dissenting:
I dissent from the majority opinion. I do not agree when it states that “The real inquiry presented to the court is the validity of the rule and regulation of the State Board declaring that only a physician, qualified to practice medicine in Colorado, fits the definition in the statute of ‘state accredited personnel.’ ” That is only one of the issues presented and should not be determined unless the primary issue, discussed infra, is held to be favorable to plaintiff.
In my view, a decision based on the premise of the majority is an attempted short-cut, not proper or even *53properly before us, under the pleadings or evidence presented.
Nor do I agree, as stated, “that the defendants were responsible for her application being denied”; nor, that “The Section of the statute placing in the local school district the final decision cannot come into operation until the application has been processed and approved by the State Department of Education. It must first recommend the enrollment.”
The statute (C.R.S. ’53, 123-22-7), as correctly interpreted by the trial court, places the final decision as to whether a handicapped child should be enrolled in a special program with the hoard of education of the district. No showing was made in the trial court that the local board had formally refused to enroll plaintiff; and, no statute or rule is cited by counsel on this writ of error which indicates that plaintiff could not be enrolled at the local level. Nor, was the local board made a party as it should have been to have those issues decided.
The issue of reimbursement, which is really why these defendants could be joined in a proper action, has not yet arisen; nor would it, if the local board were to act unfavorably on plaintiff’s petition. And, this is true regardless of whether and when these defendants process plaintiff’s application.
I consider the local board the proper party defendant in this proceeding and would affirm the action of the trial court in dismissing the complaint.