WILLIAMS v. BAGNELLE, 7 Cal. Unrep. 55

COOPER, C. Appeal from the judgment awarding a peremptory writ of mandate against defendant, as school superintendent of Madera county, directing her to draw a requisition in favor of plaintiff upon the county auditor of said county for $111.20 in payment of balance claimed to be due plaintiff for salary as teacher in said district. The plaintiff claims that the above-named sum is due him for one month’s salary as teacher in the public schools of Madera school district, under a contract with the school trustees of said district, for nine months ’ teaching therein.

The defendant contends and claims that only eight months of school were authorized or taught in the said district, and that the plaintiff drew the full amount of his salary for said eight months. The extraordinary writ prayed for in this case will not issue where there is a plain, speedy and adequate remedy in the ordinary course of law: Code Civ. Proc., sec. 1086; Kimball v. Union Water Co., 44 Cal. 173, 13 Am. Rep. 157; Wood v. Strother, 76 Cal. 545, 9 Am. St. Rep. 249, 18 Pac. 766. The Political Code, under the head of “Education” (title 3,

article 12,

section 1699), provides: “Any teacher whose salary is withheld may appeal to the superintendent of public instruction, who shall thereupon require the superintendent of schools to investigate the matter and present the facts thereof to him.

The judgment of the superintendent of public instruction shall be final; and upon receiving it, the superintendent of schools, if the judgment is in favor of the teacher, shall, in ease the trustees refuse to issue an order for said withheld salary, issue his requisition in favor of said teacher. ” The salary of the plaintiff in this case was withheld, and he cannot come into court and ask for a writ of mandate without having made any attempt to pursue the plain and speedy remedy pointed out in the above section. The language is plain, and the judgment of the superintendent of public instruction is made final.

The legislature intended to confer upon the state officer whose position and duties require him to familiarize himself with the common schools and the school laws of the state the power to examine the facts and pass judgment upon the question as to salary. The

section does not, as contended by respondent, apply only to cases where the salary is withheld by the trustees of the district. It applies to “any teacher whose salary is withheld.” If it is withheld by the superintendent of schools, .as in this case, the teacher may appeal to the superintendent of public instruction. If the decision is in favor of the teacher, it is the duty of the superintendent of schools to issue his requisition. Again, the writ will only issue to compel the performance of an. act which the law specially enjoins as a duty resulting from an office, trust or station: Code Civ.

Proc., sec. 1085; Crandall v. Amador Co., 20 Cal. 73. The duties of the county superintendent are provided for in Political Code,

section 1543. In certain cases it is made his duty to draw requisitions upon the county auditor against the school fund of the district. In regard to requisitions for teachers’ salaries it is provided: “Nor shall any requisition for teachers’ salaries be drawn unless the order shall state the monthly salary-of teacher, and name the months for which such salary is due. ’ ’ The order in this case drawn by the trustees of the district in favor of plaintiff specified that it was “on account of balance on yearly contract for $1,000 from-to-during the present school year, in the Madera school district.

Monthly salary of teacher, $-.” It will be readily seen that the monthly salary of the teacher is not mentioned, nor is the month for which the salary is due. The defendant cannot be compelled to draw her requisition unless the order for such requisition complies substantially with the law. In fact, it is the duty of defendant to see that all moneys of the district are paid out only for legal claims, and in compliance with the rules and safeguards provided by statute. We advise that the judgment be reversed and the proceeding dismissed. We concur: Haynes, C.; Gray, C.

PER CURIAM.—For the reasons given in the foregoing opinion the judgment is reversed and the proceeding dismissed. January 19, 1903. Application for order granting a hearing in bank. Granted.