concurring and dissenting:
I concur in the court’s opinion that K. S. A. 72-7108, the transfer statute, is not unconstitutional, and the transfer order of the State Board of Education is not void for reasons 'stated by the district court. I would affirm the decision of the district court, however, for reasons hereafter stated.
If the decision of the district court is correct, even though based upon an erroneous premise, the decision must be affirmed. (Leaderbrand v. Central State Bank of Wichita, 202 Kari. 450, 450 P. 2d 1.)
The court in its opinion recognizes that no regulations governing the exercise of the power to transfer territory between unified school districts have been adopted by the State Board of Education, although authorized to do so by K. S. A. 72-7514.
The Board of Education by its answer admitted that “on or about the 26th day of June, 1973, the State Board of Education, by the defendant commissioner of education, issued its order”, a copy of which was marked Exhibit A and attached to the petition. That order recites in part:
“2. Notice of the hearing on the petition described in paragraph 1 above was duly published in the Plainville Times as provided by law, and proof of such publication is on file in the office of the State Board of Education. In accordance with said notice a hearing was held on said petition on May 8, 1973, at 10:00 a. m. in the courtroom of the courthouse in Stockton. Such hearing was conducted by Robert N. Jones, a duly designated hearing officer appointed by and for the State Board of Education. * # -ft # #
“4. After consideration of all matters presented orally or otherwise at the *564hearing described in paragraph 2 above, and being fuEy advised in the premises, it is hereby ordered that the foEowing described territory:
[described territory]
be and on the effective date of this order is transferred from Unified School District No. 269, Rooks County, State of Kansas, to Unified School District No. 270, Rooks County, State of Kansas.” (Emphasis added.)
The foregoing establishes that the State Board of Education designated a hearing officer, Robert N. Jones, to conduct the hearing in this matter; that such hearing was conducted without making a record of the proceedings at the hearing; and that the Board issued its order, based upon “all matters presented orally or otherwise at the hearing” conducted by the designated hearing officer, over the signature of C. Taylor Whittier, who was the Board’s appointed acting commissioner of education and administrative supervisor. (These facts are admitted by the Board’s answer.)
The inescapable conclusion is that none of the ten members of the Board of Education named in the petition heard or reviewed the relevant evidence presented at the hearing. The intention of the legislature, to delegate authority to the Board for the determination of transfer matters of this character in an administrative proceeding, was frustrated when the Board did nothing more than delegate such legislative authority to a hearing officer and its administrative supervisor.
It follows the order issued over the signature of the Board’s administrative supervisor, the commissioner of education, was unlawful. The administrative determination was in violation of the Kansas Constitution, Art. 6, Sec. 1 and 2, and K. S. A. 72-7108. Board action transferring territoiy from one school district to another, based upon proceedings disclosed by the record herein, was arbitrary, capricious and unreasonable.. As a result the purported transfer of territory from one school to the other is void.
This was the substance of the charges alleged in the petition.
Most of the complaints asserted by the trial court in stating the reasons for its decision can be remedied by the Board of Education upon the promulgation and adoption of adequate rules and regulations within the broad framework of the legislation pursuant to which the rules are authorized.
It is respectively submitted the judgment of the lower court should be affirmed.