I concur that two questions may be involved, as indicated in the majority opinion by Ailshie, J.: "(a) Does the Nepotism Act apply to the Board of Regents of the University of Idaho? And (b) If it was intended to so apply, did the legislature have the power to make it applicable to the Board of Regents of the University of Idaho?"
Likewise, I concur in the second conclusion at the end of the opinion, namely, that "it was not the intention of the legislature to extend the Nepotism Act to the University *Page 101 of Idaho or the Board of Regents thereof." Such conclusion, it seems to me, is clearly premised on Barton v. Alexander,27 Idaho 286, 148 P. 471, Ann. Cas. 1917D, 729, and In re Rogers,Randall Pitzen, 56 Idaho 521, 57 P.2d 342. If the statute was not intended to apply, it seems to me that it is unnecessary to discuss the constitutional interpretation of the statute, and that under repeated holdings of this court we should not do so. (Jack v. Village of Grangeville, 9 Idaho 291, at 316, 74 P. 969; Mills Novelty Co. v. Dunbar, 11 Idaho 671, at 677, 83 P. 932; Logan v. Carter, 49 Idaho 393, at 403,288 P. 424; In re Allmon, 50 Idaho 223, at 226, 294 P. 528; Garrity v.Board of County Commrs., 54 Idaho 342, at 357, 34 P.2d 949;In re Brainard, 55 Idaho 153, at 157, 39 P.2d 769; UnitedMercury Mines Co. v. Pfost, 57 Idaho 293, at 296,65 P.2d 152; Albrethsen v. State, 60 Idaho 715, at 718, 96 P.2d 437;McLean v. Hecla Mining Co., 62 Idaho 75, at 78, 108 P.2d 299;Peck v. State of Idaho, 63 Idaho 375, 120 P.2d 820, at 823.)
I therefore concur in the result, based upon the second conclusion, but refrain at this time from concurring or dissenting as to the first conclusion, as the same is unnecessary to a proper determination of the case, thus adhering to the above rule reiterated by this court.