(dissenting).
I must differ with the majority opinion and join with Justice Jones in his vigorous dissent.
Appellant had taught for four consecutive years in the Boyd County School District. At the May 7, 1970, meeting of the School Board of Boyd County, the superin*465tendent certified a list of the personnel to be employed. Appellant was included in a list of teachers certified as “teachers eligible for continuing contracts”. The superintendent, by reason of illness, was not able to attend this board meeting. The record of the board of this meeting discloses that:
“On motion of Mr. Tackett, seconded by Mr. Baker and carried, the Board employed the certified personnel listed below as recommended by the superintendent with the exception of Helena Dorr and Wilmer C. Browning. Voting yes: Mr. Tackett; Mr. Baker; Mr. Willman, with the exception of Rhonda Cooksey, niece; Mr. Fitzer, with the exception of Doretha May, Sister-in-law; abstaining: Mr. Cooksey . . .
The superintendent never withdrew, directly or indirectly, his recommendation of appellant.
K.R.S. 161.740 pertains to the eligibility of teachers for continuing service contracts. This statute was amended in 1964; however, the effect of the amendment was not to change the entitlement of a teacher to a recommendation for a continuing service contract, nor did the amendment change the responsibility of the superintendent in his obligation to recommend persons for continuing service contracts. The only change that the amendment brought about was the number of negative votes required of the school board members to defeat a recommendation of the superintendent. So much of KRS 161.-740 as pertains to the subject is as follows:
“(1) Teachers eligible for continuing service status in any school district shall be those teachers who meet qualifications listed in this section:
* ⅜ ⅜ ⅜ ‡ #
(b) When a currently employed teacher is recommended for re-employment after teaching four (4) consecutive years in the same district, or after teaching four (4) years which shall fall within a period not to exceed six (6) years in the same district, the year of present employment included, the superintendent shall recommend said teacher for a continuing contract, and, if the teacher is employed by the board of education, a written continuing contract shall be issued.”
in Ritchie v. Dunn et al., 297 Ky. 410, 180 S,W.2d 284 (1944), this court had before it the right of a teacher to a continuing service contract. In commenting, this court stated:
“The Teachers’ Tenure Act provides that upon the recommendation of the Superintendent of Schools a teacher eligible for continuing service status shall be re-employed. * *
In Moore v. Babb, Ky., 343 S.W.2d 373 (1960), we said:
“The core of the case is whether or not the plaintiff had a ‘continuing contract status’ on March 31, 1959, when she was notified she would not be re-employed. * *
Mrs. Moore had been employed for five consecutive years at the time she was so notifed that she was not to be reemployed. After discussing KRS 161.740 and its application, this court said :
“When the last limited contract was given Mrs. Moore in 1957, she had been teaching three consecutive years. Giving her a two-year limited contract at that time was tantamount to recognizing that at the end of the first year of that contract (when she would have been teaching four years) she would be entitled under the law to a continuing service contract. So, it must be said that the appellant had achieved a continuing service status when notified in March, 1959, that her services would be discontinued; hence, she was entitled to continue teaching * *
In Whitley County Board of Education v. Meadors, Ky., 444 S.W.2d 890 (1969), *466this court again considered the right of a teacher to a continuing service contract, as follows:
“In March 1963, near the end of her fifth year of service under limited contracts as a teacher in the Whitley County school system, Fayrene Meadors was notified that she would not be employed for the 1963-64 school year. Claiming that she had continuing service status and thus was entitled to employment for the 1963-64 year and thereafter, Mrs. Meadors brought suit in the fall of 1963 against the board of education, its individual members, and the superintendent, asking that she be awarded a continuing contract beginning with the 1964 — 65 school year and * *
The trial court found that Mrs. Meadors was entitled to a continuing contract, and this court affirmed.
In Estill County Board of Education v. Rose, Ky., 518 S.W.2d 341 (1974), the circuit court held that Rose was entitled to either a continuing service status, generally referred to as tenure status (KRS 161.740), or a limited contract for the school year 1972. The Estill County case, supra, differs from the subject action in that Rose had resigned and had not taught for one year. However, “Prior to his resignation, Rose had acquired tenure status by meeting the qualifications enumerated in KRS 161.-740.” In disposing of the issue, this court stated:
“When the limited contract for the school year 1970-71 was given Rose, he had been teaching for more than the four years required and was entitled under the law to a continuing-service contract. When Rose was given the letter of May 14, 1971, he had already achieved a continuing-service status. His employment could be terminated only by the board’s complying with the requirement of KRS 161.780. Cf. Moore v. Babb, Ky., 343 S.W.2d 373 (1961).”
The facts in the four above-cited cases may differ with the subject action, but it is a difference without a distinction. This court has consistently held that a teacher possessing the necessary requirements and having been recommended by the superintendent is entitled to a continuing service contract of employment.
When the appellant, who was a currently employed teacher, was recommended for reemployment after she had taught four consecutive years in the school district, she was entitled to a written continuing service contract.
The board of education had a discretion in that “If the teacher is employed by the board of education, a written continuing contract shall be issued.” (Emphasis added) This discretion must not be exercised in an arbitrary manner. Kentucky Constitution § 2.
The status to which appellant had attained represented a right protected to her by the due process clauses of the Kentucky and United States Constitutions. (Ky. Const. § 11, U.S.Const., 14th Amend.)
The appellant was not advised of any reason that she was not employed for the school year 1970-71, but was bluntly, by a letter, told that she would not be rehired. This arbitrary action of the board is the very thing that was sought to be overcome by the Teachers’ Tenure Act. Equity regards as done that which ought to have been done.
Appellant was recommended by the superintendent for a continuing service contract, and no just cause has been shown, or attempted to be shown, that she is not entitled to all of the rights and privileges the same as if she had actually had a written document evidencing a continuing service contract. The board could only defeat her right to teach by resorting to the provisions of KRS 161.790.
I would reverse the judgment of the trial court with directions to grant summary judgment for Helena Dorr.
Accordingly, I dissent.