(concurring).
I concur in refusing to hold the Act unconstitutional in the posture in which this case is now presented, when no actual conflict has arisen, and indeed when it would seem there is not necessarily any justifiable apprehension that there will be.
The court in performing its separate function, and exercising proper judicial restraint therein, should not reach out to declare an act of the legislative branch unconstitutional. The presumption of constitutionality should be indulged; and a legislative act should not be declared otherwise 'unless the necessity is impelled because it appears clearly that there is irreconcilable conflict between the enactment and a superior constitutional mandate,1 nor unless it is challenged by someone who has an interest which is infringed, or which is in hazard.2 Conversely, if there is a reason*116able basis to believe or assume that the purpose of the legislature can be carried ■out without such conflict with the Constitution, that should be allowed to be done. It is to be observed that the duties and prerogatives now given to the Board of Higher Education have in fact been carried out otherwise than by the State Board of Education for many years by the governing boards of the state’s colleges and universities.3 I quite agree that silence or inaction for however long a time would not result in nullifying a constitutional provision. However, where doubt or uncertainty may exist concerning a statute, the experience and actual operation in the area in question, and the apparent legislative intent, are factors which properly may be considered in determining its validity.4
In accordance with what I have said above, it is my opinion that there is a reasonable basis to believe and to assume that the Board of Higher Education can function as provided in the 1969 Act, without there arising any conflict with the State Board of Education, notwithstanding the necessity of an awareness of the constitutional provision in Article X, Section 8, that “The general control and supervision of the Public School System shall be vested in a State Board of Education the members of which shall be elected as provided by law.”
. See Newcomb v. Ogden City, etc., 121 Utah 503, 243 P.2d 941; Salt Lake City v. Perkins, 9 Utah 2d 317, 343 P.2d 1106.
. State ex rel., University of Utah v. Candland, 36 Utah 406, 104 P. 285, 16 Am. Jur.2d, Constitutional Law, Sec. 119.
. E. g., the University of Utah by its Board of Regents, Sec. 53-31-7, U.C.A. 1953; Utah State University by its Board of Trustees, Sec. 53-32-9, U.C.A. 1953.
. Rampton v. Barlow, 23 Utah 2d 383, 464 P.2d 378.