Carpio v. Tucson High School Dist. No. 1 of Pima County

• Decision Date: 21 January 1974
• Docket Number: CA-CIV,No. 2,2
• Citation: 21 Ariz.App. 241,517 P.2d 1288
• Parties: Dora N. CARPIO, for herself and for her minor children, henrietta A. Vargas and John Ronald Dunne, and for all others similarly situated, Appellants, v. TUCSON HIGH SCHOOL DISTRICT NO. 1 OF PIMA COUNTY et al., Appellees. 1348.
• Court: Arizona Court of Appeals

Page 1288

517 P.2d 1288

21 Ariz.App. 241

Dora N. CARPIO, for herself and for her minor children, henrietta A. Vargas and John Ronald Dunne, and for all others similarly situated, Appellants, v. TUCSON HIGH SCHOOL DISTRICT NO. 1 OF PIMA COUNTY et al., Appellees.

No. 2 CA-CIV 1348.

Court of Appeals of Arizona, Division 2.

Jan. 21, 1974.

Rehearing Denied Feb. 27, 1974.

John A. Tull, Legal Aid Society, Tucson, for appellants

Gary K. Nelson, Atty. Gen., Phoenix, by John S. O'Dowd, Asst. Atty. Gen., and Lawrence Ollason, Special Deputy County Atty., Tucson, for School Affairs, for appellees.

OPINION

KRUCKER, Judge.

This appeal arises from the granting of a summary judgment in favor of the appellees. Appellants submit these three questions for review:

1. Did the lower court err in ruling that the Constitution of the State of Arizona does not require free textbooks for high school students?

2. Did the lower court err in ruling that appellees' textbook policy does not violate appellants' equal protection guarantees?

3. Did the lower court err in ruling that the challenged textbook policy does not violate appellants' due process guarantees?

The pertinent facts for resolution of these issues are as follows. Appellants, plaintiffs below, represent a class f indigent parents who are unable to pay for high school textbooks. They instituted this suit for a declaratory judgment decreeing (1) that the Arizona Constitution required Tuscon High School District No. 1 to furnish free textbooks in the high schools, (2) that the denial of free textbooks to appellants is a denial of due process and equal protection of the laws, and (3) that appellees be required to furnish free textbooks to appellants.

The State Board of Education defines a textbook as 'total instructional materials prepared for use in teaching pupils in a specific subject area. This may include materials, equipment, and illustrative materials as well as the more traditional textbook.' Tax funds available to the appellee school district are not used to provide textbooks and related materials for any student regardless of race, color, or financial status. There is, however, an informal procedure whereby needy students who are unable to pay for their books are advised how to apply for financial aid in the form of scholarships and loans.

Available scholarships are not administered directly by the school district nor does the money for them come from district funds. Qualifications for scholarships are financial need, satisfactory citizenship, satisfactory attendance at school and acceptable academic standing.

Students unable to pay for their books who do not seek scholarship assistance can apply for a student loan. Receipt of a loan is dependent upon financial need and a desire to repay it. If a student or his parents fail to repay the loan, the student is not denied access to school or denied a diploma. However, failure to repay can result in transcripts being withheld from colleges, other high schools and employers. If a student demonstrates his inability to pay, a high school administrator can release his transcript.

In disposing of the issues raised on appeal, appellants' arguments will be discussed in the following order: high schools are common schools, free high school textbooks, and equal protection.

HIGH SCHOOLS ARE COMMON SCHOOLS

Appellants argue that Article XI §§ 1, 6 and 9 of the Arizona Constitution, A.R.S., manifest an intent by the framers that high schools are common schools. The pertinent provisions of Art. XI of the Constitution are:

'Section 1. The Legislature shall enact such laws as shall provide for the establishment and maintenance of a general and uniform public school system, which system shall include kindergarden schools, common schools, high schools, normal schools, industrial schools, and a university (which shall include an agricultural college, a school of mines, and such other technical schools as may be essential, until such time as it may be deemed advisable to establish separate State institutions of such character.) The Legislature shall also enact such laws as shall provide for the education and care of the deaf, dumb, and blind.

Section 6. The University and all other State educational institutions shall be open to students of both sexes, and the instruction furnished shall be as nearly free as possible.

The Legislature shall provide for a system of common schools by which a free school shall be established and maintained in every school district for at least six months in each year, which school shall be open to all pupils between the ages of six and twenty-one years.'

Section 9, in part, reads:

'The laws of the State shall enable cities and towns to maintain free high schools industrial schools, and commercial schools.'

The governing principle of constitutional construction is to give effect to the intent and purpose of the framers of the constitutional provisions and the people who adopt it, and, unless context suggests otherwise, words are to be given their natural, obvious and ordinary meaning. County of Apache v. Southwest Lumber Mills, Inc., 92 Ariz. 323, 376 P.2d 854 (1962). Both the Constitution and case law of Arizona are silent as to the meaning of common schools. Therefore, we deem it essential to review some legislative enactments in order to ascertain the intent of the framers.

Soon after the adoption of our Constitution, the Arizona Legislature enacted a law which provided for appropriation of school money to the counties. Revised Statutes § 2816 (1913). In 1928, the amount of money appropriated to the counties was based upon the average daily attendance in common schools and high schools. Revised Code § 1089 (1928). This appropriation method was continued in 1933, Revised Code § 1089 (1928), as amended § 1089 Revised Code (Supp.1934), and definitions of common schools and high schools were added for the first time. Common schools were defined 'to include the first to eighth grades, inclusive,' and high schools were defined 'to include the grades nine to twelve, inclusive.' Since 1933 our Legislature has retained the same definition of common schools and high schools. ¹

It is well settled that where the legislature has by statute adopted a reasonable construction of a constitutional provision, its action has strong persuasive force and will ordinarily be followed. Woodcock v. Dick, 36 Cal.2d 146, 222 P.2d 667 (1950). This is particularly true with constitutional provisions since broad subjects must be covered therein with few words, making it impossible to state explicitly every detail or shade of meaning intended. Fairfield v. Foster, 25 Ariz. 146, 214 P. 319 (1923).

Art. XI § 1 of the Constitutional enumerates the types of schools within our uniform public school system. For forty years our Legislature has defined common schools and high schools to mean two separate schools based on grade levels. Such a construction is reasonable, consistent with Art. XI § 1 and § 6 of the Constitution and is persuasive. It is the opinion of this court that in Arizona common schools are the first to eighth grades, inclusive, and high schools are grades nine to twelve, inclusive. Therefore, we find no merit in appellants' contention that a 'system of common schools' as used in Art. XI, § 6 comprises all grades from one through twelve.

FREE HIGH SCHOOL TEXTBOOKS

Notwithstanding the fact that high schools are not common schools, appellants contend that the Arizona Supreme Court has ruled that our Constitution requires instruction in high schools to be absolutely free, which necessarily includes free textbooks. In support of their position, they cite Estate of Arizona Southwest Bank, 41 Ariz. 507, 19 P.2d 1063 (1933), and several cases from other jurisdictions.

In the Arizona Southwest Bank case, the issue to be resolved was whether certain deposits in an insolvent bank should be subject to a preferred claim. The court had to first determine whether the deposits were public money because if they were, the claim would be preferred. The money in question came from a $5.00 tuition charge collected by a high school principal as a guarantee that pupils would attend summer school. The court held that the claim was not preferred because the deposits were not public money. In reaching this result, it found that the principal had neither the express nor implied power to demand money as a guarantee of attendance. The court discussed the nature of charges a high school may demand of a student, stating:

'A reading of all those (statutes and constitutional provisions) dealing with the public school system, however, leads to the cnclusion that instruction in high as well as in common schools shall be absolutely free.' 41 Ariz. at 511, 19 P.2d at 1065.

'The only charge a high school may demand of any student is a reasonable monthly tuition fee of those pupils living in the county but not in the high school district. . . .' 41 Ariz. at 513, 19 P.2d at 1065.

Appellants maintain that the above-quoted language mandates free textbooks. We disagree. In stating that 'instruction in high . . . schools shall be absolutely free,' the court did not intend to include free textbooks. In fact, the court noted that:

'The right to attend high school free of any tuition or other charge does not carry with it the further right to break or destroy property belonging to the district without paying for it any more than it does the right to be furnished free the text books he must have if he is to gain the benefit from the school it was established to give him.' 41 Ariz. at 515, 19 P.2d at 1066.

We conceive that the court was referring only to charges in the nature of tuition. This is evidenced by the above statement and also the following:

'The one (charge) in question, though prompted by a commendable purpose, seemingly took no cognizance of the right the law gives every high school pupil in the district to attend school free of any...