Opinion
Hearing Granted by Supreme Court Aug. 30, 1934.
Appeal from Superior Court, Los Angeles County; Lester William Roth, Judge.
Action by the People, on the relation of Kenneth C. Davidson, against Stewart O. Mertz, also known as S. O. Mertz. From an adverse judgment, defendant appeals.
Affirmed.
COUNSEL
Otto A. Gerth and Roy A. Linn, both of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., Leon French, Deputy Atty. Gen., and John J. Beck and David R. Faries, both of Los Angeles, for respondents.
OPINION
CONREY, Presiding Justice.
By this action, "in the nature of quo warranto," plaintiffs asserted the disqualification of defendant to act as a member of the board of education of the city of Los Angeles under authority of his certificate of election, and prayed that the office be declared vacant. The defendant having filed his amended answer to the complaint, the case came before the court on motion of the plaintiff for judgment on the pleadings upon the ground that the amended answer admits the material allegations of the complaint and states no defense thereto. The motion was granted, and judgment entered in accordance with the prayer of the complaint. From this judgment the defendant appeals.
The judgment rests upon the fact that appellant was not a resident of the city of Los-Angeles for the full period of two years next preceding his election to the office, although his place of residence was "within the territorial limits of the Los Angeles School District." Section 307 of the charter of the city of Los Angeles (St. 1925, p. 1124, as amended in 1933), reads as follows (St. 1933, p. 2741): "No person shall be eligible to nomination or election to any office under this charter who at the time of his nomination and election is not a qualified elector of this city, and shall not have been a resident of the city for at least two years next preceding his nomination or election, and to be eligible to nomination or election to the office of member of the council, the person nominated or elected must have been a resident of the district from which he is nominated or elected for at least two years next preceding his nomination or election."
Section 5 of the charter (St. 1925, p. 1039) provides that "the officers of the city shall be" certain designated officers, including "the Members of the Board of Education." Section 255. "The government of the School Department of the City of Los Angeles shall be vested in a Board of Education, to consist of seven members, to be elected as in this charter provided, and to be called Members of the Board of Education." Section 260. "The Board of Education shall have power: * * * (5) To have and exercise entire control and management of the public schools of the city in accordance with the Constitution and general laws of the state and the provisions of this charter, and said board is hereby vested with all the powers and charged with all the duties provided by this charter, and also by the general laws of the state for City Boards of Education."
Article 9 of the state Constitution, under the general title "Education," provides as follows for school districts: "Sec. 14. The Legislature shall have power, by general law, to provide for the incorporation and organization of school districts, high school districts, and junior college districts, of every kind and class, and may classify such districts." Under the general laws of the state (School Code, § 2.110): "Every city or incorporated town, except cities and towns of the sixth class, unless subdivided by the legislative authority thereof, shall constitute a separate school district, which shall be governed by the board of education or board of school trustees of such city or incorporated town." Other sections of the Code allow the annexation to a city school district of "outside territory." School Code, § 2.114, provides that "the outside territory shall be deemed to be a part of said city or incorporated town for all matters connected with the school department thereof. * * *" The charter itself does not recognize such outside territory as being in any way included within the boundaries of the city.
If the election of a member of the board of education of the city of Los Angeles is an election to an office "under this charter," within the meaning of that phrase as used in section 307 of the charter, and if as to this particular subject the charter provisions have authority superior to the authority of the School Code where the two are in conflict, we shall have to decide that appellant was not eligible to be elected to the office.
A grant of self-governing power to cities in California is contained in article 11 of the state Constitution. The right to frame and adopt, subject to legislative approval, a city charter, is declared by section 8 of said article 11. This is followed by section 8½, wherein, among other things, it is provided that, in charters framed under the authority given by section 8, it shall be competent to provide: "2. For the manner in which, the times at which, and the terms for which the members of boards of education shall be elected or appointed, for their qualifications, compensation and removal, and for the number which shall constitute any one of such boards."
When we compare the foregoing quotation from section 8½ of article 11 with section 14 of article 9 of the Constitution, we discover that a city is given, specifically, power to define by its charter the qualifications of eligibility for election to membership in the board of education. The Legislature, on the other hand, is given authority to provide by general law for the "incorporation and organization" of school districts. Such incorporation and organization, unless by some other provision excluded, would include the right to prescribe the qualifications of school district officers. It therefore becomes necessary, as between the general law contained in the School Code, and the charter law contained in section 307 of the charter of the city of Los Angeles, to determine which law controls in the instant case.
In section 8 of article 11 of the Constitution we find this: "It shall be competent in any charter framed under the authority of this section to provide that the municipality governed thereunder may make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters, and in respect to other matters they shall be subject to general laws." On the assumption that the words here quoted are the sole and only foundation of the authority claimed by the city under section 307 of its charter, appellant directs attention to the fact that the school system of the state is an affair of the commonwealth and is not to be classified as a "municipal affair." But the assumption that there is no other foundation for such authority is itself contrary to fact, because the authority of the city to prescribe the qualifications of members of its board of education has another and more sure foundation, in the grant of power which, as we have shown, is contained in the paragraph numbered 2 of section 8½ of article 11 of the Constitution. This direct and complete authorization is independent of the "municipal affairs" limitation.
Appellant contends, however, that the election of a member of the board of education is not an "election to any office under this charter," within the meaning of the provisions of section 307 of the charter. We have referred to sections of the charter which directly recognize the members of the board of education as city officers "to be elected as in this charter provided." Yet it must be admitted that several school districts which constitute the school department of the city are separate from the city and from each other. In a recent case relating to the school department of the city of Long Beach, we said that the districts had a separate existence, but were treated as a part of the municipal life, and so were placed under the control of a board of education "authorized to care for the administration of the schools in both of the districts." McKee v. Edgar (Cal.App.) 30 P.2d 999, 1001. In Ward v. San Diego School District, 203 Cal. 712, 265 P. 821, 822, referring to the board of education of the city of San Diego, it was said "that the election of the several members of the board of education is merely a preliminary means of inducting such members into their respective offices, and that, when seated therein they become, and thenceforward are, officers of a political subdivision of the state, separate and distinct from the municipality within the boundaries of which the school district is located." In the Ward Case it was held (pages 716, 717 of 203 Cal., 265 P. 821, 822) that the officers of the San Diego school district were not "other city officers," within the meaning of a charter provision making it the duty of the city attorney to give advice, whenever required by certain named city officers, "or other city officers." But the decision, like some others, assumes, without any indication of doubt, that the creation of a board of education by election of its members is a proper function of the city, resulting from the relation which exists between the city and the school districts. In Hancock v. Board of Education of City of Santa Barbara, 140 Cal. 554, 74 P. 44, 46, the court said: "The function of the city under the charter is simply to furnish the officers who compose the governing body of the district. * * *" The provisions of the Constitution of California, to which we have referred, are completely in harmony with the principle thus announced in the decisions.
In view of the legal relationship of the city to the school districts which constitute the "school department of the city of Los Angeles," and in view of the foregoing decisions which recognize the right and duty of the city to provide a board of education for government of the school districts, it seems to us clear and plain that the provisions of section 307 of the charter, relating to the eligibility of persons "to nomination or election to any office under this charter," include the office of member of the board of education. The fact that, when a person has been elected as member of the board of education, he becomes a trustee of the several school districts, is entirely consistent with the fact that in the process of election he was elected to an office "under this charter."
For the foregoing reasons, the judgment is affirmed.
I concur: YORK, J.
HOUSER, Justice.
I dissent. It is unquestioned that by constitutional provision of this state the city of Los Angeles was granted authority to provide in its charter for the qualifications of members of its board of education; and that, in pursuance of such authority, by the terms of the charter provision to which in the prevailing opinion herein attention has been directed, such special qualifications were required that thereby appellant was rendered ineligible to hold the office of member of the board of education of said city. It also is unquestionable that by separate constitutional provision the Legislature of this state likewise was granted authority to enact laws of nature and effect similar to the said provision expressed in the charter of the city of Los Angeles; and that in the exercise of such authority the Legislature did enact several statutes, the effect of which was to make certain that one situated as was appellant herein was fully qualified to hold the office of member of the board of education of the city of Los Angeles. In such circumstances, as I read the pertinent authorities bearing upon the question thus presented, they are overwhelmingly to the effect that the provisions of the statutes thus enacted by the Legislature must prevail.