(dissenting).
I respectfully dissent because: I believe the main opinion constitutes judicial legislation and represents the employment of an authority not reserved to the court. It has to do with what I consider to be immaterial facts and conclusions dissonant with legal precedent, history, tradition and constitutional judicial authority.
The Utah Constitution, in words whose clarity conceivably cannot be misunderstood or misconstrued, says 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 . . .,”1 which System “shall include kindergarten schools; common schools, consisting of primary and grammar grades; high schools; an agricultural college; a university; and such other schools as the Legislature may establish. .” 2
Such language obviously includes not only the “agricultural college” and “a university” but other schools listed in the act which is now to be declared constitutional. The above language is plenary and crystal clear. The only way it could or should be *117changed under established principles of constitutional law, is by a vote of the people, — not by a vote of the legislature. The main opinion ignores the principles that the Constitution is to be interpreted by the courts and not cremated by them. It declares the Constitution unconstitutional and the statute constitutional by some sort of interpretation and acquiescence by the legislature, the people and some administrators, — none of whom have any authority whatever to change the Constitution or any part thereof save at the ballot box. The reasons urged in the main opinion would rattle the teeth of Jefferson and the rest, and scorch the parchment of the Constitution itself.
The act which the opinion says is constitutional, says that “the control, management and supervision” of all schools, naming them, above the high school level, and all of which are conceded to be a part of the Public School System, is vested in the Board of Higher Education. To say that such language is not in conflict with Article X, Sections 2 and 8, which uses the same language except the word “management,” which is either synonymous with or has an idem sonans connotation, or similar meaning, finds little comfort in logic, lexicography, etymology or the simplest kind of interpretation of clear, understandable, unambiguous words. It seems to me that the superficiality of arguing that the placing of “management” in between “control” and “supervision,” makes that which was supreme in an authoritative sense, now, subservient, is apparent, and points up the jurisprudential intolerability, under our established rules, of lending any merit whatever to such argument. It seems to me that it is utterly unthinkable to permit a decimation of the clear, meaningful language of the Constitution, without, as a condition precedent, requiring such decimation by the orderly, established and mandatory process of majority rule at the polling place, else the democratic form of government, as we have known it, must subvert itself to legerdemainic judicial rhetoric that makes meaningless a document that many say was divinely inspired, and which most everybody believes means what it says.
' The only reason assigned in the opinion for holding this act constitutional is that “In view of the long interpretation of Article X, Sections 2 and 8, by the legislature, with the acquiescence of the people, as well as the State Board of Education, and the administrators of the institutions of higher learning,” the statute is now constitutional. This, without the vote of the people who own the Constitution, — not the Legislature, neither of the Boards nor some administrators. The law of this case has never been, so far as I know, that espoused by any Utah case, and it is submitted that the case of Bateman v. Board of Examiners, — the only case cited in the main opinion for the *118'decision, — does not 'support the above quoted' statement by the main opinion, — which will be" the law of the casé and of this state if that is the consensus of the majority of this court.
My learned colleague, Mr. Justice El-lett’s concurrence in the result, in my opinion, so.unds like a dissent. It disagrees with the last paragraph of the main opinion, which is the law of and the decision <?f this case, if published as such. Mr. Justice Ellett aptly points up the principle involved here, when he says “it is for the cour.t to interpret the meaning of a constitutional provision as it applies to a legislative enactment when and only when it is presented for determination. The same decision should be made whether the question is raised early or late.”
' The issue here squarely has been put by both sides: Which agency has the superior authority of “control and supervision” of the' Schools mentioned in the act, — conced-edly a part of the Public School System, — ■ the constitutionally authorized “elective” State Board of Education, or the legislatively created and “appointed” Board of Higher Education? At the expense of repetition, I suggest that under all principles, arguments and authorities urged by both sides, the lower court should be' affirmed, and that such “control and supervision” should remain where it' constitutionally is impacted, and that such control and supervision should be superior to the Higher Education Board, and that the latter, if the legislature wants to perpetuate it, should and must do it by a legislative enactment that specifically relates such superiority and subserviency.
I think this court should face up to the fact change for change’s sake may be desirable to its proponents, but that it may be ever so unconstitutional, — which I think is the case here. This case is a people’s case, not a legislature’s case, nor an educator’s case, nor a bureaucrat’s case, ancl if the people are not allowed to vote for the drastic change envisioned here with respect to whether they have control or a lay committee, simply created by appointment and without permitting the right of suffrage to determine such power, this country will be in' more trouble than that which already has been engendered by those who would deny that right of suffrage.
Mr. Justice Ellett’s qualified concurrence in the result, is based on something with which I agree, but which is no issue here. I agree that the legislature can whittle away or take in toto the authority of Boards of Regents and Trustees, but I am' unwilling to relate that power to say that in doing so, it can destroy a constitutionally created agency, — and this court should recognize its own fallibility if it condones the constitutionality in this case, since it can be the rapier that could sever one of the three main arteries keeping the heart' of a democracy beating.
*119. As to my learned colleague, Mr. Justice Crockett’s concurrence, my reaction also constrains me to venture the suggestion that, even more than Mr. Justice Ellett’s concurrence in the result, it is a meritorious, but eulogistic dissent in disguise, which, on analysis, really does not hide the personality of this litigation. I am led to wonder how the constitutional and elected State Board .of Education members and their lawyers are going to interpret .the first paragraph of the concurrence, particularly that part that says “no conflict has arisen” and there is no “justifiable apprehension that there will be.” I am reasonably satisfied that if anyone presumes to quote the opinion as being the law of this case (which would seem to be impossible-since four of the justices virtually have said the constitutional State Board of Eclu-cation has power and authority superior to that of the State Board of- Higher Education, — two by dissents, one by concurrence in the result, and one by an outright concurrence), that instead of clarifying' the problem, which the legislature surely looks to this court to do in questionable legislation cases, it simply will confuse.
In my opinion the trial court actually has been affirmed, although this opinion goes out as a reversal. I think the problem of modifying, watering down, emasculating or substituting one agency with another, the question as to the State Board of Education’s authority should be left to the decision of the people, — and that-a-denial thereof would be a mockery -of the truism that that government is best where the people not only are least governed-, but where such government is closest to them. (Emphasis added.)
CALLISTER, C. j., concurs in the dissenting opinion-of HENRIOD, J. .. Article X, Section 8.
. Article X, Section 2.