(specially concurring).
The purpose of this special concurring opinion is to advise the teaching profession that its quarrel on reemployment is with the legislature and the State Board of Education, and not with the courts.
First, this court discussed the question of “How new evidence before the State Board is to be considered.” This was not an issue on appeal. In its decision, the State Board recited “that new evidence, as to appellant’s certification was stipulated in the record by the parties.” The stipulation was:
“It is stipulated and agreed between counsel for the parties that the Appellant, Eileen Parsons, is, as of this date, certified to teach the subjects of U. S. History and Vocational Economics, these certifications having occurred subsequent to the date of the hearing before the Board which,' as I recall, was May 22nd, 1970.” [Emphasis added].
Section 77-8-17(D), N.M.S.A.1953 (Reph Vol. 11, pt. 1), provides in part:
“ * * * The state board may consider new evidence not presented at the hearing conducted by the local school board when there is a showing that, although due diligence was used, the new evidence was unknown or unavailable to present at the hearing conducted by the local school-board. A transcript shall be made of all new evidence considered by the state board.” [Emphasis added].
This provision does not include new evidence not in existence at the time of the Local Board meeting. It covers new evidence unknown or unavailable at the time of the Local Board hearing. Mrs. Parsons was certified to teach U. S. History and Vocational Economics subsequent to the hearing before the Local Board. Due diligence of Mrs. Parsons could not produce this “new evidence” at the time of the Local Board meeting. This “new evidence” was created by Mrs. Parsons after the Local Board hearing to find a “position” available in the school. Neither the State Board nor Mrs. Parsons could rely upon this “new evidence” to support her position.
Second, the opinion does not disclose that in 1967, the legislature gave to the Local Board a new power, the right to refuse to reemploy tenure teachers by conducting a hearing and finding “good and just cause for, refusing to re-employ the person.” Section 77-8-12(C) and (D), N.M.S.A. 1953 (Repl.Vol. 11, pt. 1). This statute favors the Local Board and not the teacher, but we do not inquire into the policy or justness of acts of the legislature. Wickersham v. New Mexico State Board of Education, 81 N.M. 188, 191, 464 P.2d 918 (Ct.App.1970). Previously, the Local Board only had the right to discharge for “good and just cause.” Section 77-8-14. In both statutes, the Local Board, in the exercise of its sound discretion, could determine the question of “good and just cause,” and make findings thefeof; The State Board, in its sound discretion, could determine whether the evidence at ' the hearing substantiated the findings of' the Local Board and whether “good and just cause” existed. Section 77-8-17(C), (D) and (E). These are also new provisions.
In view of these new sections, I,do not concur in adopting the law set forth in previous decisions. , We have a'duty to interpret these new statutes in line with Article XII, Section 6 of the Constitution .under the subject of “The Nature of the State Board’s Review.”
Third, the court discussed , “The ISTp-tijire of the State Board’s Review.”
The State Board of Education was.created by the people as a constitutional agency before the people created the Court of Appeals. Article XII, Section 6, provides in part: . • .
“The State Board of Education shall determine public school policy and'vocational educational policy and shall have control, management and direction 'of' all public schools, pursuant to authority 'and powers provided by lavu.” [Emphasis added].
The State Board of Education is a part of the executive department of' the state government — one of its agencies — and as such it is subject to legislative control. The words “provided by law” may b'e a law enacted by the people exercising the, initiative or by the people acting through the legislature. The legislature may provide for the extent of the authority and powers of the State Board. State ex rel. Public Service Commission of Montana v. Branno, 86 Mont. 200, 283 P. 202, 208 (1929).
Article XII, Section 6 conferred on the State Board such limited, judicial powers as the legislature granted it. This does not constitute an unconstitutional infringement upon the judicial branch of the government. McCormick v. Board of Education, 58 N.M. 648, 660-661, 274 P.2d 299 (1954). Suk sequently, this court further said:
“ * * * [T]hat, within the limited area prescribed by Art. 12 of the constitution, the decisions of the board of education are final and conclusive as between the parties, and not subject to review. This conclusion, however, does not deprive the courts of jurisdiction of the many purely legal questions which may arise in connection with the teacher tenure act, and other educational acts, such as the question here presented as to whether or not appellee had tenure; and, as suggested in the discussion of the preceding point, the action of the State Board of Education zvould be subject to reviezv on the ground that it was wholly arbitrary, unlawful, unreasonable or capricious.” [58 N.M. at 661, 274 P.2d at 307], [Emphasis added].
In Lopez v. State Board of Education, 70 N.M. 166, 372 P.2d 121 (1962), the court said:
“In the absence of a statutory definition of the term, it was the function of the State Board of Education in the exercise of its sound discretion to determine the question of ‘good cause.’ And, its determination is conclusive unless the evidence discloses that it acted unlawfully, arbitrarily or capriciously. Hence, our review of the record will be limited to a determination whether the action of the state board was unlawful, arbitrary or capricious.” [70 N.M. at 167, 372 P.2d at 121-122]. [Emphasis added].
In State ex rel. School Dist. No. 29 v. Cooney, 102 Mont. 521, 59 P.2d 48 (1936), the court said:
“Both the state board and superintendent and the local board are quasijudicial bodies or officials, and both exercise discretionary powers [citing cases], and when such powers are exercised in the manner prescribed by law, no right of review exists.” [59 P.2d at 51].
Thus far, we must remember that the State Board of Education is a constitutional quasi-judicial body of the executive department with discretionary powers. We must now determine, (1) what powers of review were granted the Court of Appeals, and (2) what authority and powers were granted the State Board of Edttcation by the legislature.
(1) Appellate jurisdiction of the Court of Appeals grants to the court the right to review “decisions of those administrative agencies of the state where direct review by the court of appeals is provided by law; and decisions in any other action as may be provided by law.” Section 16-7-8 (F) and (G), N.M.S.A.1953 (Repl.Vol. 4). The State Board of Education is not an administrative agency of the state because it is created by the constitution, not by the legislature. Jurisdiction may be found under the provision of subsection (G). The only provision for review from the decision of the State School Board is § 77-8-17(F), N. M.S.A.1953 (Repl.Vol. 11, pt. 1). It simply says: “Any party aggrieved by a decision of the state board after a review proceeding pursuant to this section may appeal the decision to the court of appeals * * The legislature did not fix any scope of review of quasi-judicial decisions as it has done in other nonconstitutional, administrative agencies. For example, see § 4-32-22, N.M.S.A.1953 (Repl.Vol. 2, Supp. 1969), entitled “Scope of Review” under “Administrative Procedures Act; ” § 72-13-39(C), N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp.1969), under the “Tax Administration Act.”
When no scope of review is provided by law, what powers can the Court of Appeals grasp to review decisions of the State Board of Education?
In Board of Education v. State Board of Education, 79 N.M. 332, 443 P.2d 502 (Ct.App.1968), this court said:
“* * * Our review of the State Board’s action is limited to determining whether the State Board acted arbitrarily, unlawfully, unreasonably or capriciously.” [79 N.M. at 337, 443 P.2d at 507]. [Emphasis added].
In Wickersham v. New Mexico State Board of Education, supra, this court said:
“Our review, under § 77-8-17, supra, is limited to a determination of whether the State Board’s decision is arbitrary, unreasonable, unlawful or capricious.
íjí s|í >¡í ifc ^
"This does not mean that the evidence question will not be reviewed. If the State Board affirmed a Local Board decision, and the Local Board’s decision was not supported by substantial evidence, the State Board’s decision would be unreasonable. [81 N.M. at 190]. [Emphasis added].
í¡í % i|í Hfi í¡í
“In asking us to weigh the evidence, the teacher asks us to substitute our judgment for the judgment of the State Board. This we are not permitted to do. * * * It is not the province of this court to retry the case brought before it on appeal from the State Board.
"We may not weigh the evidence since our function is limited to a review of the State Board’s decision. In conducting that review, we consider only whether the State Board’s decision was arbitrary, unreasonable, unlawful or capricious.” [81 N.M. at 191, 464 P.2d at 920]. [Emphasis added].
In the instant case, the majority opinion says:
“Here, the State Board reviewed the evidence and unreasonably determined there was no substantial evidence to support the Local Board’s decision.
“The issue is not whether there is substantial evidence to support the State Board’s decision. Since the State Board reviewed the Local Board’s decision, as provided by law, the issue in this court is whether the State Board’s decision, after such a review, is arbitrary, unreasonable, unlawful or capricious. * * * Here, the State Board’s action was unreasonable. This holding decides the appeal. It decides the appeal because the State Board, by law, is not authorized to reach an independent result. The State Board’s authority is to review the Local Board’s decision as provided in § 77-8-17 (D), supra, and on the basis of that review, affirm or reverse the Local Board’s decision.” [Emphasis added].
The trouble with these decisions is that they rely on decisions prior to the creation of the Court of Appeals and its power of review.
The time has now come to try and decide “The Nature of the State Board’s Review.” We should try to develop a uniform rule.
We must not forget that the State Board of Education is a constitutional, quasi-judicial body with discretionary powers to determine the question of “good cause” found in the Local Board hearing.
What are the limits of the power of the Court of Appeals to review the decisions of the State Board of Education?
Article XII, Section 6 of the Constitution grants the State Board its powers “pursuant to authority and powers provided by law.” Since the legislature did not provide a scope of review, our power of review is limited to whether the State Board acted “pursuant to authority and powers provided by law.” If it did, we affirm because its decision is final and conclusive. If it did not, we reverse.
(2) What authority and powers were granted the State Board by the legislature?
Under § 77-8-17(C), (D) and (E), supra, the legislature provided that “[t]he state board shall conduct a review proceeding” and at this review proceeding, “[t]he state board shall also determine whether or not there is evidence in the transcript to substantiate the findings of the locál school board that cause exists for refusing to re-employ or discharging the person.” It “shall render a written decision affirming or reversing the decision of the local school board.” We are, therefore, bound by the constitution. We must determine as a matter of law whether the State Board’s decision complied with the above statute.
The State Board held a review proceeding and rendered its decision reversing the Local School Board. We are not permitted to substitute our judgment for the judgment of the State Board. We do not review the evidence or weigh the evidence before the Local Board or the State Board. We can only determine if the State Board acted according to authority and powers granted by the legislature. The State Board found:
“ * * * [T] he record does not contain substantial evidence supporting the [Local] Board’s decision not to re-employ' Eileen Parsons, a tenure teacher,. [when non-tenure teachers were employed in areas in which she is qualified to teach.”] (Brackets added).
If the bracketed words had been omitted, I would dissent because the decision would have complied with the law. The State Board acted honestly and in good faith. But the reason for its decision that the record did not contain substantial evidence was that the Local Board refused to reemploy Mrs. Parsons because nontenure teachers were employed in her place. This was- not the issue before the Local Board. The State Board did not comply with its statutory powers upon the “good and just cause” issue before the Local Board. It did not determine whether the evidence in the transcript substantiated the thirty-two (32) findings of the Local School Board. Therefore, I specially concur.
It would greatly impair the government and the efficiency of the common schools if the honest judgment and the discretion of a constitutional state board, exercised in good faith, could be reviewed and reversed. State v. Cooney, supra. We must pay homage to.this principle under the present statutory structure.