(concurring specially). I concur for the most part with the language of the foregoing opinion and with the substance of the conclusions reached. Conceding the broadest discretion to the board of regents in the performance of their functions, nevertheless the statutes relating to institutions for higher education are not mere nullities, and all of them must be considered in interpreting any of them. The broad language of section 5575, Rev. Code 1919, stating that the board of regents “shall have power to establish such departments and courses of study, in the institutions under its control, as it may think best,” must be construed with and as limited by the language of the legislative enactments setting forth specifically the purpose of the respective educational institutions, such as section 5589, Rev. Code 1919, setting forth the purpose of the University; section 5597, Rev. Code 1919, setting forth the purpose of the State College of Agriculture and Mechanic Arts; section 5611, Rev. Code 1919, setting forth the purpose of the three normal schools involved in this proceeding; section 5615, Rev. Code 1919, setting forth the purpose of the Northern Normal and Industrial School; and section 5617, Rev. Code 1919, setting forth the purpose of the School of Mines.
Concededly the board of regents is a constitutional body, but it is a constitutional body created under section 3, art. 14, Con*570stitution S. D..(as amended), to control the higher educational institutions “that may be sustained either wholly or in part 'by the state * * * under such rules and restrictions as the legislature shall provide.” And the board of regents has no power to create or establish institutions of learning in this state. No one would suppose that the board of regents could by their sole act create and establish- at some city in this state an entirely new school — for instance a school of chiropractic to be operated and maintained at the public expense. N'o more could they accomplish that result indirectly by invoking section 5575, supra, and under its broad terms ordaining to be taught at the State School of Mines, whose purpose is quite otherwise specified by section 5617, Rev. 'Code 1919, courses in chiropractic, the successful accomplishment of which would render the student eligible for examination as a chiropractor under chapter 143, Laws 1921.
As to each educational institution under the control of the regents, it must be held that the general scope of the powers of the board as to courses of study and the kind, type or nature of school that shall, in fact, be maintained, are limited by the foundation purpose of the school as prescribed by the Legislature. Within those limits the discretion of the board of regents is vast and subject to little, if any, control. Beyond those limits there is no question of controlling discretion. There is an utter lack of power and authority to act. Either the limit is there or else nO‘ limit of any sort conceivably exists.
Educational institutions in the United States have customarily been discussed, spoken of, and considered under three groups: Eirst, the elementary schools, whioh include the ungraded schools and the first eight grades of a graded school system; next, the secondary schools, which embrace the high schools, or the ninth to twelfth grades of a graded school system; and, lastly, the institutions of higher learning, which include normal schools, colleges, universities, etc. The term “common schools” has sometimes been used as synonymous with “public schools” and has included the elementary and secondary schools, and' even occasionally such of the higher schools as are supported by public funds; but this is comparatively an infrequent use of the term and one which I think should not be construed to be intended unless the context quite clearly' demonstrates such intention. In ordinary parlance it is cus*571tomary to use the phrase “common schools” as synonymous with elementary schools and exclusive of secondary or high schools. The purpose of the normal schools involved in this proceeding, as now set forth in section 5Ó11, Rev. Code 1919, has come down through the statutes without change from the date of the establishment of the schools in 1881, as pointed out in the majority opinion, and the fundamental purpose of such schools as prescribed by law is, and has always been I think, to train teachers for the common or elementary schools.
At the time these schools originated, there were but few secondary schools in the territory. There was neither need nor demand for teachers for secondary schools. Chapter 9, Private Laws 1874-75, approved January, 1875, created a board of education for the city of Yankton with authority to establish “such and so many schools as they deem necessary, etc.” By 1876 the school system at Yankton included one year of high school work. When the normal schools here involved were established, the few high schools in the territory (probably not more than five and none complete) were independent creatures of special legislative act entirely unconnected with the state common school system both as to origin and control. See Powers, “History of Education in Dakota Territory,” in the Fourteenth Biennial Report of 'Superintendent of Public Instruction of South Dakota 1918, pages 19-35. See also “History of Public Education in Dakota,” Ludeman (1924) XII Collections Department of History South Dakota, page 375. In 1886 in the Seventeenth Annual Report of the Superintendent of Public Instruction of the Territory of Dakota, at page 13, the distinction between the common school and the 'high school as understood by educators of the day was plainly recognized by the superintendent when he said:
“In my last annual report I suggested that authority be delegated1 to each township * * * to establish a central high school * * * and that it be made a connecting link between the common schools and the university. * * * While the state undertakes to provide for the collegiate education of our children, in addition to the common school course, there should be no break in the connection between them. No satisfactory reason can be urged for tolerating the 'missing link’ which now exists.”
Chapter 47, Laws Dakota 1887, consisted in part (perhaps *572pursuant to the above recommendation) of a provision for township high schools, and by its language evidenced a legislative recognition of the distinction between the meaning of the phrase “common schools” and the meaning of the phrase “high schools.” Section 77 of the act provided, in part:
“Whenever a school township has within and belonging to it four or more common schools * * * the township school board may submit to the voters * * * the question whether a high school shall be established and maintained for the township * * *.”
Sections 120 to 151 of the act provided for public schools in cities, towns, and villages. Section 1-21 was mandatory in its terms and required that each school corporation under the act “shall establish and maintain a system of free common schools which shall be kept open not less than six nor more than ten months in any one year and shall be free to all children of legal school age residing within such corporation.” Section 128 of the act was optional in its language and provided that the board of education of such school corporation might “establish a high school whenever in their opinion the educational interests of the corporation demand the same.”
The Second Biennial Report of the Superintendent of Public Instruction, at page 12 (Pub. Doc. S. D. 1894), distinguishes between the “common school course of study” and the “high school course of study,” and recommends that “at least one high school in each county should furnish free tuition to pupils who have completed the common school course of study.”
One of the early meetings of the South Dakota Educational Association was held at Parker in this state in December, 1893, and a certain Friday morning of the session was devoted to department meetings, at which time the “common school department” met in one place, and the “high school department” met in a different place (Id. p. 55). That same distinction is preserved in our legislative language to the present time. As an instance, see section 7511, Rev. Code 1919, which specifies affirmatively the branches in which instruction shall be given in all “the common schools of the state,” and permissively states that there may also be taught in said common schools “such other brandies, including such high school subjects, as the electors of the district at the annual election may have ordered.”
*573I can see no escape from the view that the primary purpose as stated by the Legislature in establishing these schools was the training of teachers for the common schools in the sense of the elementary schools; and up until 19x8 or thereafter there seems to have been no effort to do more than that in the schools in question. Chapter 226, Laws 1917, authorized an educational survey in this state in connection with the United States Bureau of Education, which survey was subsequently made by experts provided by the bureau, and, in the report of that survey (Bulletin, 1918, No. 31, Department of Interior, Bureau of Education), at page 222, the survey committee as a result of its observations says:
“The state board of regents of education have also followed a consistent policy of limiting the major activities of the normal schools to the large elementary field in education and the other higher state schools to the secondary field. * * * The largest and in many respects the most important function of normal schools is to prepare an ample number of rural and other elementary school teachers.”
But said survey report announced also a premise with which I am entirely unable to agree, when it stated (also on page 222) :
“Neither the normal schools nor the other higher state schools are limited by the legislative acts creating them to preparing a specified grade or grades of teachers.”
■Shortly after the time of that report, and: perhaps not entirely uninfluenced thereby, a movement seems to have been inaugurated to translate the normal schools (properly so called) into teachers’ colleges, which are institutions of broader scope, function, and purpose, as pointed out in Judge BURCH’S' opinion. The Eighteenth Report of the Regents of Education states (page 2) :
“In order to meet the demands for teachers of more advanced training all normal schools are or will be organized as teacher colleges. We therefore recommend that the name normal school be dropped and that in the future they be known as teacher colleges.”
In the Nineteenth Biennial Report of the Regents of Education (page 70) is printed a report made to them by the head of one of the educational institutions of this state dealing with the change from normal school to teachers college in the following language:
*574“The United States maintains 178 publicly supported teachers colleges and normal schools at this writing. Ten years ago practically all of these institutions were two-year normal schools. Since then a most remarkable upward evolution of the training schools has come about. A large majority of all have become converted into three and four-year teachers colleges, and unquestionably within the next few years all normal schools will be known and organized on the new- basis. At the present time every state touching the borders of South Dakota has made this ohange. This is likewise true of most of the progressive states in the Middle West, Northwest, and: South. The conservative New England group and Pennsylvania and New York are about the only sections that have not yet reorganized all their normal schools as teachers colleges.”
At the Nineteenth Session of the Legislature of this state, a bill was passed (Senate Bill 48, Nineteenth Session) changing the name of all the normal schools to teachers’ colleges, for example, Eastern -State Teachers’ -College, Black Hills Teachers’ College, etc., and specifically providing that said normal schools “shall become and be teachers colleges of the state with the powers, purposes and functions heretofore granted said schools by law and no others.” The measure was vetoed by the Governor (Senate Journal 1925, p. 873) with the following pertinent comment:
“Apparently there is no ohange whatever proposed of the powers, purposes and functions which are now governing these institutions. If this be true, then why change the name.
“If on the other hand, there have been changes in the scope of work done in these institutions, or it is contemplated that there be changes in the scope of work to be ¡done in these institutions, then that fact should have been clearly set forth in the Bill.
“If the proposed names suggest that these institutions will in the future occupy higher rank and that there is advantage in. so doing, then that should be clearly set forth.”
It seems to me very plain that the schools here involved were established as normal schools in the sense that they were established as schools for the primary and fundamental purpose of training teachers for the elementary schools. The Legislature has never enlarged that purpose. Nevertheless, beginning shortly after 1918 these schools have been very frankly converted and translated into *575teachers’ colleges, a very different institution, with no legislative authority for such conversion.
I do not think that the Board of Regents of this state can create a teachers’ college by converting a normal school into a teachers’ college any more than they could create a teachers’ college as an entirely new institution ab initio. It may very well be that there is a need and demand in this state for teacher and other training of higher than normal school grades. It may very well be that such training ought to be furnished in a state institution and at the public expense, but that is a matter to be determined by the Legislature and by no one else. It may very well be that it is highly expedient and in every sense desirable that the teachers of this state should no longer be trained in normal schools, but should be given the broader and: more intensive training that can be furnished by an institution of collegiate rank. But such declaration is for the Legislature tO' make. It is for the Legislature to say whether the taxpa3rers of this’state are to support and maintain teachers’ colleges, and if so, how many and where. It is beyond the power of the Board of Regents, with whatever good faith and however sincerely they have at heart the highest good of education in this state, to determine that question by conversion of the normal schools.
Just how much of the instruction now given in the normal schools is beyond the proper scope and purpose of such schools as laid down by the present statute, I do not pretend to be able to say. Some of it very plainly is, and will be admitted by respondents so to be, if the purpose statute of such normal schools imposes such limits on what may be done in such schools as it seems to me we are compelled to hold in this- case that it does impose. I am entirely satisfied that if a good-faith effort is made by the Board of Regents (as of course it will be if the law as established by this case continues unchanged) to conduct, control, and maintain these schools within the limits of their purpose clause as construed in this case, the discretion of the regents in that field will be so exercised that there will foe no occasion for any attempt at judicial control thereof. At the present time the Board of Regents is not attempting to operate the schools within any such limits, but is operating the schools (with equal good faith and- in all sincerity and with perfect candor) upon the theory, either that the purpose *576clause is no restriction at all upon the operation of the school, or if it is a restriction, that its meaning is considerably broader than we are now compelled, as it seems to me, to hold.
It is entirely possible that the best good of the state demands that some or all of these schools be operated upon the enlarged basis which the regents have now undertaken, but the responsibility for making that determination of public policy must rest with the Legislature. The Legislature will very presently be in session. The matter will undoubtedly come to their attention, and they are at liberty to enlarge the purposes for which' any or all of these schools are henceforth to be maintained in such manner as they deem best.
Ordinarily judgment of this court is formally entered immediately after the filing of an opinion, but I think this court has inherent power to defer signing and entry of judgment if justice seems so to require. In the present case two factors seem to me to deserve some special consideration. The Legislature may desire to act in the matter, and their action, if any is taken, might or might not be such as to justify the employment of an emergency clause. Legislative action, if any, might therefore be effective upon passage, or July ist next. 'Also, appropriations for all of these schools upon the basis upon which they are now operated was made by the 1929 Legislature (Laws 1929, o. 12), effective to the end of the present biennium. Students are attending all of these institutions, well along with the work of the academic year, and entered therein on the faith of the curricula as now advertised. It would be extremely unfortunate, if the statutory scope and purpose of all or any of these schools should be enlarged by the present session of the Legislature so as to' authorize the continuance thereof upon the basis of present operation, to have a judgment of this court (or of the trial court on a remand) temporarily interfere with the operation of the schools. It would also be unfortunate to have a judgment interfere therewith) in any event, during the academic year for which pupils are now enrolled and appropriations have previously been made.
I am therefore of the view, in this particular case, that the entry of judgment upon and pursuant to the opinion of this court should be deferred until July ist next. If, in the meantime, the Legislature sees fit to authorize a broader functioning of any or all *577of these schools than the statute now permits, then to that extent there need he no interruption of work as now arranged. If, on the other hand, no legislative change is made, the work of pupils for the present academic year, who have entered the institution justifiably relying upon the furnishing of courses as presently offered, will not be seriously disturbed. Such students will 'be enabled to receive proper and recognized credits (acceptable in other fully accredited schools) for the work of the full academic year for which they have enrolled, and the Board of Regents will have ample opportunity to make such curricular changes as the situation may require prior to the beginning of the academic year 1931-32.
It is argued in this case that the Legislature, by enacting (section 11, c. 58, Laws 1897) the broad language now carried forward as section 5575, Rev. Code 1919, and by making appropriations for these schools biennially to permit the operation thereof upon a constantly broadening basis, has repealed by necessary implication any restriction upon the scope of these schools implicit in the original (and presently preserved) established purpose clauses. None of the judges are able to say as a matter of law that this is the effect of such subsequent legislative conduct. But if in fact that is the legislative desire, then it will be very easy to make it apparent beyond question by simple and plain statutory amendment at the oncoming session.
With a profound realization of the value and tremendous importance of higher education, nevertheless in the last analysis it must be admitted by all that the question of the extent to which, and the institutions where, the taxpayers of this state shall furnish higher education, is a matter exclusively for legislative determination. However laudable the motive and however desirable the result, the making of such determination cannot, and ought not to be, assumed by the Board of Regents by going beyond the present statute, nor by this court by interpreting the present statute vastly more broadly than we believe the enacting legislature ever intended. By deferring entry of judgment after indicating by opinion the view of the court as to the present law, the responsibility involved herein will effectively rest where it belongs — with the Legislature— and they will have ample opportunity to meet the problem squarely and determine it pursuant to the authority that with them lies ('and not elsewhere) before any actual disturbance of the present status *578quo. Being fully advised as to this court’s construction of the present law, and also fully advised as to the present conduct of these schools, the Legislature will be afforded every opportunity, if they so desire, to amend the law to correspond to- the operating conditions, and make such change effective before the decision of this court results in any interference with present operations. More, this court, in my view of the law cannot do — less I think it should not do.