City and County of San Francisco v. Hyatt

This is a petition for a writ of mandate and involves particularly the validity of a rule of the state board of education providing a minimum of four hours as the attendance necessary in the elementary schools of this state to constitute a school day’s work in the matter of the apportionment of the state school funds to the different school districts.

Preliminary to quoting the rule adopted by the board and as bearing on the question of its validity, certain sections of the Political Code must be referred to.

Section 1532 of that code, subdivision 4 thereof, requires the state superintendent “to apportion.the state school fund” and “in apportioning said fund he shall apportion to every county and to every city and county two hundred fifty dollars for every teacher determined and assigned to it on school census by the county or city and county school superintendent for the next preceding school year, as required of the county or city and county school superintendent by the provisions of section 1858 of this code, and after thus apportioning two hundred and fifty dollars on teacher or census basis, he shall apportion the balance of the state school fund to the several counties or cities and counties according to their average daily attendance as shown by the reports of the county or city and county school superintendents for the next preceding school year.”

This section 1858, referred to in said section 1532, as it stood prior to the session of the legislature of 1911, read as follows:—

“The school superintendent of every county and city and county must apportion all state and county school moneys for the primary and grammar grades of his county or city and county as follows:

“1. He must ascertain the number of teachers each school district is entitled to by calculating one teacher for every district having seventy or a less number of census children and one additional teacher for each additional seventy census children, or fraction of seventy not less than twenty census children, as shown by the next preceding school census.” Provision is further made that any moneys remaining after the apportionment on the census basis, should be apportioned to the several districts in proportion to the average daily attendance for the preceding school year.

This section was amended in 1911 (Stats. 1911, p. 527), and as now in effect reads, as to the apportionment of all state and county school moneys by the school superintendent of every county and city and county for the elementary .grades therein as follows:

“1. He must ascertain the number of teachers each school district is entitled to by calculating one teacher for every district having thirty-five or a less number of units of average daily attendance and one additional teacher for each additional thirty-five units of average daily attendance, or fraction of thirty-five not less than ten units of average daily attendance as shown by the annual school report of the school district for the next preceding school year; and two additional teachers shall be allowed to each district for every seven hundred units of average daily attendance, etc.”

At the same session a new subdivision was added to this section as follows:

“5. Units of average daily attendance wherever used in this section shall be construed to be the quotient arising from dividing the total number of days of pupils’ attendance in the schools of the district by the number of days school was actually taught in the district. A school day is hereby construed and declared to be that portion of the calendar day or night in which school is maintained and in which one-twentieth of the work of a school month may be performed. The attendance of pupils present less than one-fourth of any day shall not be counted for that school day and pupils present for one-fourth of a day or for more than one-fourth of a day shall be counted as present for one-fourth of a day, one-half of a day, three-fourths of a day, or for a whole day, as the case may be. ’ ’

“The School Day: Computing Average Daily Attendance.

“The minimum school day for any school sharing in state funds on a basis of average daily attendance shall consist of not less than four hours of actual work and attendance exclusive of recesses. Each school day shall be divided into four approximately equal parts. One-fourth of a day’s attendance shall consist of actual work and attendance for not less than one hour, exclusive of recesses; one-half of a day’s attendance shall consist of actual work and attendance for not less than two hours exclusive of recesses; three-fourths of a day’s attendance shall consist of actual work and attendance for not less than three hours, exclusive of recesses. In no event shall attendance by any individual on one calendar day be construed as more than one day’s attendance. The word hour as used in this rule means a sixty minute hour. This rule shall govern the computation of average daily attendance in day and evening elementary and high schools, polytechnic, industrial, agricultural, and all other schools drawing state money on a basis of average daily attendance.”

The powers of the state board of education as far as involved here are enumerated in section 1521 of the Political .Code:

“The powers and duties of the state board of education are as follows:

“1. To adopt rules and regulations not inconsistent with the laws of this state for its own government and for the government of the public schools and district school libraries.

The substantial allegations of this petition for a writ of mandate are that under the law, respondent state superintendent is required to give, and has always heretofore given, in computing the average daily attendance in elementary schools consisting of day and night schools, for the purpose of determining the annual apportionment of state school funds thereto, credit to the elementary night schools on an equal basis with the elementary day schools, making no discrimination between them 5 that he has calculated a night session of such night., schools as being equivalent of. a . day session for

The claim of petitioner is that the state board of education had no authority to adopt the rule in question because under certain sections of the Political Code to be referred to, taken in connection with subdivision 5 of section 1858, it is asserted that the power to determine the length of time to constitute a minimum school day for the purpose of apportioning the school funds has been left exclusively to the local boards of education.

As a special basis in support of this position certain sections of the Political Code other than we have mentioned are relied on by petitioner. Section 1697 thereof declares that “a school month is construed and taken to be twenty days, or four weeks of five days each, including legal holidays.” Section 1663, subdivision 2, provides that “The county or city and county board of education must, except in incorporated cities having boards of education, on or before the first day of July of each year, prescribe the course of study in and for each grade of the day and evening elementary schools for the ensuing school year,” and provisions of the city charter of the city of San Francisco are to the same effect. Section 1771 confers power on county boards of education “to prescribe and

Section 1673 provides as to the duration of school sessions that “no school must be continued in session more than six hours a day ...”

Under these sections it is insisted by petitioner that while the legislature has fixed the maximum school day (by sec. 1673 just quoted) to be six hours, it has never established any minimum school day, but has left' that to the local boards as incident to their right to determine the course of study; that authority to establish the course of study necessarily confers power on them to prescribe also the hours of study thereof— in effect to fix the minimum school day; hence, when any local school board has determined what shall constitute a month’s school work in said courses and has fixed the length of daily or nightly session in which one-twentieth of the school month work may be performed, such session, under subdivision 5 of section 1858, shall, for the purpose of apportioning school funds, be considered a school day’s work, no matter what the hours less than the maximum may be which the local board has fixed; and that this authority cannot be interfered with by the state board of education under a rule making an average of four hours’ daily attendance a minimum school day, with the result that in apportioning funds to the school districts the school work in the night schools, which necessarily cannot exceed two hours, shall only be credited with one-half the amount which is allowed for a day’s work in a day school.

As against this claim, the position of respondent is that the authority to fix a course of study given the local boards of education confers no exclusive power upon them to prescribe whatever hours they see fit less than the maximum as constituting a minimum school day, and that subdivision 5 does not imply the existence of any such right, nor does it define of itself what shall constitute such school day. Hence, it is claimed that as the local boards have not the authority asserted and the legislature has not specified in subdivision 5 of section 1858 what shall constitute a minimum school day since it only defines a school day generally, it was the intention of the legislature to leave the matter of fixing the length of the minimum school day Session" to the state board of educa

We are of the opinion from a consideration of the various sections referred to, particularly the later amendment of section 1858 which reflects the obvious intention of the legislature, that the position of the respondent is correct.

It is apparent, we think, under the general power conferred on the state board of education “to adopt rules and regulations not inconsistent with the laws of this state . . . for the government of public schools” that it has the authority to define what shall constitute a minimum school day for any purpose, even for the apportionment of school funds, in the absence of any law defining it, or power elsewhere conferred to do so. The conference of this general power upon the state board of education is in harmony with the constitutional provision (art. IX) requiring the adoption of one system of common schools which shall be applicable to all the common schools of the state, and the term “system” itself imports a unity of purpose, as well as an entirety of operation. (Kennedy v. Miller, 97 Cal. 429 , [ 32 Pac. 558 ].) Aside from general legislation designed to secure this entirety of operation and with a view to promote it, power to do so is expressly conferred on the state board, and unless there is some law which otherwise governs, it would appear that as this rule fixing the minimum school day operates in the apportionment of the state school funds equally and uniformly throughout the state without discrimination, it is within the power of the state board to prescribe it.

If the rule adopted by it, in question here, is unauthorized, it can be so only because, as contended by petitioner, the various sections of the code upon which it relies, taken in connection with subdivision 5 of section 1858, confer exclusive power upon the local school boards of education to regulate the length of the school day for all purposes, and the existence of this power precludes the state board from attempting to exercise any authority upon the subject of the regulation for the apportipnment of school funds. But certainly no section of the code referred to by petitioner confers any such power on the local boards, or places any such.limitation on the authority of the state board, nor impliedly requires any such construction. - ...

It may not be questioned but that, in the absence of any statute or rule of the state board on the subject, the local board could exercise the right to regulate the school day sessions in their respective cities or counties. This power exists, however, not by virtue of their right to prescribe a course of study, but under section 1617 of the Political Code, which gives them the same authority over the schools in their district that is conferred on the state board over the public school throughout the state—namely, “to prescribe and enforce rules . . . for the government of schools” within their districts. But the exercise of this power is subject to the control of the state board on that subject, because in this same section it is declared that such rules must be “not inconsistent with law or those prescribed by the state board of education.” It is apparent from this section that, except as to those matters where express power is conferred on the local board to act exclusively, it was the intention of the legislature to make their action, relative to public school matters, secondary and subsidiary to the control of the state board. Under the section last referred to, the local boards might fix the session of the schools in their district and hence determine what should constitute a minimum school day therefor, but the power in that respect was subsidiary to that of the state board and subject to control and regulation by it at any time that it deemed it proper to act in the matter, and the regulation of the state board would abrogate any rule which might have been adopted by the local boards for a minimum school day, if in conflict with that prescribed by said board.

It is of no moment in considering the power of the state board that it had not deemed it necessary heretofore to exer

Under the new system provided for by the amendment to section 1858, making the “unit of average daily attendance” the exact basis of apportionment, the minimum school day became an important factor in calculating the apportionment, and, on the assumption that no such day had been fixed by the legislature, or power vested elsewhere to determine it, the state board undertook to fix it. Having the general power to regulate for the public schools throughout the state, it could pass any rule or regulation for that purpose which it deemed necessary, unless constrained by some statutory provision. It cannot be said that the fixing of a minimum school day for the purpose of apportioning state school funds is not a proper part of the government of the public school system. Nor do we understand petitioner to claim that the powers conferred upon the state board are not comprehensive enough to embrace authority to fix a minimum school day for all purposes, including the apportionment of the school funds, in the absence of any legislation on the subject. The claim only is that the power has been exclusively conferred on the local

As to subdivision 5 of section 1858: The purpose of adding this subdivision to the section will be readily observed. While this amended section made the “unit of average daily attendance” the basis of apportionment for the state funds, it did not define what was meant thereby, and subdivision 5 was added for that purpose. In so defining it, it is stated therein that “a school day is hereby construed and declared to be that portion of the calendar days or nights in which one-twentieth of the work of the school month may be performed. ’ ’ Petitioner contends that thereby the minimum school day was fixed; that the declared intention of the legislature was to make the unit quantity of daily work as fixed by the local boards govern as to such day for the purpose of apportionment. But if this was its intention, certainly the language used does not clearly or definitely express it, or really express it at all. All that is declared is that a school day is that portion “in which one-twentieth of the work of the school month may be performed” and after the definition has been read the inquiry still presents itself, what is the minimum school day? There is nothing clear or determinative on the subject in the language used. The most that can be said for it is that it defines a school day generally. When the legislature had occasion to define a maximum school day, it defined it plainly and on a basis of hours, and if it had intended to itself define a minimum school day in this subdivision 5, we would naturally expect to find it defined on a similar basis of time. If it was intended to depart from this standard previously employed and provide for some other, we would look to find some clear expression of that intention. In other words, if it was intended that the quantity of a school- day’s work, as it might be variously fixed by the different local

That its purpose was to do so we think is quite apparent when we consider the intention of the legislature in establishing the new system of apportionment of the state funds. Under the old method, the apportionment thereof was based on the number of census children in the district, whether they attended the schools or not, and the surplus distributed on the basis of average daily attendance, independent of any

The beneficence of night schools is unquestioned, but it is to be noted that they exist almost entirely in the large cities; are for the benefit particularly of the residents thereof, and, in the nature of things, as their sessions do not exceed two hours, the expense of their maintenance cannot equal that of the day schools having sessions of twice that length. Under section 1861 of the Political Code, “the state school fund must be used for no other purpose than the payment of the salaries of teachers of primary and grammar schools,” being the day and evening elementary schools. The principal element in the expense of the maintenance of schools is the salary of teachers, to pay which the state fund must be de. voted, and this expense is based on the duration of their employment. Necessarily, this cannot be the same as between teachers employed in the night and day schools, and, in the ordinary course of things, thé teacher employed but one-half the time that another is employed receives but one-half the compensation.

It is of no moment, on the question of the authority of the state board to fix such school day for purposes of apportionment, to consider how the rule adopted has affected the efficient maintenance of the night schools. No such question is involved. It is simply one of power and authority of the board to make the regulation, and in the absence of any express legislation on the subject or authority vested in the local boards to determine it, we are satisfied that the state board had this authority and that the rule in question is valid.

The application for the writ is denied.

Shaw, J., Angellotti, J., Sloss, J., Melvin, J., and Henshaw, J., concurred.

Rehearing denied.