dissenting: I agree with the rationale and decision of the district court in concluding that a teacher is not prohibited from serving on the school board.
As the majority notes, since 1979, 11 bills to prohibit teachers from serving on the school board have been introduced in the legislature and not one has passed. The majority chooses to ignore such inaction as indicative of legislative intent. The majority refuses to draw any inference from the legislature’s inability to pass such legislation. In Ling v. Jan’s Liquors, 237 Kan. 629, 703 P.2d 731 (1985), this court, in a different context, did just that. At issue in Ling was the liability of a provider of alcohol to a minor for the resulting injury caused by the minor to a third party. Under common law, one who provided the alcohol to a minor was not liable for the resulting injury. Kansas had a dram shop act, but the legislature repealed it in 1949. Since that time, the legislature had considered it but did not reenact it. This court said:
“Clearly, the legislature would have done so had it intended for there to be a civil cause of action. K.S.A. 41-715 prohibits the dispensing of intoxicating liquors to certain classes of persons and is a comprehensive act to regulate the manufacture, sale, and distribution of alcoholic liquors. The legislature did not intend for it to be interpreted to impose civil liability.” 237 Kan. at 640.
Citing K.S.A. 77-109, we noted that “[t]he common law remains in force in this state where the constitution is silent or the legislature has failed to act.” 237 Kan. at 640. In my view, the majority’s attempt to distinguish Ling from the present case fails. The distinction alluded to by the majority is one without a difference. In Ling, it was the legislature’s considering and refusing to enact a dram shop act which was indicative of legislative intent. The same is true here relative to prohibiting teachers from serving on the school board. The legislature’s failure to pass any of the 11 bills introduced since 1979 speaks volumes on the issue of. whether a teacher may serve on a school board.
*254As this court has noted on numerous occasions, the rule that statutes in derogation of common law should be strictly construed is not applicable in Kansas by reason of K.S.A. 77-109. Such statutes are to be liberally construed to carry out the intent of the legislature. The intent of the legislature is clear, and the common-law doctrine of incompatibility is made inapplicable by legislative enactment. As acknowledged by the majority, the legislature decides who may qualify for public office. It has done so, and I would affirm the district court.