Unruh v. Piedmont High School District

[391]

NOURSE, P. J.

This is an appeal from a judgment denying plaintiff a writ of mandate to compel the defendants to reinstate him as a permanent teacher in the Piedmont high school.

David P. Unruli was appointed by the Piedmont High School District in May, 1928, to serve as a teacher of music and was given the title of “head of the music department”. During the school year 1928-1929, his first year of employment, he was the only instructor in the music department and he then taught both instrumental and vocal music. During the next three years he taught vocal music only but retained the title of music head for the second and fourth years of his teaching. On May 10, 1932, appellant received notice of honorable dismissal from the Board of Education with a statement that the vocal branch of the music department was being discontinued at the high school. He received a second precautionary dismissal prior to May 15, 1933. Appellant held a secondary life certificate which entitled him to teach music in all public schools. During the latter three years the school had employed other teachers to teach instrumental music and at the time of plaintiff’s dismissal a probationary teacher was continued in this capacity. Since plaintiff was qualified to teach in this branch and was a permanent teacher, and since the music department, of which he was the head, was continued, he contends that he should have been retained instead of this other teacher.

Section 5.710 of the School Code provides that if a “particular kind of service” is discontinued in a school, the board may dismiss the employee connected with that service. The question here is whether or not vocal music, which was taught by plaintiff, is a “particular kind of service” to be distinguished from instrumental music which was continued in the school. Plaintiff claims that the two types cannot be divided and, since the reason for dismissal was “financial stringencies” and the fact that there were only one-third as many pupils in his classes as were required to make a full-time teaching position, he comes under section 5.711 of the School Code, which provides that if an employee is to be dismissed on account of a decrease in the number of pupils attending the school the last person engaged shall be

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