(225 P.) miss.] inches and that finally, when Steele repeat- of Civ. Code, § 3536; the word "dismiss" vested his offer to do "good ordinary wheat ing a discretion in the board to determine plowing for $2," i. e., to plow to a depth of whether an accused teacher should be permaapproximately three to four inches, Mc-nently or temporarily dismissed. [Ed. Note.-For other definitions, see Words Cowan replied, "Very well." The rule that the determination of issues of fact is prima- and Phrases, First and Second Series, Disrily for the trial court, and that the findings of that court are to be overthrown on appeal only when they totally lack the support of substantial evidence, has been announced so often that it has become trite. In Fowden v. Pacific Coast S. S. Co., 149 Cal. 162, 86 Pac. 182, it is said: "It is the firmly settled law of the state that this court will not disturb the ruling of the court below on a motion for a new trial upon the ground of insufficiency of evidence, if there be a substantial conflict in the evidence, even though this court may, upon the record, consider the verdict greatly against the weight of the evidence." In cases of mere conflict of evidence the conclusion of the trial jury and judge, says the court in Still v. San Francisco, etc., Ry. Co., 154 Cal. 564, 98 Pac. 674, 20 L. R. A. (N. S.) 322, 129 Am. St. Rep. 177, "are conclusive on the question as to which side produced the 'preponderance of evidence.'" [3] In view of our conclusion that the evidence is sufficient to sustain the finding that the agreement was what respondents claim it to be, it will not be necessary to consider appellant's contention that the court erred in sustaining objections to certain questions. The sole purpose of the questions to which the objections were made was to show the amount of appellant's damage. But since respondents did not breach the agreement which the court found was the only one which was entered into, there can be no recovery. From this it necessarily follows that appellant could not possibly be prejudiced by the rulings of which it now complains. The judgment is affirmed. We concur: WORKS, J.; CRAIG, J. GOLDSMITH v. BOARD OF EDUCATION 2. Statutes 184 Ambiguous statute construed with manifest purpose. Where a statute is reasonably susceptible of either of two constructions, that construction which will render it reasonable and harmonious with its manifest purpose will be adopted. 3. Schools and school districts 141(2) Statute allowing school boards to dismiss teachers for unprofessional conduct held not void. Pol. Code, § 1609 (j), as amended by St. 1921, p. 1666, empowering school boards to dismiss teachers for unprofessional conduct, is not void because of allowing too much discretion to boards in dismissing teachers. 4. Schools and school districts 141 (4)—Advocacy of political candidacy held "unprofessional conduct" warranting teacher's suspension. Teacher's advocacy before public school pupils of election of particular candidate for public office held "unprofessional conduct" warranting suspension of teacher under Pol. Code, § 1609 (j), as amended by St. 1921, p. 1666. [Ed. Note.-For other definitions, see Words and Phrases, Second Series, Unprofessional Conduct.] HART, J. On and prior to the 11th day of September, 1922, the appellant was a teacher in the Sacramento high school. On said date the city superintendent of schools of the city of Sacramento presented to and filed with the city board of education of said city, then consisting of the persons named (District Court of Appeal, Third District, Cali- in the title hereof as defendants and re fornia. March 12, 1924.) 1. Schools and school districts 141 (2) Statute allowing board to "dismiss" held to authorize suspension of school teacher. Under Pol. Code, § 1609 (j), as amended by St. 1921, p. 1666, empowering school boards to dismiss teachers for unprofessional conduct, a judgment of suspension against a teacher for unprofessional conduct was not void, in view spondents herein, written charges against the appellant as follows: "That on the 1st day of September, 1922, at the high school, before his class, in session and under discipline, he stated and remarked among some other notices as follows: 'Many of you know Mr. Golway, what a fine man he is, and that his hopes are to be elected soon. I think he would be more helpful to our department than a lady, and we need more men in our For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes schools. Sometimes your parents do not know I one candidate from another; so they might be glad to be informed. Of course, if any of you have relatives or friends trying for the same office, be sure and vote for them.' I charge that said conduct on the part of said A. L. Goldsmith is and was unprofessional, in that it is contrary to the law of the state of California." It should be explained that Golway, mentioned in the charges, was a candidate before the voters for election as superintendent of schools of Sacramento county at the time the alleged objectionable remarks were made by appellant. minating in the order and judgment of the board of education suspending and depriving the appellant of the right to exercise the duties of teacher of said school. Upon hearing the matter, the court below rendered judgment denying the writ of mandate and discharging the order to show cause. From this judgment the plaintiff appeals. This cause was appealed to the Supreme Court, the transcript having been filed in said court in February, 1923, but later that court transferred the same to this court for hearing and decision. Subsequently the defendants noticed a motion in this court for a dismissal of the appeal on the ground that the same involved a moot question for the reason that the period of suspension of the appellant, at the time of taking the appeal, had expired, and for the further reason that, after said period of suspension had terminat he had resigned his position as teacher in said high school. The motion was denied by this court for reasons stated in the opinion filed on denying the motion. 218 Pac. 296. On the 22d day of September, 1922, said day having previously been fixed for that purpose by said board, and the appellant duly notified thereof, the charges were called for hearing and the same were publicly heard and testimony taken thereon, both the city superintendent of schools and the ap-ed, and at the time the appeal was taken, pellant being represented at said hearing by counsel. On the conclusion of the taking of testimony, and after the issue was argued by counsel for the respective parties, the board ordered and took a recess for 10 minutes for the purpose of going into executive session and therein considering the evidence and a verdict. Within a brief time thereafter, and on the same evening, the board returned a written finding adjudging that the charges preferred against the appellant were sustained by the evidence, and were true. As a conclusion of law from said finding, it was found that the appellant was guilty of "unprofessional conduct as charged in the complaint." The judgment following the finding and conclusion of law was that the said A. L. Goldsmith "be and he is hereby suspended without pay for a period of ten weeks, beginning on the 22d day of Septem-1672 of the Political Code. The first-menber, 1922, and ending on the 30th day of November, 1922," and that the president of the board of education publicly reprimand said Goldsmith. Upon announcing the finding and conclusion of law and judgment the president of the board reprimanded the appellant. On the 5th day of October 1922, the appellant filed this action in the superior court in and for the county of Sacramento, in which he sought and prayed for a writ of mandate to compel the defendants to reinstate him to the use and enjoyment of the right to perform services and duties of teacher in said Sacramento high school, "and for such other and further order as is proper in the premises," etc. The complaint in said action alleged that plaintiff, after having been regularly employed as a teacher in said high school for a long number of years, was by said board of education, on said 22d day of September, 1922, wrongfully and without right suspended from said position, and denied his right to perform and discharge the duties thereof. The return to the writ contained a recital of all the proceedings cul The question first raised by the appellant is as to whether the charges preferred against him, and of which he was found guilty by the said board of education, are authorized by any law of this state as the grounds for the suspension of a teacher in the public schools. His contention is that there is no warrant in any law of the state relating to the public schools for the filing of such charges against such a teacher. So far as we are advised by the discussion in the briefs, if the proceedings taken against the appellant are to be sustained, it must be upon the authority of either section 1609(j) as amended by St. 1921, p. 1666, or section tioned section contains an enumeration of the powers of boards of school trustees, and subdivision (J) thereof reads as follows: "To dismiss permanent teachers, principals, or supervisors of special subjects, except as hereinafter provided, only for one or more of the following causes, after a fair and impartial public hearing. Causes for dismissal are immoral or unprofessional conduct, incompetence, evident unfitness for teaching, persistent violation of or refusal to obey the school laws of California, or reasonable rules prescribed for the government of public schools." Section 1672 provides: "No publication of a sectarian, partisan, or denominational character must be used or distributed in any school, or be made a part of any school library; nor must any sectarian or denominational doctrine be taught therein. Any school district, town, or city, the officers of which knowingly allow any schools to be taught right to any state or county apportionment of in violation of these provisions, forfeits all school moneys; and, upon satisfactory evidence of such violation, the superintendent of publie instruction and school superintendent must (225 P.) withhold both state and county apportion- | acts mentioned in the section a teacher may ments." The learned judge by whom this action was tried filed a written opinion setting forth his reasons for the conclusion at which he arrived, and which conclusion is embraced in the decision of the court. In said opinion it is declared that the charges against the appellant, as framed and filed, do not come within the provisions of the section last hereinabove quoted. In other words, the judge declared in his opinion that, since the appellant was not specifically charged with issuing or distributing a publication of a partisan character in the school, or teaching therein any sectarian or denominational doctrine, the conduct of the appellant, as indicated by the charges filed against him, does not come within the ban of said section. It was his opinion, however, that the charges were authorized by section 1609, subdivision (j), of the Political Code. be dismissed. This peculiar phraseology of said subdivision gives handle to the appellant to urge the point (for the first time in this court) that the judgment of suspension is void because it is not within the express words or the intention of the section as evidenced by its language. It may be conceded that, as generally used in connection with legal proceedings in the courts of justice the word "dismiss" means putting an end to a proceeding, as, for instance, to dismiss a particular action or a motion, etc. It does not always or necessarily mean, though, the final ending or termination of the litigation of the subject-matter of the action or of the motion dismissed. We are of the opinion, however, that the word "dismiss" as used in the section in question could not have been intended by the Legislature so to restrict the power of the board as to require it in all cases of guilt under said section to impose as a punishment the permanent dismissal of the offending teacher. It is certainly true that the Legislature intended that for any of the offenses enumerated or contemplated by said section there should be some sort of punishment. We will not assume that the Legislature, in enacting said section, acted upon the sanguinary theory upon which Draco ordained in his code of criminal laws that all offenses, whether petty or aggravated, should be punished with death, because, as he seemed to conceive, the least deserved it while there was no greater human punishment which could be inflicted for the more heinous. To hold that the meaning of the word "dismiss" as used in said section was intended to limit the power of the board to the imposition of no other pun We agree with the judge of the court below that the charges as they are alleged do not, strictly speaking, fall within the condemnation of section 1672 of the Political Code, but that if they are sustainable at all under any law of the state it is upon the authority of subdivision (j) of section 1609. We are not prepared to hold, however, that, if any teacher in the public schools should teach or advocate, orè tenus, any doctrine of a sectarian, partisan, or denominational character his conduct in that regard would not come within the purview of section 1672. And this view is based upon the principle that the law will not suffer that which is directly prohibited to be done indirectly or by indirection. Nor are we prepared to declare that the oral advocacy by a teacher in a pub-ishment than that of permanent dismissal lic school before a body of students of the election of a single or a particular candidate for a public office is any the less an act of partisanship, within the meaning of section 1672, than would be like advocacy of the election of all nominees of a particular po-ceivable cases, would be so unreasonable as litical party. If such conduct does not come within the spirit, even if not the letter, of section 1672, then the very practice which said section specifically condemns may be indulged in by a teacher with impunity But, in view of the character of the charges filed against the appellant, this question does not require further discussion herein. in any and all cases arising thereunder, regardless of whether the particular offense charged is of sufficient gravity to warrant such a penalty, would give to the section a construction which, in its application to con that the courts might be justified in declaring it to be void. It is a cardinal rule of statutory construction that, where the language of a statute is, upon its face, reasonably susceptible of either of two constructions, one which, in its application, will render it reasonable, fair, and just, and harmonious with its manifest purpose and another which, in [1, 2] As stated, we agree with the trial its application, would be productive of abjudge that the charges against the appellant surd consequences, the former construction are clearly embraced within the contempla- will be adopted. Giving the word "dismiss" tion of subdivision (j) of section 1609 as ex- an interpretation in accord with the common pressed in the general language "unprofes-understanding of its meaning will impart to sional conduct." But it will be noted that the section the force of a sensible enactsaid subdivision does not in terms provide ment, and at the same time exonerate the that a judgment of suspension may be im- Legislature from the charge, otherwise jusposed by the school board fn the case of the tifiable, of a preposterous intention in passcommission by a school teacher of acts con- ing the section. Colloquially, or as used in stituting "unprofessional conduct." The pro- common vernacular, the word "dismiss" is vision is that for such acts and for all other often used interchangeably with the word 225 P.-50 "suspend," and it is clear that the interpretation of that word as so used is the only one that may be given it to relieve the section from the imputation of being absurd or of authorizing, when applied in certain cases, unjust and, in truth, nonsensical consequences. Indeed, we think that if necessary to effectuate what appears to be the clear intent of the Legislature as to said section, the established legal maxim, "The greater contains the less" (section 3536, Civ. Code), should be applied in this instance, and that therefore the word "suspend" should be held to have been intended by the Legis lature to be included within the word "dismiss" as used in said section. So interpreting, then, the word "dismiss," and as it is believed the Legislature intended it should be understood as so used, the section vests in the board the discretion of determining, in any given or particular case, whether the accused teacher should be permanently or only temporarily dismissed. the presence of his assembled students and But there is still another view which may well be taken of the question of the right of the board of trustees of a school district to impose penalties upon teachers for the violation of their duties as such. The board, under the law, has supervisory power over the common schools and also the duty of employing teachers. The right of a person to teach in the public schools arises out of contract. Let us suppose that notwithstanding the existence of such power in the board of trustees over the schools and teachers, there was no statutory provision expressly empow-radical consequences should be reluctantly arering such board to dismiss or suspend a teacher for unprofessional or other conduct inconsistent with the exactions of his position. Would it be contended for a moment that the board for such conduct would not be empowered to rescind and terminate the contract and so put an end to the teacher's employment as such? No negative reply to this question would, we apprehend, be vouchsafed. If, under such circumstances, the board may terminate the contract then for conduct of the teacher while exercising the duties of his position which is inconsistent therewith but which justly would not call for absolute severance of the teacher from the school, such board would be authorized to exercise the right to discipline such teach-court then continues: 'In considering preceder or impose a penalty for his violation of his contract which would be less drastic than permanent dismissal, [3] The remaining points in the case were satsfactorily discussed and disposed of by the trial judge in a very able opinion in which he stated the reasons impelling him to the conclusion crystallized in the findings and the judgment of the court. We there fore approve and adopt the following portions of said opinion as the opinion of this court: "The accusation stands as a specific allegation that certain things were said by the plaintiff in rived at and reached only for reasons which are ents it is usually safest to keep an eye on the (225 P.) aminers, 148 Cal. 590, 84 Pac. 39, 3 L. R. A. (N. S.) 896, 113 Am. St. Rep. 315, 7 Ann. Cas. 750, was a case in which a physician resisted the cancellation of his license to practice upon a charge of 'unprofessional conduct.' The revocation was sought under a specification of 'unprofessional conduct' which in reality was an extension of the ordinary meaning of that term. The specification constituted in fact the statement of a new group of revocation. The decision did not condemn the general ground, but the loose language of the specification under which the charges were brought. The objections to this specification were so obvious that its illegality could not well be denied. It will thus be seen that our California courts have never held that, where the term 'unprofessional conduct' was stated by the Legislature as a ground for the revocation of the license of one practicing a profession under authority of law, it was void for uncertainty. In Ex parte McNulty the judgment on this point was distinctly reserved by one of the concurring Justices, he holding the provision invalid only as a basis of criminal punishment. es as 'general neglect of the business of the "Whatever may be said about physicians, dentists, and other similar statutes in the case of teachers this seems to be the only course that could be pursued. It is not, as was denied in State v. Robinson, 253 Mo. 271, 161 S. W. 1174, with reference to physicians, that teachers are more willing to commit offense than men of other callings, and that in consequence it would be impossible to be specific in their enumeration. It is that the calling is so intimate, its duties so delicate, the things in which a teacher might prove unworthy or would fail are so numerous, that they are incapable of enumeration in any legislative enactment. The intimate personal life and habits of a physician or dentist do not necessarily affect his useful "It seems probable, however, that, should the sufficiency of the term 'unprofessional conduct' as a ground for the revocation of the license of a physician or dentist be raised in our Cal-ness; he deals with adult persons or children ifornia courts, they would align themselves with the courts of the states which have held it insufficient, and therefore invalid. I say this, although our court in a recent decision involving a somewhat indefinite criminal statute say: 'In this connection it may be stated that there has been a tendency to a much more liberal | construction of such statutes in the more recent decisions.' Ex parte Daniels, 183 Cal. 646, | 192 Pac. 442, 21 A. L. R. 1172. But would our courts hold invalid such a law in a case involving the employment of a teacher in the public schools? They have never done so, nor, so far as I have been able to discover, has any other state in the Union. under his protection. But the teacher is intrusted with the custody of children and their high preparation for useful life. His habits, his speech, his good name, his cleanliness, the wisdom and propriety of his unofficial utterances, his associations, all are involved. His ability to inspire children and to govern them, his power as a teacher, and the character for which he stands are matters of major concern in a teacher's selection and retention. How can all of these things be provided for and offenses against them be particularly specified in a single statute? The delicacy of the questions involved in a teacher's employment is illustrated by a Missouri case where it is said: "In this state the court sustained a charge al- "There may be causes for the removal of a leging 'evident unfitness to teach,' 'insubordina- teacher affecting the discipline of the school tion,' and 'unprofessional conduct' against a over which he presides, entirely outside of any teacher. McKenzie v. Board of Education, 1 question of his learning, ability, power of enCal. App. 406, 82 Pac. 392. And in Kentucky forcing discipline, or moral qualities, and outone of the first states to take a positive posi- side of his own acts.' McLellan v. Board, etc., tion that such a charge as 'unprofessional con- 15 Mo. App. 365. And the court there permitduct' was too vague to justify a proceeding ted the removal of a teacher upon the ground against a physician, the court asserted the that his wife had charged him with flagrant inauthority of the school board to remove a fidelity, and the fact that the charges had beteacher for 'incompetence, improper conduct come notorious. How could such a condition as or inattention.' Thompson v. Gibbs, 97 Tenn. this be anticipated or provided for? The inex489, 37 S. W. 277, 34 L. R. A. 548. In these pediency, not to say impossibility, of attempting cases the point made here was not raised, and to so specify them is illustrated by the law they are significant only in that it was not rais- relating to the power of a teacher to suspend ed. As has been stated, if plaintiff is correct or expel a pupil from his school. In discussing here in claiming that the school board has no this question a learned author reviews the power to proceed against a teacher for any general obligations of the student and then breach of what the statute designates as 'un- states: "These obligations are inherent in any professional conduct' because the term is too proper school system, and co-stitute, so to general, and leaves too much to the discretion speak, the common law of the school. Every and judgment of the board, then other statutory pupil is presumed to know this law, and is subgrounds of removal are equally invalid, and the ject to it, whether it has or has not been reschool boards of this state are almost totally enacted by the district board in the form of without authority over the teachers they em- written rules and regulations. Indeed, it would ploy. This is not only so of California, but is seem impossible to frame rules which would equally true of every other state in the Union cover all cases of insubordination and all acts so far as a thorough search has enabled me to of vicious tendency which the teacher is liable discover. The statutes of the several states to encounter daily and hourly.' Voorhees, The provide for removal of teachers or the revoca- Law of Public Schools, § 71, p. 175. This lantion of their certificates generally for such caus-guage applies with peculiar appropriateness to |