(dissenting).
My inability to adopt the views expressed in the principal opinion makes it incumbent on me to perform the least pleasant of judicial tasks, the justifying of a tenet which though sincerely believed cannot be the law of the jurisdiction.
To begin, the assumption here that the statute in issue, § 21-211, W.S.1957, has on the strength of Chicago, B. & Q. R. Co. v. Byron School Dist. No. 1, 37 Wyo. 259, 260 P. 537, 539, been held constitutional is unwarranted. As is reflected by both that opinion and the briefs on which the cause was submitted, the issue of constitutionality was not directly before the court. Judge Blume’s pronouncement on the subject was at most peripheral when he said, 260 P. at 539:
“ * * * While the establishment of such districts and the change of boundaries therein is a legislative function, the Legislature has delegated the duties in connection therewith to a district boundary board in each county, and it is not questioned that this may be done. * * * ”
In that connection, it is significant to observe two other statements which he made, 260 P. at 538 and 540:
“ * * * The meeting of the board was then adjourned to April 6, 1925, for the purpose of giving notice to the parties interested so they might appear and state their objections. * *
“ * * * In these various matters, the welfare and interests of the district and of the people thereof as a whole must necessarily be the determining factor in order to make the organization of districts possible at all. We cannot see why a different principle should apply in making changes in districts already organized. * * * »
The appellant here similarly has not challenged the constitutionality of the statute; the remarks of the court in the majority opinion are unjustified; and the question of constitutionality must remain open until it may be directly and properly raised in a cause before us.
In the present litigation the principal issue is the propriety of the boundary board’s action taken without notice to citizens and taxpayers. In School District No. 9, in County of Fremont v. District Boundary Board In and For Fremont County, Wyo., 351 P.2d 106, this court said that even where there is no statutory requirement for notice of the proposed action in changing a school boundary that reasonable notice is nevertheless required to be afforded to interested persons. This definite and unambiguous rule must control until it is reversed, and it cannot be sidestepped as it has been here. In that case reference was made to School Dist. No. 3, El Paso County v. Perry, 126 Colo. 443, 250 P.2d 1010, in our neighboring state, which at that time by c. 146, § 61, 1935 Colo.Statutes, Annotated, provided:
“For the purpose of organizing a new district out of a portion of one or more old districts, the parents of at least ten children of school age residing within the limits of the proposed new district shall petition the county superintendent in writing * * *.
If, in the judgment of the county superintendent, the school interests of the districts affected by the proposed change will be best promoted by said change, he shall [direct notification of each elector within the district to be formed of a meeting] * * * to determine the question of the proposed organization. * * * ”
*839In that case counsel for plaintiff insisted that the superintendent’s function was quasi-judicial and that a hearing was necessary in which the claims of interested parties might be presented. The court said, 250 P.2d at 1014:
“ * * * it is clear that if the directors of the school district from which a community desires to withdraw, and the parents of children who are the taxpayers thereof, are to have any voice whatever in determining whether there shall be a severance, their only opportunity is to have reasonable notice of the pendency of the petition, and a hearing, before the superintendent can pass valid judgment on the quasi-judicial question * * *_>>
Subsequently, the Colorado statute was changed to read:
“ * * * Upon the presentation of such petition the county superintendent shall fix a time for the hearing on the same and shall thereupon give written notice thereof to all districts affected * * *.
“If upon such hearing in the judgment of the county superintendent the school interests of all the existing districts affected by the proposed change will be best promoted by said change, he shall make a finding accordingly and shall [direct notification of meeting] * * Colo. Revised Statutes, 1953, 123-7-1.
It is said in the majority opinion:
“In the absence of constitutional restrictions, the question as to whether local boards may exercise their delegated power to change school district boundary lines, without notice and a hearing for property owners, is a matter solely for the determination of the legislature. * * *
“Generally, statutes authorizing subordinate boards to create and alter school districts are not invalid for failure to require a notice and hearing, and a hearing is not necessary where not required by statute. * * * ”
If these statements contain all essential factors and are supported by the cases, they would, of course, dispose of the controversy, but as will be later pointed out, the exercise of delegated legislative authority is not to be lightly taken, and there are other aspects which demand attention.
At the inception, it may be observed that in general the encyclopedias and the cases on the subject indicate a wide divergence in the type of statute which deals with a change in school district boundaries and a consequent variance in opinions relating to them. This is illustrated by the cases cited in the majority opinion.
In Anderson v. Peterson, 78 N.D. 949, 54 N.W.2d 542, the plaintiffs, among other things, alleged the unconstitutionality of an “[A]ct to provide for the reorganization of school districts.” In that case the court stated, 54 N.W.2d at 548:
“The synopsis of the Reorganization Act * * * shows that the legislature reorganized school districts upon the existence of certain facts. It laid down the policies and established the standards for such reorganization of school districts. * * * Public hearings were provided to ascertain the facts required for the organization of any proposed reorganization * *. Any reorganization plan is subject to the approval of the state committee. Then the plan is finally submitted to the electors of the district. * * * Clearly the act to provide for the reorganization of school district delegates only administrative power to the committees.”
In re Annexation of Common School Dists. Nos. 18 and 21 to Independent School Dist. No. 1, Minidoka County, 52 Idaho 363, 15 P.2d 732, deals with a question as to the boards of supervisors exercising delegated power without notice, the *840statute there giving power to make an annexation when certain conditions obtained. The court, 15 P.2d at 733, quoted Antelope Valley Union High School Dist. of Los Angeles County v. McClellan, 55 Cal.App. 244, 203 P. 147, 149:
“ * * * In the absence of constitutional restrictions, * * * the question as to whether boards of supervisors may exercise such delegated power without notice is a question solely for the determination of the Legislature, and in its wisdom it has not required the giving of notice. * * ft
It was observed, however, 15 P.2d at 733, that in the cáse before them, “notice was given, and a hearing had with opportunity for appellant to protest.”
Under the 'statute involved in Antelope Valley Union High School Dist. of Los Angeles County v. McClellan, supra, the board of supervisors had discretionary power to act when it appeared that certain provisions therein contained had been fully complied with, namely, a petition by the majority of the heads of families or a majority of the electors and verification of the petition signatures by the superintendent of schools.
In Perkins v. Lenora Rural High School Joint Dist. No. 1, Norton and Graham Counties, 171 Kan. 727, 237 P.2d 228, the statute (G.S.1949, 72-3514) read:
“Territory outside the limits of any rural high-school district, but adjacent thereto, may be attached to such high-school district for high school purposes, upon application being made to the rural high-school board by a majority of the electors of such adjacent territory, and upon the approval of said rural high-school board and the consent of the county superintendent of public instruction in whose county the main building lies * *
Plaintiffs claimed that the county superintendent should have given notice and held a hearing, but the court said, 237 P.2d at 233:
“ * * * When such proceedings were initiated by a majority of the electors, only approval by the school board of the joint district and consent of the county superintendent of Norton County was required. * * * ”
In Prosper Independent School Dist. v. Collin County School Trustees, Tex.Civ.App., 51 S.W.2d 748, 751, the court stated:
“ * * * We think a public hearing of all interested parties is contemplated, so that the county trustees may determine their duty in the premises.
* * * We think also that by clear implication the statute requires notice of the date of the hearing to be given to all interested parties. Such construction of said section of the act in question is reasonable, and as it is a. construction that removes any doubt as to the constitutionality of the act, it should be adopted, rather than a construction, though reasonable, which renders the legislative enactment of doubtful constitutionality.”
In affirming this action, the commission of appeals, Prosper Independent School Dist. v. County School Trustees, Tex.Com.App., 58 S.W.2d 5, 6, said that the legislature had authority to change at will the boundaries and to provide the mode and agencies by which such change shall be effected.
Discussion of the cited cases should, perhaps, not be concluded without reference to School Dist. No. 3 of Town of Adams v. Callahan, 237 Wis. 560, 297 N.W. 407, 135 A.L.R. 1081, where the statute provided that: “The state superintendent is authorized, on his own motion, by order to attach districts with valuations of less than one hundred thousand dollars to contiguous districts [§ 40.30(1), Wis.Stat.1939].” The appellants contended that the power granted to the superintendent if quasi-judicial made the statute invalid because it failed to pro*841vide for a hearing. The majority opinion quotes that portion of the decision stating, “[For the reasons stated above,] no property rights on the part of the districts or any of the appellants are considered involved in the consolidation of such districts.” It should he noted, however, that prefacing “the reasons stated above,” is the comment, 297 N.W. at 414, “it is well established that the alteration or abolition of school districts in such manner and through such instrumentalities as the Legislature prescribes is not the taking of property nor does it deprive any person of his property within the meaning of the constitutional inhibitions in these respects.” (Emphasis supplied.)
Many of the cases which deal with boundary board disputes have turned upon the question of constitutionality, not in issue in the present case, but they hold in effect that the procedure which was indulged in here, the summary changes of boundaries without an opportunity for hearing, were improper, usually on the thesis that there cannot be delegated to administrative agencies legislative ' functions unless reasonably clear standards are present to govern the exercise of the authority. State ex rel. Donaldson v. Hines, 163 Kan. 300, 182 P.2d 865; School District No. 39 of Washington County v. Decker, 159 Neb. 693, 68 N.W.2d 354; Nickel v. School Board of Axtell, 157 Neb. 813, 61 N.W.2d 566; 11 Am.Jur. Constitutional Law § 240; 73 C.J.S. Public Administrative Bodies and Procedure § 29. In Ruwe v. School Dist. No. 85 of Dodge County, 120 Neb. 668, 234 N.W. 789, 790, 791, the court said:
“ * * * While the establishing of boundaries of public school districts for school purposes is a legislative function, the legislature may confer on public boards or courts judicial power to determine the facts and equities under which legislation authorizes changes in such boundaries. * * *
* * * * * *
“ * * * Only such boundary changes can be made by the county officers ‘as in their judgment will be just and equitable.’ These terms and conditions imply duties and powers of a judicial nature. * * * Since there was no statutory provision for notice to those whose financial burdens would necessarily be increased by the exercise of judicial power, or for a hearing, the section violates the due-process clause of the state and federal Constitutions * * *.”
This case was quoted with approval in Nickel v. School Board of Axtell, supra, and is discussed in Annotation, 135 A.L.R. 1096, 1097.
In a number of states, 'school district boundary changes are initiated "by'residents of the areas concerned and.the final.,determination is subject to vote. In Wyoming under § 21-211 the entine, authority is in the boundary board and the statute does not provide standards 'under ' which- the board is to act nor but for the requirement of this court by interpretation is there provision for a hearing and notice to interested persons. In the present case there was no notice and no hearing providing opportunity for the appellant to present to the board relevant facts.
The judgment should be reversed.