People ex rel. Dunbar v. Colorado Polytechnic College

• Decision Date: 27 March 1973
• Docket Number: No. 72--106,72--106
• Citation: 32 Colo.App. 166,512 P.2d 1172
• Parties: The PEOPLE of the State of Colorado ex rel. Duke W. DUNBAR, Attorney General of the State of Colorado, and the State Board for Community Colleges and Occupational Education of the State of Colorado, Plaintiffs-Appellees, v. COLORADO POLYTECHNIC COLLEGE, Defendant and Third-Party Plaintiff-Appellant, v. TRINIDAD STATE JUNIOR COLLEGE et al., Third-Party Defendants-Appellees. . II
• Court: Colorado Court of Appeals

Page 1172

512 P.2d 1172

32 Colo.App. 166

The PEOPLE of the State of Colorado ex rel. Duke W. DUNBAR,

Attorney General of the State of Colorado, and the State

Board for Community Colleges and Occupational Education of

the State of Colorado, Plaintiffs-Appellees, v. COLORADO POLYTECHNIC COLLEGE, Defendant and Third-Party Plaintiff-Appellant, v. TRINIDAD STATE JUNIOR COLLEGE et al., Third-Party

Defendants-Appellees.

No. 72--106.

Colorado Court of Appeals, Div. II.

March 27, 1973.

Rehearing Denied April 17, 1973.

Certiorari Granted Aug. 20, 1973.

Duke W. Dunbar, Atty. Gen., William Tucker, Denver, for plaintiffs-appellees and third-party defendant-appellees.

Henry & Henry, Hubert D. Henry, Lakewood, for defendant and third-party plaintiff-appellant.

SMITH, Judge.

The Attorney General applied to the District Court under the provisions of 1967 Perm.Supp., C.R.S. 1963, 146--3--14, for an injunction against Colorado Polytechnic College as an alleged violator of the Proprietary School Act of 1966. 1967 Perm.Supp., C.R.S. 1963, 146--3--1 et seq. The court determined that defendant was a proprietary school under the purview of the proprietary school act and issued an injunction ordering defendant to cease operations unless they complied with the provisions of that act. We reverse.

At trial, defendant denied that it operated a school which was a proprietary school. It asserted that it was lawfully operating a school outside the purview of the statute. Defendant also filed a third-party complaint against Trinidad State Junior College, The Community Colleges of Denver, Metropolitan State College, and the University of Colorado, which was dismissed by the trial court.

Because we here determine that defendant is an eleemosynary corporation, and therefore not subject to the proprietary school act, we do not find it necessary to consider the dismissal of the third-party complaint or defendant's other assertions of error.

The proprietary school act excludes from the definition of 'proprietary school' an 'eleemosynary school or institution.' 1967 Perm.Supp., C.R.S. 1963, 146--3--3(3)(c). The term 'eleemosynary' is not defined by the statute. As an elementary rule of statutory construction, an undefined term in the statute may be understood in light of the common law and scheme of jurisprudence existing at the time of its enactment. 3 J. G. Sutherland, Statutes and Statutory Construction § 5301 (3rd ed.)

'Where a word or phrase has a clear, definite, and settled meaning at common law, it is to have the same meaning in the construction of a statute in which it is found, unless it is plainly apparent that such was not the legislative intention.' H. Black, Construction and Interpretation of the Laws § 57.

We have perceived no indication of legislative intent that the term 'eleemosynary' should be defined in any other way than its settled meaning at common law.

The leading case in this area is based in large part upon Blackstone's definition of eleemosynary corporations.

'The eleemosynary sort are such as are constituted for the perpetual distributions of the free-alms, or bounty, of the founder of them, to such persons as he has directed. Of this kind are all hospitals for the maintenance of the poor, sick and impotent; and all colleges both In our universities and Out of them . . ..'

1 Blackstone Commentaries 471. This definition was applied in the case of Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 4 L.Ed. 629, which was concerned with the matter of a charter granted by the British Crown to the Trustees of Dartmouth College. The entity in question was determined to be an eleemosynary corporation because it was a private charity founded and endowed by an individual who obtained a charter for the better administration of the charity. The classification of a corporation set up to administer an educational institution as eleemosynary is not unique. Board of Education v. Greenebaum & Sons, 39 Ill. 609; American Asylum v. Phoenix Bank, 4 Conn. 172...