I dissent.
Under the undisputed facts in the present ease, I am of the opinion that the judgment of the trial court must be reversed. These undisputed facts required findings by the trial court that certain of the charges made against respondent were true, and further required the conclusion by the trial court that such charges constituted sufficient grounds for dismissel under the provisions of the Education Code. (Ed. Code, § 13529.) Upon such findings and conclusions, the judgment of the trial court should have been that “the governing board may dismiss the employee.” (Ed. Code, § 13551.)
The trial court, however, apparently misconceiving the relative functions of the school board and of the court under the pertinent sections, not only made findings and conclusions, some of which are inconsistent among themselves and some of which are wholly contrary to the undisputed facts, but further made certain findings which could have no relevancy except upon the erroneous theory that the trial court had the power not only to determine the matters above mentioned but also had the power and duty to determine the penalty, if any, which should be imposed.
The majority opinion sustains the judgment upon arriving at the conclusions that “the findings and conclusions are not fatally inconsistent” and that “they are supported by the evidence.” In arriving at these conclusions, the majority opinion stresses the facts which might be considered by the *20board in ultimately fixing the penalty, if any, to be imposed by the board following a court determination that the board “may dismiss the employee” but which facts should not have been considered by the trial court and should not be considered by this court in determining whether the charges were true and whether they constituted sufficient grounds for dismissal under the code. While the procedure set forth in the Education Code contemplates the exercise by the trial court of broad powers' in determining questions of fact and of law, the function of the trial court ends with such determination. In other words, the trial court has the function of determining whether the board may dismiss the employee, but it has not the function of determining whether the board should dismiss the employee. The latter function of fixing the penalty, if any, is an administrative function which remains with the board. This is made manifest by the provisions of section 13552 of the Education Code, which provides that “If the judgment determines that the employee may be dismissed, the governing board may dismiss him upon entry of the judgment.” The true function of the court is apparently recognized in that portion of the majority opinion where it is said that “a judgment determining that the board may dismiss the defendant is not to be deemed a matter of direction or compulsion,” but the majority opinion also quotes with apparent approval the language used in Board of Education v. Ballou, 21 Cal.App.2d 52, at page 55 [68 P.2d 389], where it was said: “The legislature has placed upon the judges the duty of determining whether a teacher should be dismissed when charges such as incompetency are filed.” (Emphasis added.) This language was dictum in the Ballou case and should be disapproved rather than quoted with approval, as the word “should” was obviously used in place of the word “may.” That case arose upon demurrer and the question under discussion was not before the court. Neither was the question involved in Board of Education v. Mulcahy, 50 Cal.App.2d 418 [123 P.2d 114], in which the language of the Ballou case was quoted at page 421. There the court affirmed a judgment “that the board might dismiss the defendant as an employee of the school district.” (P. 420.)
As above indicated, the pertinent facts with respect to certain charges were undisputed. Among other charges, respondent was charged with dishonesty and unprofessional conduct. Stripped of all irrelevant matters which were in*21troduced in evidence, it appears from the undisputed evidence that because of respondent’s desire to go deer hunting, he absented himself from his duties for that purpose for several days without permission, upon the admittedly false pretext, embodied in his letter to the principal, that his absence was necessitated solely by illness; that upon his return, he adopted and maintained a defiant and insubordinate attitude in his meetings with the principal and with the board, and made no apology for his unauthorized absence or for the false statements contained in his letter, but on the contrary stated “I am not sorry”; “I would do it again under the same conditions”; and “If you fire me that is all right.”
In its findings, the trial court found that respondent had written the letter to the principal containing the false statements and had thereafter voluntarily absented himself from his duties for at least part of the time “without legal reason or excuse,” and that such voluntary absence “was without the permission or assent of the said principal or school board and was not because of illness or indisposition but was for the purpose of going on said hunting trip.” But as to the specific allegations relating to the defiant and insubordinate attitude of respondent after his return, which allegations were contained in the complaint and were further incorporated into the complaint by reference to the resolution of the board, which was attached, the trial court made no specific findings but found generally that all other allegations were “untrue, except in the respects in which said allegations are elsewhere in these findings found to be true.” These last-mentioned general findings were contrary to the undisputed evidence and cannot be sustained. Likewise contrary to the undisputed evidence is the general finding “that it is not true that said defendant was motivated at any time by an attitude of insubordination.”
The above-mentioned undisputed evidence left for the determination of the trial court no real issue of fact with respect to the truth of the specific charges to which such testimony related. The question presented to the trial court was rather one of law than one of fact, and concerned the question of whether such admitted conduct constituted dishonesty and unprofessional conduct within the meaning of section 13521 of the Education Code. That question remains a question of law on this appeal, and the question is not foreclosed *22by the trial court’s inconsistent and unsupported conclusion, contained in the findings of fact, that “it is not true that defendant has been guilty of unprofessional conduct or dishonesty.”
While there may be situations in which the question of whether certain acts constitute unprofessional conduct and dishonesty may not be a question of law alone, such is not the case here. Under approved definitions respondent was unquestionably guilty of dishonesty in writing the letter to the principal containing false representations which were intended to deceive. (See Hogg v. Real Estate Comm’r, 54 Cal.App.2d 712, 717 [129 P.2d 709].) This is apparently conceded in the majority opinion, where it is stated “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.” Furthermore, it is difficult to conceive of any more flagrant unprofessional conduct than that evidenced by such dishonesty, coupled with total disregard of the rules, and the defiant and insubordinate attitude adopted and maintained by respondent throughout his meetings which followed with the principal and the school board. It therefore appears that the trial court here had no alternative but to declare, as a matter of law, that the undisputed facts constituted dishonesty and unprofessional conduct. To declare otherwise under the circumstances would mean that the school board, entrusted with the important duty of supervising the education of the younger generation, would be powerless to dismiss the admittedly offending, defiant and recalcitrant teacher and would be seriously hampered in maintaining discipline and efficiency. In this connection,, the following language used in Johnson v. Taft School Dist., 19 Cal.App.2d 405, at page 408 [65 P.2d 912], is pertinent: “A board of education is entrusted with the conduct of the schools under its jurisdiction, their standards of education, and the moral, mental and physical welfare of the pupils during school hours. An important part of the education of any child is the instilling of a proper respect for authority and obedience to necessary discipline. Lessons are learned from example as well as from precept. The example of a teacher who is continually insubordinate and who refuses to recognize constituted authority may seriously affect the discipline in a school, impair its efficiency, and teach children lessons they should not learn. Such conduct may unfit a *23teacher for service in a school even though her other qualifications may he sufficient. ‘Book learning’ is only a phase of the important lessons a child should learn in a school.”
As I read the majority opinion, it fails to distinguish between the functions of the school board and of the court in the plan set forth in the sections of the Education Code. It recognizes that respondent was guilty of what is termed “deception,” “misconduct” and “reprehensible” conduct, but it sustains a judgment holding that the school board has no power to dismiss respondent. It states that the trial court in effect determined that the conduct of respondent “did not constitute unprofessional conduct or dishonesty such as would unfit him for the performance of his duties as a teacher. . . . 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.” (Emphasis added.) It was the function of the trial court to determine only whether respondent was guilty of unprofessional conduct and dishonesty, and to leave to the school board the determination of whether respondent should be dismissed because of such unprofessional conduct and dishonesty. As indicated above, the trial court had no alternative but to determine that he was thus guilty under the undisputed facts. But it was no part of the function of the trial court to determine whether such unprofessional conduct and dishonesty were “such as would unfit him for the performance of his duties as a teacher” or “to relieve the defendant from the rigorous result of his misconduct. ’ ’ That function clearly rested with the school board, in its discretion, following an appropriate judgment of the trial court. "
Respondent does not yet appear to appreciate the seriousness of his offenses, as he claims on this appeal that at most his “conduct amounts to no more than one absence without leave.” It may be assumed, for the purpose of this discussion, that if the undisputed evidence showed nothing more than one short absence without leave, the trial court would have properly entered judgment in his favor. But the very fact that respondent fails to appreciate the seriousness of his deliberate falsehoods uttered to deceive his principal or the seriousness of his defiant and insubordinate attitude, adopted and maintained toward his principal and the school board following the uttering of said deliberate falsehoods and fol*24lowing the taking of his absence without leave, tends to show justification for the action of the school board in passing a resolution containing an expression of its intention to dismiss respondent. Whether respondent’s attitude has changed and whether the final action of the board should be one imposing the penalty of dismissal are matters which are committed to the school board for determination following the judgment of the trial court determining that such conduct constituted unprofessional conduct and dishonesty. (Ed. Code, §§ 13521, 13552.) It is not the function of the trial court nor of this court to determine the circumstances under which unprofessional conduct or dishonesty should be condoned or to compel the school board to retain an offending teacher regardless of his continued defiant and insubordinate attitude toward those who are charged with the duty of dealing with such derelictions and of maintaining the high standards of our educational system.
For the reasons stated, I am of the opinion that the judgment of the trial court should be reversed.
Gibson, C. J., and Edmonds, J., concurred.