King v. Board of Regents of University of Nev.

• Decision Date: 17 November 1948
• Docket Number: 3532.
• Citation: King v. Board of Regents of University of Nev., 200 P.2d 221, 65 Nev. 533 (Nev. 1948)
• Parties: KING v. BOARD OF REGENTS OF UNIVERSITY OF NEVADA.
• Court: Nevada Supreme Court

200 P.2d 221

65 Nev. 533

KING v. BOARD OF REGENTS OF UNIVERSITY OF NEVADA.

No. 3532.

Supreme Court of Nevada

November 17, 1948

Appeal from Third Judicial District Court, Lander County; W. R Reynolds, Judge.

Action by Ralph King against the Board of Regents of the University of Nevada to enjoin defendant from nominating an Advisory Board of Regents. From a judgment dismissing the action and dissolving a temporary restraining order, the plaintiff appeals.

Judgment reversed and case remanded with instructions.

James T. Boyd, D. W. Priest, Oscar Zapf and Brown & Wells, all of Reno, for appellant.

Alan Bible, Atty. Gen., and George P. Annand and Homer Mooney Deputy Attys. Gen., for respondent.

Kendrick Johnson, of Reno, amicus curiae.

BADT, Justice.

This appeal presents for our determination the validity of the act of the legislature creating an advisory board of regents of the Nevada State University. It is Chapter 268 of the Statutes of Nevada of 1947 and, being brief, is herewith set forth in full:

'An Act creating an advisory board of regents of the Nevada state university, and other matters properly relating thereto. [Approved April 1, 1947]

'Whereas There are residents of the State of Nevada who have distinguished themselves in the business, professional, and cultural life of the State and nation, and whose counsel may be sought by the elected regents of the University of Nevada in the interests of the University; now, therefore,

'The People of the State of Nevada, represented in Senate and Assembly, do enact as follows:

'Section 1. There is hereby created a board to be known as the board of advisory regents of the University of Nevada. Said board shall consist of not more than seven members. The term of office of said board shall be four years from the date of appointment, and until their successors are appointed.

'Sec. 2. The advisory board of regents so appointed shall be bona fide residents of the State of Nevada and shall be appointed by the governor after nomination of such persons to the governor by the elected board of regents. The appointment of such persons shall not be valid unless they shall have been nominated by an official act of the elected board of regents.

'Sec. 3. The advisory board of regents so appointed shall act in an advisory capacity to the elected board of regents and shall be entitled to all the rights and privileges, including travel and incidental expenses, of the elected regents, but shall not have a determining vote on any matter properly under the control of the elected board of regents.

'Sec. 4. No provision of this act shall be construed to be in derogation of the constitutional authority of the elected board of regents to administer the affairs of the university.

'Sec. 5. This act shall become effective from and after its passage and approval.'

The board of regents of the university sought an opinion of the attorney general and requested an answer to the following three questions: (1) Is the act constitutional? (2) If the act is constitutional, does it make it mandatory for the regents to make nominations to the governor? (3) Does the advisory board have a vote in the elected board of regents? The attorney general answered the first two questions in the affirmative and the third question in the negative. Thereupon the plaintiff brought this action, as a taxpayer, to enjoin the regents from nominating the advisory board pursuant to Section 2 of the act, claiming that the act violated constitutional provisions vesting the control of the university in an elected board of regents. The constitutional provisions involved are as follows:

'Art. xi, Sec. 4. The legislature shall provide for the establishment of a state university, which shall embrace departments for agriculture, mechanic arts and mining, to be controlled by a board of regents, whose duties shall be prescribed by law.'

'Art. xi, Sec. 7. The governor, secretary of state, and superintendent of public instruction shall, for the first four years and until their successors are elected and qualified, constitute a board of regents, to control and manage the affairs of the university and the funds of the same, under such regulations as may be provided by law. But the legislature shall at its regular session next preceding the expiration of the term of office of said board of regents, provide for the election of a new board of regents, and define their duties.'

The district court had made a preliminary restraining order restraining the regents from nominating persons for appointment by the governor to membership in the advisory board. Subsequently the matter was argued, briefed and submitted to the district court whereupon it entered its order 'that the demurrer interposed to plaintiff's complaint is sustained upon the ground that it appears from the face of the complaint that the legislative act complained of is constitutional * * * that this action is therefore and hereby dismissed; and that the restraining order heretofore entered is hereby dissolved and the undertaking thereon is hereby exonerated.' The learned district judge filed no opinion giving the reason for his action other than stated. Plaintiff appealed 'from the final judgment * * * and from the order sustaining the demurrer * * *.' The order sustaining the demurrer is not appealable and the appeal therefrom is dismissed. There remains the appeal from the judgment of dismissal and from the judgment dissolving the restraining order. N.C.L. Sec. 9385.60. In their written briefs and in their oral argument counsel for both parties indicated that, irrespective of other points raised and discussed, it was clear that if the act in question is constitutional the judgment must be affirmed, but that if it is unconstitutional the judgment must be reversed, with instructions to enter judgment awarding a permanent injunction as prayed for by plaintiff. Even without such statement of counsel, we are satisfied that we should not be justified in attempting to avoid the constitutional question.

Pursuant to the constitutional mandate the legislature passed 'An Act to provide for the election of the Board of Regents, to fix their term of office, and prescribe their duties,' Stats.1869, c. 53, p. 134; 'An Act to locate the state university [at Elko], and to provide for the control and maintenance of the same', Stats.1873, p. 166; and 'An Act relating to the State University and matters properly connected there with', Stats.1887, c. 37, [65 Nev. 538] p. 42. Additional and amendatory legislation was enacted. As last amended, Stats.1945, c. 229, p. 448, Section 3 of the act relating to the state university recited the powers and duties of the board of regents as follows: (All emphasis in this opinion has been supplied unless otherwise noted.) 1. To prescribe rules for their own government and the government of the university; 2. To prescribe rules for the reports of officers and teachers; 3. To prescribe the course of study, time and standard of graduation, commencement and duration of terms, vacations etc.; 4. To prescribe the textbooks and provide apparatus and furniture for the students; 5. To appoint a president of the university with certain prescribed qualifications; 6. To prescribe the duties of the president and fix his salary and the salaries of other teachers; 7. To require the president to establish and maintain training schools; 8. To control the expenditures of all moneys appropriated for the support and maintenance of the university all all moneys received from any source whatsoever; 9. To keep accounts of receipts and expenditures open to public inspections; 10. To report to the governor biennially a statement of all their transactions and of all other matters pertaining to the university; 11. To transmit with such report a copy of the president's biennial report; 12. To revoke diplomas under certain circumstances; 13. To accept gifts, grants etc.; and 14. To sell or lease properties of the university under certain provisions and restrictions.

Although the constitutional direction to the legislature was to prescribe the duties of the regents, Article XI, Sec. 4, and the control of the first board was required to be under such regulations as may be provided by law, it does not appear that the foregoing act, or its predecessors, fixing the powers and duties of the board of regents has ever been attacked in this court nor is it attacked now, nor is this mention of the act intended to indicate and opinion of this court suggesting that any part of Section 3 is invalid.

The legislature of 1947 also passed an act, Stats.1947, c. 244, p. 766, requiring all regular and special meetings of the board of regents to be open to the public. Other acts have been passed concerning the university but none of them has been questioned in this court, other than the one now before us.

As noted above, the first subdivision of Section 3 of the act of the legislature of February 7, 1887 prescribing 'the powers and duties of the Board of Regents' is 'to prescribe rules for their own government, and for the government of the University.' The second subdivision empowers and requires the board of regents 'to prescribe rules for the reports of officers and teachers of the University.' While the record in this case does not disclose the precise activities of the board of regents, it is apparent that these rules for their own government and for the government of the university and for the reports of officers etc. have been established by the elected board of regents. The 1948 University of Nevada Bulletin (which is a part of the official statutory reports of the Regents to the governor) conforms in a general way to university bulletins published by all of the major...