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Show t r i THI PAGE SIX DAILY FRIDAY, KKBRUARY 2, 197 RECORD In the Supreme Court of the State of State Board of Education, Plaintiff and Respondent, v. No. 13003 FILED State Board of Higher Education, Defendant and Appellant, University of Utah, a corporate body politic, and Utah State University Of Agriculture And Applied Science, January 31, 1973 L. M. Cummings, Clerk Plaintiffs in Intervention and Respondents. TUCKETT. Justice; These proceedings were initiated on September 3, 1971, by the State Board of Education, the plaintiff herein, seeking a declaration of the district court that the Higher Education Act of 1969 is unconstitutional and void., A judgment was entered in the district court on July 17, 1972, which granted the declaratory relief sought by the plaintiff, and on July 26, 1972, a supplemental judgment was entered by the district court on the issues raised by the complaints in intervention filed by the University of Utah and Utah State University Of Agriculture And Applied Science. Thereafter, the judgments entered in the court below were appealed to this court, and on November 13,. 1972, the matter was heard by this court. During its regular session of 1969 the legislature adopted what is known as the Higher Education Act of 1969 with the purposes set forth in the Act as follows: .. - It is the purpose of this act to afford the people of the" State of Utah a more efficient and more economical system of high quality public higher education through centralized direction and master planning providing for avoidance of unnecessary duplication within the system, for the systematic and orderly development of facilities and quality pro- grams, for coordination and consolidation, and for systematic development of the role or roles of each institution within the system of higher education consistent with the historical heritage and tradition of each institution. c tions except for the administration of certain junior colleges and te on schools, which from time to time have been placed under its jurisdic as by to time, die legislature. Since Statehood the legislature, from time Education. of Board specified' die duties and responsibilities of the State But we do not find that the Board has ever been charged with the duty of assuming the control and supervision of the institutions of higher learning except as above mentioned. Until about the year 1918, die superintendent of public instruction as executive officer of die Board of Education in making that his biennial reports did devote a section to higher institutions which at Howtime consisted of the University of Utah and die Agricultural College. The ever, since that time die reports have not dealt with those institutions. statutes relating to the State Board of Education and its powers were enacted in 1898 by a legislature which included many persons who served from the Constitutional Convention. It should be noted that these statutes. omit any mention of higher education. Since statehood the Constitution has been construed .by the legislature as placing the control and supervision of miblic schools other than institutiona. of higher learning with the State Board of Education. This construction has been acquiesced in by the people for an equally long period of time and is a factor which we should have in mind in dealing with the problem of the of validity of the statute we are here concerned with. It is a cardinal rule .the constitutional construction that the instrument must be construed in be light of what was intended by its framers. The intended meaning must a ascertained from the whole of the instrument and in construing particular section the court may refer to any other section or provision to ascertain its purpose and intention. While the language of Section 8 which states "the general control and supervision of the Public School System shall be vested in a State Board of Education, " and the language of Section 2 which after an Agricultural College; a dealing with the common schools states " " University, and such other schools as the Legislature may establish; when construed together, are in conflict, it would appear that the legislature being empowered to establish other schools would have the power to provide ... for their governance. The provisions of Article X, Section 4, which deals with the University of Utah and the Agricultural College which are parties to' these proceedings, have been dealt with by prior decisions of this court. This section reads as follows: The location and establishment by existing laws of the University of Utah, and the Agricultural College are hereby confirmed, and all the rights, immunities, franchises and endowments heretofore granted or conferred, are hereby perpetuated unto said University and Agricultural College The purpose of this act is to vest in a single board the power to govern the state system of higher education and within the board's discretion to delegate certain powers to respectively. institutional councils. ... The Board of Higher Education was vested with the control, management and supervision of the following institutions of higher education in a manner consistent with the policy and purpose of this act and the specific powers and responsibilities granted to it: The university of Utah, located at Salt Lake City, Salt Lake County; Utah State University of Agriculture and Applied Science, located at Logan, Cache County; Weber State College, located at Ogden, Weber County; College of Southern Utah, located at Cedar City, Iron County; Dixie Junior College, located at St. George, Washington County; Snow College, located at Ephraim, Sanpete County; and the College of Eastern Utah, located at Price, Carbon County. The court below entered a judgment declaring the Higher Education Act as unconstitutional and void in that it was in violation of the provisions of Article X, Sections 2 and 8. That part of Section 8 that must be dealt with here reads as follows: . . . The general control and supervision of the Public School System shall be vested in a State Board of Education the members of which shall be elected as provided by law. What shall constitute the public schools system is defined by Section 2, which reads as follows: The public, schools system shall include kindergarten schools; common. schools, consisting of primary and grammar grades; high schools, an agricultural college; a university; and such other schools as the Legislature may establish. The common schools shall be free. The other departments of the system shall be supported as provided by law. as adopted by the Constitutional Convention and prior to amendments adopted in 1906 and 1910 which resulted in the wording set forth above, reads as follows: Section 2 The Public School system shall include kindergarten schools; common schools consisting of primary and grammar grades; high schools; an Agricultural College; a University, and such other schools as the Legislature may establish. The common schools shall be free. The other departments of the system shall be supported as provided by law: Provided, That high schools may be maintained free in all cities of the first and second class now constituting school districts, and in such other cities and districts as may.be designated by the Legislature. But where the proportion of school monies apportioned or accruing to any city or district shall not be sufficient to maintain all the free schools in such city or district, the high schools shall be supported by local taxation. It appears that Section 2 as originally adopted was designed to deal with the maintenance of the school system and the designation of which of the schools should be free. is the plaintiff's contention in these proceedings that tiie statute the Board of Higher Education is in violation of the provisions of creating 8 Section of Article X of the Constitution. From the time of statehood until these proceedings were initiated the State Board of Education made no attempt to exercise control and supervision over post high school institu- ' ; i The case of Spence v. Utah State Agricultural College dealt with the status of that school and the case of University of Utah v. Board of Examiners dealt with the status of the University of Utah. The effect of those decisions was to hold that the section of the Constitution above set forth confirmed the location and establishment of those institutions but that they remained subject to the control of the legislature. The Higher Education Act of 1969 was before this court in the case of Rampton v. Barlow wherein the constitutionality of Section 5 (1) of the statute was challenged. The section of the act conferred upon the President of tiie Senate and the Speaker of the House the power to appoint certain members of the Board of Higher Education. That power was challenged by the plaintiff as being unconstitutional. It was the defendant's contention that the composition of the Board of Higher Education was such an integral part of the act that the entire act must fail and could not be saved by the severability clause contained therein. This court in dealing with the problem struck down the section above referred to, but because of the severability clause the court was careful not to declare the remaining portions of tiie statute invalid. In view of the long interpretation of Article X. Sections 2 and 8, by the legislature, with the acquiescence of the people, as well as the State Board of Education, and the administrators of the institutions of higher learning, we are of the opinion that Chapter 48, Title 53, U. C. A. 1953, except that section before the court in the prior case above referred to, is valid. The decision of the court below is reversed and that court is directed to enter a judgment in accordance with this opinion. No costs awarded. 1. 119 Utah 104, 225 P. 2d 18. 4 Utah 2d 408, 295 P. 2d 348. 23 Utah 2d 383, 464 P.2d 378. ' 2. 3. 4. Bateman v. Board of Examiners, 7 Utah 2d 221, 322 P. 2d 381. ELLETT. Justice: (Concurring in the result) I concur in the holding that Chapter 138, Laws of Utah 1969, is not unconstitutional. Our duty is to hold an act of the legislature'valid if it is possible so to do. The legislature might enact an unconstitutional statute and the same not be challenged for many years. Howrever, it is for the court to interpret tiie meaning of a constitutional provision as it applies to a legislative enactment when and only when it is presented for determination. The same decision should be made whether the question is raised early or late. ascribe a meaning to a provision of the Constitution based upon long acquiescence rather than on its plain language is to amend it in an unconTo stitutional manner. I, therefore, do not concur in the last paragraph of the prevailing opinion insofar as it bases the constitutionality of the statute On long acquiescence. I prefer to limit the holding to say that insofar as the statute in question transfers to the State Board of Higher Education all of the powers heretofore vested by statute in the Boards of Regents of the various schools of higher education, it is constitutional. The authority of the various Boards of Regents was given by statute and, of course, that authority can by statute be taken away from them and given to another board, without conflicting with any constitutional provision. It - The State Board of Education as set up by Article X, Sections 2 and 8, is still vested with the general control and supervision of the public school system. When and if a conflict of authority arises between the two boards, we will decide it, but we do not now need to decide matters which r |