BOARD OF EDUCATION OF THE CITY AND COUNTY OF SAN FRANCISCO, Petitioner, v. EDWARD HYATT, as Superintendent of Public Instruction, Respondent, 152 Cal. 515

SLOSS, J. Upon an application to this court by the board of education of the city and county of San Francisco for a writ of mandate to compel the state superintendent of public instruction to include the Humboldt evening high school in said city and county among the schools participating in the apportionment of the state high school fund, an alternative writ issued. The respondent appeared and, after filing a demurrer and an answer, entered into a stipulation with the petitioner, agreeing upon the essential facts. By

section 1 of the act entitled “An Act creating a fund for the benefit and support of high schools and providing for its distribution,” . . . etc., approved March 6, 1905 (Stats. 1905, p. 58), provision is made for the annual levy of a tax "for the support of regularly established high schools of the state. The money so collected is to be turned into a “state high school fund,” created by the act and is appropriated for the use and support of regularly established state high schools. (Secs. 3, 4.)

Section 5 of the act directs the superintendent of public instruction to apportion the fund to high schools of the state upon this basis: one third of the annual amount equally among the county, district, city, union, or joint union high schools of the state, irrespective of the number of pupils enrolled or in average daily attendance therein, and the remaining two thirds pro rata according to the average daily attendance for the last preceding school year, “provided that such high schools have been organized under the law of the state, or have been recognized as existing under the high school laws of the state and have maintained the grade of instruction required by law for the high schools; and provided, that no school shall be eligible to a share in said state high school fund that has not during the last preceding school year employed at least two regularly certificated high school teachers for a period of not less than one hundred and eighty days with not less than twenty pupils in average daily attendance for such length of time, . . and provided, that before receiving state aid, each school shall furnish satisfactory evidence to the superintendent of public instruction of the possession of a reasonably good equipment of building, laboratory, and library and of having maintained, the preceding school year, proper high school instruction for a term of at least one hundred and eighty days ...” It appears from the stipulation above referred to, that the Humboldt evening high school was established and organized by the board of education of the city and county of San Francisco in October, 1897, at a time when said city and county was governed by the provisions of the Consolidation Act and the amendments thereto.

In the establishment and organization of said school no election, as provided by sections 1670 and 1671 of the Political Code was held. The sessions of said school are held in the evening only and continue during two hours of each of five evenings per week. The respondent contends, in the first place, that under the constitution of this state no high school holding evening sessions only can be established. This contention is based upon

section 6 of

article IX of the constitution, providing that “the public school system shall include primary and grammar schools, and such high schools, evening schools, normal schools and technical schools as may be established by the legislature, or by municipal or district authority.” The argument is that the constitution, by enumerating the various classes of schools and making evening schools a distinct class in this enumeration, distinguished such evening schools from all other classes enumerated, and that an evening school could not therefore at the same time be a high school, since high schools form a class separately provided for in the section.

But this argument proves too much. It would lead equally well to the conclusion that an evening school could not be either a primary, a grammar, a normal, or a technical school, a conclusion which seems on its face to be untenable. We are satisfied that the framers of the constitution, in including in this

section the words “evening schools,” intended to obviate any doubt that might exist as to the power to provide for schools which should hold their sessions in the evening and that it was not intended thereby to make a separate class of such schools in the sense that evening schools could not, as to the nature of the course of study pursued, possess the character of primary, grammar, high, normal, or technical schools. Further, it is objected that the Humboldt evening high school was not organized pursuant to an election held under the provisions of

section 1670 of the Political Code. By

section 5 of the act of March 6, 1905, the benefits of the “state high school fund” are limited to high schools that “have been organized under the laws of the state, or have been recognized as existing under the high school law of the state.” By this provision the act furnishes its own definition of the phrase “regularly established high schools of the state,” used in the earlier sections, and impresses the character of regularly established high schools upon schools which comply with either of the last quoted requirements of

section 5. As appears from the stipulation, the Humboldt evening high school was established by the board of education of the city and county of San Francisco in October,

Section 1616 of the Political Code reads: “Boards of education are elected in cities under the provisions of the laws governing such cities, and their powers and duties are as prescribed in such laws, except as otherwise in this

chapter provided.” Under

section 1 of

an act entitled “An Act to provide for the support of the common schools of the city and county of San Francisco and to define the powers and duties of the board of education thereof,” approved April 1, 1872 (Stats. 1871-2, p. 846), the board of education of the city and county of San Francisco is given power “to maintain public schools as now organized in said city and county, and to establish additional ones as required, and to consolidate and discontinue schools, as may be deemed best for the public interest.” That high schools may properly be included within the term “public schools” will hardly be questioned. Indeed,

section 6 of

article IX, of the present constitution, quoted above, expressly makes them a part of the “public school system.” This statute, therefore, in conferring upon the board of education of the city and county of San Francisco power to establish public schools, gave to it the power to establish high schools. The act, having been passed before the adoption of the constitution of 1879, was not affected by the restrictions contained in that instrument prohibiting the passing of local or special laws. (Nevada School District v.

Shoecraft, 88 Cal. 372, [26 Pac. 211].) It would appear clear, therefore, that the Humboldt evening high school is a school that has “been organized under the law of the state. ’ ’ But if there were any doubt as to the legality of the original organization of the school, two curative acts, passed after its establishment, had the effect of obviating any defects existing at the outset, or, at least, of making it a school “recognized as existing under the high school laws of the state.”

An act of March 15, 1901 (Stats. 1901, p. 299), provides that “All proceedings for the establishment of high schools heretofore established in incorporated cities are hereby declared legal”; and in 1905 the legislature amended

section 1671 of the Political Code, including in said

section a subdivision 11th, providing that “All proceedings for the formation and organization of high school districts and the establishment of county, city, city and county, union, joint union and district high schools had, prior to the passage and approval of this act, are hereby validated and declared legal, and said high • school districts and high schools are hereby declared to be legally formed, organized and established.” It is well settled that the legislature has power to pass acts curing the failure to comply with statutory requirements that might ■originally have been dispensed with in the proceedings of municipal corporations. (6 Am. & Eng.

Ency. of Law, 2d ed., 941.) In the recent case of Chase v. Trout, 146 Cal. 350, [80 Pac. 81], this court fully expressed its views regarding the validity of curative acts. The statute there in question undertook to validate defective proceedings for the collection of taxes, but the principle declared is no less applicable to proceedings of" the kind here involved. (See, also, Baird v.

Monroe, 150 Cal. 560, [89 Pac. 352].) If this school was in all other respects entitled to participate as a high school in the apportionment, these curative acts were clearly sufficient to bring it within the statutory definition of a “regularly established high school.” The further objection is made on behalf of respondent that the shortness of the daily session held in the school in question, i. e., two hours per day, takes the school out of the class of high schools contemplated by the law.

While it appears that this session is considerably shorter than that regularly held in day high schools, we find no provision of law regulating the length of the daily sessions, with the exception of

section 1673 of the Political .Code, which provides that “No school must be continued in session more than six hours a day.” No statute provides a minimum duration, and if the school complies with all the requirements of law, the fact that its sessions are of shorter duration than those of other high schools does not deprive it of the character of a regularly established high school, or prevent it from participating in the benefits conferred upon regularly established high schools by the act of March 6, 1905.

But, while the facts already set forth do not, in our opinion, tend to show that the school in question is not a “regularly established high school of the state,” and do not, therefore, furnish any reason for excluding it from the apportionment, we think that the stipulation of facts fails to show that the Humboldt evening high school, considered as a high school, complied with the provisions of

section 5 of the act of March 6, 1905, as to employment of teachers and average daily attendance.. It might be said that the answer, tested by strict rules of pleading, does not raise a clear issue on this point.

It may, however, without straining the meaning of words, be construed as raising such issue, and, inasmuch as this is a controversy between public officers, each of whom is doubtless desirous of ascertaining and performing his exact duty under the law, we are not disposed to allow any technical construction of the pleadings to prevent the consideration of a question whose ¿etermination is necessary to a proper understanding of the rights and obligations arising under the statute in question.

The petition alleges, and it is not denied, that during the school year 1905-6, the Humboldt school employed twenty-six teachers for not less than one hundred and eighty days, and that the average daily attendance was 546 pupils. It appears that graduates of grammar schools have been admitted to said school without examination. (Pol. Code, Sec. 1670, subd. 13.) A course of instruction, extending over three years, and leading to a high school diploma, is given, but there is no suggestion that this course is such as to prepare graduates for admission to the state university.

During the year 1905-6 the school had a course of study known as “Course B,” which extended for a period of five years, and which was adopted by the petitioner to comply with the admission requirements of the University of California. As we have seen, the act of March 6, 1905, limits the distribution of its benefits to schools which have maintained the grade of instruction required by law for the high schools. That grade of instruction, as declared by subdivision 12 of

section 1670 of the Political Code is “such as will prepare graduates therein for admission into the state university.” If a school offers two courses, one of which falls short of this standard, it does not, as to such course, maintain the grade of instruction required by law of high schools: Accordingly, in the case at bar, the Humboldt evening high school is to be considered a high school only so far as concerns the instruction given and received in “Course B.” But the stipulation does not disclose that it has the requisite number of teachers and pupils in this course.

It is true that the parties agree that the school, as a whole, has twenty-six teachers and 546 pupils, but it nowhere appears how many of these teachers or pupils are engaged in high school work and how many are occupied in the three-year course, which is not up to the high school standard. Unless that part of the school which can properly be regarded as a high school has two or more regularly certificated high school teachers and twenty or more pupils in average daily attendance, no right to apportionment under the statute arises. Here these conditions are not shown to exist.

That, in determining the right of a school to share in the benefits of this act, only those teachers and pupils engaged in high school work can be considered, is made manifest by the manner of the apportionment. Two thirds of the fund is to go to schools in proportion to the number of pupils in attendance. This must mean the number of pupils who are receiving the grade of instruction required by law.

It cannot have been intended to distribute a high school fund to schools maintaining a certain grade of instruction, and to base this distribution on the number of pupils to whom a lower grade of instruction is being given. For these reasons, we conclude that the petitioner has on the record before us failed to show any right in the Humboldt evening high school to participate in the allotment of the high school fund. If, however, it shall furnish to the respondent satisfactory evidence of compliance with the requirements of

section 5 of the act of March 6, 1905, having regard solely to the teachers and pupils engaged and the equipment employed in “Course B” or any other course preparing pupils for admission to the state university, it will then be entitled to an allotment of the state fund, based, as to two thirds of the fund, on the average daily attendance in such course or courses. We may add that we attach no importance to the fact that “Course B” extends over five years. The only provision of law regulating the length of the course is that it “shall embrace a period of not less than three years.” (Pol.

Code, sec. 1670, subd. 12.) That it may extend over a longer period than three years is clearly shown by subdivision 13 of

section 1670, which contains a provision relating to schools “where the course of study embraces a period of four years.” The proceeding is dismissed. Angellotti, J., Henshaw, J., Lorigan, J., and McFarland, J., concurred.