¶1 I concur in the conclusion of Mr. Justice Angellotti, that the judgment should be affirmed. It may be assumed for the purpose of the argument that the defense of the proceeding for mandamus brought against the board by the respondent was a matter in which the board, as such, was interested, and hence that it could, under some circumstances, devote public funds in its control to the payment of an attorney to conduct such defense. But conceding this point, it does not follow that under the circumstances here existing it had authority to employ an attorney at the expense of the city school district. The board occupies a position of trust, the city school district and its inhabitants are the beneficiaries, and the school funds constitute the trust fund to be expended. As a trustee, the board is not authorized to incur a useless or unnecessary expense to the injury of the beneficiary. If the law provides an attorney upon whom the board may call when a defense to any suit is necessary, it cannot ignore this provision and put the district to the expense of paying some other attorney for services which it is the duty of the attorney thus provided to perform. As a public trustee, it cannot in such a case employ other counsel until it has exhausted every means available to it to procure the services of the attorney provided by public authority to act for it without expense. The charter provides that the board may “require the services of the city attorney in all actions, suits, and proceedings by or against the board of education.” (City Charter, art. VII, chap. Ill, sec. 1, *457 subd. 8.) This, by implication, makes it the duty of the city attorney to respond to and obey the requisition of the board. There is nothing in the portions of the charter relating especially to the duties of city attorney that is necessarily inconsistent with his performance of this duty, at least as applied to the circumstances of this case. There is nothing here to show that Kingsbury occupied a position which made it the duty of the city attorney to advise him, nor to show that the petitioner in the mandamus proceeding had consulted the city attorney about it or had been advised by him.
¶2 It is said that the school system is a state institution, and is governed by general laws, and hence that city charters cannot prescribe the duties of the school officers. This may be conceded in so far as any provision of a charter may conflict with a general law on the subject, but where the general law is silent the charter will be allowed to control. The general law contains no provision directing the board in the employment of an attorney. The school system may not be a municipal affair in the sense that a provision of the charter in reference thereto can prevail over a general law. Yet it must be admitted that the duties of the city attorney and his compensation are municipal affairs, and that charter provisions concerning the same are binding on that officer. The city charter fixes his salary and makes it his duty to defend the board free of expense to the school fund. The board, occupying fiduciary relations, is, under the general principles governing such relations, bound to avail itself of this opportunity to avoid paying out the money of the district, and to make its requisition on the city attorney, as it did in this instance.
¶3 If this were the end of the matter, and the refusal of the city attorney were final, perhaps it might follow that the board could then employ other counsel, as it did attempt to do. But there is a further opportunity open to the board to relieve the fund from this expense and obtain counsel at the expense of the general city fund. The charter further provides that the mayor may for cause suspend the city attorney and appoint some person to discharge the duties of the office during the suspension. This offers the board a further remedy, which it must pursue in order to fulfill its fiduciary obligations. Intentional neglect of duty is good cause for suspension. When the city attorney refused to defend the *458 proceeding for the board, it should at least have attempted to procure his suspension and the appointment of another person who would perform the duty. It should have stated the refusal to the mayor, and demanded the suspension of the city attorney and the appointment of another person as city attorney pro tempore. If the mayor had refused, then, if at all, would the board be justified in employing another. As stated before, it can be only when all other means fail, when the necessity is without alternative, that the extraordinary power exists to employ counsel at the expense of the funds of the district. The power of boards of education and boards of school trustees to employ counsel, if any they have, exists only from necessity. It is a power that is liable to be abused if given without limitations or restrictions. This court ought not to lay down a rule which would sanction the use of the power where by any possible effort the necessity might be avoided. As such necessity has not arisen, we need not decide the question of the existence of the power when it does arise.
¶4 The board is a public body with limited powers, and the person who contracts to render services in its behalf acts at his peril, and is bound to see that the right to employ him exists. If he performs services in a case where the right does not exist, he can claim no estoppel against the board, and he can have no recourse, except to the individual members who employed him, in case they have made themselves personally liable. Otherwise, he is without remedy.
¶5 I concur in the affirmance of the judgment, on the ground solely that it was the duty of the board of education to require, and to take all necessary measures to compel, the city attorney to defend, as it was his duty to do, the suit brought against it by Kingsbury.
¶6 The charter of San Francisco in this respect provides that the board shall have power “to require the services of the city attorney in all actions, suits, and proceedings by or against the board of education.” This is a plain requirement that the board shall demand his services, and that he shall respond to the demand. His simple refusal did not authorize the board to engage other counsel. A charter requirement whose obvious purpose is to prevent the board from using *459 moneys primarily devoted for educational purposes in paying expenses of litigation is not to be so lightly brushed aside. If such construction is to obtain, the charter provision would be rendered nugatory, and a simple demand and refusal would be sufficient warrant to the board to override the law.
¶7 Whether the board under any circumstances would have the implied power to employ counsel is, to my mind, not here involved. No peculiar circumstances are shown in the case which makes its consideration necessary, and it will be time enough to dispose of that question when it arises.