SHENK, J. On November 1, 1944, the plaintiffs, as members of the governing board of Midway School District of Kern County, served on the defendant, a permanent teacher employed by the district, ’a written statement of charges as constituting causes for his dismissal, and notice of intention to dismiss him on December 2, 1944. On November 29th the defendant demanded a hearing on the charges and the plaintiffs filed a complaint in the superior court pursuant to section 13529 of the Education Code (Stats. 1943, p. 570). The defendant answered, a trial was had, and judgment in his favor was entered from which the plaintiffs have appealed. The evidence produced at the trial shows the following facts:
The defendant had been employed by the Midway School District for more than 20 years. He taught mathematics, physical education and shop. He furnished without pay much extra time in teaching at night, and in school affairs and exhibitions. There was no question of his competency and fitness for the position he held nor of his cooperation and helpfulness in school curricula and other activities. He suffered chronically from hives due to a food allergy, but had missed no more than 10 days of school in the 20 years. During the five years preceding the events hereinafter related he had had no vacation due to his attendance at summer school and work in industry. During the latter activity he had received an injury resulting in a condition which gave him pain. His physical condition was known to the school principal and others, and on at least one occasion necessitated temporary relief from teaching before a mixed class. In each of two or three prior years he had attempted to obtain a few days leave of absence, but was unsuccessful for the reason that he was considered not wholly incapacitated from performing his duties. In May, 1944, he consulted a physician for possible alleviation of his condition, but took no treatment [15]at that time. On Saturday, September 23, 1944, he called at the hospital for an appointment, but the doctor was away and he could not obtain a definite appointment until Monday, October 2d. On Monday, September 25th, at the invitation of the father of one of the pupils, he decided to go on a deer hunting trip in Nevada on a promise from his prospective companion to have him back on Monday, October 2d. After the close of school on Wednesday, September 27th, he placed the following note on the principal’s desk:
“On account of coming illness I find it necessary to be absent from school the rest of this week. My lesson plans are on my desk. Will try to be back Monday but will probably be absent again on Wednesday until the next Monday as I will probably enter the hospital under Dr. Johnson for observation. ’ ’
He left the same evening for Nevada with his companion. On the following Saturday a snow storm arose which prevented their leaving the deer camp until Wednesday. It was impossible to communicate the fact of his enforced absence to the principal. He arrived home Thursday evening and returned to his classes on Friday morning, October 6th.
The governing "board deducted $96 from the defendant’s salary for the six days’ absence without leave and requested his resignation. Upon his refusal to resign the board adopted a resolution charging him with (1) unprofessional conduct; (2) dishonesty; and (3) persistent violation of the school law and regulations. The hearing in the trial court was had on those charges. "
. The court found the foregoing facts and concluded that they did not constitute sufficient cause for dismissal.
The judgment in effect was an adjudication that the plaintiffs may not dismiss the defendant. The plaintiffs contend that the trial court had no power to make such an adjudication; that the court’s power was circumscribed by the rules relating to certiorari and mandamus, and that judicial investigation was limited to whether the board properly exercised its jurisdiction. It is claimed that if facts existed which, as here asserted to have been found, were sufficient support for the board’s determination to dismiss, the trial court had no power to disturb it. The plaintiffs specially refer to the fact, also found by the court, that the indisposition of the defendant was not sufficient to prevent continued performance of his duties and that he used his indisposition as an [16]excuse to absent himself for the purpose of going deer hunting for at least two school days. A school regulation provided that teachers should not be absent without leave except on account of illness incapacitating them from performance, of their duties. The substance of the court’s finding is that the defendant’s conduct was a violation of that regulation.
The position of the plaintiffs assumes the existence of statutory provisions which are lacking in the present law. Long prior to the adoption of the present Education Code, and pursuant to the 1921 amendment of section 1609 of the Political Code, included in the former Teachers’ Tenure Act, the law afforded a retrial in the superior court after a hearing before the board of education on charges similar to those here involved. In Saxton v. Board of Education, 206 Cal. 758, 768 [276 P. 998], it was stated that such a trial was not an appeal from the board’s determination, and that the then existing statutory provisions deprived the board of the power to pass finally upon the dismissal of an accused teacher.
The case of Board of Education v. Ballou, 21 Cal.App.2d 52, 55 [68 P.2d 389], noted the significant changes brought about by the 1935 amendment of the School Code (Stats. 1929, ch. 23, Stats. 1935, pp. 1886, 1887) whereby “Administrative school officials were deprived of the power to dismiss permanent teachers for cause and it was made necessary for the governing board, in order to bring about a dismissal, to file a complaint in the superior court ‘ asking that the court inquire into such charges and determine whether or not such charges are true, and if true, whether or not they constitute sufficient grounds for the dismissal of such employee, under the provisions of this code, and for judgment pursuant to its findings. ’ The legislature has placed upon the judges the duty of determining whether a teacher should be dismissed when charges such as incompetency are filed.” (See, also, Fresno City H. S. Dist. v. De Caristo, 33 Cal.App.2d 666 [92 P.2d 668].) In Board of Education v. Mulcahy, 50 Cal.App.2d 418, 421 [123 P.2d 114], it was said that the interposition, between the initial charge and the final order, of a judicial determination as to the existence of proper grounds for dismissal is supported by both reason and authority, citing Wheatley v. Superior Court, 207 Cal. 722 [279 P. 989],
The changes enacted by the School Code have been carried into the Education Code adopted in 1,943. (Stats. 1943, ch. 71.) Section 13521 provides that no permanent employee shall [17]be dismissed except for one or more of the enumerated' causes which include those here involved. Upon the filing of written charges the governing board of the school district may give notice to the permanent employee of its intention to dismiss him at the expiration of 30 days from the service of the notice unless a hearing is demanded. (§13522.) If the employee does not demand a hearing within the 30 day period he may be dismissed upon the expiration of that time. (§ 13527.) However, the employee may demand a hearing, in which event the board has the option either to rescind its action or to file a complaint in the superior court setting forth the charges and asking that the court inquire into the charges and determine whether they are true, whether they constitute sufficient grounds for the dismissal of the employee under the provisions of the code, and that judgment be entered pursuant to the findings. (§ 13529.) Section 13551 provides that after the trial the court shall enter judgment, which “shall determine whether or not the governing board may dismiss the employee.” Section 13552 reads: “If the judgment determines that the employee may be dismissed, the governing board may dismiss him upon entry of the judgment. Otherwise the employee may not be dismissed as the result of the charges or of any charges which could have been made or heard at the hearing.’ ’
The foregoing cited cases and provisions of the Education Code afford a complete answer to the contention of the plaintiffs that the trial court did not have the power to determine whether the defendant may be dismissed by the board. Where an accused teacher demands a hearing, the duty of determining the issues as to the truth of the charges and their sufficiency to support a dismissal is placed by the statute on the superior court, whose judgment, appropriate to the evidence and the findings, terminates the matter. In such cases the board has the administrative function of initiating the charges, of filing the complaint on request, and of compliance with the judgment of the court—with the qualification that a judgment determining that the board may dismiss the defendant is not to be deemed a matter of direction or compulsion. On an appeal from the judgment the review is not to discover whether facts exist which sustain the action of the board, but whether the evidence on the court hearing supports the findings and judgment of the court.
[18]The plaintiffs contend that the conclusion that cause for dismissal does not exist is inconsistent with the findings and therefore, that the findings do not support the judgment. They point to the finding that the defendant’s condition did not prevent the performance of his duties and that he used it as an excuse to go deer hunting, and to the evidence that he admitted before the board that he was not sorry he had gone and that under similar circumstances he might feel impelled to do the same thing again. They contend that these facts support the charges of unprofessional conduct, dishonesty and persistent violation of regulations, and are inconsistent with the conclusion of the trial court that the facts do not constitute sufficient cause of dismissal. However, the court in effect also determined that the one instance of violation under the circumstances, together with the frank answers indicating the defendant’s state of mind, did not constitute unprofessional conduct or dishonesty such as would unfit him for the performance of his duties as a teacher. An approved definition of dishonesty connotes a disposition to deceive. (Hogg v. Real Estate Comm’r, 54 Cal.App.2d 712, 717 [129 P.2d 709].) That the defendant was guilty of a measure of deception may not be doubted and his conduct was reprehensible when measured by the high standards of his profession. But whether the Legislature intended that all deception, however slight, should result in dismissal is doubtful. A judicial question is thus presented. The trial court having the responsibility in the premises, chose to relieve the defendant from the rigorous result of his misconduct and we are disposed not to disturb its judgment in this respect.
The court concluded that one instance of disobedience of the school regulations did not necessarily show persistence. Persistence, in the sense intended, is referable to past conduct. The Legislature undoubtedly intended that opportunity for correction be available and refrained from providing for dismissal for a single violation of regulations, or until repeated violations conld be considered persistent. In Fresno City H. S. Dist. v. De Caristo, supra (33 Cal.App.2d 666, at 675), it was said that two absences without leave may not be considered a persistent course of conduct. (See Fresno City H. S. Dist. v. Dillon, 34 Cal.App.2d 636 [94 P.2d 86]; cf. Evard v. Board of Education, 64 Cal.App.2d 745 [149 P.2d 413], where the teacher absented herself without leave for a period of seven months.) A teacher who is “continually insubordinate . . „ [19]may seriously affect the discipline in a school, impair its efficiency, and teach children lessons they should not learn.” (Johnson v. Taft School Dist., 19 Cal.App.2d 405, 408 [65 P.2d 912].) The emphasis is on “persistent” and “continually.” The trial court expressly found that the defendant was not motivated by an attitude of insubordination. We conclude that the findings and conclusions are not fatally inconsistent, that they are supported by the evidence and in turn support the judgment.
Both the governing board of the school district and the trial court have followed the procedure prescribed by the Education Code and the judgment is pursuant to the authority vested in the trial court by the provisions of that code.
The judgment is affirmed.
Carter, J., Traynor, J., and Schauer, J., concurred.