The opinion
Fox, J., dissenting.
I dissent. 1. The position claimed by plaintiff was an office, in every thing but name, but she disclaimed it being such, because to call it an office defeated the life estate under the constitution. But whether it be an office or a mere right to place, it is a franchise, and in it she shows by her own complaint that there is another incumbent,—one holding the place de facto. Mandate is not, therefore, the proper remedy. (People v. Olds, 3 Cal. 167 ; 58 Am. Dec. 398 ; Meredith v. Board of Supervisors, 50 Cal. 433 ; People v. Harvey, 62 Cal. 508 ; Kelly v. Edwards, 69 Cal. 460 .)
2. I cannot subscribe to the doctrine of a life estate in the position of teacher in the public schools, which is *494 the effect of the leading opinion. It is contrary to the entire spirit and intent of the constitution, and of all the legislation of the state, and in my judgment would be most disastrous to the public service. The people of this state require that all their public servants shall be subject to frequent visitation, and at stated intervals to opportunity in the appointing or electing power to determine whether the public service can be improved by change. Full force and effect can be given to section 1793, Political Code, without doing violence to section 1617 of the same code, and when this can be done it is the duty of the court to do it.
3. The position of a teacher is distinctly defined by the code (Pol. Code, sec. 1617) to be that of an employee. If the statutes and rules of the board determine his duties, powers, and rights, all that remains to complete the contract is his selection for the place, and it makes no difference whether that selection is made by a vote of the board, commonly called an election, by appointment, or by specially negotiated contract, it does not change the fact that he is still an employee, and that his rights are based upon his contract of employment. Any violation of those rights was a breach of contract, for which the plaintiff has an adequate remedy at law, and in that view of the case, mandate is not the proper remedy.
4. Whatever may have been the rights of the plaintiff at the time of commencing the action, — May, 1887,—■ in my view of the case those rights had ceased before the entry of the judgment, — February 11, 1888, — and it was error to enter judgment declaring that she is now entitled to be restored to the place demanded, and to the emoluments thereof down to that date. As I view it, her contract expired by operation of law, at the end of the school year in which the action was brought,— June 30, 1887, — and there is no pretense that she was reelected, reappointed, or that any new contract had been made with her.