(dissenting): The allegations of- the petition recite that the removal of the chancellor was brought about by malice, oppression and caprice on the part of the board of administration and the governor.
The defendants’ demurrer admits that these allegations are true. It frequently happens, of course, that such a demurrer is aimed at a petition merely to invoke the court’s judgment on the legal question whether such allegations, if true, would state a cause of action. But such is not the present case. This court takes judicial notice of the public acts and proclamations of the governor and of notorious matters of current history. (The State v. Kelly, 71 Kan. 811, 81 Pac. 450.) The governor’s pronunciamentos seeking to justify his act of removing the chancellor and his summary removal from office of a member of the board of administration for refusing to be coerced into voting for the chancellor’s removal, and the governor’s public pronuneiamento on that incident, go very far towards proving the facts alleged in the chancellor’s petition. There is nothing in the Kansas constitution susceptible of an interpretation that arbitrary power can be conferred upon any officer or board of officers in this commonwealth.
In Drainage District v. Railway Co., 99 Kan. 188, 204, 205, 161 Pac. 937, it was contended that the findings and conclusions of an official board created by the legislature were not subject to judicial review. This court said:
“That goes too far. The plaintiff board is an administrative agency. Within its powers it is supreme. But its orders must be reasonable. And it cannot be. the final judge of the reasonableness of its own orders. That would be tying *562administrative and judicial powers in one hand, and this our own constitution will not allow. That was the constitutional rock which wrecked the court-of-visitation act nearly twenty years ago. [Citing many authorities.] . . .
“It may therefore be said generally that when the state creates an agency to serve its public needs and confers administrative powers upon it, whatever be the language of the statutes conferring such powers, a just and reasonable exercise of such powers is intended, and the power to make or exercise imreasonable, arbitrary and confiscatory orders is not intended.”
In The State, ex rel., v. Mohler, 98 Kan. 465, 471, 158 Pac. 408, where the validity of an act conferring certain powers on the secretary of the state board of agriculture was questioned, it was said:
“It [the act] merely -confers upon him administrative power such as has become common in this state. The state charter board is given similar power to grant or withhold a charter for a bank. (Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80.) The insurance commissioner is authorized to grant, withhold and revoke licenses to transact insurance business in Kansas. The public utilities commission is authorized to grant or deny permits to conduct a public-service business. The state board of medical registration and examination is authorized to grant, deny or revoke licenses to practice medicine. (Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247.) The exercise of such power is merely the exercise of administrative discretion. If this power is abused, the courts are open to the aggrieved party, if not by some statutory review then by the extraordinary and prerogative remedies of injunction or mandamus.”
The moving-picture censorship statute was only upheld by virtue of this same principle. In that case the chief justice, speaking for a majority of the court, said:
“If the board should act fraudulently, or so arbitrarily and capriciously as to amount to fraud, a resort to the courts may be had, and as against sudfv action an aggrieved party may have redress. . . .
“There have been repeated holdings that the decisions of a board or other tribunal upon which the legislature has conferred the exercise of nonjudicial power, if made in good faith, are not open to judicial control or review, and that in such a case a court may go no farther than to prevent the abuse of the power so vested. In respect to the powers conferred on a municipal body it has been said that ‘the courts have no supervisory power over the policy of municipal legislation. They can only interfere to curb action which is ultra vires because of some constitutional impediment or lack of antecedent legislative authority, or because the action is so arbitrary, capricious, unreasonable and subversive of private right as to indicate a clear abuse rather than a bona fide exercise of power.” (Photo Play Corporation v. Board of Review, 102 Kan. 356, 359, 169 Pac. 1154.)
The opinion of the majority of the court admits that if the removal of the chancellor had been brought about by corruption the act of removal would be of no validity. I can find nothing in the *563law books — and the majority opinion cites nothing — to justify the novel doctrine that while corruption will invalidate an official act, malice, oppression and caprice are insufficient to invalidate it!
The humblest eighteen-year-old schoolmistress in charge of a one-room school on our western prairies holds her job by no such precarious tenure. She could only be dismissed upon charges preferred, with an opportunity to answer them, by the uncoerced votes of a majority of the school board, and with the concurrence of the county superintendent. (Parrick v. School District, 100 Kan. 569, 164 Pac. 1172.) Under the court’s opinion carried to its logical conclusion, not only may the chancellor be truculently dismissed without a moment’s notice, but a hooligan can be installed in his stead, and under the same interpretation of the same statute every professor, every instructor, every janitor can be discharged with equal expedition.
It will not do for the courts to refrain from taking jurisdiction of a cause merely because of its disagreeable features nor because the legislature is about to meet and a new governor is about to be inducted into office, on the theory that the present unhappy dislocation of the management of the state university can speedily be set right by other than judicial means. That the legislature is about to meet and that a new governor is about to be inaugurated are merely fortunate circumstances giving hope of early correction of an otherwise deplorable situation. The matters alleged in the chancellor’s petition and admitted to be true by the demurrer might have happened in the middle of a gubernatorial term with no session of the legislature impending. In such situation, would equity have been equally powerless to give redress unless “corruption” were alleged?
What I have said herein is but a scant outline of my views on this subject, but it will serve to show why I am compelled to dissent from the opinion of the majority of the court.