(concurring specially). I concur in an affirmance of the judgment. The defendant is a common school district, and the laws of this state provide that the school board of such di strict :
“Shall employ the teachers of the district and may dismiss a teacher at any time for plain violation of contract, gross Immorality, or flagrant neglect of duty. ... No person shall be permitted to teach in any public school who is not the holder of a teacher’s certificate or a permit to teach, valid in the county or district in which the school is situated. Every contract for the employment of a teacher shall be in writing, . . .” 1949 Suppl NDRC 1943,15-2508.
It will be noted the statute empowers the school board of any such district, .(1) to employ the teachers of the district, and (2) to dismiss a teacher. But the statute places certain conditions both upon the power to employ teachers and upon the power to dismiss a teacher. The statute provides that “every contract for the employment of a teacher shall be in writing” and that “no person shall be permitted to teach in any public school who is not the holder of a teacher’s certificate or a permit to teach, *832valid in tlie county or district in which the school is situated.” Hence, the board has no power to employ a teacher who is not the holder of such certificate or permit and a contract made by the board with a teacher not holding such certificate or permit is void. Hosmer v. School District, 4 ND 197, 59 NW 1035, 50 Am St Rep 639, 25 LRA 383; Goose River Bank v. Willow Lake School Township, 1 ND 26, 44 NW 1002, 26 Am St Rep 605; Hardy v. Purington, 6 SD 382, 61 NW 158.
The statute says the school board “may dismiss a teacher at any time for plain violation of contract, gross immorality, or flagrant neglect of duty.” Thus the power to dismiss a teacher “is conditioned upon the existence” of one or more of the causes specified in the statute. Clark v. Wild Rose Special School District, 47 ND at p 298, 182 NW at p.308. See, also, Miller v. Horton, 152 Mass 540, 548, 26 NE 100, 10 LRA 116, 23 Am St Rep 850, 857; Neer v. State Livestock Sanitary Board, 40 ND 340, 370,168 NW 601, 18 NCCA 1.
The power to dismiss a teacher does not become operative because charges have been filed against such teacher. The essential basis for a dismissal is that the condition or conditions that are prescribed in the statute as a cause for removal actually exist. In short, the right to dismiss is conditioned upon the existence of the. fact that the teacher sought to he dismissed actually has committed or failed to commit acts, the commission or non-commission of which, constituted a plain violation of duty, gross immorality, or flagrant neglect of duty. The school board has authority to dismiss a teacher only upon the existence of one or more of the grounds specified in- the statute. It has no authority to dismiss a teacher unless a cause' for dismissal actually exists. Clark v. Wild Rose Special School District, 47 ND at p 298, 182 NW at p 308. The existence of facts constituting such cause is the very basis for the exercise by the school board of its power of dismissal and a dismissal without the existence of such ground is an act wholly beyond the power and jurisdiction of the board and obviously a teacher who is dismissed has a right to challenge the action taken, on the ground that no cause existed authorizing the board to dismiss, and tH’is being so that the board acted without any authority whatsoever, and *833that consequently the dismissal was wrongful and violative of the teacher’s rights under the contract of employment. While the specific question has never been raised in this Court it has been generally recognized that in this state a teacher who has been dismissed without cause may maintain an action against the school district for the breach of his contract of employment. Such actions have been brought and recovery had and the right to maintain such action has never been questioned. Clark v. Wild Rose Special School District, 47 ND 207, 182 NW 307; Mootz v. Belyea, 60 ND 741, 236 NW 358, 75 ALR 1347; McWithy v. Heart River School District, 75 ND 744, 32 NW2d 886. Cf. Bogert v. Board of Education of City of New York, 44 Misc 10, 89 NYS 737; Ransom v. Boston, 192 Mass 299, 78 NE 481, 7 Ann Cas 733; School District No. 94, v. Gautier, 13 Okla 194, 73 P 954.
I fully agree that the method of review of decisions of school officers and school boards by appeal to the county superintendent of schools provided by NDRC 1943, 15-2217 has no application to the action of a school board dismissing a teacher.
The plaintiff in this case had a valid contract. He could be dismissed only if one of the causes for dismissal prescribed by the statute existed. Unless such cause did exist the board was wholly without power or jurisdiction to dismiss him. The trial court found that the evidence in this case showed that no cause for dismissal existed, and that consequently the dismissal was wholly without authority and that as a result of the wrongful dismissal the contract was breached and plaintiff’s rights thereunder violated to the injury of the plaintiff. The findings of the trial court are entitled to weight; however, the evidence in this case has been examined by all the members of this Court and the members are all of the mind that the findings of the trial court are correct and that the judgment rendered by the trial court should be affirmed.