Esberg v. Badaracco

This is an original application for a writ of mandate by the Board of Education of the City and County of San Francisco to compel the respondents, as members of and constituting the Board of Supervisors of said city and county, to include in its proposed tax ordinance for the fiscal year ending June 30, 1928, such levy of taxes for school purposes as will produce the sum of $7,621,529, exclusive of amounts required for redemption of school bonds or interest thereon.

There is no dispute as to the facts. Within the time prescribed by law the board of education prepared its budget setting forth the amounts required for the ensuing fiscal year for public instruction in the city and county of San Francisco, including therein the needs for high schools, elementary schools and kindergartens. This budget was prepared on forms prescribed by the board of supervisors and specified the proposed expenditures under the headings, (1) Teachers’ Salaries, (2) Other Maintenance Expenditures, and (3) Capital Outlays and Permanent Improvements. The superintendent of schools approved this budget and by computation determined therefrom the total amount of money required to be produced by a school tax after deducting the estimated income from the state of California and all other sources. A copy of the budget so proposed and approved was filed with the board of supervisors and with the auditor as the law requires. From this budget it appears that the board of education has determined that the sum of $7,621,529 is necessary for school purposes for the ensuing school year. The assessed valuation of all of the

[1] The sole question for determination is whether the board of supervisors has discretion to revise, change, or modify the budget as so prepared and presented by the board of education and fix the tax rate for school purposes accordingly; or must the board of supervisors fix such a tax rate as will raise the amount of money specified in the budget of the board of education without diminution! It is the contention of the board of supervisors that a discretion is lodged in that body to fix a budget allowance for the board of education within which the latter board must confine itself in making its expenditures for the ensuing school year. The claim is based principally on section 3 of chapter I of article III of the charter of the city and county as amended in 1925 (Stats. 1925, p. 1172). That section provides that the supervisors shall meet annually between the first Monday of May and the first Monday of June and “make a budget of the amounts estimated to be required to pay the expenses of conducting the business of the city and county for the next ensuing fiscal year.” This budget must be prepared in such detail as to the aggregate sum and the items thereof allowed each department as the supervisors deem advisable, except that in departments other than the police, fire, park, playground, public library, and school departments the salaries, wages, and rates of compensation of deputies, clerks, assistants, and employees of all kinds

We had occasion to consider and define the scope of the budget-making power of the board of supervisors under this charter amendment and prior thereto in the recent cases of Fitzgerald v. Badaracco, ante, p. 18 [ 258 Pac. 937 ], Griffin v. Boyle, ante, p. 95 [ 259 Pac. 729 ], and Jackson v. Badaracco, ante, p. 95 [ 259 Pac. 729 ], wherein it was held that the board of public works and the board of election commissioners of said city and county were, as to the expenditures to be made in their several departments, limited to the amounts appropriated by the board of supervisors in the exercise of its budget-making power. The respondents rely especially on the Fitzgerald case as announcing a construction of the charter provisions which should be made applicable to the school department. In that case and in the other recent cases referred to we were dealing with subordinate boards of the city and county concerning which it was entirely competent to provide in the charter for whatever powers, duties, restrictions, and regulations the people of the city and county might desire to prescribe in adopting or amending said charter pursuant to the provisions of the constitution. In those cases the boards are those whose activities, from a governmental standpoint, are primarily, if not wholly, of local concern and subject to charter regulation. But with the school department we are confronted by different and controlling considerations of law. [2] The school system of the state is a matter of general concern as distinguished from a “municipal affair,” as that term is considered in connection with charter cities. Article IX of the organic law of California provides for the establishment of a public school system. It is provided in section 1 of that article: “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral and agricultural improvement.” Section 5 of the same article provides that “the legislature shall provide for a system of common schools ...” Section 6

[3] The effect of' this framework of laws surrounding and supporting our public school system is that the acts of the legislature, within constitutional bounds, are controlling over conflicting provisions of freeholders’ charters. “While statutes providing a general system of laws concerning the creation and conduct of common schools prevail over conflicting charter provisions, the charters may provide for matters not enumerated in the general laws and not in conflict therewith, including matters in furtherance of the pur pose of the general laws of the state.” (18 Cal. Jur. 814 and cases cited.) Likewise the charter may, of course, include such matters concerning school management and supervision as are specifically authorized in the constitution. For example, section 8y2 of article XI, as adopted in 1896, provided: “It shall be competent, in all charters framed under the authority given by section eight of article eleven of this Constitution, to provide, in addition to those provisions allowable by this Constitution and by the laws of the state, as follows: ... 2. For the manner in which, the times at which, and the terms for which the members of the boards of education shall be elected or appointed, and the number which shall constitute any one of such boards.” This constitutional provision has remained by continuing amendment to the present time with the enlargement in 1911 in the respect that since that amendment the charter may also provide for the “qualifications, compensation and removal” of members of boards of education. The city and county of San Francisco has availed itself of this constitutional authorization and has, in article VII of its charter, provided for such matters concerning its board of education as it is competent therein to provide. In recognition of the effect of general state laws over school matters within the

[10] Since it is clear that in the conduct of its school affairs the city and county of San Francisco is subject to and is controlled by general law and in all matters of conflict the general law must prevail, it will next be noted what conflict exists between the general laws of the state and the charter provisions respecting the determination of the amount of the expenditures to be made for school.purposes. In obedience to the mandate of section 6 of article IX of the constitution as amended in 1920, the legislature enacted section 1612a of the Political Code in 1921 (Stats. 1921, p. 720). In that section it is provided that each board of education shall have the power and it shall be its duty annually in the month of June “to make a school budget showing all the purposes for which the school district will need money and the amount of money that will be needed for each of said purposes for the ensuing year. ” It is then provided that this budget be filed with the superintendent of schools of the city and county, be examined and approved by him, and after such approval it is made the duty of the superintendent of schools to determine by • computation the

The italicized portions of the foregoing quotations from said section 1612a make plain the obvious conflict between the powers lodged in the board of education to determine the amount of money to be raised for school purposes and the power conferred on the board of supervisors under the provisions of the charter. The powers of the two boards cannot be exercised over the same subject matter at the same time. The law abhors such a conflict of authority, and since the general law is paramount the functions of the board of supervisors in the premises must yield to the authority of the state exercised through the constitution and enactments of the legislature.

[11] On oral argument, counsel for respondents conceded the plain mandatory force of the language of said section 1612a, but urged that it could not have been intended that this legislative requirement should apply to such communities as San Francisco and Los Angeles, where the assessed valuations are of such magnitude as to make it possible for the board of education to specify so large an amount of money to be raised in current taxes as to enable the board to embark on an enterprise of capital construction and extension of school facilities only justifiable under a bond issue.- But the statute has made no exception of populous and prosperous communities and we can make none.

[12] It may well be questioned whether the provision in said section 1612a of the Political Code authorizing the county auditor to levy the required tax in the event the board of supervisors refuses or neglects to make the levy is constitutional under the provisions of section 13 of article XI of the constitution, which provides that the legislature shall not delegate to “any special commission, private corporation, company, association or individual” any power to levy taxes. Assuming said provision of the code section to be invalid, it is clearly severable from the remainder of the section. The inclusion of that provision, however, serves to accentuate the plain intention of the legislature to make the board of supervisors merely the instrumentality through which the tax levy for school purposes is to be accomplished. [13] The board of education as the “school directors” under the charter, does not answer to the description of a “special commission, private corporation, company, association or individual,” as those terms are used in the constitutional provision. On the contrary, the board of education is the duly constituted governing board of the public school system of the city and county of San Francisco, established as such under the constitution and laws of the state. It may here be noted that it would have been entirely consistent with our system of government if the power were conferred by the constitution on the legislature to vest authority to levy school taxes directly in the board of education. Separate machinery could then be set up for the levy and collection of the same. However, the simpler and more inexpensive method has been followed, namely, of vest

[14] Counsel appearing for amicus curiae urges that since the constitution provides that the legislature “shall provide for” the levy “by the board of supervisors,” the power to levy the tax carries with it the exclusive discretion to determine the amount of the tax. This is a non sequitur. When the legislature has authorized the board of education, the duly constituted governing board of the school department, to fix the amount to be raised and has required the board of supervisors to levy the tax to provide the sum required, the legislature has “provided for” the levy of the tax. We find no constitutional inhibition against the conferring of such powers on the board of education, although the full exercise of the power of taxation may necessitate the joint action of both boards—the determination of the amount by one board and the levy of the tax by the other.

Counsel for respondents and for amicus curiae rely on McCabe v. Carpenter, 102 Cal. 469 [ 36 Pac. 836 ], as direct authority against the petitioners. But such is not the fact. That case involved the validity of the act of March 20, 1891 (Stats. 1891, p. 182), which provided for the levy of the school tax “estimated by the county superintendent of schools,” and it was made the duty of the “proper authorities” upon receiving the estimate “to levy such a rate as will produce the amount estimated.” It was held that this was an unlawful delegation of legislative authority to an executive officer. That was all that was involved in that case. It was there said, however: “Looking to the provisions in the general school law, in regard to the discretion of county superintendents, and trustees of school districts, we find they have a wide range of discretion in regard to expenditures. The trustees have, however, no voice in making this estimate; they are not even required to furnish any data for it.”

Following the McCabe case, a similar question was presented in People v. Lodi High School Dist., 124 Cal. 694 [ 57 Pac. 660 ], In that case the provisions of section 1670 of the Political Code as amended in 1895 (Stats. 1895,

The case of Board of Education of City of Woodland v. Board of Trustees, 129 Cal. 599 [ 62 Pac. 173 ], is also relied on by the respondents. It was there held that the board of education of a city organized under the general municipal corporations act must be regarded, not as an independent public entity, but as a component part of the municipality wherein the legislative power is vested in another body. The court was at pains in that case to point out that the decision was to be restricted to a determination of the status of the school departments in cities organized under general law, and not to the status of school departments governed under the provisions of the Political Code. Further, that under the code system the city territory, with its inhabitants, constitutes a school district, a corporate body or quasi municipality, distinct from the municipality itself.

Counsel for respondents concedes that the cases relied upon by him arose before the amendment to the constitution in 1920 and the enactment of section 1612a of the Political Code in 1921, but contends that the principles enunciated in the old cases are applicable to the present situation. We deem the recent legislation, both constitutional and statutory, of controlling importance, -and are satisfied that such recent legislation is applicable to the school department of the city and county of San Francisco. Other cases cited and other points made by the respondents and by counsel for amicus curiae have been noted, but it is deemed unnecessary to discuss them. The cases cited are either dis

The recent constitutional and statutory provisions referred to were undoubtedly adopted on the theory that boards of education, being constantly in touch with school matters, are more conversant with the needs of the school departments and are in better position to judge of the required expenditures for school purposes. Whether placing the responsibility of determining the amount to be raised for school purposes directly on the shoulders of the boards of education and not on the boards of supervisors be the wiser policy may present a subject of legitimate controversy, but with that policy the courts have nothing to do except to see that constitutional bounds are not transcended. It is to be assumed that the boards of education will exercise proper regard for the rights of the taxpayers to the end that the burden of taxation be not unduly extended. The responsibility for fixing the amount to be raised by taxation for school'purposes is with those boards and for such responsibility the members thereof, it is assumed, may be held accountable to the electorate as provided by law.

Let the peremptory writ issue as prayed.

Waste, C. J., Koford, J., pro tem., Preston, J., Seawell, J., and Richards, J., concurred.

Langdon, J., concurred in the judgment.