Cline v. Knight, 15035.
Decision Date | 23 February 1943 |
Docket Number | 15035. |
Citation | 111 Colo. 8,137 P.2d 680 |
Parties | CLINE v. KNIGHT et al. |
Court | Colorado Supreme Court |
Rehearing Denied April 26, 1943.
Error to District Court, City and County of Denver; Robert W Steele, Judge.
Suit by Gladys Cline, by Foster Cline, her uncle and next friend against Stephen J. Knight and others, as members of the Board of Directors of School District Number 1 of the City and County of Denver, State of Colorado, and School District Number 1 of the City and County of Denver, State of Colorado for an injunction. To review an adverse judgment, plaintiff brings error.
Reversed with directions.
Foster Cline, Carl Cline, and Kenneth Lorrin Smith, all of Denver, for plaintiff in error.
S. Arthur Henry, of Denver, 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 as 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 maternal 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, 1935 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: Section 89(1), chapter 146, 1941 Supp.1935 C.S.A. (S.L.1939, chapter 152), including the title, reads: 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, 763. 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: 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,
'The terms 'domicile' and 'residence' * * * are not synonymous * * * in statutes setting forth residence requirements entitling children to school privileges.' 17 Am.Jur. 595, § 10, ...
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