I dissent. For convenience I will designate the original respondents as the state board and the county board respectively.
*1001To teach in the general secondary public schools of this state, it is essential that a teacher, unless he or she has a life diploma (School Code, secs. 5.270-5.281), be the holder of a credential, verifying successful teaching experience (School Code, sec. 5.420). In the procurement of such certificate or credential, the burden of proof in that regard is upon the applicant. The trial court found that the credential herein was denied not only because petitioner failed to have verified the necessary period of successful teaching experience, but that she did not have the required qualifications, as borne out by an investigation by officials and employees of the county board and by her personal appearance before a committee. The trial court further specifically found “that said statements disclosed the inefficiency of said petitioner which statements were true in fact.” In the conclusions of law the following appears: “That said respondent Board of Education of the City and County of San Francisco could not legally employ said petitioner as a public school teacher subsequent to the expiration of her teaching credential. That the report made by the respondent Board of Education of the City of San Francisco to the State Board of Education of the State of California that the teaching experience of the said petitioner was unsuccessful was a true statement based upon true facts and was not arbitrary, discriminatory, or capricious. ’ ’
There is ample evidence to support the conclusion of the trial court, and no evidence was introduced to the contrary. The majority opinion reverses the judgment and directs that petitioner be restored with full salary from the date of her “dismissal.” There is no order of dismissal by the county board—merely a notice of discontinuance of service. It is true that the findings, in at least one instance, use the word “dismissal,” but the date referred to is actually that of termination of service.
The majority opinion contains no order directing the state board to issue to the county board a credential or certificate, and the county board under the law is prohibited from employing petitioner without one. (School Code, sec. 5.420.) If the majority opinion may be construed as impliedly directing the issuance of such certificate, the order would be unenforceable. The state board is not a present party to this proceeding.
It seems to have been stipulated that the state board would be bound by any finding of the trial court that petitioner *1002was efficient. No such finding was made, and the majority opinion does not so hold unless the languge to the effect that five months of continuous teaching during a period of five years without the filing of formal charges of unfitness or incompetency is proof of successful teaching experience, may be so construed.
If the majority opinion may be interpreted to mean that the local board should verify to the state board the required period of successful teaching experience by petitioner, so that the state in turn might issue a certificate to be used by the county board, the latter would be required to perform an act—that of issuing a false verification—which in good conscience it should not do except upon the theory advanced in the majority opinion that continuous service is successful service.
The theory of the majority opinion is that the acts of both boards were illegal—not that the state board was unjustified in finding in effect “inefficiency.” The majority opinion holds “even though it be assumed [which assumption is proved not only by a preponderance of the evidence but beyond all reasonable doubt] that such evidence would have been legally sufficient to warrant the revocation of her teaching credential and her dismissal as a permanent employee, such evidence has no bearing upon the issue with which we are here dealing.” In other words, the majority opinion, unfortunate in effect, holds that it is immaterial whether an inefficient teacher is foisted upon the young pupil; that the real question is—whether the procedure taken to relieve the pupil of inefficient teaching is proper.
The aim of the Teachers’ Tenure Act is to enable schools to obtain a permanent staff by which to accomplish their real purpose—that of efficient teaching. (Fresno City H. S. Dist. v. De Caristo, 33 Cal.App.2d 666 [92 P.2d 668].) Tenure should not depend upon the caprice of the members of governing boards, but the existence of arbitrary, opinionated determination does not appear from the record in this ease.
In the past, teachers’ tenure laws have protected both teacher and pupil; but the most ardent advocate of teachers’ tenure never contemplated that the stringent rules for the protection of the teacher should be used in the defense of an incompetent instructor to the detriment of the pupil. 1 ‘ The entire school system is provided in the interest of the school children and not otherwise.” (Steele v. Board of Trustees, *1003121 Cal.App. 419, 420 [9 P.2d 217].) After all, the public is interested in the protection of the pupil rather than the “tenure” of an inefficient teacher. This brings us to a consideration of the technical grounds for the “reversal,” which may well be met by both legal and practical considerations.
There is a distinction between a life diploma and a credential. A teacher with tenure rights must have one or the other. There does not appear to be anything unreasonable in the statutory requirement that after the probationary period a teacher must continue to demonstrate efficiency in order to be entitled to a life diploma. The life diploma is issued for an indefinite period in that it is issued for life. Prior to the granting thereof a credential may be issued, but “No certificate granted upon a credential issued by the state board of education for a limited period shall be renewed or extended unless the credential upon which such certificate was issued has been renewed or extended, and then only for the period of such renewal or extension of the state board credential.” (School Code, sec. 5.314.) The state board has adopted certain rules—one being to the effect that until a teacher is entitled to a life diploma a certificate may be issued upon proof of “successful teaching experience” within certain periods.
In particular I cannot agree with my associates in the definition of “successful teaching efficiency.” The opinion states “(1) Since it is admitted that for the full five years preceding the date of the expiration of appellant’s state teaching credential she taught continuously in the public schools of this state and that during that period no charges of incompetency or unfitness to teach were ever filed against her, she was entitled to a renewal of her state teaching credential. ...” Thus the test is based upon the mere filing of charges.
Assuming that the state board, not a present party to this “reversal” should voluntarily adopt the views expressed in the majority opinion, it would require a departure from the rulings and precedents established for over fourteen years as appears from the brief of amicus curiae. I suggest with deference that the majority opinion has failed to differentiate between a teacher’s tenure and the necessity of having a state diploma or credential as well as a county certificate in order to' teach in the public schools, and that it has failed to differentiate between revocation and renewal. In order *1004to continue teaching a teacher with tenure rights must have a teaching credential or a life diploma.
Petitioner does not hold a life diploma, but was merely teaching with “permanent tenure” through the assistance of a “credential certificate.” Permanent tenure is not so inviolate that the Legislature may not control its existence, at least in the interest of school children. (School Code, sec. 5.406; Taylor v. Board of Education, 31 Cal.App.2d 734 [89 P.2d 148].)
A permanent teacher may be discharged without the filing of charges pursuant to section 5.650 and may be reduced to a probationary status. (School Code, sec. 5.711; Davis v. Gray, 29 Cal.App.2d 403 [84 P.2d 534].) A teacher, acting and in fact a “principal” for twenty years and then demoted to high school teacher, is not a permanent classroom teacher. (Griffin v. Los Angeles etc. School Dist., 53 Cal.App.2d 350 [127 P.2d 939].)
The evidence presented to the trial court shows without contradiction or explanation that petitioner neglected reports important to her work; that she was unable to control students; that she was shifted from one department to another and that the head of the department “found this teacher’s classes in such a state of stand-still that he took one class every day for two weeks to prepare them for the English essentials test, the teacher being in the room all the time. There simply was no progress being made and the teacher was unable to put over any instruction.”
Petitioner contends that “successful teaching experience” means uninterrupted, i.e., continuous teaching; in other words, that a board’s action in the matter of recommendation is controlled by the single factor of the time of actual employment. There seems to be no discretion given the state board relative to the issuance of a credential upon the presentation of a preliminary requisite diploma. (School Code, sec. 5.120.) It may, however, adopt rules not inconsistent with the laws of the state for the government of specified schools. (School Code, sec. 2.1383.) Subsequently the Legislature provided that the credential might be revocable (Stats. 1937, p. 1711) if not renewed or extended. (School Code, secs. 5.314, 5.315.) Even a life diploma may not be issued except upon the submission of a “valid teaching certificate” by a county board of “successful professional service.” (School Code, sec. .5.263.)
*1005In applying this rule, “successful” has reference to something more than attendance, etc., even continuous attendance in the classroom. The Supreme Court of this state has adopted this view in Richardson v. Board of Education, 6 Cal.2d 583, 586-587 [58 P.2d 1285], where the court said: “ 'Plaintiff’s further contention that he was successfully employed for three complete years because a contract subsisted throughout each year is untenable. It would be violative of the clear purpose of the law and of the terms of the contract of employment, as well, to allow one holding a contract as a probationary teacher for three successive years to acquire the status of a permanent teacher without having rendered the successful service which furnishes the reason for the probationary period. Neither can we agree that substantial as distinguished from full compliance with the terms of his contract is sufficient to bring plaintiff within the classification he seeks.’ ” (Italics added.)
Upon this question the brief of amicus curiae, filed by the attorney general, says: “ ... the situation is comparable to a city attorney with civil service status under a city charter provision. He has a right to a continuance of employment by virtue of his civil service standing. However, he must hold a valid license to practice law in order to practice his profession. Therefore, if his State license were revoked, or if he failed to renew it annually, he would not be eligible to function as an attorney in the City Attorney’s office.” Would there be anything illegal in requiring a licensee of the healing art at stated intervals to produce proof of efficiency as a matter of protection to the sick and afflicted until the issuance of a “life diploma” if the nature of the proof were reasonable?
When it is a question of revocation during the five-year period, trial under the tenure act provisions may be appropriate, but there is nothing unreasonable in requiring a teacher of the classification of petitioner to obtain a certificate of successful teaching. The majority opinion does not hold to the contrary.
Petitioner has had her day in court and the right to defend herself and her position. School boards are not above the law; neither are teachers. Petitioner was accorded a personal hearing before the credential committee of the state board ten days prior to the expiration date of her credential, at which hearing the contemplated action of the board *1006was communicated to her. Following such hearing she was formally advised that her application for the renewal credential had been denied. No arbitrary action was taken by the state board, and, as stated, the decision was reached after investigation and hearing. Petitioner made no demand that the matter be refered to the county board for disposition, or that formal charges be filed by the county board, or that such charges, if brought, should be heard in the superior court. Ten days after the expiration date of her credential the present petition was filed. No request for a trial on the issue of efficiency was made. On the contrary, objection was strenuously interposed to such a hearing in the superior court. Section 2,1938 of the School Code is “not inconsistent with the laws of this state.”
To my mind the only difference in filing charges under the Teachers’ Tenure Act and the present proceeding lies in the fact that under the tenure act she would have been given ninety days to correct her inefficiency. The record discloses that approximately one hundred eighty days prior to the order of discontinuance the deputy superintendent of high schools made inquiry of petitioner whether there was anything that could be done to overcome her “inefficiency.” Petitioner’s only reply was the suggestion that she might be removed to a higher grade school.
It might be contended that under the tenure act petitioner could be required, upon the demand of the trial court, to take a two-year leave of absence on account of sickness. (School Code, sec. 5.654.) The majority opinion restores her to service after the two-year period, with the right to back pay. On the record in this case, a judgment ordering a leave of absence for the purpose of rehabilitation in face of the repeated warnings to petitioner would be an abuse of discretion.
As stated, the reversal directed in the majority opinion is not based upon the issue of efficiency, but upon a question of procedure. No judgment should be reversed on the ground of error in procedure unless in the opinion of the appellate court, upon consideration of the entire record, the error has resulted in a miscarriage of justice. (Cal. Const., art. VI, see. 4%.) Petitioner was accorded a fair trial upon a proceeding instituted by her, in which records were introduced and witnesses examined and cross-examined, as the result of which the tribunal having jurisdiction reached the conclu*1007sion that the petitioner was justly chargeable with inefficiency.
In my opinion the judgment should be affirmed.
Respondents’ petition for a hearing by the Supreme Court was denied June 3,1943. Edmonds, J., and Schauer, J., voted for a hearing.