Duncan v. People ex rel. Moser

• Decision Date: 25 May 1931
• Docket Number: 12808.
• Citation: 89 Colo. 149,299 P. 1060
• Parties: DUNCAN et al. v. PEOPLE ex rel. MOSER et al.
• Court: Colorado Supreme Court

299 P. 1060

89 Colo. 149

DUNCAN et al. v. PEOPLE ex rel. MOSER et al.

No. 12808.

Supreme Court of Colorado, En Banc.

May 25, 1931

Error to Phillips County Court; S. S. Worley, Judge.

Mandamus by the People, on the relation of C.J. Moser and another against J. S. Duncan and others, as Board of Directors of School District No. 11, Phillips County. Judgment for relators, and defendants bring error, and apply for supersedeas.

Application for supersedeas denied, and judgment affirmed.

Coen &amp Sauter, of Sterling, and Ben L. Garman, of Holyoke, for plaintiffs in error.

Walrod & Walord, of Holyoke, for defendants in error.

HILLIARD, J.

By writ of mandamus the trial court ordered the proper officials of an organized school district to maintain public school in the district. To such order the board prosecutes error, the assignments challenging generally the right of the complainants to maintain the action without having alleged and proved that unsuccessful appeals had been taken and prosecuted to the county superintendent of schools and to the state board of education, which was not done; and in any event it is contended that the school facilities provided for the children in another district in the circumstances appearing met the requirements of the Constitution.

The plaintiffs in error constitute the board of directors of school district No. 11, Phillips county, and hereinafter will be referred to as the board, and relators are resident property owners, taxpayers and parents of children of school age, residing in said school district, hereinafter called the parents.

For some years the board has not provided a school for the children of the district conducted in the district, but did provide school facilities for the children of their district in another district, and in aid thereof furnished transportation for the children of their district to the schoolhouse of such other district, where it is apparently conceded the required curriculum is available to the children of their district. The parents objected to such procedure and insisted that school must be conducted in the district. Their protests were unavailing. In such situation the parents instituted this action.

The essential facts are not in dispute. Long before the happenings of which complaint is made the school district in question was duly organized. It constructed and still has a schoolhouse and other school property requisite for holding school in the district, and which, until the plan of transporting the children resident of the district to another district was adopted and followed, was used for school purposes. It appears that since resorting to the facilities offered in another district the board has annually certified and caused to be levied taxes for school purposes precisely as when school was held in the district, and that expenditure of the funds arising from such levies has been made by the board pursuant to whatever the arrangement was between the board and the authorities of the district furnishing school accommodations for the children of the district involved.

The parents maintain that section 2, article 9 of the Constitution, which, after directing the General Assembly to provide for a thorough and uniform system of free public schools throughout the state, says that 'one or more public schools shall be maintained in each school district within the state,' is mandatory. The board contends that the provision is not mandatory, and that, if mandatory, the action of the board in providing for school in another district was a mere...