The conclusions reached by the majority opinion and the reasoning used to attain the desired results are foreign to my theories of the province of this court. I, therefore, respectfully dissent, and in so doing concur in Judge Hale's dissent.
I. The result reached and the effect of the majority opinion amounts to judicial legislation. This is not the duty of this or any other court. Neither is expediency or desirability a matter that should be considered by it. That is a matter for the legislature. The statement made in the case of In re Estate of Hagan, 232 Iowa 525, 529, 5 N.W.2d 856, 859, is applicable to the situation presented in the instant case:
"The job that confronts this court is to interpret the statutory law as it is written. If the law as written is not satisfactory to the people, they have a right to have it changed, but that change must be made by the legislative branch of our state government and not by judicial construction."
II. The majority opinion apparently gives much weight to the fact that sixteen city school districts have followed the practice sought to be utilized by the appellants. A further basis for favorable consideration by the majority opinion is the fact *Page 244 that certain state officials have looked with favor upon this procedure. If we are to carry this reasoning to its logical conclusion we can have legislative repeal by extensive violation of a statute aided and abetted by departmental approval. Unfortunately I am old fashioned enough to feel that legislation should not be repealed by noncompliance or by judicial interpretation. The courts should be the one branch of our government that should seek to prevent such a growing tendency. The opinion contends that because of other changes made in the school laws the prior construction given to the statute is obsolete. Courts cannot repeal acts of the legislature by declaring them obsolete. Peverill v. Department of Agriculture, 216 Iowa 534, 536, 245 N.W. 334.
HALE and MANTZ, JJ., join in this dissent.