(dissenting).
I concur with the majority opinion on the question of mootness, but would reverse the trial court’s action on the basis that the appellee should be required to exhaust his administrative remedies béfore the high school Board of Education before petitioning the courts for relief.
The maintenance of good conduct by a school district, through its agents, is of prime importance if an orderly process of education is to be achieved. The day-to-day problems of discipline, including suspension and expulsion of pupils, are vested by law in the Boards of Trustees and Boards of Education of the local school districts and their employees and the courts should use great caution and restraint before injecting the power of the court between the School Boards, which bear the legal responsibility for the conduct of local education, and the pupils who are present in the school district to be educated.
The Arizona Constitution requires the legislature to enact laws establishing and maintaining a general and uniform public school system. Ariz.Const. art. 11, § 1, A.R.S. It also requires that the “general conduct and supervision” of the system be placed in such governing boards as may be provided by law. Ariz.Const. art. 11, § 2. A high school is specifically designated as one educational unit in the general and uniform system. Ariz.Const. art. 11, § 1. The legislature in response to the constitutional mandate enacted A.R.S. § 15-541, which designates the Board of Education as the “governing board” of a high school district. They endowed the Board of Education with all the powers and duties vested in the common school trustees, A.R.S. § 15-545. One of these powers and duties is *315that they “ * * * sháll prescribe and enforce rules for the government of the schools, not inconsistent with law or rules prescribed by the state board of education.” A.R.S. § 15-441. The record fails to reveal any applicable state board regulations in respect to appeals from disciplinary action. Pursuant to A.R.S. § 15-441, the Board of Education, appellants herein, enacted the .rule involved in this cause. It reads:
“SMOKING: Smoking or possession of tobacco on campus during the school day or during any school sponsored activity is a misdemeanor. The penalty :shall be a five (5) day suspension for the first offense, and expulsion for the semester for a second offense. No credit will be given if a student is expelled.”
This rule is obviously based upon a criminal statute, A.R.S. § 13-844, which reads:
“A person who sells, gives or furnishes cigars, cigarettes or cigarette papers, smoking or chewing tobacco, to a minor, and a minor who buys, or has in his possession or accepts or receives from any person, cigars, cigarettes or cigarette papers, smoking or chewing tobacco of :any kind, is guilty of a misdemeanor punishable by a fine of not less than ten nor more than one hundred dollars.”
and on A.R.S. § 13-821, subsecs. A, par. 1 (p) and B, and § 13-822, which define a '“[djependent person” as one under the age •of 18 years “[w]ho * * * habitually smokes cigarettes”, and defines a “ [delinquent person” as one under the age of 18 years who violates a law of this state. The rule being in conformity with the announced public policy of the state certainly cannot be said to be either unreasonable or unnecessary for the education of our youth. See 78 C.J.S. Schools and School Districts § 120 at 905-908 (1952) ; Annot, 33 A.L.R. 1180 (1924).
The foregoing citation of constitutional and statutory authority shows, and we have held in Garrett v. Tubac-Amado School District No. 5, 9 Ariz.App. 331, 451 P.2d 909 (1969), that the law vests plenary power in the Board of Trustees, and in this case the Board of Education, to govern the affairs of the school district, subject only to statutory limitations. Such plenary power requires that the Boards maintain good order, discipline, and a respect for the laws of this state and nation, as a minimum obligation to their elected office. See 47 Am.Jur. Schools § 178 (1943).
The majority opinion rejects the exhaustion of administrative remedies argument of the appellant School District on the basis that there is no adequate and clearly ascertainable administrative remedy in existence. I disagree. As I have attempted to point out above, the High School District for all practical purposes is the Board of Education. All other persons connected to the District are employees of the District and, in effect, work for the Board. The Boards are vested with the power to hire and terminate personnel and set the rules for the government of the District. The final word on expulsion can only be given by the Board. A.R.S § 15-442, sub-sec. B, par. 1. It is only the Board that is entitled to receive the legal advice and services of the County Attorney, A.R.S. § 11-532, subsec. A, par. 10, or the Attorney General, under certain limited circumstances. Consequently, it seems clear that any student protesting unfair treatment by a teacher or an unfair or illegal suspension by a principal or superintendent or other employee of the Board should be required to first petition that Board, in which the legislature has vested the plenary power and the full responsibility for governing the affairs of the school district, for a hearing and review of the matter prior to the judiciary assuming the role and function of the Board of Education as was done in this case. See 79 C.J.S. Schools and School Districts § 503 c at 451 (1952).
The record shows that the Board was completely bypassed by the events that oc*316curred. In essence the trial court, became, for all purposes, the Board of Education and exercised the Board’s plenary. power over the school district in this purely disciplinary matter. There is certainly no presumption at law that the Board would not comply with the law or that it would not do its duty. The presumption is otherwise.
I would hold that an aggrieved pupil suspended or expelled under a reasonable regulation enacted by the Board of Education, for the violation of a regulation should first, petition the Board for relief prior to seeking relief from the courts.
I would reverse.