I dissent. I think that the foregoing opinion misinterprets the provisions of the statute, and sanctions a device which may in hostile hands destroy the system of teachers’ tenure. That system has raised immeasurably the dignity and professional competency of our teachers, and the legislative act which established it requires an interpretation which carries out, and not one which defeats its purpose.
The classification of kindergarten teachers as “directors”, “associates”, and “assistants” is ingenious but dangerous. Why not directors, associates and assistants of first grade, fifth grade, eighth grade teaching ? Why not the same *160classifications in the high schools? There is nothing to prevent it, under this opinion. And once a group of teachers is classified in these convenient but useless brackets, what is easier than to cut off the appendages and terminate the employment of the teachers so classified?
There are three permissible grounds for dismissal of permanent employees under the statute: misconduct or unfitness, decrease in the number of pupils attending the schools, and discontinuance of a particular kind of service. (School Code, sees. 5.661, 5.710.) Economies may be effected where the attendance has fallen off, but such was not the case here. It is the last ground, discontinuance of the service, which is relied upon to justify the action taken by the board. The meaning of the statutory language “discontinuance of a particular kind of service”, seems reasonably clear. In Martin v. Fisher, 108 Cal. App. 34, 41 [291 Pac. 276], it was paraphrased as the “discontinuance of a course of instruction in which the teacher is engaged”. A teacher who teaches kindergarten is rendering the same service whether called a director, associate or assistant. Aside from immaterial clerical duties assumed by a director, the service performed, the teaching, was exactly the same. How can it sensibly be said that plaintiff, a kindergarten teacher, has been dismissed because of a discontinuance of the service when others remain to teach the same thing in the same way? The sole purpose and effect of the arbitrary classification of so-called services in this ease was to do what the law forbids—permit the discharge of a permanent teacher whose subject was still taught.
I am further of the opinion that the majority of the court have failed to give adequate weight to the fact that plaintiff also was qualified by her certificate to teach the first, second and third grade, and that even though the entire kindergarten had been abolished, would still be entitled to a position in accordance with her certificate and her priority of service. The record shows that when plaintiff was dismissed, a probationary teacher was teaching the third grade in the Cragmont School. Why was not plaintiff entitled to that assignment ? The opinion does not, and I think that it cannot, satisfactorily answer that question.
Curtis, J., concurred.
*161A rehearing was denied on January 25, 1935, and the following opinion then rendered thereon:
THE COURT.On petition for rehearing great apprehension is expressed by the petitioner lest the whole teachers’ tenure system be upset if the decision stand. This fear is without foundation under the facts in the case. Under the School Code the board is authorized to classify the service and under section 5.710 the board is authorized to discontinue particular kinds of service provided the same be done in good faith. Under the School Code the maintenance of a kindergarten department is optional. In some districts it may be more expansive than in others. The board necessarily has the discretion to classify the services in that department and it is authorized under section 5.710 to discontinue a particular kind of service in that department, provided the same be done in good faith, which connotes without subterfuge. If there are permanent teachers in the discontinued service they may be dismissed, subject to their right to reemployment in the event the discontinued service be reestablished. The question of the good faith of the, board in taking the challenged action was an issue in the trial court, was determined against the petitioner on sufficient evidence and may not here again be litigated for the purpose of reversing the judgment.
The petitioner insists that inasmuch as at the time of the discontinuance of the classes of service involved, a probationary teacher was teaching in the third grade of the Cragmont school, the petitioner had the right to be appointed to teach that grade in the place of the probationary teacher. The claim of the petitioner is that, because she had established tenure in the discontinued class of service from which she had been dismissed, and because she also possessed a certificate qualifying her to teach in some other class of service, she had a right under the teachers’ tenure system to be appointed to a position to teach in such other class of service for which she was also certificated and which was then held by a probationary teacher. It may be assumed that the general purposes and objects of the teachers’ tenure system contemplate that whenever possible teachers who possess permanent tenure at the time of their dismissal under the particular section involved, shall be *162preferred in employment in other classes of service to teachers who have not established tenure, and it is not intended by the decision to disturb any custom or policy, adopted in recognition of the purposes and objects of the system, to appoint such dismissed teachers to positions in other classes of service held by probationary teachers. But the only right to reemployment which may be said to become here the subject of compulsory action on the part of the board in an appropriate proceeding is the right expressly conferred by section 5.712 to reappointment should the discontinued service be reestablished. No preference rights are expressly declared by section 5.710, while sections 5.711 and 5.712 do expressly declare a preference in eases of which this is not one. The reason for the failure of the legislature to provide expressly for the preference right claimed by the petitioner may be said to be indicated by the incongruous situation resulting from the fact that nine teachers, including the petitioner, were dismissed when the particular classes of service here involved were discontinued and that those nine teachers might be supposed to have the right to the position held by the third grade probationary teacher.
The petition for rehearing is denied.
Curtis, J., and Langdon, J., voted for a rehearing.