Opinion
No. 15,035.
Decided February 23, 1943. Rehearing denied April 26, 1943.
A suit to enjoin the board of directors of a school district from refusing plaintiff, a child of school age, the right of free admission to the public schools of the district. Judgment for defendants.
Reversed.
1. SCHOOLS AND SCHOOL DISTRICTS — Residence — Statutes — Construction. Statutes providing for a free public school system are, by the weight of authority, construed as evidencing an intention on the part of the state that all children within its borders shall enjoy the opportunity of a free education. Residence entitling an infant to school privileges is to be distinguished from domicile, or the technical and narrow use of the term "residence," and is to be construed in a liberal sense as meaning to live in, or be an inhabitant of, a school district.
2. Residence — Statutes — Construction. Statutes relating to the residence of children for school purposes should be construed together.
3. Children — Residence. Where a child is placed with relatives or others in a school district other than that of the residence of its parents or parent primarily for school purposes, the general rule as to residence applies; but where it has always had its home with an uncle and aunt and the surrounding facts are indicative that it will not, during its school years, live elsewhere, the liberal rule is to be followed, and in such circumstances its residence for school purposes is that of the uncle and aunt and it must be permitted to attend the public schools in that district tuition free, notwithstanding its father resides in another district and is amply able to finance its education.
Error to the District Court of the City and County of Denver, Hon. Robert W. Steele, Judge.
Mr. FOSTER CLINE, Mr. CARL CLINE, Mr. KENNETH LORRIN SMITH, for plaintiff in error.
Mr. S. ARTHUR HENRY, for defendants in error.
A SUIT involving residence for school purposes. Plaintiff in error is Gladys Cline, an infant, appearing by Foster Cline, her uncle and next friend. Defendants in error are the members of the board of directors of school district number 1 of the City and County of Denver, and the school district as such.
Gladys was born August 19, 1931, at a hospital in Denver. Six days thereafter, at the same hospital, her mother died. For six months Gladys continued living at the hospital where she was born, and continuously since has lived in Denver at the home of her material aunt, Mrs. Wesley W. Kemp. Gladys has never lived anywhere except at the Denver hospital and in the commodious and comfortable Denver home owned by Mrs. Kemp and her husband, a home that is otherwise childless. While during this period the father has contributed thirty dollars per month for the benefit of Gladys, the aunt has had exclusive charge of her, performing all the usual duties incident in the rearing of a child. Gladys has not been adopted or emancipated. The expenses incurred have been greater than thirty dollars per month, the excess being borne by the aunt and uncle. The father resided without Denver at the time of the birth of Gladys, and hitherto has so resided. For more than seven years following the death of the child's mother he remained a widower. He is now married and lives with his wife in a house, presumably comfortable, in an adjoining county. Near by are public schools which we judicially notice are adequate. He earns from his profession five to ten thousand dollars per year which is the same in amount as the income of the uncle in Denver where Gladys resides. The father is not a party to this suit, nor is Mrs. Kemp or her husband. Gladys, aged eight years at the time of instituting this suit, and, until the action, of the Denver school authorities, presently to be stated, had been attending the public schools in Denver tuition free. She desires to retain her residence within Denver and as an incident thereof to continue in school under the same terms.
October 13, 1939, the Denver school board, proceeding under the theory that Gladys was a nonresident of Denver, denied her the privilege. November 4, following, she filed an injunction suit in which she alleged she was a resident of Denver and between six and twenty-one years of age, based whereon she prayed to enjoin defendants in error from refusing school privileges to her. She suffered adverse judgment.
By section 111, chapter 146, '35 C.S.A., it is provided: "The residence of an unmarried person of school age shall, in all cases, be held to be identical with the bona fide residence of the parent or guardian of such person, providing that such parent or guardian be a resident of the state." Section 290, Ibid., provides: "Every public school shall be open for the admission of all children, between the ages of six and twenty-one years, residing in that district without the payment of tuition; and the board of education shall have power to admit adults and children not residing in the district if they see fit to do so and to fix the terms of such admission. A child shall be deemed to reside in a school district if: (1) both his parents reside, or the survivor of them, or the one of them to whom custody of such child shall have been awarded by any court of competent jurisdiction, resides in the school district; * * *." Section 89 (1), chapter 146, 1941 Supp. '35 C.S.A. (S.L. 1939, chapter 152), including the title, reads: "Schools. Nonresident Pupils. An Act Relating to the School Attendance of Nonresident Pupils. Be it enacted by the General Assembly of the State of Colorado: Section 1. Every board of education shall have the power to exclude from the schools of the district under its control, or to fix the terms of admission for, a pupil whose parent or parents reside in some other school district if in the judgment of the board of education the pupil does not need to be in the school district in order to have a home and the necessities of life. However, if (in) the judgment of the board of education the pupil needs to be in the school district in order to have a home and the necessities of life, the board of education is hereby authorized to waive all tuition costs." The Colorado Constitution, section 2, article 9, reads, in part: "The general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously."
Under the Constitution and acts quoted, the question is: In what school district does Gladys Cline, admittedly a resident of Colorado and within the ages enumerated, have her residence for school purposes?
The leading case in this jurisdiction is Fangman v. Moyers, 90 Colo. 308, 8 P.2d 762. As summarized by counsel for plaintiff in error the facts in that case were: "Moyers, an attorney, lived in Alamosa and practiced law there. His son, Billy, was placed in the home of one Swift, which home was in a different school district than Alamosa. There was no family relationship between Swift and Moyers, and no reason for Billy's being placed in the Swift home other than `for the sole purpose of giving him a home with desirable influence and surroundings.' Since, as it appears from the records in the case, Moyers paid the Swifts for Billy's board, and since it does not appear that there were any other operative facts which would render the Swift home more desirable for Billy than many other homes in which Billy could have been placed, there were no urgent reasons why Billy should reside at the Swift home in preference to a home obtainable with some family in the district in which Mr. Moyers resided — Alamosa.* * *. It does not appear in the case, nor do the records reveal, that Mr. Moyers was financially unable to pay the small amount of tuition asked. The court said that `the sole question here presented is the district of Billy's residence for school purposes.'" A further statement containing additional facts appears in the brief filed by defendants in error: "In the Moyers case, as clearly appears, Billy Moyers' father himself had no real home in which the child could have lived. The father himself was living in a rented room. He was eating his meals at scattered restaurants. He was a stranger from a distant state, facing the difficult problem of getting a start as a lawyer in a new and strange community. There was in the Moyers case no question of choice between two available homes * * * . The stark question there was to try to get any kind of home at all." The trial court adopted the view of defendants in error and thus distinguished this case from the Moyers case.
In the Moyers case, speaking through Mr. Justice Burke, and after quoting section 8353, C.L. 1921, now section 111, quoted above, we said: "The district's principal argument is based upon this language, and the conclusion is drawn therefrom that Billy must be held to be a resident of Alamosa because that is the residence of his father." "It is unquestionably true," Mr. Justice Burke continued, "that `generally speaking domicile and residence mean the same thing' ( Kennedy v. Ryall, 67 N. Y. 379, 386.); that' in general children whose parents are nonresidents of a district are not permitted to attend schools therein' (25 Am. and Eng. Enc. of Law [2d ed. p. 22); and that children `temporarily' with relatives in one district yet have their school residence in the district where their only living parent resides ( Hudson v. Mattingly, 69 Colo. 528, 195 Pac. 113). But Billy's residence in the Mosca district cannot be properly called `temporary,' nor do the facts surrounding that residence bring it within the `general' rule referred to."
"The terms `domicile' and `residence' * * * are not synonymous * * * in statutes setting forth residence requirements entitling children to school privileges." 17 Am. Jur., p. 595, § 10. "Although there is some conflict among the decisions as to what constitutes a residence which will entitle a child to school privileges, statutes providing for a free public school system are, by the weight of authority, construed as evidencing an intention on the part of the state that all the children within its borders shall enjoy the opportunity of a free education, and in determining whether a person is or is not a resident in a school district within the meaning of such a rule, the usual and ordinary indicia of residence or the absence thereof should be the proper guide. In line with this construction of the statutes, residence entitling an infant to school privileges is distinguished from domicile, or the technical and narrow use of the term `residence,' for the purpose of suffrage or other like purposes, and it is construed in a liberal sense as meaning to live in, or be an inhabitant of, a school district, the purpose being not to debar from school privileges any child of school age found within the school district under the care, custody, or control of a resident thereof. Such rule does not usually require that there shall be a legal domicile, but it is sufficient if the child and its parent, or the person in loco parentis, are actually resident in the district, with apparently no present purpose of removal." 24 R.C.L. 624.
In deciding that the residence of Billy Moyers was that of the Swift family, and not that of his father, we adopted, as fairly expressing our views, language found in the opinion in McNish v. State, 74 Neb. 261, 104 N.W. 186, as follows: "In the incidents of human life families are broken up and must be scattered, by the necessities of obtaining a livelihood, by death of one or both parties, or by abandonment of offspring, as in this case. Such children, as all others, are the wards of the state, to the extent of providing for their education to that degree that they can care for themselves and act the part of intelligent citizens. To secure these ends, laws relating to public schools must be interpreted to accord with this dominant, controlling spirit and purpose of their enactment, rather than in the narrower spirit of their possible relations to questions of pauperism and administration of estates." See, also, State v. Thayer, 74 Wis. 48, 41 N.W. 1014.
Subsequent to our decision in the Moyers case the legislature enacted section 290, supra. It is sufficient to say that had said statute been in effect when that decision was rendered the result would have been the same.
[2, 3] When all these several statutes, including section 89 (1), supra, are considered as one, as they should be, for none of the later statutes repeal the earlier ones, it will be found that the latest enactment grants additional powers to local boards that they may be more able to carry out the beneficent provisions of the Constitution to the end that there shall be "a thorough and uniform system of free public schools throughout the state." The purpose of the legislature was not to make education less free; it was to make it more so. Greater leeway was granted to school boards to permit children who were not residents within their district to attend their schools without payment of tuition. It is true that in the same act the boards were given power to exclude pupils whose parents reside in some other school district; however, a similar statute was in effect prior to our decision in the Moyers case and we adhere to that holding for the reasons therein stated. In construing the 1939 act we are not only concerned with the body thereof, but with its title, which is reemphasized here. "Schools. Nonresident Pupils" and "An Act Relating to the School Attendance of Nonresident Pupils." It is clear that the legislature had in mind the rule laid down in Fangman v. Moyers, supra, and that the general rule of residence does not function. Where the residence is temporary; where the child is placed with relatives or others in another district than the residence of the parents or parent primarily for school purposes, the general rule applies. Otherwise, if we are to cleave to the liberal and broad rule, which is our interpretation of the Constitution and laws passed pursuant to it.
Gladys Cline was born, and always has lived, in Denver; she has never resided. with her father or in the district wherein he resides; the surrounding facts are indicative that she never will. She does not fall under the general rule of residence, but under its exception. It is urged by counsel for defendants in error that the pecuniary needs of Billy Moyers and Gladys Cline are vastly different. Of that we can have no concern. The test is residence. while boards are permitted to relax rules and waive tuition costs, courts have no jurisdiction to interpret the law one way for the well-to-do and another way for those less fortunate. See, People v. Moore, 240 Ill. 408, 88 N.E. 979.
The unconstitutionality of the 1939 act is urged by plaintiff in error. Considering the unquestioned physical facts of the child's residence, and the good faith of those immediately concerned in her welfare, not questioned, we cannot conceive that the General Assembly would, or did, authorize the school authorities to exclude her from the public schools of the district of her residence. Reasonably construed, the act contemplates two major objectives, both of which we think are salutary, namely, broader powers to school boards in affording educational facilities to deserving and needy children in any district, and to prevent parents, resorting to subterfuge — not hinted here — from burdening school districts other than their own with the education of their children. We are convinced that plaintiff in error is a resident of Denver, and may neither be excluded from its schools nor made to suffer exaction of tuition, perforce whereof the act is without application.
The residence of Gladys Cline for school purposes is at the home of her aunt and uncle in Denver, and she must be permitted to attend the public schools therein tuition free, for, paraphrasing the language used in the Billy Moyers case: Her home is there; that, save in a certain technical sense, she has no other, and hence that her residence or domicile for school purposes is there.
That the trial court may enter decretal orders in harmony with this opinion, let the judgment be reversed.
MR. JUSTICE KNOUS, MR. JUSTICE JACKSON and MR. JUSTICE GOUDY dissent.