The opinion
Mr. PRESIDING JUSTICE BARRY, specially concurring:
I am in agreement with the result reached in the majority opinion. With regard to the plaintiff Robert B. Hagopian, I feel obligated to express my own views regarding the perplexing problem of teacher cutbacks for economic reasons that forced the action of the defendant Board of Education of Tampico Community Unit School District No. 4. By statute the defendant is required to give teachers, both tenured and nontenured, written notice at least 60 days before the end of the school term that he will be dismissed or not be rehired. The defendant here was faced with the difficult task of deciding whether plaintiff Hagopian was “legally qualified” to hold a position currently held by a nontenured teacher. The applicable statute is silent as to when the determination of whether a tenured teacher is “legally qualified” to replace a nontenured teacher should be made. (Ill. Rev. Stat. 1975, ch. 122, par. 24 — 12.) Without the guidance of a time certain in the statute the defendant came to the same conclusion as the majority opinion, that the teacher must be “legally qualified” to take the position of the nontenured teacher at some point in time prior to 60 days before the end of the school term.
I agree with the majority opinion in this conclusion but wish to emphasize the problem caused by the legislature in drafting section 24— 12 of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 24 — 12) without a time provision for determining when a tenured teacher must be “legally qualified” to teach in another position, grade, or subject area. The majority opinion in construing section 24 — 12 (Ill. Rev. Stat. 1975, ch. 122, par. 24 — 12) reads into the statute a time provision for a tenured teacher to become legally qualified to replace á nontenured teacher in the event of economic cutbacks. I agree that this is the only practical method for this court to follow, but believe a better result is possible, and that the legislature should amend the statute giving consideration to this and problems of a similar nature in the future.