(dissenting).
I agree with the majority opinion that the residency requirements of SDCL 13-49-2 are not limited to the time of selection but are in fact qualification requirements which continue during the term of each member of the Board of Regents.
I agree that Regent Morrill’s standing to challenge the constitutionality should not be prohibited under the rationale of Collins v. Siewert, 1939, 66 S.D. 477, 285 N.W. 518, *360because the constitutionality of the statute in question is of such great interest to the general public that it is within the prerogative of this Court to decide this matter. See Anderson v. Kennedy, 1978, S.D., 264 N.W.2d 714.
However, having agreed to decide the constitutionality of the statute, the majority reaches what I consider to be an erroneous conclusion. It is my opinion that the residency requirement of SDCL 13-49-2 establishes an arbitrary classification which rests upon a basis of difference which has no fair and substantial relation to the purpose of the legislation; and, therefore, is a violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution (Reed v. Reed, 1971, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225), and Article VI, § 18 of the South Dakota Constitution (City of Aberdeen v. Meidinger, 1975, S.D., 233 N.W.2d 331).1
In Meidinger, this Court stated that “Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.” 233 N.W.2d at 334. In Meidinger the court found that there was no legitimate legislative purpose for the classification, and thus obviously there could be no rational relationship between the classification and the non-existent legislative purpose.
It is not my intent to indicate that the legislature may not prescribe qualifications for the office; that it can set qualifications which have a recognized rational basis, such as age, integrity, training or residency is well established. Harper v. Virginia State Bd. of Elections, 1966, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169. However, when it seeks to employ a classification of those who meet the prescribed qualifications, the classification must be non-discriminatory and meet the equal protection requirement that it be based upon a realistic and substantial difference having a reasonable relationship to the purposes sought to be accomplished by the legislation. Quaker City Cab Co. v. Commonwealth of Pennsylvania, 1928, 277 U.S. 389, 48 S.Ct. 553, 72 L.Ed. 927. There seems to be little question that the nonresidency requirement of SDCL 13-49-2 sets up a classification which must satisfy the equal protection requirement.
First, we must determine what is the legislative purpose of the nonresidency classification. The majority opinion declares that the legislature’s purpose was (1) to avoid the political pressure upon the governor to select regents from each of the institutional counties; (2) to insulate the Board from localized pressure by preventing appointment of institutional representatives; (3) to protect appointees from becoming champions of institutions located in their own counties; and (4) to minimize regents from interfering in the daily administrative functions of a local institution. The respondent, Governor Wollman suggests a further purpose, i. e., that the socio-economic pressures upon a regent follows county boundaries.
This Court said in Behrns v. Burke, 1975, S.D., 229 N.W.2d 86, that although we will not substitute “[our] judgment for that of the legislature regarding the wisdom of the statutory purpose — it is an examination by this court to ensure that the persons affected by a statute are those that should be reached to achieve the desired legislative ends.” 229 N.W.2d at 89. In other words, the court will accept any legitimate legislative purpose without substituting its wisdom for the legislature’s.2 But the court must then continue on and must examine and determine whether the basis of the classification of the citizens into eligibles (i. e., those residing without an institutional county) and ineligibles (i. e., those residing within an institutional county) bears a real and substantial difference having a reasonable relationship to the purposes sought to be accomplished by the legislation. Reed v. *361Reed, supra. The majority simply concludes that the statute does exclude people who are subject to these influences and therefore accomplishes the legislative purpose. That is certainly true, but that is not enough.
Is it realistic, rational, and reasonable to exclude some 40% of the population of the state to accomplish those purposes? Is there a realistic, rational and reasonable difference that distinguishes 100,000 plus citizens residing within the confines of Min-nehaha County and those well-known citizens within the city limits of Sioux Palls, but residing within the boundaries of Lincoln County? Are all these people so affected by the influences that they must be reached to achieve the desired legislative ends?
Is the statutory classification realistic, rational and reasonable if it excludes the citizens of Wall and Quinn, 50 to 60 miles from the School of Mines in Rapid City, because they may be subject to these influences but the residents of Piedmont, who are within a few miles of the School of Mines but just inside the Meade County line, are not? Certainly the economic life of the citizens of that community are much more dependent upon Rapid City and the state institution located there than those many citizens of distant eastern Pennington County.
Can it be said that there is reasonable and rational difference between a Butte County resident residing as near as five miles from the Black Hills State College campus, and a Nemo resident, forty miles distant from the campus, simply because of the location of the county boundaries?
The best example of the unrealistic and unreasonableness of the classification may involve residents of the city of Irene. The city is trisected by the boundaries of Clay, Turner and Yankton Counties. The eligibility of the otherwise qualified citizen to serve as a regent is simply decided by the side of the street upon which he lives, and none of the legislative purposes are reasonably served.
The examples can be made for each county and institution. Time and space prohibits the examination of each of the counties
and institutions involved. But the real question in each instance is whether county boundaries, established in the late 1800’s, provide a realistic, rational and reasonable basis for the classification of those persons otherwise qualified to be selected to the Board of Regents. In my opinion the answer is NO! The influences and pressures will be upon any member appointed to the Board of Regents. If the member is concerned, as he/she should be, about the future of higher education in the state the influences and pressures will not affect their vote. If the member lacks that concern and is susceptible to such influence and pressure it matters little where his county of residence is.
I would deny the writ of quo warranto and find that the provision of the statute requiring that a member of the Board of Regents “shall (not) reside in the county in which any state educational institution is located” is a violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution and Article VI § 18 of the South Dakota Constitution.
Although, there are methods this Court could suggest which would result in more realistic classifications, that is not our function. It is the responsibility of the legislature to clearly identify the objectives of the qualifications and then establish the classifications upon real and substantial differences having a reasonable relationship to the objectives sought to be accomplished. It may be necessary for the legislature to address each institution and the socio-eco-nomic area surrounding it to establish the necessary classifications. It may be that one type of classification will not meet the legislative purposes sought when applied to each institution. However, the legislature should not be allowed to retain the present arbitrary and unconstitutional classifications because reasonable and rational classifications may be difficult to enact because of political considerations.
. I agree with the majority that this is not a “fundamental interest” or a “suspect classification” based upon race, religion, national origin or sex which requires a strict scrutiny test; but is to be considered by the rational-relation test.
. Except, of course, in situations such as City of Aberdeen v. Meidinger, 1975, S.D., 233 N.W.2d 331, where the court can find no legitimate legislative purposes.