Issues Paper, Central Utah Project

Page 209

Honorable Frances Farley (cont.) February 8, 19 7 7 page if 2 03 This section of the State Constitution was ccHctru-rl in *-h^ case oe Ra-pton v. Barlow (1970), 46 4 P.2d 378. in c;^- n»ctl" wlth^n^ct somewhat-similar to the Water Ccn^rvarcy Act Th- decision involved the validity o. Chapter 13.. U.s of Utah 1969 (The Higher Education Act of 1969} wnich purpp-e1 to grant to the President of the State Senate and the -?•:««: of the House of Representatives the power to appoint tnree Ambers each to the newly created State Board of higher Euuc.- tion? In declaring this provision of the Act to be unconstitu-tion the court stated: In all the states in the federal system as well, those delegated powers have been divided into three depart­ments of government: the executive, the legislative, and the judicial; and to insure the stability and continuance of this form of government and to secure unto themselves enduring liberty and ' freedom from tyranny, the people wisely wrote into their constitutions provisions similar to our own Article V, Section 1, which absolutely prevent any person charged with powers properly belonging to on* . department from exercising any of the functions appertaining to either of the others-except where the power was ex­pressly so granted in the Constitution itself. . . . By Chapter 138, Laws of Utah 1969, the constitutionality of which in part is now questioned, the State Board of Higher Education is charged with the executive responsibility of carrying out the law as enacted. The legislature has performed all of its functions in providing the law and the funds by which the will of the people through the various legislators and senators has been effected. However, the statute attempts to go beyond the power granted to the legislature in that it authorizes the highest officer of each house to appoint three members to the board and requires an approval by the senate of the nine members to be appointed by the governor. The control of the board, which performs an executive function, is thus effectively placed in the control of the legislature.