The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-06-05
TEACHERS PENSION FUND.-.
City Attorney Creswell Sub
mitS an Important
Opinion.
A TRIAL BEFORE DISMISSAL
The Manner of the Creation of
the Fund Still a Little
Cloudy.

Superintendent of Schools Moulder, who
has been i'll, put in an appearance at his
Office yesterday, and was the recipient of
congratulations from principals and
teachers.
The teachers, by the way, were all in a
furry about two different and distinct
matters affecting their interests and duties,
but they begged the Superintendent to be-
ware OF giving them any thought in the
lear OF It's causing him a relapse.
One of these was the order requiring
them to report the residence of their pupils
on new "bIock SYSTEM looking to the
redlstrlcting of the City for the schools.
The other was the new pension law, over
which not only teachers, but lawyers, have
been struggling to gain some understand
ing since the Legislature adjourned.
Some time ago Superintendent Moul-
der submitted a request to City and
County Attorney Creswell asking
his opinion upon the essential
features of the law. Late yesterday afternoon
the opinion in due form was handed him.
The superintendent, however, had not
time to give it such attention as would
warrant him in expressing an opinion
upon the matter. The law, he said, was
of so mixed a quality that it was doubtful
If any lawyer could make anything out of
it. Mr.. Creswells communication is as
follows:
Andrew J. HouIder, Superintendent Common
Schools !: have received your communication
proved March %, 1895 Stats 1885, p. 170),
ana requesting my opinion upon the same,
hence this cOmmupication.
X OIL he nd t1,a
10 arbitrarily declare that teacher who has
taught in the public schools for twenty years
has become incapscitatedm fro performing The
suites of teacher" The incapacity to perform
"the duties of teacher" must exist in fact
and the TACT viii not exist by the Board of Ed
ucatlon arbitrarily declaring that 1t does exist
The discretion is given to retire the teacher
when the lncapacity exists and not to estab-
hsh an lncspacity when none exists.
section alone provides way Tor the crea-
ton OF the pension fund. 1t reads as follows:
''Sec. 3. To provide fund for the payments
provided for in this act, the secretary OF the
Board OF Education of each municipality shall
certify monthly to the treasurer of such NUM-
cipality, and the Board of Trustees in every
school district outside of such municipality
shall certify and pay over in like manner to
the County Treasurer of each county, and 1
per cent of the amount due each teacher as
salary Tor the previous month; and all moneys
derived from any other source shall be paid to
the County Treasurer to the credit of such
fund Such board shall also receive and place
10 the credit of such fund all moneys received
otherwise" eO' -
Upon the construction of the unhappy OBJ
scurities OF this section depends the practical
effect of this meritorious statute. 1t is plain
that the conjunction ''and' preceding the
words zone per cent? has no grammatical
meaning in this sentence. It is syntactical
waif or an estray impounded there by misdi-
rected legislative energy. 1t means nothing
where it is, it prevents the sentence from
OF construction can be violated by emitting it.
Then the sentence emitting the part refer
ties, should read as follows: ''To provide
fund for the payments provided for in this act,
the secretary of the Board of Education of each
municipality shall certify monthly to the
treasurer of such municipality -
per cent of the amount due each teacher as
salary for the previous month";
This means that the secretary shall at the
end of each month certify TO the treasurer of
the municipality what amount of money is l
per cent of the teachers salary for the previous
month, which IS the beginning and ending of
the duty of the secretary of the Board of Educa-
ton in this matter.
The object OF this certificate is to inform the
treasurer of the amount due from each teacher
for the purpose of providing fund for the pay
ment OF the pension Still the act does not say
in express terms that the 1 per cent of the
salary of the teacher in the municipality filing
the notice required by the act must be paid by
such teacher, or that it can be collected from
them for that or any other purpose by any
body.
The fund cannot exist without money, and
the only certain way OF obtaining 1t is from
collections from the teachers. The money
cannot be obtained by the certificate of the
secretary of the Board of Education alone. The
certificate of the secretary must be presumed
10 have been required for some purpose, and
the only purpose ii can serve is to be made, in
con junction with the notice, the basis of the
voluntary or involuntary payment of the
amount due from each teacher at the end of
each month. The signing and delivery of the
notice, required by the act, make it compul-
sorry upon the teachers to bear whatever bur-
den is required ofthem by the act, in order that
they may enjoy its benefits. The only burden
is the payment of l per cent of the salary of
each month, and the benefit is the pension to
The treasurer is made the custodian of this
notice and eX-officio treasurer of the fund. The
possession of this notice informs the treasurer
what teachers are bound to bear the burden of
the act, and the receipt by him of the certif-
cate of the secretary of the Board of Education
informs him of the amount that should be paid
by said teacher.
In nv opinion, no other person being bur
dened with this information. and no one being
expressly charged with the duty of collecting
the money, the Legislature intended that it
should be the duty of the treasurer to retain
from the salary warrants OF such teachers the
sum of money so found to be due the fund from
each.
am irresistibly led to this conclusion de-
spite the unfortunate obscurities and crude
ness of this piece of legislation. l would Sug-
gest, in order TO avoid complicationswith pur-
chasers of the warrants of teachers bound by
the provisions of the act, that the sum due the
fund on account of the notice filed by them be
made to appear across the face of each war
rant, so that the purchaser would have notice
OF the sum the treasurer could retain out of
the same. Yours very truly,
HARRY T. CREswELL,
Attorney and Counselor.
Dated June q, 1895.
This opinion, however, disposes of the
question which has chiefly worried the
teachers-whether or not the law gives to
the Board of Education the right to dis
miss a teacher without trial simply be-
cause she has been in active service for
twenty years. In Mr.. CreswelPs opinion
the board cannot, under this law, dismiss
teacher until incapacity is shown to exist
which means that she shall have trial IN
regular form.
This will doubtless give a boom to the
organization of the pension fund, or
rather the formal acceptance OF the pro-
visions of the law by the teachers. They
have been holding off for fear of placing
themselves in position to be retired on
pension without appeal.
Among the champions of the law and
one who was largely instrumental in secur-
ing It's passage is Mrs. Craven, who, at
the meeting of the teachers at the Girls
High School to discuss it, stated that she