gives the board large discretionary powers unquestionably, but there are limits beyond which their discretion does not go, and where rights arise which it is not within their discretion to refuse. They have power to prescribe and enforce rules for the examination of teachers, and to examine applicants, and prescribe a standard of proficiency which the person examined must reach to entitle him to a certificate (Pol. Code, sec. 1771); and, no doubt, in the exercise of these functions the board is vested with such discretionary judgment that their action could not be reviewed -- as, for instance, in determining the degree of proficiency and fitness shown by an applicant upon any matter involved in his examination, and perhaps in prescribing the standard of proficiency and subjects of examination; in such matters it may be safely assumed that, their function being largely, if not wholly, discretionary, and involving an exercise of judgment, their determination would be held final. But, having established such rules and fixed such standard, and having examined an applicant under those rules, and determined that they have been complied with, and in all respects the prescribed standard of proficiency reached, it was not intended that they should, nevertheless, have the arbitrary power to say that in such a case a certificate shall not issue. When under the law and their rules the question of an applicant's fitness to receive a certificate has been determined in his favor, the limit of the board's discretionary functions in the premises has been reached, and a plain legal duty results. The applicant thereupon becomes entitled to a certificate, and the board rests under a corresponding obligation to grant it. It is such a case that is made by the petition. All of the prescribed requirements of the board have been met and complied with by petitioner, and the possession of all the necessary qualifications determined in his favor. Taking the facts alleged to be true, as we must, the petition, in our judgment, clearly states a case for relief which can be reached by mandate.
And this view in no sense trenches upon the general doctrine contended for by respondents, that mandamus will not lie to control or direct mere discretion or judgment. Respondents devote much space and cite many authorities in support of that rule. Its discussion was a work of supererogation. There is no question of its general correctness, although it has its limitations and exceptions (Wood v. Strother , 76 Cal. 545; 9 Am. St. Rep. 249; Raisch v. Board of Education , 81 Cal. 542); but it is wholly beside the question, since the act here sought to be compelled is not a discretionary act, but a purely ministerial duty, resulting from the antecedent acts of the board. It is a case not distinguishable from that which would arise should a superior court, which is given the power to examine and admit applicants to the bar, proceed to examine an applicant, and as a result determine and announce that it found the applicant possessed of the requisite age, character, and fitness under the law to entitle him to admission, yet should refuse without cause to admit him. Would it be contended for a moment that such refusal was within the discretion of the court, and that the admission of the applicant could not be enforced by mandate? We apprehend not, and yet that is exactly this case. The court in the case supposed would have exhausted its discretionary powers, and have reached a point where nothing remained but to grant the right to which the party had shown himself entitled.
The principle involved is aptly illustrated by the case of Sansom v. Mercer, 68 Tex. 488; 2 Am. St. Rep. 505. That was a case arising under a statute of Texas providing that the territorial limits of a city could be diminished by a vote of the people at an election to be called [41 P. 873] by the mayor, upon application made to him by petition, signed by a certain number of electors. Before making a call for such election the mayor was required to determine two things: first, that there was an excess of territory over the limit prescribed by the act; and, second, that at least fifty electors had signed the petition. Application was made to the mayor under the act to call an election, which he refused, and mandamus was sought to compel him to make the call. It was urged that, his function involving the exercise of judgment upon his part in passing upon the matters submitted to him, he could not be required to act in a particular way. It is said by the court: "It is well settled that, if the duty an officer is called upon to perform requires the exercise of an act of judgment on his part, his decision is not subject to be reviewed by a proceeding for a writ of mandamus. (Ewing v. Cohen, 63 Tex. 483; Bledsoe v. International R. R. Co ., 40 Tex. 554; Arberry v. Beavers, 6 Tex. 457; 55 Am. Dec. 791; Commissioners v. Smith, 5 Tex. 471; Cullem v. Latimer, 4 Tex. 329.) And it is apparent that in a proceeding to procure an order for an election under the statute before cited the mayor is required to determine two facts in order to justify him in making the order for the election: 1. That there is a surplus of territory over the limit prescribed by the statute; and 2. That at least fifty qualified voters of that territory have signed the petition. If there be any controversy as to the existence of these facts, his function is discretionary, and he cannot be compelled to order the election. But taking the facts of the petition to be true, as the demurrer admits, the surplus territory exists, and more than the requisite number of voters have signed the application. In such a case the discretion of the mayor ceases. The act to be done is purely ministerial. His duty becomes absolute, and he can be compelled to perform it.
" The fact that preliminary to his action he must know that there is an excess of territory beyond the statutory requirements, and that the requisite number of voters have signed the petition, does not invest him with the discretion to refuse to order the election when, as a matter of fact, there is no controversy as to the excess, or as to the number and qualification of the signers."
Many other cases support a like view, but we deem it unnecessary to multiply them. The case of Bailey v. Ewart, 52 Iowa 111, largely relied upon by respondents as supporting their view, we do not regard as in point, or as in any way in conflict with the principles above announced. It is apparent from the reading of that case that the certificate was there refused because the applicant was not found qualified, and it was properly held under the general rule above stated that this question was a discretionary one, and could not be reviewed. A very different question would have been presented had the applicant been found competent, and the certificate then refused. Had the court reached the conclusion it did under such a state of facts, the case would have presented some analogy to the one before us. For these reasons the general demurrer should have been overruled.
Nor do we think there is anything in the special ground of demurrer that there is a defect of parties defendant, in that the county superintendent, in his official capacity as such, should have been made a party defendant. Under the statute the county superintendent is made a member of the board of education (Pol. Code, sec. 1768), and it is only in the latter capacity that he has any function to perform in the premises counted upon. It was only by reason of his being a constituent part of the board, therefore, that it was necessary to make him a party at all, and, as such, he is made a defendant. It is true that the constitution commits to county superintendents and county boards of education control of the examination of teachers, and the granting of certificates within their respective jurisdictions; but it has left it to the legislature to provide the machinery for putting this power in motion, and prescribe the mode and manner of its exercise and the limitations of the power vested. This the legislature has done, and has seen fit to prescribe that the functions of the superintendent in this regard, except in certain respects not here involved, are to be performed as a member of the board of education. In his separate capacity of superintendent, therefore, the latter was neither a necessary nor a proper party to the proceeding.
It follows that the judgment should be reversed and the cause remanded, with directions to the lower court to overrule the demurrer. It is so ordered.