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SUPERVISING

3. SCHOOLS AND SCHOOL DISTRICTS TEACHERS HELD ILLEGALLY APPOINTED.

While Pol. Code Sec. 1543 Subd. 18, authorizes the Superintendent of Schools of the county to employ supervising teachers, it does not directly or by implication authorize him to fix their compensation, but such is left to the Supervisors and under Const. Art. XI Sec. 71⁄2 Subd. 5 and Butte County Charter Art. III, Sec. 3, amendment No. 2, and they must by ordinance fix the number of supervising teachers, terms and compensation before the superintendent can lawfully appoint such teachers, which they have not done.

COUNTIES

4. MENT.

CHARTER A LEGISLATIVE ENACT

The Butte County Charter is not an enactment of the freeholders of the county or of the Board of Supervisors for while the free-holders framed the charter and the people adopted it, still the legislature approved it, making it a legislative enactment with full force, subject only to the constitutional and the general law.

SUPT. OF

5. SCHOOLS AND SCHOOL DISTRICTS COUNTY NOT AUTHORIZED TO APPOINT SUPERVISING TEACHERS AND FIX SALARIES.

The County Superintendent of Schools of Butte County has not the power to appoint supervising teachers and fix their salaries, but can do so only under authorization of Board of County Supervisors by ordinance in view of Const. Art. XI Sec. 13, and Pol. Code Sec. 1858 Subd. 3 and 1543 Subd. 18.

6. SCHOOLS AND SCHOOL DISTRICTS COUNTY CHARTER HELD TO CREATE NEW OFFICE AND HENCE INVALID.

Appointment of a Deputy County Superintendent of Schools under Butte County Charter Art. VII Sec. 5 creates a new and different office from that provided for by Pol. Code Sec. 1543 Subd. 18 and hence illegal.

H. D. Gregory, Judge.

In the Superior Court of the State of California

In and for the County of Butte.

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The above entitled actions embrace the same questions and by stipulation in court are submitted together on the defendant's demurrers, no answers having been filed, and stipulation of facts having been filed by the parties it was agreed that decision herein on the face of the pleadings and the written statement of facts be final.

The Petitioners are seeking a writ of mandate against the defendant to require her, as Auditor of Butte County to issue certain warrants on the Treasurer of Butte County for the payment to Petitioners of salaries alleged to be due them for services as supervising teachers of the public schools of Butte County.

The District Attorney has advised the Respondent that Petitioners' claims are illegal for the following

reasons:

1. The County Charter of Butte County makes provision for the supervision work in the county schools and in this respect the charter provisions govern over the general law.

2. The general law does not give to the County Superintendent of Schools the authority to appoint supervising teachers.

3. Conceding that the general law does give the Superintendent authority to appoint these supervising teachers, such power to appoint does not give him the power to fix their compensation.

4. Conceding again that the statute both authorizes the Superintendent to appoint and fix the compensation, the statute violates the provisions of Article XI, Section 13 of the Constitution, and to that extent is void.

The County Charter does not make provision for the supervision work in the county schools. The Charter makes provision requiring the County Superintendent (Section 5, Article VII, County Charter) "In person or by his Supervising Deputy make a visit to each teacher in every school in the county, at least twice each year, said visits to total not less than six hours, and make a visit to every school outside of incorporated cities at least every other school month; provided that in cities having City Superintendent of Schools the provisions of the general law shall apply."

Subdivision 18 of Section 1543 of the Political Code provides "for the employment of duly qualified teachers to supervise the work of teaching in the School Districts of the County, etc."

"For the payment of salaries of teachers employed by him to visit at least twice a month and to instruct pupils and direct the education of pupils who live more than five miles from the nearest public school in the District of which they are residents, and such other pupils residing in the school district as may not be able to attend the public schools for reasons which are deemed good and sufficient by the Superintendent of Schools of the County."

It is plain that under this provision of the law it was intended to authorize the County Superintendent of Schools to employ teachers to supervise the work of teaching in the school districts of the County and also to employ teachers to visit at least twice a month and to instruct pupils, etc.

By this provision it is not specified when or the number of times and the frequency of the supervising teacher to attend each school in the service of super

vising the work of teaching, but it does authorize the County Superintendent to employ duly qualified teachers for this purpose, therefore leaving the manner of supervising the work of teaching to some proper program authorized by the County Superintendent, or likely the State Superintendent.

The provision made in Section 5 of Article VII of the County Charter is not a provision for the supervision of the work of teaching in the school districts but it is simply a provision directing the Superintendent in person or by his supervising deputy to visit the schools of the County outside of incorporated cities at least every other school month. The general law makes it the duty of the County Superintendent of Schools to visit and examine each school in his county at least once in each year. (Subdivision 5, Sec. 1543.) The Charter provision makes it the duty to visit every other school month in person or by his supervising deputy.

Under the decision of our Supreme Court in Stern vs. City Council of Berkeley, 25 Cal. App 586 it is provided:

"General

School Laws

Conflicting Charter Provisions Controlled by. The acts passed by the legislature, in accordance with general provisions of the constitution, providing a general system of laws concerning the creation and conduct of common schools in this state, are controlling and conclusive over conflicting charter provisions; but the charter of a city or of a city and county may provide for matters not enumerated in the general laws and are not in conflict therewith. The power of charters to so provide extends to all cases where the purpose of the provision is in furtherance of the purpose of the general laws of the state."

Subdivision 18 of Section 1543 of the Political Code provides for the supervision of the work of teaching

by qualified teachers. The provision of the Charter, supra, detracts materially from the supervision of the work of teaching required by the general law and simply imposes an extra duty over and above the general law upon the County Superintendent of visiting the rural schools. Under the rule laid down in Stern vs. City Council of Berkeley, Ib., the general system concerning the creation and conduct of the common schools are controlling and conclusive over conflicting charter provisions; therefore, the provision required under Subdivision 18 of Section 1543 must control.

The provision of Article VII, Section 3 (b), of the County Charter authorizing the Board of County School Trustees to appoint a supervising deputy superintendent of schools, is not a valid provision under the Constitution providing for charter enactments, and therefore the appointment of a supervising deputy is not a legal and valid appointment.

Subdivision 5 of Section 712, of Article XI of the Constitution providing that "Any county may frame a charter for its own government consistent with and subject to the Constitution" etc.

"It shall be competent, in all charters, framed under the authority given by this section to provide, in addition to any other provisions allowable by this Constitution, and the same shall provide, for the following matters:

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"5. For the fixing and regulation by boards of supervisors, by ordinance, of the appointment and number of assistants, deputies, clerks, attaches and other persons to be employed, from time to time, in the several offices of the county, and for the prescribing and regulating by such boards of the powers, duties, qualifications and compensation of such persons, the times at which, and the terms for which they shall be appointed, and the manner of their appointment and removal."

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