Board of Regents Ex Rel. Murray State College of Agriculture & Applied Science v. Oklahoma State Regents for Higher Education , 497 P.2d 1062 ( 1972 )

BARNES, Justice

(dissenting):

I cannot concur in the Majority Opinion. As I read the Oklahoma Constitution, the voters of Oklahoma have historically withheld from the Legislature the power to vest control of this State's Agricultural and Mechanical Colleges in any body other than one designated by the Constitution itself. And this started with the adoption of that Constitution in 1907.

In territorial days, when the school now named “Oklahoma State University” (hereinafter referred to as “A & M”) was established in Payne County, it was governed by a statutory board of regents known as the “Agricultural and Mechanical College Board of Regents”, usually referred to herein as the “A & M Board” (see Stats, of Okla., 1893, § 142, referred to in the Historical note to R.L. 1910, § 7971, cited in the Majority Opinion). The adoption of the Oklahoma Constitution changed this. It made clear the intention of Oklahoma electors that A & M thenceforth was to be governed by a constitutional Board, which, at the time this Court’s opinion in Trapp v. Cook Const. Co., 24 Okl. 850, 105 P. 667, was promulgated in 1909, was the State Board of Agriculture. There, this Court held that Art. 6, § 31, of the Constitution vested in this State’s Board of Agriculture, as the Board of Regents of all State Agricultural and Mechanical Colleges, the same power, jurisdiction, and authority over A & M that was possessed by the previous territorial board of regents. The Court referred to the fact that this power consisted of doing all things necessary to make the college effective as an educational institution, and held that, by reason thereof, a portion of a certain statute, insofar as it purported to confer duties, encompassed in such power, on the state board of public affairs, exceeded the Legislature’s authority and was unconstitutional.

Murray State College of Agriculture and Applied Science (hereinafter referred to as “Murray”) was established under the name of “Murray School of Agriculture”, as a “district agricultural school”, under the 1908 Legislature’s Senate Bill No. 109 (S. L. 1907-1908, ch. 3, Art. Ill, pp. 13-20, both inch), which placed it under the ultimate control of the State Board of Agriculture. That control was emphatically continued into the period after it became a college. See S.L.1923-4, ch. 69, pp. 85-86.

The Majority Opinion seems to recognize that in 1944, when the voters amended Art. 6, § 31, of the Oklahoma Constitution and transferred the governing control of the board of regents (which we upheld against attempted legislative encroachment in Trapp, supra) from the State Board of Argiculture to the A & M Board, by adopting § 31a, Murray was one of the agricultural and mechanical schools and colleges encompassed in said amendment’s wording:

“There is hereby created a Board of Regents for . . . all Agricultural and Mechanical Schools and Colleges maintained in whole or in part by the State.” (Emphasis added)

The position of an institutional Board of Regents, designated as such by the Constitution, is unique. While the members of the A & M Board are, of course, not elected directly by the people as were the members of the Board involved in Christie v. Board of Regents of University of Michigan, 364 Mich. 202, 111 N.W.2d 30, that fact is not a decisive consideration in evaluating its power as a constitutional board, as evidenced by Trapp, supra. More important in making such a board independent of legislative direction and control are the facts referred to in Sterling v. Regents of University, 110 Mich. 369, 68 N.W. 253, 34 L.R.A. 150. To paraphrase the Michigan Court’s language, these facts are: (1) The Board and the Legislature derive their power from the same supreme authority, the Constitution; (2) direct power conferred upon one necessarily excludes its existence in the other, in the absence of language showing a contrary intent; (3) the Board is not mentioned in the portions of the Constitution referring to powers and duties of the Legislature; nor, in the portions of the Constitution relating to the Board, is there any language which can be construed as conferring on the Legislature governing control of Agricultural and Mechanical Colleges maintained in whole or in part by the State. As to the A & M Board and the Oklahoma Legislature, I think it must be concluded, as did the Michigan Court with regard to the University Board and Legislature of that State:

“They are separate and distinct constitutional bodies, with the powers of the Regents defined. By no rule of construction can it be held that either can encroach upon or exercise the powers conferred upon the other.”

I have no quarrel with the rule set out in Tate v. Logan, Okl., 362 P.2d 670, referred to in the Majority, but that rule is not applicable here because the constitutional provision expressly includes “all State Agricultural and Mechanical Schools and Colleges . . .” Thus, this constitutional mandate prohibits legislation of contrary effect quite as effectively as if the prohibition was written into it in precise and affirmative terms. More pertinent to the matter is the well-established rules this Court recognized and followed in Grim v. Cordell, 197 Okl. 144, 169 P.2d 567, and Thomas v. Reid, 142 Okl. 38, 285 P. 92, and the Nebraska Court announced in State ex rel. Crounse v. Bartley (1894), 40 Neb. 298, 58 N.W. 966, and State ex rel. Bottcher v. Bartling, 149 Neb. 491, 31 N. W.2d 422. In Grim, we held that legislative authority may be limited by restrictions that are implied (as well as expressed) in the Constitution. See also Flaska v. State, 51 N.M. 13, 24, 25, 177 P.2d 174, 181, and 16 Am.Jur.2d, “Constitutional Law”, § 230, and the cases cited under footnote 20, page 480, of said Volume. To paraphrase what was said in State ex rel. University of Minnesota v. Chase, 175 Minn. 259, 220 N.W. 951:

The whole power to govern the Agricultural and Mechanical Colleges was put in that Board by the people. So no part of it can be put elsewhere but by the people themselves.

With the Legislature’s policy this Court has nothing to do. But recognizing the mandate of the Oklahoma Constitution, we must give it effect when litigation before us furnishes the occasion and imposes the duty of deciding which of two conflicting enactments we must enforce, the paramount rule of the Constitution, or the subordinate law of the Legislature. The Constitution of this State has declared, in effect, that the management of these colleges, until the people themselves say otherwise, shall be in a relatively small, slowly changing board. The purpose of our Constitution remains clear. It was to put the management of these state educational institutions (directly quoting)

“. . . beyond the dangers of vacillating policy, ill-informed or careless meddling and partisan ambition that would be possible in the case of management by either Legislature or executive, chosen at frequent intervals and for functions and because of qualities and activities vastly different from those which qualify for the management of an institution of higher education. * * * Constitutional limitations are not to be ignored because no harm has come from past infractions or because a proposed violation has a commendable purpose. ‘The tendency to sacrifice established principles of constitutional government in order to secure centralized control and high efficiency in administration may easily be carried so far as to endanger the very foundations upon which our system of government rests.’ (Citation) It is in such fashion that the friends of free government may sap its foundations by measures they intend for its benefit.”

The Majority Opinion does not directly deny that when Oklahoma’s electorate, by adoption of § 31a as an amendment of § 31, made the A & M Board the board of regents for Murray (and other Agricultural and Mechanical Schools) that Board was vested with the same control over Murray that this Court had held in Trapp, supra, was given to the State Board of Agriculture over the A & M College in Payne County by § 31, i. e., the power to “do all things necessary to make the college effective as an educational institution” (105 P. 668). But the Majority Opinion seems to hold that this power of governing control (which the courts have upheld against legislative encroachment) has been lost by the A & M Board, on the theory that Murray has ceased to be an Agricultural and Mechanical College, simply upon the basis of the criteria formulated in Senate Bill 214, i. e., by changing its function so as to give “predominant emphasis” to technical education. The Majority Opinion upholds the Thirty-third Legislature’s right to formulate this criteria as a “legislative construction and determination” of the question of when Murray ceases to become an Agricultural and Mechanical College. Rather paradoxically that opinion also holds that the Oklahoma State Regents for Higher Education (hereinafter referred to as “State Regents”) has the constitutional power to change Murray’s functions to provide for predominant emphasis in technical education without benefit of Senate Bill 214. I think the Majority Opinion has erred in both of these conclusions because they are based upon power it attributes to the Thirty-third Legislature and to the State Regents — power which neither possesses. If either of these bodies has such power, it has to be of recent acquisition, because as late as 1965 (approximately twenty-one years after the adoption of § 31a in 1944 and twenty-four years after creation of the State Regents by the adoption of Art. XIII-A in 1941) the Thirtieth Legislature affirmed the A & M Board’s governing control over Murray in stronger and more specific language than was used in the Territorial Act (Wilson’s Rev. & Ann.St., Okl.1903, § 6408, referred to in Trapp, supra), by its enactment of our Higher Education Code. In the last two paragraphs of § 412 of that Code (S.L.1965, p. 709; 70 O.S.1971, § 3412) that Legislature said:

“The enumeration herein of certain powers and immunities of the Board of Regents for the Oklahoma Agricultural and Mechanical Colleges shall not be construed as in derogation or as a limitation of other powers and immunities properly belonging to said Board by virtue of any provisions of the Constitution of Oklahoma or of any provision of law. Said Board, is hereby, expressly granted every power necessary or convenient to make institutions under its jurisdiction effective for the purposes for which they were created and are maintained and operated.

“Nothing in this section shall be construed as in derogation of the constitutional powers and responsibilities of said Board of Regents for the Oklahoma Agricultural and Mechanical Colleges, acting as the Board of Regents for Cameron State Agricultural College, Connors State Agricultural College, Eastern Oklahoma Agricultural and Mechanical College, Murray State Agricultural College, Northeastern Oklahoma Agricultural and Mechanical College, Panhandle Agricultural and Mechanical College, and Langston University.” (Emphasis added)

If the Thirty-third Legislature may not assume power it does not possess (State Board of Agriculture v. State Adm. Board [Mich.], 226 Mich. 417, 197 N.W. 160; in accord, Trapp, supra) to encroach upon the A & M Board’s historic governing control of Murray, and a change in that control can only be effected by an amendment of the Constitution, let us examine Art. XIII-A to see if this constitutional amendment effected such a change. Section 2 of that amendment gives the State Regents the following specific powers (among others not material here) over the institutions of higher education comprising the “Oklahoma State System of Higher Education”:

“(1) it shall prescribe standards of higher education applicable to each institution ;

“(2) it shall determine the functions and courses of study in each of the institutions to conform to the standards prescribed; * * *” (Emphasis added)

It will be noted that the only authority concerning functions of the various institutions included in this State’s Higher Education System, which “(2)”, above, gives the State Regents is the power to “determine the functions and courses of study in each ... to conform to the standards of higher education” said Regents “shall prescribe” under “(1)”, above. Is this the equivalent of authority to change the functions of an A & M College — controlled, under mandate of the Constitution, by the A & M Board — to such an extent that, by the issuance of a proclamation, the State Regents can declare it to be a different kind of college, and, by so doing, enable its removal from the control of its constitutional Board? I think the plain wording of Art. XIII-A shows that it does not contemplate such a vesting of power in the State Regents, as a “coordinating board.” In this connection, it will be noted that Art. XIII-A nowhere in its terms purports to repeal Art. VI, § 31, nor does it purport to abolish or supersede the various statutory boards of regents of other “integral parts” of the “unified system.” And no legislation enacted under the purported authority of Art. XIII-A has undertaken to do so. We know as a matter of history that since this amendment’s adoption more than thirty years ago, all these governing boards have continued to exist and function. Some of them, since, have attained the status of constitutional boards. Obviously, it was not intended to do away with them and to substitute the State Regents as the governing board for all of the institutions. The framers and adopters of Constitutions, equally with the Legislature, are presumed not to have done a vain thing. Moral Ins. Co. v. Cooksey, Okl., 285 P.2d 223. Yet how vain it would be, and what a stupendous waste of time, energy and talent, to maintain a collection of individual boards for the several institutions of higher learning, if these boards must run on every occasion to the State Regents for advance approval of their decisions, or take the risk of having these decisions set aside if the State Regents disapprove. Analysis of Art. XIII-A, § 2, reveals that this amendment’s intention is to give the State Regents a much more restricted competence. Its direction to these Regents is not to set up programs of instruction, courses of study, or curricula. It is to prescribe “standards of higher education applicable to each institution.” This plainly implies that the State Regents’ grant of authority extends only to determining general measurements of excellence rather than to prescribing functions or dictating programs. This is a far cry from changing the function of an institution (from “the purposes for which they were created”, Tit. 70, § 3412, supra), based upon “predominant emphasis”, which has nothing to do with determining functions and courses of study to conform to applicable standards of higher education. Preventing an institution of higher learning from embarking upon programs it has neither the resources nor the faculty to sustain on a level of excellence is quite different from abolishing a major function allotted to an institution as the basic purpose for which it was founded and which has continued as one of its major activities through the years.

My interpretation of Art. XIII-A is strengthened by considering it in relation to this Amendment’s Section 4, which authorizes private and denominational institutions of higher learning to become “coordinated with the State System of Higher Education under regulations set forth by” the State Regents. Obviously, such institutions would not desire to become coordinated with the System if this meant changing their basic functions against the will of their own governing boards. Any such meaning would preclude all hope that such institutions would accede to coordinating with the State System. Once again, we must assume that the framers of Art. XIII-A did not intend to write into it a vain or futile provision.

Lastly, I think the matter of “predominant emphasis” is of questionable importance and relevancy. It has never been the policy or practice in this State’s agricultural and mechanical colleges to abjure teaching in other fields. The territorial statutes established a “normal school”, but the University of Oklahoma was to have a “normal department”, Okla.Stats.1890, §§ 6788, 6792. The Territorial Agricultural College was not confined to purely agricultural and mechanical studies. See Okla.Stats. 1890, § 241:

“The design of the institution is to afford practical instruction in agriculture and the natural sciences connected therewith, and also the sciences which bear directly upon all industrial arts and pursuits. The course of instruction shall embrace the English language and literature, mathematics, civil engineering, agricultural chemistry, animal and vegetable anatomy and physiology, the veterinary art, entomology, geology and such other natural sciences as may be prescribed ; political, rural, and household economy, horticulture, moral philosophy, history, bookkeeping and especially the application of science and the mechanic arts to practical agriculture in the field.”

I do not think that Murray College would cease to be an agricultural and mechanical college merely because it might set up major courses of study in English or Political Science. And I do not think that a nose count of its students pursuing such majors would determine whether it ceased to be an agricultural and mechanical college. Certainly, the Oklahoma State University of today has not forfeited its standing as an institution devoted to agricultural and mechanical education because it offers advanced training and graduate degrees in other fields. In short, I do not believe that diversification or a shift in emphasis has any effect upon the classification of an institution for the purpose of constitutional assignment to a particular Board, so long as there is a substantial activity in the classification. We are not called upon to determine the effect of a complete abandonment of all agricultural and mechanical education at Murray. The record does not show that this has happened there.

In accord with the foregoing, I would hold Senate Bill 214, supra, unconstitutional, and reverse the judgment of the trial court. I therefore respectfully dissent.