dissenting.
I disagree with the majority and consider it necessary to state my reasons. In addition to the views expressed by Justice Perry, with which I concur, I have other reasons.
Number one is that the act fails to say who shall have the responsibility of obeying the command of the parent. To support the selection of a district school board the majority cite examples of the power to select courses of study, textbooks, dental inspection and the power to make rules and regulations generally. What the majority overlook is that the statutes in respect to textbooks and courses of study, for example, specify the officials responsible for that task; i.e.: the state board of education. OES 326.090. Even the statute requiring dental inspection in certain districts specifies that the “district school board” shall have the responsibility. The specially concurring opinion, in its reference to OES 336.240 and its requirements, fails to quote the last subsection of the statute which specifies that the superintendent of public instruction shall perform the requirements of the act. Certainly I do not contend that a statute must spell out to an administrative agency every precise standard or act it shall perform, but I do contend that a statute must specify who or what body is to act and perform the requirements of a statute. This hiatus in the statute will be referred to again later in this opinion *126but, first, I want to mention some of the statutory-complexity of school district organization.
If we assume, by the silence of the statute, that the district school board was intended to be vested with the burden of performance, what ldnd of a district school board are we talking about? If every school district were a neat integrated package like Eugene, Salem or Portland, perhaps this would present no problem. But such is not the fact. It will pay to take a brief look at some of the numerous forms of school districts and district school boards now established by statute and the unknown and unspecified power of many of them. In a footnote① I have placed a statement from a “Handbook for School Directors in Oregon” published by the state department of education in 1955. The statement quoted merely lists the number and kind of school districts existing in 1953-54. An examination of the statutes *127with respect to these different kinds of school districts reveals overlapping, concurrent and undefined areas of authority.
In addition to these districts in existence in 1953-54 the legislature has since added “Administrative school districts”. ORS 330.505, et seq. I would not here attempt to decide what the total power and function of such a district may be. Nor can I be informed as to how many, if any, such districts have been formed since the act providing for their creation was passed in 1957.
In 1959 the legislative assembly added to ORS ch 333 a provision for the “Establishment of county unit system”. The county unit system is to include both city school districts and county school districts. The act provides for the election of a county school board but apparently fails to specify the respective powers of the county school board and the city school districts and county school districts comprising the county unit system.
As before mentioned, I would not nor could not attempt to analyze the numerous statutes creating and defining respective power of the boards of this complicated structure of districts. However, what has been said should give some indication of the present hodgepodge of school district organizations and the overlapping authority and power of many of them. In some instances the statute provides that the pupils attending a high school in a district other than the district in which the pupil is a resident shall be subject to the rules and regulations of the district operating the school. ORS 335.015 (3) and ORS 335.470. In other instances the statutes appear to be silent.
There are other complications. ORS 332.140 (2) provides that when 100 percent of “persons having *128school-age children in an area which is both within a school district and also contiguous to another school district located in another county, the school board of the school district in which such petitioners reside shall allow such petitioners to send their children to school in the school district in the other county if the petitioners show in their petition that they have centered their social and economic activity prior to August 5, 1959, in a nearby area which is located in such other school district or that geographic or climatic factors cause the petitioners to center their social and economic activity in a nearby area. . . .” The school board may not only permit the children of such petitioners to attend the school in the other county, but shall also pay “any applicable costs” incident thereto. The provisions of this particular section are limited to counties “located east of the summit of the Cascade Mountains.”
OES 335.070 provides that any school district “bordering on the state line, not having a high school . . .” may contract with a school district in the adjoining state to send the children of the Oregon district to a high school in the adjoining state. The statute also permits the Oregon district to pay the costs thereof.
In each of the last two situations just mentioned I hesitate to say to which school board' the parent would make the application required by OES 336.260.
The above is only a resume of confusing and perplexing provisions now contained in our statutes with reference to elementary and high school districts in Oregon. To me it is sufficient, however, to show that regardless of the situation prevailing in 1925, when OES 336.260 was enacted, it is presently impossible for this court to say which of the school boards *129functioning within a given area shall bear the heavy burden imposed by the majority opinion. To merely say it is the duty of the district school board is not enough. It should be obvious that in this confusing pattern of divided school district authority somebody has to say what district school board we are talking about.
There is added confusion. The majority rely on ORS 332.330 and 336.030 to éstablish that district school boards have the power to establish rules and regulations for the government of the schools and pupils. However, 336.030 requires that such rules and regulations must be “consistent with the rules and regulations of the State Board of Education.” Subsection (3) of ORS 326.090 gives the state board power to “Prescribe, publish and distribute rules and regulations for the general government of public schools, for the maintenance of discipline therein and for the performance of the board’s functions.” Other subsections give the state board broad power to regulate nearly all of the activities of local school districts.
This court has already held that a “board of school directors can exercise no other powers than those expressly granted by the statute, and such as may be necessary to carry into effect a granted power: [Citing authority]” Baxter v. Davis, (1911) 58 Or 109, 111, 112 P 410, 113 P 438. School Dist. 106 v. New Amsterdam Cas. Co., (1930) 132 Or 673, 681, 288 P 196. Consequently, it would appear, without attempting to decide, that any rule or regulation of a local school district may be superseded by a rule of the state board except in those few instances in which a statute specifically directs a school district to perform a certain act or function. I would not construe ORS 330.260 to be that specific.
*130Accordingly, it would appear that the state hoard has the power to establish rules which would govern any school district with respect to the operation of this particular statute. If they have done so it has not been called to our attention. For my own satisfaction I have attempted to examine the various rules and regulations issued by the state board for the governing of the several school districts. The regulations and rules issued by the state board are very voluminous and cover a wide variety of subject matter. I do not purport to say that I have carefully examined all of them. I do find that rule No. XXXIII of “Rules for the General Government of Public Schools and for the Maintenance of Discipline Therein, .” provides that: “Teachers are authorized to require excuses from parents or guardians of pupils, either in person or by written note, in all cases of absence or tardiness or dismissal before the close of school. The teacher shall be the judge of the sufficiency of excuses, pursuant to ORS 339.150.” (Emphasis supplied). The section mentioned in the rule quoted, ORS 339.150, is that section of the statute which provides for excused absence under the compulsory attendance statutes.
It would seem that the state board, in exercise of the power vested in it, has already said who shall be the “judge of the sufficiency of excuses.” I could not attempt to say that the majority opinion revokes the rule above quoted. However, I can say that the extensive power of the state board to regulate the schools of the state creates doubt that even this court has the power to nullify a rule of the state board without a strong showing of arbitrary conduct on the part of the state board.
Based upon these considerations I am of the opinion *131that the act is unenforceable by reason of the lack of designation of the precise person or body that is to administer it.
Assuming, however, that the responsibility can be fixed on a district school board, it is then necessary to consider the act itself. ORS 336.260 provides:
“Attendance at religious instruction. Any child attending the public school, on application of his guardian or either of his parents, may be excused from such school for a period or periods not exceeding 120 minutes in any week to attend weekday schools giving instruction in religion.”
Even a casual reading of the statute discloses the vague and ambiguous terms in which it was written and the complete lack of any standards or tests. Taken as a whole it is immediately apparent, for example, that there is no distinction between a school with 1000 students or one with 12 students in eight different grades with one teacher. Nor is there any distinction between a school situate many miles from any kind of a church and those in a metropolitan area with churches close at hand. No provision is made for transportation or supervision. And the statute is very silent about who shall pay any costs incurred in meeting the responsibilities imposed. A few of the other more obvious deficiencies in the statute come to mind.
Notice that the child is to be excused for a “period or periods not exceeding 120 minutes in any week. . . .” Does this mean that, on the demand of a parent, the child must be excused for several 15 or 10 or 30 or 40 minute periods each day, or one day a week or on only some of the days of the week? If the act is to be mandatory, as the majority hold, what *132restraint may a teacher or principal exercise? May the teacher, with immunity, put a small child on the sidewalk and point the child in the direction of the school? Must the school, or the truant officer maintained by some of the districts, (see OES 339.040) check on the older students to see if they are going to a religious school or playing hookey? Must the periods be at the same time every day or week or may they be staggered? If a student desiring to be excused is retarded in his school work and needs all the help he can get does the teacher still have to excuse him for the full 120 minutes each week? The majority compel the teacher to do so.
The statute then provides that the child is to be excused to attend “weekday schools”. What is a weekday school? Does it mean that only those churches or sects who are either sufficiently opulent or ardent enough to maintain an organized school will qualify? If so, then it would appear that the statute is discriminatory and must be struck down. To constitute a “school” must it have a minimum number of students ? Must it have qualified teachers? Is there to be any examination of the doctrines taught by the school to determine if the child is actually receiving spiritual guidance.
We are, then, confronted with what is “giving instruction in religion.” Is a parent who does not believe in formal religious training to be permitted to have his child excused for religious training by the parent himself? Or, if a parent is an atheist may his child be excused to be given irreligious training? To deny such a right would probably be a violation of the freedom of religion guaranteed by both the Oregon and the United States Constitutions. Illinois ex rel McCollum v. Board of Education (1948) 333 US *133203, 68 S Ct 461, 92 L Ed 649, 2 ALR2d 1338. If I desire to have my children gain spiritual experience by communing with nature may I take my children to religious school on the creek bank and fish for two hours each week? This statute provides no test to determine these rights and questions. An example of the difficulty in seeking to apply such an undefined requirement is found in Joseph Burstyn, Inc. v. Wilson (1951) 343 US 495, 504, 72 S Ct 777, 96 L Ed 1098, wherein the court said:
“* * * In seeking to apply the broad and all-inclusive definition of ‘sacrilegious’ given by the New York courts, the censor is set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies.”
It has already been seen that the statute also fails to authorize or specify any identifiable body or person who shall have the power to provide any rules. I have already mentioned that ORS 336.240 directs the superintendent of public instruction to prepare suggestions which will accomplish the purpose of that statute and that he shall “incorporate the same in a course of study for all elementary and secondary schools.” It is to be emphasized that no similar authority is granted to anyone by ORS 336.260. The answer given by the majority to these questions is that the statute has been in existence for about 35 years. This, of course, is no answer. And, I daresay, this may be changed when it is announced that this court has ruled that a school is to be compelled to release a child for two hours each week.
In this consideration of the statute, I have referred to the teacher as the person required to make the *134decisions. It is assumed that in most instances the teacher will have this ultimate responsibility, particularly in view of the regulation of the state board previously mentioned.
I am aware that serious doubt has been cast upon the rule that a legislative delegation of discretion must contain any standard or test to govern the exercise of the discretion granted. 1 Davis, Administrative Law Treatise (1958), §§2.04, 2.11. In the past, however, this court has held that it is necessary that an act contain some standard to govern the administrative authority. Van Winkle v. Fred Meyer, Inc. (1935) 151 Or 455, 466, 49 P2d 1140, and more recently in So. Pacific Co. v. Con. Freightways (1955) 203 Or 657, 666, 281 P2d 693. Even so, I would not quarrel in such detail with this failure of the statute in question if the person or body responsible to administer this act were specified, and given power to make necessary regulations.
In Zorach v. Clauson (1951) 343 US 306, 72 S Ct 679, 96 L Ed 954, the Supreme Court of the United States, by a five to four decision, sustained the constitutionality of a New York released time statute. Although it was not pertinent to the decision in that case, it is observed that the statute involved in that case was a part of the compulsory school attendance law and provided that the commissioner of education of the state of New York was specifically authorized to make necessary rules and regulations to govern the various school authorities. And it appeared that the official had made definite regulations specifying the terms and conditions by which students were to be released. If this were the character of the act in question here I certainly would not have attempted to so explicitly point to some of the administrative *135difficulties this act imposes.- In fact, the opinion of the majority, hy making the act mandatory, places the exercise of discretion not upon any administrative authority but solely upon the •will of “either parent.”
For the reasons stated I am of the opinion that the statute is so vague and uncertain that it is unenforceable and void. See State v. Anthony (1946) 179 Or 282, 169 P2d 587, cert den 330 US 826.
As above stated, I also concur in all of the views expressed by Justice Perry. The decree of the able circuit judge who decided this case below should be affirmed.
I am authorized to say that Warner, J., joins in this dissent.
“Summaries compiled from reports of the county school superintendents show the following administrative units existing at the end of the 1953-54 school year:
“Elementary School Districts ..................................... 562
Unified School Districts.............................................. 131
Union High School Districts........................................ 72
County High School Districts .................................. 2
Non-High School Districts.......................................... 27
Total .................................................................. 794
"Of these 794 administrative units, which existed in 1953-54, only 131, or 16.5% provided under one board a unified educational program from grades one to twelve.
“In 83.5% of the units the board that provided one level of education had no responsibility for or supervision over the other level of education.
“This was particularly true in the case of the boards of our smallest administrative units, those with fewer than 200 census children. Among these, 378 of 402 which operated schools had no district high school, and 21 were suspended and sending their pupils to other districts, where they had no administrative control of educational policies affecting either their elementary or high school pupils.
“Finally, if we add the 31 Rural School District Boards to the 794 local administrative units reported in the above table, we find that, in 1953-54, we had in Oregon, by this overlapping structure, 825 school boards concerned with educational or financial welfare of the children residing in the basic common school district represented by 693 school boards (the sum of the elementary and unified districts).’.’