exercise by the defendant of its optional right thereunder. Of course, it will not be denied that the defendant and Mrs. Moore, after the former had accepted or exercised its optional right, or upon the exercise thereof, could make such further or different arrangements as they pleased as to the terms of payment of the purchase price, and, if they did do so, it cannot well be said that the effect thereof was to create a new option agreement. Such arrangements would simply mean that new or different terms had been introduced into the contract of sale obtained by the exercise by the defendant of its optional right secured to it by the option agreement as procured for it by the plaintiff. In other words, Mrs. Moore had the right to waive any default as to the first payment, if default there was, or to extend the time of such payment upon the acceptance of the optional right by the defendant, and such action on her part could not affect the right of the plaintiff to claim as against the defendant the stipulated compensation for his services in procuring for it the option agreement from and under which it -obtained from Mrs. Moore the contract of sale and purchase.

The proposition, presented in connection with those last above considered, that the finding of an excess or profit on the sale by the defendant of the Moore ranch is not supported, because it appears from the evidence that the "defendant remains liable for $12,000.00 of the mortgage debt given for the purchase price", and, therefore, "it cannot yet be told that there will be any excess or profit", is devoid of merit. The predicate of the argument in support of this point is that, under the agreement declared upon by the plaintiff, one of the conditions upon which the plaintiff was to be paid one-half of the excess or profit realized from the sale of the ranch was that the fund from which the plaintiff was to be so paid was to be that created by such excess or profit and actually received by the defendant. We do not so read the pleaded agreement. As to that proposition, the complaint alleges that the defendant agreed "that if plaintiff would secure the option from said Maud Moore for the purchase and sale of said land for the sum of $25,000.00, defendant . . would under said option endeavor to effect a sale of said land for a sum in excess of $25,000.00, and in the event of such sale would divide the amount received for said land in excess of $25,000.00 equally with plaintiff, and it was then and there agreed that if plaintiff procured the option as aforesaid from said Maud Moore said defendant would upon the sale of said land for any sum in excess of $25,000.00 pay to said plaintiff one-half of said excess sum as his commission and share of the profits accruing under said option". Thus it will be noted that there is no provision in the agreement that the payment of plaintiff's share of the profits on the sale of the ranch was to be postponed or deferred beyond the time at which the sale of said ranch was actually effected or completed. As before suggested, the amount of the excess and plaintiff's share thereof could be known immediately upon the sale being made. The defendant could not require the plaintiff to wait for the payment of his one-half of the profits realized from the sale until the mortgage debt was extinguished, unless there was a covenant in the agreement to that effect, and, as seen, there was no such covenant in the agreement. Moreover, the defendant had received all but $12,000.00 of the sum for which it sold the land to its grantee, and had paid out of the profits it derived from the sale the expenses incurred in negotiating and completing the sale. Therefore, as above stated, it is manifest that it was not only in possession of the fund from which the plaintiff's share was to be paid, but, obviously, knew precisely how much the excess or profit amounted to.

.

The option on the Campbell ranch was in writing and to the plaintiff, who assigned it by writing to the defendant, under a preceding oral agree

ment by the defendant that plaintiff, upon procuring said option for it, would be paid by it the sum of $200.00. What has been said herein with respect to the oral agreement between the parties for the procurement of the option on the Moore property applies with equal pertinency and force to the oral agreement between them for the procurement by the plaintiff of the option on the Campbell property.

The several assignments of alleged error involving objections to rulings admitting certain testimony are connected with the questions above discussed, and further consideration thereof herein is, therefore, unnecessary. The judgment appealed from is affirmed.

We concur:

BURNETT, J.

CHIPMAN, P. J.

HART, J.

Civil No. 2774. Second Appellate District. October 17, 1918.

JOHN S. AKERMAN, W. S. DORLAND, JOHN A. GILLONS and A. T. JOHNSON, Petitioners, v. H. L. MOODY, as Auditor of the City of San Diego, Respondent.

[1] MUNICIPAL CORPORATIONS-SAN DIEGO MEMBERS OF BOARD OF EDUCATION-RIGHT TO RECALL-CHARTER.-Under the charter of the city of San Diego the right to recall members of the board of education of that city, equally with the right to elect such members, is vested in the city, and mandamus will issue to compel the city auditor to make his certificate, as prescribed by section 14 of chapter II of article II of the charter, to the effect that the indebtedness incurred under a resolution calling an election for the purpose of nominating candidates for such offices could be incurred without the violation of any charter provision.

Petition for Writ of Mandate.

For Petitioners-Harrison G. Sloane.

For Respondent-Warren E. Libby.

Amicus Curiae-T. B. Cosgrove, City Attorney.

In accordance with proceedings regularly taken for that purpose the common council of the city of San Diego, on the 31st day of July, 1918, adopted a resolution calling for a primary election to be held in said city for the purpose of nominating candidates for three offices of members of the board of education of that city, in case the incumbents be recalled at a proposed recall election. The resolution was duly referred and presented to the defendant for the purpose of procuring from him a written certificate to the effect that the indebtedness incurred under the terms of said resolution could be incurred without the violation of any of the provisions of the freeholders' charter of the city. The defendant has refused to make the required certificate, basing his refusal upon the ground that the recall provisions of the charter do not apply to members of the board of education. In this proceeding the petitioners pray for a writ of mandate commanding the defendant to make the demanded certificate.

The duty of the city auditor to make certificates of the kind here required is prescribed by section 14 of chapter 2 of article II of the charter of the city of San Diego. That he must do this in a proper case is not denied. (Higgins v. San Diego Water Co., 118 Cal. 524, 551; Pollok v. City of San Diego, 118 Cal. 593, 596.)

Section 81⁄2 of article XI of the constitution of California, as amended

October 10, 1911, and also as amended November 3, 1914, provides that "it shall be competent, in all charters framed under the authority given by section eight of this article, 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 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". The charter of the city of San Diego at all times since its adoption in 1889 has provided that the government of the San Diego school district shall be vested in a board of education. As amended in the year 1905, section 2 of article VII of the charter reads as follows: "The government of the San Diego school district shall be vested in a board of education, composed of five persons, who shall be elected by the electors of the city of San Diego, at large, at the same time and in the same manner as other municipal officers, and each of whom shall have been for two years a resident of said city, who shall be styled member of the board of education. They shall serve four years, or until their successors are elected and qualified." Chapter III of article I of the charter, as amended in 1909, provides for the manner in which all primary and general municipal elections for the nomination and election of municipal officers shall be conducted in the city of San Diego. In that chapter members of the board of education are listed as municipal officers to be elected. Section 4 of chapter IV of article I of the charter, as enacted in the year 1915, provides for the recall, of "the holder of any elective office of this municipality" and prescribes the procedure for such recall. Section 3 of article VII of the charter provides that "the duties and powers of the board of education shall be such as are now, or may hereafter be enjoined and conferred on boards of education in city and school districts by the laws of the state of California".

Section 1576 of the Political Code provides that every city (with an exception not important here) shall constitute a separate school district which shall be governed by the board of education or board of school trustees of such city. Section 1616 of the same code provides that "boards of education are elected in cities under the provisions of the laws governing such cities, and their powers and duties are as prescribed in such laws, except as otherwise in this chapter provided".

The provisions of the city charter leave no room for doubt that the charter recognizes members of the board of education as municipal officers. That the constitution authorizes a city in its charter to create such municipal offices is also entirely clear and certain. The legislation of the state concerning school districts has been framed with an evident intent to harmonize with the power of cities to act as school districts and to be governed by boards of education. In Allen v. Board of Trustees, 157 Cal. 720, a writ of mandate was granted requiring the board of trustees of a city of the fifth class to include in their call for an election of officers of the city the matter of election of members of a board of education thereof. After citing that section of the municipal corporations act which provides that in cities of the fifth class there shall be a board of education, and after quoting from section 1576 of the Political Code, the supreme court declared that, "under the plain terms of the statutes above cited, such city will form a school district, to be governed by the board of education of such city. A board of education, composed of five members, is a part of the governmental machinery of cities of the fifth class, and it would therefore seem plain that a call for the election of the officers required by

law to be elected in corporations of this class must include a call for the election of five members of the board of education".

It has been stipulated as a fact in this case that the San Diego school district of the county of San Diego comprises certain territory outside of the corporate limits of the city of San Diego; that the members of the board of education of the city of San Diego are paid the salary provided for them in the charter of said city by warrants drawn upon the county. treasurer, upon orders approved by the superintendent of schools of the county of San Diego, and are not paid by the city treasurer of the city of San Diego. Relying upon these facts, the defendant claims that the members of the board of education of the city are not subject to recall under the provisions of the charter and are not municipal officers, because electors outside of the city limits and within the school district have the right to vote for the said members and therefore they cannot be termed municipal officers; and also because electors outside of the city are qualified as candidates for such offices and therefore members of the board of education cannot be termed municipal officers.

If the provisions of the written law on this subject were obscure, we might follow counsel for defendant in a study of the character of the duties, powers and functions of school districts and of their officers, as a method of testing the question as to whether or not a member of a city board of education is a municipal officer. But in the absence of such ambiguity or obscurity such investigation is not necessary. If any rights of the persons residing in or owning property within the limits of the San Diego school district and outside of the city of San Diego have been encroached upon by the creation of the city of San Diego as a school district, there are within the law ample means for the protection of those rights without denying to the city of San Diego the right to have and to choose the members of a board of education. "That the education of the youth is properly included within the functions of a municipal government, cannot be denied. A municipal corporation is but a branch of the state government, and is established for the purpose of aiding the legislature in making provision for the wants and welfare of the public within the territory for which it is organized, and it is for the legislature to determine the extent to which it will confer upon such corporation any power to aid it in the discharge of the obligation which the constitution has imposed upon itself." (In re Wetmore, 99 Cal. 146, 150; Los Angeles City School Dist. v. Longden, 148 Cal. 380.) While those decisions recognize the principle that the school system of the state is a matter of general concern and not a municipal affair, they also recognize the right of a municipality to maintain educational departments running current with the general laws of the state touching the common school system. For such purposes there is no reason why a city should be denied the right to have municipal officers to take charge of the educational activities of the city. In the case of Stern v. City Council of Berkeley, 25 Cal. App. 685, the defendant challenged the validity of a provision of the city charter of the city of Berkeley which provided for compensation to a school director. It was contended that inasmuch as the public school system of the state has been made by the constitution and general laws a matter of general concern, the regulation of that system is a state affair as distinguished from a municipal affair, and therefore can be rightly covered and controlled only by general state laws. To which the court responded: "Generally speaking, this may be so; but in our opinion appellant, as a school director of the city of Berkeley, is a municipal officer, irrespective of whether or not the duties of the office are exacted by the charter or imposed by the

general law of the state, and therefore the compensation to be paid him by the city out of the city treasury for scrvices rendered the city in maintaining its school system as an integral part of the state school system is purely a municipal affair, which is exclusively controlled by charter provisions."

[1] It is our opinion that the right to recall members of the board of education, equally with the right to elect such members, is vested in the city of San Diego. On the record presented herein, the petitioners are entitled to the demanded relief.

Let the peremptory writ issue.

We concur:

JAMES, J.
SHAW, J.

CONREY, P. J.

Civil No. 2529. First Appellate District. October 18, 1918. NAPA VALLEY ELECTRIC CO. (a Corporation), Plaintiff and Appellant, v. CALISTOGA ELECTRIC CO. (a Corporation), Defendant and Respondent.

[1] PUBLIC UTILITY-SALE OF PROPERTIES—AUTHORIZATION OF RAILROAD COMMISSION ESSENTIAL.-Specific performance of an option to sell the properties of a public service corporation cannot be enforced, where there has not been first obtained from the Railroad Commission an order authorizing such sale, as required by section 51 of the Public Utilities Act.

Appeal from the Superior Court of Napa County-Henry C. Gesford, Judge.

For Appellant-U'Ren & Beard.

For Respondent-Asher, Meyerstein & McNutt; Joseph C. Meyerstein, H. L. Johnston, L. E. Johnston.

The plaintiff brought this action against the defendant to compel it te convey to plaintiff its properties on which it had given the defendant an option. The lower court sustained a demurrer to the plaintiff's amended ⚫ complaint, the plaintiff elected not to amend, judgment was entered in favor of the defendant, and the plaintiff has appealed on the judgment-roll. The plaintiff is a public service corporation serving electric energy to the inhabitants of St. Helena, and the defendant is the same kind of a corporation serving the inhabitants of Calistoga. December 31, 1914, each corporation executed to the other an option to sell to the other. The plaintiff first sought to exercise its option and, as the defendant failed to comply, this action in specific performance was commenced. In its amended complaint the plaintiff does not allege that either the plaintiff or the defendant has "secured from the railroad commission of the state of California an order authorizing the defendant to sell to the plaintiff". The defendant claims such an allegation is a prerequisite to a cause of action in such a case. The plaintiff urges (1) that if such is the law, then no contract to sell a public utility plant can be enforced; and (2) that the objection is premature. We shall consider these contentions together. Subdivision "a" of section 51 of the Public Utilities Act provides:

"No... electrical corporation . . . shall henceforth sell, lease, assign, mortgage or otherwise dispose of or encumber the whole or any part of its . . line, plant or system, necessary or useful in the performance of its duties to the public, or any franchise or permit or any right thereunder, nor by any means whatsoever, direct or indirect, merge or