School Dist. No. 8 of Sherman County v. State Bd. of Ed.

• Decision Date: 03 April 1964
• Docket Number: No. 35592,35592
• Citation: 176 Neb. 722,127 N.W.2d 458
• Parties: SCHOOL DISTRICT NO. 8 OF SHERMAN COUNTY, Nebraska, Appellee, v. The STATE BOARD OF EDUCATION, a body corporate, and Floyd A. Miller, Commissioner of Education, Appellants.
• Court: Nebraska Supreme Court

Page 458

127 N.W.2d 458

176 Neb. 722

SCHOOL DISTRICT NO. 8 OF SHERMAN COUNTY, Nebraska, Appellee, v.The STATE BOARD OF EDUCATION, a body corporate, and Floyd A. Miller, Commissioner of Education, Appellants.

No. 35592.

Supreme Court of Nebraska.

April 3, 1964.

Syllabus by the Court

1.It is the general rule that the Legislature may not lawfully delegate its legislative powers to an administrative agency.An exception to the rule obtains when a delegation of legislative power is authorized by the Constitution.

2.Article VII, section 14, of the Nebraska Constitution authorizes the grant of administrative and legislative powers to the State Department of Education, subject to implementation and limitation by the Legislature in accordance with Article VII, section 15, of the Constitution.

3.Subdivision (5)(c) of section 79-328, R.S.Supp., 1961, is not invalid in that it confers legislative power upon the State Department of Education in violation of Article II, section 1, of the Constitution.

4.The powers granted by subdivision (5)(c) of section 79-328, R.S.Supp., 1961, are adequately described in accordance with Article VII, section 15, of the Constitution.

5.Subdivision (5)(c) of section 79-328, R.S.Supp.,1961, is not so vague, ambiguous, and indefinite as to be unconstitutional.

6.Due process of law requires notice and an opportunity to be heard, as a matter of right and not by the let or leave of administrative officers or agencies, when the rights, duties, or privileges of interested parties are involved by an exercise of quasi-judicial power pursuant to the terms of a statute.

7.Section 79-328, R.S.Supp., 1961, andsection 84-913, R.S.Supp., 1961, may properly be considered in pari materia in determining whether or not due process of law has been afforded under the former section.

8.Compliance with the mandatory provision in section 84-913, R.S.Supp., 1961, requiring an administrative agency to adopt appropriate rules of procedure for notice and hearing, is necessary to give validity to its action when notice and hearing are essential to due process.

9.The conditions and limitations fixed by the Legislature in a delegation of power must be strictly complied with before such power may be lawfully exercised.

Clarence A. H. Meyer, Atty. Gen., Gerald S. Vitamvas, Deputy Atty. Gen., Lincoln, for appellants.

Wilson & Barlow, Benjamin C. Neff, Jr., Lincoln, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

CARTER, Justice.

This is a suit to enjoin the State Board of Education and the Commissioner of Education from enforcing an order disapproving the high school of School DistrictNo. 8 of Sherman County for the collection of free high school tuition money as provided in section 79-328, R.S.Supp., 1961.The trial court held the statute to be unconstitutional and entered judgment in favor of School DistrictNo. 8.The State Board of Education and the Commissioner of Education have appealed.

For convenience we shall hereafter refer to the State Board of Education as the state board, the Commissioner of Education as commissioner, and School DistrictNo. 8 of Sherman County as school district.

Pursuant to the authority granted by section 79-328, R.S.Supp., 1961, rules and regulations were adopted and issued by the commissioner on January 5, 1960, prior to the happening of the events herein detailed.On February 2, 1962, the school district was informed that the state board would, on February 13, 1962, consider the recommended disapproval of Rockville High School, the high school here involved, for free high school tuition money, and invited the attendance of the members of the board of the school district at the hearing.The hearing was held with the representatives of the school district in attendance.On February 14, 1962, the school district was informed that Rockville High School had been disapproved by the state board for the 1962-1963 school year for the collection of free high school tuition money for failure to maintain the high school in accordance with the rules and regulations issued by the commissioner.On April 16, 1962, this suit was commenced.

The school district contends that section 79-328(5)(c), R.S.Supp., 1961, is unconstitutional in that it is an invalid delegation of legislative authority and power to an administrative agency.This section provides that the state board shall have the power and it shall be its duty to '(c) establish rules and regulations based upon the program of studies, guidance services, the number and preparation of teachers in relation to the curriculum and enrollment, instructional materials and equipment, science facilities and equipment, library facilities and materials, health and safety factors in buildings and grounds, and procedures for classifying, approving, and accrediting schools, for approving the opening of new schools, for the continued legal operation of all schools, and for the approval of high schools for the collection of free high school tuition money in accordance with the rules and regulations provided for in this subdivision; Provided, that the State Board of Education shall approve a school for the collection of free high school tuition money where a hardship would result to the students and a substantial effort is being made to comply with the rules and regulations established, * * *.'

The law appears to be well settled that the Legislature may properly delegate authority to an executive or administrative agency to formulate rules and regulations to carry out the expressed legislative purpose, or to implement such expressed purpose in order to provide for the complete operation and enforcement of the statute.The purpose of the delegation of authority ordinarily must be limited by express standards which have the effect of restricting the actions of the agency to the expressed legislative intent.In State ex rel. Martin v. Howard, 96 Neb. 278, 147 N.W. 689, this court approved the following: 'In order to justify the courts in declaring invalid as a delegation of legislative power a statute conferring particular duties or authority upon administrative officers, it must clearly appear beyond a reasonable doubt that the duty or authority so conferred is a power that appertains exclusively to the legislative department, and the conferring of it is not warranted by the provisions of the Constitution.* * * Authority to make rules and regulations to carry out an expressed legislative purpose, or for the complete operation and enforcement of a law within designated limitations, is not an exclusively legislative power.Such authority is administrative in its nature and its use by administrative officers is essential to the complete exercise of the powers of all the departments.'See, also, State v. Atlantic Coast Line R. R. Co., 56 Fla. 617, 47 So. 969, 32 L.R.A.,N.S., 639.

The difference between a delegation of legislative power and the delegation of authority to an administrative agency to carry out the expressed intent of the Legislature and the details involved has long been a difficult and important question.Increased complexity of our social order, and the multitude of details that necessarily follow, has led to a relaxation of the specific standards in the delegating statute in favor of more general ones where a specialized state agency is concerned.It is almost impossible for a legislature to prescribe all the rules and regulations necessary for a specialized agency to accomplish the legislative purpose.The delegation of authority to a specialized department under more generalized standards has been the natural trend as the need for regulation has become more evident and complex.Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387.See, also73 C.J.S.Public Administrative Bodies and Procedure§ 29, p. 322.

The Constitution provides: 'There is hereby established a State Department of Education which shall be comprised of a State Board of Education and a Commissioner of Education.The State Department of Education shall have general supervision and administration of the school system of the state and of such other activities as the Legislature may direct.'Art. VII, § 14, Constitution of Nebraska.It is provided by Article VII, section 15, Constitution of Nebraska, however, that the powers and duties of the state board shall be prescribed by the Legislature.The Legislature has done this and fixed the area in which the state board shall operate by section 79-328, R.S.Supp., 1961.The general supervision and administration of the school system of the state by the State Department of Education is thereby a constitutional grant of power dependent only upon implementing legislative action.In dealing with the powers of the state superintendent of public instruction under a similar constitutional provision in the Kansas Constitution, the Kansas court said: 'Realizing that many questions pertaining to educational matters naturally would arise, and which would need the attention of a competent official who could investigate and determine what is best to be done, our Constitution gave to the superintendent of public instruction 'the general supervision of the * * * educational interests of the state,' and specifically authorized him to 'perform such other duties as may be prescribed by law,' without limiting those duties to such as might be classified as executive or administrative only.He is authorized to perform any duties pertaining to the educational interests of the state which the Legislature deems wise and prudent to impose upon him.Under these provisions, it cannot be said that the Legislature is without authority to authorize the state superintendent of public instruction to perform duties, or determine questions, with respect to the educational interests of the state which, in the general classification of powers of government, would be regarded as...