Meyer v. Board of Trustees of San Dieguito Union High School Dist. of San Diego County

• Decision Date: 07 September 1961
• Citation: 15 Cal.Rptr. 717,195 Cal.App.2d 420
• Court: California Court of Appeals
• Parties: Vincent Anthony MEYER, Petitioner and Appellant, v. BOARD OF TRUSTEES OF SAN DIEGUITO UNION HIGH SCHOOL DISTRICT OF SAN DIEGO COUNTY, California, et al., Respondents. Civ. 6473.

Page 717

15 Cal.Rptr. 717

195 Cal.App.2d 420

Vincent Anthony MEYER, Petitioner and Appellant, v. BOARD OF TRUSTEES OF SAN DIEGUITO UNION HIGH SCHOOL DISTRICT OF SAN DIEGO COUNTY, California, et al., Respondents.

Civ. 6473.

District Court of Appeal, Fourth District, California.

Sept. 7, 1961.

Hearing Denied Nov. 1, 1961.

Tanner, Odell & Taft, Los Angeles, for appellant.

Johnson & Stanton, Gardiner Johnson and Thomas E. Stanton, Jr., San Francisco, for amici curiae on behalf of appellant.

Henry A. Dietz, County Counsel for San Diego County and Donald L. Clark, Deputy County Counsel, San Diego, for respondents.

COUGHLIN, Justice.

This is a proceeding in mandamus to compel a school board to reinstate a teacher who claims permanent status but was discharged as a probationary employee.

The petitioner, who is the appellant herein, was a certificated public school teacher holding a general secondary credential; was employed by the Board of Trustees of San Dieguito Union High School District of San Diego County, California, which is a respondent in these proceedings and on this appeal, for the school years 1953-54 through 1958-59; was discharged without cause; offered his services for the school year 1959-60, which were refused; and brought this proceeding to effect his reinstatement.

The issue for determination is whether during the 1958-59 school year the petitioner was a permanent employee of the respondent high school as defined by the provisions of the Education Code in effect during the period of his employment, i. e., 1953 to 1959. Applicable sections of the Education Code adopted in 1943, as amended, were renumbered and form a part of the Education Code adopted in 1959. In this opinion the Education Code sections referred to will bear the numbers given them by the 1943 statute, as amended, followed by the present section numbers in parenthesis.

In support of his position, the petitioner relies upon the provisions of Section 13081 (13304) of the Education Code, the pertinent parts of which provide:

'Every employee of a school district of any type or class having an average daily attendance of 850 or more, * * * who, after having been employed by the district for three complete consecutive school years in a position or positions requiring certification qualifications, is re-elected for the next succeeding school year to a position requiring certification qualifications shall, at the commencement of the succeeding school year be classified as and become a permanent employee of the district.'

The evidence establishes without dispute that, during the period of petitioner's employment, the respondent high school district maintained a senior high school and junior high schools, including classes in the seventh and eighth grades, with the exception of the year 1953-54 when it maintained a single junior-senior high school; that each year the petitioner taught the seventh grade and in addition, for the first two years taught the eighth grade, and for the last year taught the ninth grade; that during each of the school years for the period from 1953-54 through 1958-59 the average daily attendance of pupils of all grades maintained by the district exceeded 850; but, if the seventh and eighth grade pupils were not included in the computation, during the school years 1953-54 through 1956-57 such attendance was less than 850.

The respondent high school district contends that, under the provisions of Sections 6911(11301), 6944(11404), 8760(5609) and 8763(5612) of the Education Code, the attendance of pupils in the seventh and eighth grades should not be included in determining the district's average daily attendance and, as a consequence, because the average daily attendance of the district for the school years 1953-54 through 1956-57 was less than 850, the petitioner did not attain permanent status under the provisions of Section 13081(13304). The code sections relied upon by the respondent, to which Section 6941(11401) might be added because it is in the same vein, in substance, provide a method for computing the 'units of average daily attendance' in elementary and high school districts for 'a fiscal year,' and direct that the average daily attendance of pupils attending the seventh and eighth grades maintained by a high school district shall be kept separate and shall be 'credited' to the elementary school district in which those pupils reside. The petitioner contends that these code sections provide rules and regulations for the determination of units of average daily attendance for apportionment, tuition, and other fiscal purposes only; that they do not define the term 'average daily attendance' as used in the tenure law, i. e., Section 13081 (13304); that the average daily attendance referred to in the latter section is the actual average daily attendance of all pupils attending the schools of a high school district; that the junior high schools are a part of the high school district; that the pupils attending the seventh and eighth grades thereof should be considered in determining the actual average daily attendance of such a district; and, therefore, the district by which he was employed was of that size which automatically entitled him to permanent status upon completion of three consecutive years of employment and reemployment for the next succeeding year.

Each party contends that the statute is clear and needs no interpretation. In urging this contention the petitioner relies solely on the tenure section 13081(13304), and argues that the term 'average daily attendance' used therein means actual average daily attendance of all pupils attending schools maintained by the district, including all grades therein. On the other hand, the respondents claim that Sections 6911(11301), 6944(11404), 8760(5609) and 8763(5612) should be considered a part of Section 13081 (13304), and argue that the term 'average daily attendance' as used in the latter section means the average daily attendance of pupils attending the schools maintained by the district less the attendance of pupils in the seventh and eighth grades, which is credited to the elementary school districts in which they reside.

The legislative history of these code sections is significant. The objects implicit in the history and background of legislation may be considered in determining the intent of the Legislature as expressed in its most recent statutory expression. Estate of Ryan, 21 Cal.2d 498, 512-514, 133 P.2d 626; Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 383, 106 P.2d 403; H. S. Mann Corp. v. Moody, 144 Cal.App.2d 310, 320, 301 P.2d 28.

Preliminarily it should be noted that junior high schools are a part of the secondary schools of the state, to be maintained by high school districts (Ed.Code, secs. 8702[5552], 8703[5553], 8721[5651], and 8722[5652].)

In 1915 the Legislature adopted Section 1750a of the Political Code; authorized high school districts to establish intermediate school courses, now referred to as junior high school courses, and to admit thereto pupils who had completed the sixth year of elementary school; provided that the intermediate school courses should include studies generally taught in the seventh and eighth grades of elementary school; and directed that the average daily attendance of all pupils enrolled in the seventh and eighth grades of such intermediate school courses should be kept separate and credited to the elementary school district in which those pupils resided. (Stats.1915, chap. 90, p. 113.) At the same time, the Legislature adopted Section 1617d of the Political Code, which later became Section 1617 of that code (Stats.1917, ch. 552, p. 744), requiring the board of education in any city or the board of trustees of any school district situated within a high school district maintaining an intermediate school course, to permit pupils who had completed the sixth grade of an elementary school to attend the intermediate school course so provided, and to pay a tuition therefor. (Stats.1915, ch. 90, p. 114). At this time, by constitutional provision, the state school funds could be used only for the support of elementary schools (Calif.Const. Art. IX, sec. 6, as per amendment adopted Nov. 3, 1908); could not be paid to high school districts (Stockton School District v. Wright, 134 Cal. 64, 66 P. 34); and, by statute, were apportioned among the elementary school districts, in part on the basis of a teacher allowance formula, and the balance in proportion to the average daily attendance in each district. (Pol.Code, sec. 1858--Stats.1915, ch. 726, p. 1435.) Up to this time no teacher tenure law had been adopted. The apparent purpose of the provisions of Section 1617d directing the payment of tuition for pupils from an elementary school district attending the seventh and eighth grades maintained by a high school district, and the provisions of 1750a directing that the average daily attendance of such pupils should be kept separate and credited to the elementary school district, was to obtain a portion of state school funds for the elementary education of children who were attending the seventh and eighth grades maintained by a high school district.

In 1920, by constitutional amendment, the use of state school funds was extended to the support of high schools. (Calif.Const.Art. IX, sec. 6, as per amendment adopted Nov. 2, 1920.) Nevertheless, the previous provisions of the law requiring the average daily attendance of pupils attending the seventh and eighth grades maintained by a high school district to be kept separate and credited to the elementary school district in which they resided were retained as a part of a labor statute extending the scope of the former law by permitting the attendance of such pupils from an elementary school district located outside of as well as within the school district in question. (Pol.Code, sec. 1617--Stats.1921, ch. 551, p. 879.) It should be noted, however,...