(concurring and dissenting):
I am in agreement with the holding that a school teacher can run for the office of State Senator or State Representative and that he may serve in the office to which he is elected. That is as far as I can go in agreeing with the Per Curiam opinion.
That opinion leaves unanswered the principal question which everybody desires to have answered, and that is this: “Can a teacher, serve as a member of the legislature and retain his status as a téacher in the public schools?” By not deciding the question reminds one of a man who asked his doctor if he could take a cyanide pill. “Certainly, you can,” replied the doctor. The man took the pill and died instantly. The doctor vindicated his advice by saying: “I told him the truth. He never asked me what would happen to him if he took it!” The question of whether a teacher can be a legislator has the necessary corollary involved, towit: can he be a legislator and still be a teacher?
I believe that there are a number of reasons which would prevent the dual role of teacher and legislator. I will point out a few of them.
Article V, Section 1 of the Utah Constitution provides that no person charged with the exercise of powers properly belonging to one branch of government shall exercise any function appertaining to either of the other two branches of government. As a member of the legislature, the teacher exercises functions properly appertaining to the legislative branch of government; as a teacher he exercises functions appertaining to the executive branch of government in that he is charged with the duty to teach and train the youth of this state to become good citizens and to prepare them to make a living and become useful citizens of the state. These functions are exactly parallel with those duties of the warden of the state prison and his deputies; that is, they seek to teach prisoners under their control how *774to be better citizens, how to make a living by lawful means, and how to enjoy their rights in a free society. Thus, teachers who become legislators exercise functions in different branches of government in violation of Article V, Section 1 of our Constitution.
A chain of power is established by statute from the State Board of Examiners through the Superintendent of Public Instruction and the State Board of Education to the County Boards of Education. U.C.A., 1953, 53-2-12, specifically provides:
The general control and supervision of the public school system is vested in the state board of education. It shall adopt rules and regulations to eliminate and prevent all unnecessary duplication of work or instruction in any branch or division of the public school system and shall require the governing boards of all branches and divisions of the public school system to put the same into operation.
Local school boards are required to attend conventions called by the State Superintendent as directed in .U.C.A., 1953, 53-3-10. They are also required to report census information to the State Superintendent by virtue of U.C.A., 1953, 53-6-13.
That the State Board of Education is located squarely within the executive branch of government is evidenced further by U.C.A., 1953, 53-3-9, which requires the Superintendent to file monthly itemized accounts of expenses with the State Board of Examiners. The State Board of Examiners consists of the Governor, the Secretary of State, and the Attorney General, as set forth in U.C.A., 1953, 63-6-1.
Utah law makes special provisions for teachers. For example, Chapter 50 of Title 53, in the Utah Code sets up a commission to deal with ethical and professional conduct among teachers. Chapter 51 of the same title creates a termination procedure giving a teacher the right to a hearing prior to termination. Finally, there is the School Employees’ Retirement Act contained in Chapter 29 of Title 53.
Administrators within the public school system clearly are public officers. The Supreme Court of West Virginia in Jackson v. Board of Education of Kanawha County, 128 W.Va. 154, 35 S.E.2d 852 (1945), held that the superintendent of schools of Kana-wha County was a public officer and as such was not entitled to an increase in salary by virtue of a constitutional provision prohibiting an increase in salary for any public officer during his term of office. The court noted:
Public education is a governmental function and all executive participants in its furtherance are in part clothed with the sovereign power of the State and therefore public officers. . 35 S.E.2d at 853.
Teachers are not mere employees of the state. Teachers have a special status within the framework of state government and their duties are properly part of the executive branch of government.
Two state courts have dealt with the questions of teachers in the legislature. The Supreme Court of Alaska in Begich v. Jefferson, 441 P.2d 27 (Alaska 1968), considered the question under an Alaska constitutional provision which provided in part:
No legislator may hold any other office or position of profit under the United States or the State. [Emphasis added.]
Admittedly the Alaskan provision is.broader than the corresponding Utah constitutional provision, Article VI, Section 6, in that the Alaska provision adds the words “position of profit.” The court considered the position of superintendent of on-base schools and found that it constituted a “position of profit” within the meaning of the constitutional prohibition. The summary judgment decree of the trial court read:
[T]he positions of teacher, principal, or superintendent in a State operated school constitute positions of profit under Article II, Section 5 of the Constitution of the State of Alaska, which provides that no legislator may hold any other office or position of profit under the United States or the State. 441 P.2d at 29.
The Supreme Court upheld the summary judgment in all respects. More particular*775ly, the Alaska Supreme Court found that the teaching position was not merely an employment but could be considered an appointment:
. In short, we hold that teachers are ‘appointed,’ as that term is commonly and ordinarily understood, to positions within our educational system. 441 P.2d at 32.
The Utah Constitution does not include the word “position of profit.” Its provision uses the word “office of profit or trust.” There is no concensus, however, as to the meaning of the word “office.” In McCornick v. Thatcher, 8 Utah 294, 30 P. 1091 (1892), the Territorial Supreme Court was asked to decide whether a trustee of the Agricultural College of Utah held an office. The decision is replete with definitions of officer given by the authorities and by courts of sister states. The ultimate conclusion of the court was that:
. The definitions of the term ‘office,’ as given by the text writers and courts, are not in entire harmony, . 8 Utah at 301, 30 P. at 1093.
The Oregon Supreme Court has also dealt with the question of teachers in the legislature. In Monaghan v. School Dist. No. 1, Clackamas County, 211 Or. 360, 315 P.2d 797 (1957), the Oregon court held that a member of the legislature could not simultaneously act under a contract with the local school board as a teacher. The Oregon constitutional provision in question reads:
The powers of the Government shall be divided into three seperate [sic] departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the function of another, except as in this Constitution expressly provided. 315 P.2d at 800.
The Oregon constitutional provision closely parallels the Utah separation of powers clause found in Article V, Section 1.
The Oregon court quoted from the Federalist Papers, No. 51, concerning the importance of the separation of powers doctrine:
In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own, and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. * * *
It is equally evident that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. . 315 P.2d at 800. [Emphasis added by court.]
The Oregon Court also pointed out that the mere fact that a teacher is an employee does not mean that he does not exercise functions of the executive branch of government. The court pointed out that Oregon has a constitutional mandate for the establishment of state schools. As pointed out above, Utah has the same constitutional mandate. The Oregon court then noted that school districts were legislatively created entities. As pointed out above, U.C.A., 1953, 53-4-8 makes school boards bodies corporate, giving them all the powers of a quasi-municipal corporation. The court then made the logical conclusion:
Teachers are employees hired by a state agency whose function it is to serve the sate in the exercise of its sovereign power and duty as mandated by Article VIII, Section 3 of the Oregon Constitution [mandate for public education]. 315 P.2d at 804.
The Oregon court further reasoned that as a legislator Monaghan was charged with duties belonging to one branch of government but performed “functions” belonging to another branch:
. There can be no doubt that Mr. Monaghan, as a legislator, is ‘charged with official duties.’ But the exercise of the ‘functions’ of the department of government gives to the word ‘functions’ a broader sweep and more comprehensive meaning than ‘official duties.’ It con*776templates a wider range of the exercise of functions including and beyond those which may be comprehended in the ‘official duties’ of any one officer. 315 P.2d at 802.
The Oregon court was quick to point out that it had no intention of imputing a malevolent motive to representative Mona-ghan. Its decision was grounded on the separation of powers doctrine accompanied by a practical recognition of the evils which could arise of that doctrine were not followed. In that vein, the Supreme Court incorporated the trial court’s statement into its opinion:
* * * Conceivably the school board could say to its employee who is serving in the legislature, ‘You must vote in favor of certain bills that are advantageous to us and which increase our authority. If you do we will increase your salary and if you do not you will be penalized in your position in certain respects.’ Would this relationship not then tend to concentrate power in the branch of the government by which the member of the legislature was employed and to the detriment of the legislative branch? * * * 315 P.2d at 805.
The Supreme Court of Utah has also expressed an interest in maintaining a separation of powers in state government and in assuring that legislators should enjoy “that independent frame of mind which should be possessed by the ideal legislator.” State ex rel. Jugler v. Grover, 102 Utah 41, 51, 125 P.2d 807, 812 (1942), quoting from Chenoweth v. Chambers, 33 Cal.App. 104, 164 P. 428, 429 (1917).
The potential for abuse exists in the State of Utah by allowing teachers to sit as legislators. The possibility for abuse is particularly evident when it is recognized that one respondent, Kenneth Alford, is principal of the school in which another respondent, John E. Ulibarri, is vice-principal. It is difficult to see how respondent, an administrator, could exercise complete independence of judgment when he might be faced with repercussions should he disagree with his superior as to bills affecting the educational system.
Furthermore, a conflict of interest exists where educators and administrators in the public school system are called upon to consider legislation dealing with appropriations or other matters within the educational system. Petitioners recognize that all legislators have prejudices and at the same time natural inclinations to promote their own profession in some manner. That a legislator would represent certain interests does not thwart the democratic process, but is, rather, inherent in that process. However, the constitution of the State of Utah sets limits on the types of prejudices which may enter officially into the legislative process. One such limitation is that no branch of government may taint the legislature with influence exerted by having members of that branch seated in the legislature.
Another reason which should prevent teachers from serving in the legislature is one of public policy. A teacher is chosen for his special aptitude in teaching and once he begins with a class, the results will be best obtained if he is permitted to continue with those pupils to the end of the term. It is equally as bad to trade teachers in the middle of a term as it is to switch pupils in the middle of the term. A teacher should have the welfare of his students uppermost in his mind. If he has that then it would seem that he would not wish to desert his classes and become a legislator.
The teachers cannot draw state salaries from two branches of government; and it would not matter that they are supposed to be taking their vacations while sitting in the legislative sessions. The school district would be compelled to hire substitutes for their classes; but if they were truly vacation periods, there would be no need for help on those occasions.
In addition to service in the sessions of the legislature, the legislators have assigned themselves to various committees and constantly meet throughout the year in connection with their committee assignments. I think by allowing the teachers’ names to remain upon the ballots we should make it clear that if and when an elected teacher *777takes his oath of office as a legislator, he forfeits his right to serve as a teacher in the public schools so long as he remains a member of the legislative branch of government.