State ex rel. Dix v. Board of Ed.

• Decision Date: 02 November 1974
• Docket Number: No. 47389,47389
• Citation: State ex rel. Dix v. Board of Ed., 527 P.2d 952, 215 Kan. 551 (Kan. 1974)
• Parties: The STATE of Kansas ex rel. Leonard J. DIX, County Attorney of Rooks County, Kansas, et al., Appellees and Cross-Appellants, v. The BOARD OF EDUCATION of the State of Kansas et al., Appellants and Cross-Appellees.
• Court: Kansas Supreme Court

Page 952

527 P.2d 952

215 Kan. 551

The STATE of Kansas ex rel. Leonard J. DIX, CountyAttorney of Rooks County, Kansas, et al., Appellees and Cross-Appellants, v.The BOARD OF EDUCATION of the State of Kansas et al Appellants and Cross-Appellees.

No. 47389.

Supreme Court of Kansas.

Nov. 2, 1974.

Syllabus by the Court

1.The establishment or creation of school districts is a function which is legislative in character and school districts being purely creatures of the legislature are subject to legislative power to modify or dissolve.

2.Although the legislative power is vested in a house of representatives and senate by the Constitution of the State of Kansas(Art. 2, Sec. 1), the constitution further directs the legislature to provide for a state board of education and states 'The state board of education shall perform such other duties as may be provided by law.'(Art. 6, Sec. 2.)

3.Under Art. 6, Sec. 1and2 of our constitution the State Board of Education is authorized to perform any duties pertaining to the educational interests of the state which the legislature deems wise and prudent to impose upon the board, and the legislature has authority to delegate to that board the power to perform duties which, in the general classification of powers of government, are legislative in character-such as the transfer of school district territory which will change the boundaries of school districts in the state.

4.The transfer of territory from one unified school district to another as authorized by the legislature in K.S.A. 72-7108 is, in effect, a reorganization of the two unified school districts, and any reorganization by transfer of territory should be harmonious with the purposes and provisions of the school unification acts and not be violative of the limitations prescribed by such laws.

5.When statutes are originally enacted at the same session of the legislature as parts of a general act having the common purpose of serving the educational interests of the statethey are in pari materia and should be read together in ascertaining the legislative purposes for their adoption.In order to ascertain the legislative intentcourts should not consider one isolated part of an act but are required to consider and construe all parts thereof in pari materia.

6.Adequate quidelines to carry out the legislative function delegated appear in the school unification acts.The transfer statute, K.S.A. 72-7108, is not constitutionally impermissible for failure to circumscribe the legislative function delegated.

7.In an appeal from an order of a district court declaring the statute which authorizes transfer of territory between unified school districts unconstitutional the record is examined and it is held, (1)the statute, K.S.A. 72-7108, is not constitutionally impermissible as an unlawful delegation of legislative power, and (2) the failure of a party to question the capacity of parties to sue by specific negative averment in the answer constitutes a waiver of the right to question capacity to maintain the action under the facts as stated in the opinion.

Earl W. Francis, Asst. Atty. Gen., argued the cause, and Vern Miller, Atty. Gen., and Donna Heller, Asst. Atty. Gen., were with him on the brief for appellants and cross-appellees.

Kenneth Clark, Hill City, argued the cause, and Leonard J. Dix, County Atty., and Allen Shelton, Hill City, were with him on the briefs for appellee and cross-appellants.

FROMME, Justice:

This is an appeal from an order which enjoined the State Board of Education from implementing its order transferring 56 sections of land from one unified school district to another in Rooks County, Kansas.

A petition to transfer the territory was filed by Unified School DistrictNo. 270 of Rooks County, the receiving district, asking that the territory be transferred from Unified School DistrictNo. 269 of Rooks County, the giving district.After notice and hearing as provided in K.S.A. 72-7108 the State Board of Education made an order transferring the 56 sections of land and ordering Unified School DistrictNo. 269, the giving district, to pay the receiving district $26,138.29 to defray the cost of education of transferred pupils during the first six months of the school year next following July 1, 1973.The order of transfer does not set forth the findings of the board which prompted the transfer except to recite that the order of transfer 'is harmonious with the purposes and provisions of the school unification acts, and that such transfer is not violative of the limitations prescribed by such law.'

Shortly after the order of transfer was issued the board members and patrons of Unified School DistrictNo. 269, the giving district, enlisted the aid of the county attorney of Rooks County, and an 'ex rel' action was filed attacking the order.The State Board of Education, the Commissioner of Education, the Department of Education, and the receiving district were joined as defendants in the action.The receiving district and the State Board of Education filed separate answers.

The petition attacked the order of transfer on several grounds, including a claim that the transfer statute was unconstitutional and a further claim that the state board acted unlawfully, unreasonably, arbitrarily, and capriciously.At a hearing on a motion for summary judgment filed by the plaintiffsthe trial court entered two orders which must be examined in this appeal.

The first is an order removing from the case all plaintiffs except the county attorney, who alone was determined to have capacity to bring the action.This order was entered on oral motion made during the hearing on the motion for summary judgment.The second was an order enjoining the State Board of Education from transferring the territory and holding the transfer statute unconstitutional.The trial court set forth its reasons as follows:

'There are no standards or guidelines provided by the legislature for determining why a territory should be transferred.That legislature sets no standards whereby a parent or landowner would know the advisability or inadvisability in attempting to make it possible for his child to attend another school or for a taxpayer to know how to proceed to have his property transferred to another school.Equally important, members of school boards have no guidance in deciding whether an agreement should or should not be made with another board in the transfer of territory.The statute sets out no law to enable an attorney to advise a client or for a County Attorney or the Attorney General to advise State and county officers.

'The legislature may designate certain duties to constitutional boards but the standards and guidelines must remain with the legislature.The legislature cannot give legislative authority to the Board of Education Carte Blanche.'

We will first examine the contentions of the parties as to this second order.Defendants argue the trial court erred in holding that the legislature must establish standards and guidelines for the exercise of authority delegated to a constitutional board, they argue further that sufficient standards and guidelines are present to circumscribe the authority delegated and that K.S.A. 72-7108 is not constitutionally impermissible.The plaintiff and the cross-appellants meet these arguments head-on by pointing to the Constitution of the State of Kansas, Art. 2, Sec. 1, which provides 'The legislative power of this state shall be vested in a house of representatives and senate.'They further argue that the legislative power delegated for transfer of territory is not circumscribed by adequate standards and guidelines and that his court should re-examine its position as to the delegation of a legislative function so as to limit any delegation of authority to administrative duties.

Let us say at the outset, the law of this state which has evolved from our cases in this area does not embrace the nondelegation dectrine urged by the appellees.The difficulty in determining what is an administrative function and what is a delegated legislative function has brought about a general trend in the law of most jurisdictions which is away from the nondelegation doctrine.(SeeDavis, Administrative Law Treatise, 1970 Supp., §§ 2.00, 2.00-1, pp. 40, 41.)Our cases clearly recognize that the legislature may delegate a legislative function when constitutional authority for the delegation is present and the statutory delegation is circumscribed by sufficient legislative guidelines to cover the nature and extent of the legislative function intended to be delegated.We have no present intention to retreat from the position we have taken in the following cases: State ex rel. v. Storey, 144 Kan. 311, 58 P.2d 1051;State ex rel. v. Hines, 163 Kan. 300, 182 P.2d 865;State ex rel. v. School District, 163 Kan. 650, 185 P.2d 677;School District, Joint No. 71 v. Throckmorton, 189 Kan. 590, 370 P.2d 89;Tecumseh School District v. Throckmorton, 195 Kan. 144, 403 P.2d 102;Board of Satanta v. Grant County Planning Board, 195 Kan. 640, 408 P.2d 655, cert. den.385 U.S. 6, 87 S.Ct. 50, 17 L.Ed.2d 6.

The establishment or creation of school districts is a function which is legislative in character and school districts being purely creatures of the legislature are subject to the legislative power to modify or dissolve.(Tecumseh School District v. Throckmorton, supra;Constitution of the State of Kansas, Art. 6, Sec. 1.)

Although the legislative power is vested in a house of representatives and senate by the Constitution of the State of Kansas(Art. 2, Sec. 1), the constitution further directs the legislature to provide for a state board of education and states 'The state board of education shall perform such other duties as may be provided by law.'(Art. 6, Sec. 2.)

In the exercise of that legislative power the house of representatives and the senate enacted into law various school unification...