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Show , J 7 FRIDAY, FEBRUARY 2, 1973 i J- - TNI DAILY 1IC0ID PACK SCVEN - In the Supreme Court of the State of Utah may never arise. r and 8, by the legislature, with the acquiescence of die people, as well as die State Board of Education, and die administrators of die institutions of higher learning. " the statute is now constitutional. This, without the vote of the people who own the Constitution, - not the Legislature, neither of the Boards nor some administrators. The law of this case has never been, so far as I know, that espoused by any Utah case, and it is submitted that the case of Bateman v. Board of Examiners, - the only case cited in the main opinion for the decision, - does not support the above quoted statement by the main opinion, - which will be the law of the case and of this state if that-is the consensus of die majority of this court. 1. Trade Commission v. Skaggs Drug Centers, Inc., 21 Utah 2d 431, 446 P. 2d 958 (1968); Gubler v. Utah State Teachers' Retirement Board, 113 Utah 188, 192 P.2d 580 (1948). CROCKETT. Justice: (Concurring) I concur in refusing to hold the Act unconstitutional in the posture in which this case is now presented, when no actual conflict has arisen, and indeed when it would seem there is not necessarily any justifiable apprehension that there will be. learned colleague, Mr. Justice Ellett's concurrence in the result, in my opinion, sounds like a dissent. It disagrees with the last paragraph of the main opinion, which is the law of and the decision of this case, if published as such. Mr. Justice Ellett aptly points up the principle involved here, when he says "it is for the court to interpret the meaning of the constitutional provision as it applies to a legislative enactment when it is presented for determination. The same decision should be made whether the ' " question is raised early or late. .. My The court in performing its separate function, and exercising proper not reach out to declare an act of the legisshould restraint therein, judicial lative branch unconstitutional. The presumption of constitutionality should be indulged; and a legislative act should not be declared otherwise unless die necessity is impelled because it appears clearly that there is irreconcilable conflict between the enactment and a superior constitutional mandate, nor unless it is challenged2 by someone who has an interest which is infringed, or which is in hasard. Conversely, if there is a reasonable basis to believe or assume that the purpose of die legislature can be carried out without such conflict with the Constitution, that should be allowed to be done. It is to be observed that the duties and prerogatives now given to the Board of Higher Education have in fact been carried out otherwise than by the State Board of Education for many years by the governing boards of the state's colleges and universities. I quite agree that silence or inaction for 1. See Newcomb v. Ogden City, etc., 121 Utah 503, 243 P. 2d 941; Salt Lake City v. Perkins, 9 Utah 2d 317, 343 P. 2d 1106. 2. State, exrel. Candland, 36 Utah 406, 104 P. 2d 285, 16 Am.Jur.2d, Constitutional Law, Sec. 119. 3. E. g. , the University of Utah by its Board of Regents, Sec. U. C. A. 1953; Utah State University by its Board of Trustees, Sec. 53-31- -9, U.C.A. 1953. however long a time would not result in nullifying' a constitutional provision. However, where doubt or uncertainty may exist concerning a statute, the experience and actual operation in the area in question, and the apparent legislative intent, are factors which properly may be considered in determining its validity. it is my opinion that assume to that the Board of Higher and to believe a basis reasonable there is without there arising any 1969 Act, Education can function as provided in fie conflict with the State Board of Education, notwithstanding the necessity of an awareness of the constitutional provision in Article X, Section 8, that "The general control and supervision of die Public School System shall be vested in a State Board of Education the members of which shall be elected as provided by law. " In accordance with what I have said above, 4. Rampton v. Barlow, 23 Utah 2d 383, 464 P. 2d 378. - The issue here squarely has been put by both sides: Which agenc y has the superior authority of "control and supervision" of the schools mentioned in the act, - concededly a part of the Public School System, - the constitutionally authorised "elective" State Board of Education, or the legislatively created and "appointed" Board of Higher Education? At the expense of repetition, I suggest that under all principles, arguments and authorities urged by both sides, the lower fourt should be affirmed, and that such "control and supervision" should remain where it constitutionally is impacted, and that such control .and supervision should be superior to the Higher Education Board, and that the lattpr, if die legislature wants to perpetuate it, should and must do it by a legislative enactment that specifically relates such superiority and subserviency. I think this court should face up to the fact change for change's take may be desirable to its proponents, but that it may be ever so unconstitutional, - which I think is file case here. This case is a people's case, not a legislature's- case, nor an educator's case, nor a bureaucrat's case, and if the people are not allowed to vote for the drastic change envisioned here with respect to whether they have control or a lay committee, simply created by appointment and without permitting the right of suffrage to determine such power, this country will be in more trouble than that which already has been engendered by those who would deny that right of suffrage. - Mr. Justice Ellett's qualified concurrence in the result, is based on something with which I agree, but which is no issue here. I agree that the legislature can whittle away or take in toto the authority of Boards of Regents and Trustees, but I am unwilling to relate that power to say that in doing so, it can destroy a constitutionally created agency, - and this court should recognise its own sickness if it condones the constitutionality in this case, since it can be file rapier that could sever one of the three main arteries keeping the heart of a democracy beating. Justice Crockett's concurrence, my reaction also constrains me to venture the suggestion that, even more than Mr. Justice Ellett's concurrence in file result, it is a meritorious, but eulogistic dissent in disguise, which, on analysis, really does not hide the personality of this litigation. I am led to wonder how the constitutional and elected State Board of Education members and their lawyers are going to interpret the first paragraph of the concurrence, particularly that part that says "no conflict has arisen" and there is no "justifiable apprehension that there will be. " I am reasonably satisfied that if anyone presumes to quote the opinion as being the law of this case (which would seem to be impossible since four of the justices virtually have said the constitutional State Board of Education has power and authority superior to that of the State Board oli a?nd Higher Education, - two by dissents, one by concurrence in the result, one by an outright concurrence), that instead of clarifying the problem, wliich the legislature surely looks to this court to do in questionable legislation, cases, it simply will confuse. As to my learned colleague, Mr. Justice: (Dissenting) I believe the main opinion constitutes the and employment of an authority not rerepresents judicial legislation served to the court. It has to do with what I consider to be immaterial facts and conclusions dissonant with legal precedent, history, tradition and consti- I respectfully dissent because: tutional judicial authority. in words whose clarity conceivably cannot be misunderstood or misconstrued, says that "The general control and supervision of the Public School System shall be vested in a State Board of Eduwhich System "shall cation thejriembeijofjivhich include kindergarten schools; common schools, consisting of primary and and grammar grades; high schools, an agricultural college; a university; 1,2 . such other schools as the Legislature may establish. . . The Utah Constitution, Such language obviously includes not only the . -7, 53-32- HENRIOD. , "agricultural college" and "a university" but other schools listed in the act which is now to be declared constitutional. The above language is plenary and crystal clear. The cononly way it could or should be changed under established principles of die vote of a not stitutional law, is by a vote of the people, by legislature. The main opinion ignores the principles that the Constitution is to be interpreted by die courts and not cremated by them. It declares the Constitution unconstitutional and the statute constitutional by some sort of interpretation and acquiescence by the legislature, the people and some administrators, -none of whom have any authority whatever to change the Constitution or any part thereof save at the ballot box. The reasons urged in the main opinion would rattle the teeth of Jefferson and the rest, and scorch the parchment of the Constitution itself. The act which the opinion says is constitutional, says that "the control. management and supervision" of all schools, naming them, above the high school level, and all of which are conceded to be a part of the Public School System, is vested in the Board of Higher Education. To say that such language is not in conflict with Article X, Sections 2 and 8, which uses the same language except the word "management, " which is either synonfinds ymous with or has an idem sonans connotation, or similar meaning, kind of the or simplest little comfort in logic, lexicography, etymology seems to interpretation of clear, understandable, unambiguous words. It of "management" in me that the superficiality of arguing that the placing " between "control" and "supervision, makes that which was supreme in an authoritative sense, now subservient, is apparent, and points up the jurisprudential intolerability, under our established rules, of lending any merit whatever to such argument. It seems to me that it is utterly unthinkable to 1. Article X, Section 8. 2. Article X, Section 2. language of the Constitution, permit a decimation of the clear, meaningful such decimation by the orderly, without, as a condition precedent, requiring esta:...ished and mandatory process of majority rule at the polling place, else ihe democratic form of government, as we have known it, must subvert trial court actually has been affirmed, although fills opinion goes out as a reversal. I think the problem of modifying, In my opinion the watering down, emasculating or substituting one agency with another, the question as to the State Board of Education's authority should be left to the decision of the people, - and that a denial thereof would be a mockery of the truism that that government is best where the people not only are lea st governed, but where such government is closest to them. (Emphasiii added. ) CALLISTER, Chief Justice, concurs in the dissenting opinion of Mr. Justice Henriod. Second Mortgages Tqx Liens 2512 002 Audie Tech Inc. $5922.30 093 Robert B. Woodson $91357 The only reason assigned in the opinion for holding this act constitutional is that "In view of the long interpretation of Article X, Sections 2 Alan A. Coehn etux to Bruce 0. Cohne etux, Tr. $35,14952 036 , itself to legerdemainic judicial rhetoric that makes meaningless a document that many say was divinely inspired, and which most everybody believes means what it says. 2512 037 A. Sam to 09b Sans as 093 $93653 189 Carih Corp to $811931 Henbeleff etux, Tr. Bruce Q. Cohne Tr. $26,000. b82 etux, Tern A. Carter to Folf Aese Construction $1.00. Burrup $149905 199 Jay 200 Dura Kote Corp. $77782. 210 earnest ock 35 211 M Electris $7175 Earl F. Florence $2080. 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