dissenting.
Although I agree with many of the legal principles pronounced in the majority opinion, I do not agree that they are properly applied to this case and, accordingly, I disagree with the conclusion. The order denying the declaratory relief requested by the School District should be reversed and the trial court should be directed to enter a judgment determining that there is no right or duty to arbitrate the question propounded by the West Fargo Education Association and Beverly Pratt.
The majority takes note of the compulsory arbitration provided for highway contract disputes in § 24-02-26, NDCC, and ff, and says that this has been held constitutional in Hjelle v. Sornsin Construction Company, 173 N.W.2d 431 (N.D.1970). As the loser of that case, I cannot read that opinion as deciding the constitutionality of the statute in any manner not pure obiter dictum.
*621Only the highway commissioner challenged the statute’s constitutionality. The court clearly held that the commissioner had no standing to make that assertion. Every case and authority cited or discussed in Hjelle v. Sornsin, supra, support a conclusion that mandatory arbitration, with no right of judicial review on the merits, is invalid. If the contractor, rather than the commissioner, had asserted invalidity, I have little doubt that the assertion would have been upheld. Some of the issues which are involved in arbitration under § 24-02-26, NDCC, are not present when considering arbitration pursuant to the authorization of § 15-38.1-12(1)(b), NDCC, and vice versa. Disputes between public employers and their employees are, first of all, governed by the nonbinding mediation statute. Chapter 34-11, NDCC. What effect this statute has was not considered by the parties, but should have been.
Hjelle v. Sornsin, supra, was only chapter one of that story. That majority opinion stated: “In the instant case, however, the Subcontractor had no contract with the State and thus would have no right under that statute — or any other statute that we know of — to assert its claim against the State.” In spite of this obvious lack of a basis for the claim, this Court decided that the claimant was entitled to arbitrate. One justice dissented.
Chapter two is told in the case entitled Nelson Paving Co., Inc. v. Hjelle, 207 N.W.2d 225 (N.D.1973), where this Court refused to review the very substantial award (which it said in Hjelle v. Sornsin had no basis in law) on questions of fact or of law and, in effect, held that in the absence of “fraud” an award in arbitration will not be set aside.
This case gives this Court the opportunity to avoid repetition of a miscarriage of justice. A refusal to consider legal questions before arbitration and a refusal to make any review of the merits (of law or of fact) on an appeal from an arbitration award, has shaken any confidence that ordinary citizens ever had in arbitration proceedings. It should not be so. The judicial system needs. the assistance arbitration proceedings can provide in resolving disputes. Arbitration should be a preferred method — it is simpler, quicker, cheaper, and is not hampered by judicial tradition. But the courts have to be realistic.
When the matter in dispute is a judicial question, the courts ought to fulfill their proper role. Whether depriving Beverly Pratt of maternity-sick leave benefits violated her constitutional or legal rights is not a matter that this Court should shunt off onto an arbitrator whose decision cannot be reviewed unless there is fraud. The fact that the majority opinion points out that the agreement to arbitrate says that the arbiter shall have no power to alter the agreement—after Nelson Paving v. Hjelle, supra—gives me no assurance that the arbitrator will not amend the agreement (actually or in effect), and we will have no way to correct it.
Judgment should be reversed.