In re Kindergarten Schools

• Decision Date: 17 February 1893
• Parties: In re KINDERGARTEN SCHOOLS.
• Court: Colorado Supreme Court

32 P. 422

18 Colo. 234

In re KINDERGARTEN SCHOOLS.

Supreme Court of Colorado

February 17, 1893

The opinion of the court is in response to the following question by the house of representatives: 'Does the general assembly possess power, under the constitution of the state of Colorado, to provide for the establishment and maintenance of a kindergarten department in the public school system of the state, and for the education therein of children of an age less than six (6) years?'

PER CURIAM.

As we are advised, the particular provision of the constitution that gave rise to the doubt your honorable body entertains in regard to the validity of the proposed legislation, is section 2, art. 9, which is as follows: '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. One or more public schools shall be maintained in each school district within the state, at least three months in each year; any school district failing to have such school shall not be entitled to receive any portion of the school fund for that year.' And we understand that such doubt is as to whether the language of this section limits the power of the legislature to establish any free schools other than therein specifically mentioned. The rule of construction to be applied to our constitution is announced in Alexander v. People, 7 Colo. 155, 2 P. 894, as follows 'The legislature being invested with complete power for all the purposes of civil government, and the state constitution being merely a limitation upon that power, the court will look into it, not to see if the enactment in question is authorized, but only to see if it is prohibited.' Unless, therefore, the constitution, in express terms or by necessary implication, limits it, the legislature may exercise its sovereign power in any way that in its judgment, will best subserve the general welfare. Read in the light of this rule of interpretation, and the wise and liberal policy of the state in educational matters, the section is clearly mandatory, and requires affirmative action on the part of the legislature to the extent and in the manner specified, and is in no measure prohibitory or a limitation of its power to provide free schools for children under six years of age, whenever it deems it wise and beneficial to do so. This view is in harmony with other sections of the same article. Section 3 provides that 'the public school fund of the state shall forever remain inviolate and intact. The interest thereon, only, shall be expended in the maintenance of the schools of the state...