Wilmore v. Annear

• Decision Date: 01 March 1937
• Docket Number: 13902.
• Citation: 100 Colo. 106,65 P.2d 1433
• Parties: WILMORE v. ANNEAR et al.
• Court: Colorado Supreme Court

65 P.2d 1433

100 Colo. 106

WILMORE v. ANNEAR et al.

No. 13902.

Supreme Court of Colorado, En Banc.

March 1, 1937

Error to District Court, City and County of Denver; Charles C Sackmann, Judge.

Suit by W. W. Wilmore, a taxpayer, in his own behalf and in behalf of all others similarly situated, against Thomas Annear substituted as State Auditor, and another To review a judgment of dismissal on demurrer, plaintiff brings error.

Affirmed.

HOLLAND J., dissenting.

Eliot N. Freeman, Edward T. Fiske, and Carl A. Wyers, all of Denver, for plaintiff in error.

W. W. Grant, of Denver, amicus curiae.

Paul P Prosser, Atty. Gen. (deceased), Byron G. Rogers, Atty. Gen., and Charles Roach and Pierpont Fuller, Jr., Asst. Attys. Gen., for defendants in error.

YOUNG Justice.

The parties appear here in the same order as in the district court, and reference will be made to them as plaintiff and defendants.

Plaintiff as a taxpayer, for himself and all others similarly situated, sought to enjoin the defendants, as state auditor and treasurer, respectively, from issuing and paying warrants disbursing to the various school districts of the state on the basis of daily average attendance per capita certain moneys appropriated for that purpose from the general funds of the state under authority of chapter 76, page 233, Session Laws of 1935. Defendants demurred generally. The demurrer was sustained, and plaintiff electing to stand on his complaint, judgment of dismissal and for costs was entered. The case is Before us on writ of error.

The act, so far as here material, is as follows: 'Section 1. There is hereby appropriated the sum of Five Hundred Dollars ($500.00) from the general funds of the State, not otherwise appropriated, for the support of the Public Schools of the State. Said sum shall be apportioned to the school districts of the State in proportion to the pupils in average daily attendance for the school year ending June 30, 1935.'

The only question involved is the power of the General Assembly so to appropriate moneys from the general revenues of the state. The plaintiff denies such right because, he says, it is inhibited by section 7 of [100 Colo. 108] article 10 and section 15 of article 9 of the State Constitution. These are as follows:

'Sec. 7. Municipal taxation.--The general assembly shall not impose taxes for the purposes of any county, city, town or other municipal corporation, but may be law, vest in the corporate authorities thereof respectively, the power to assess and collect taxes for all purposes of such corporation.'

'Sec. 15. School districts--Board of education. The general assembly shall, by law, provide for organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their respective districts.'

We may assume, since both plaintiff and defendants concede, and we think properly, that neither the power to appropriate for the purpose set forth in the act nor the power to tax for that purpose can exist alone. The power to do either implies the power to do the other; the lack of power to do either implies a lack of power to do the other.

In distinguishing the many cases from other jurisdcitions cited by defendants in their answer brief in support of the proposition that the financial maintenance of public schools is a state purpose, plaintiff contends that there is no analogy in the action of other states because such states fall into two constitutional categories, viz.: 'a. Those in which there is a direct constitutional warrant for legislative appropriations; and, b, those in which the entire matter is, by the constitution, left to the legislature. In such cases the legislative fiat is final.' We think that our Constitution does not prohibit such appropriations.

Section 1 of article 4 of the Constitution provides that the executive department of the state shall consist of the Governor and certain other enumerated officers including the superintendent of public instruction. Section 32, article 5, is as follows: 'The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the state, interest on the public debt, and for public schools. All other appropriations shall be made by separate bills, each embracing but one subject.' If the latter section is adequate to authorize an appropriation for the ordinary expenses of the entire legislative and the judicial departments, it would seem equally adequate to authorize an appropriation for the support of the entire executive department, which includes as one of its constituent parts the superintendent of public instruction. We might well assume that the words 'and for public schools' have some meaning other than merely to emphasize the fact that the department of public instruction is what section 1 specifically declares it to be, namely, a part of the executive department of the state. Confronted with this situation a brief filed by an amicus curiae in support of plaintiff's contention contains the following: 'The construction provided by custom and legislation is that the expression 'and for public schools' means the department of Public Instruction, which has always been provided for in this manner. No other or different appropriation pertaining to public schools has even at any time appeared in the general appropriation bill. That bill, of course, has always contained appropriations for State educational institutions. These are provided for by article 8 of the Constitution, which, according to section 1 thereof, are 'established and supported by the state, in such manner as may be prescribed by law.'' It will be observed that section 1, article 8, of the Constitution uses the term 'educational * * * institutions' in referring to schools other than the constitutionally required public schools.

In the sentence structure of article 5, § 32, 'for public schools' is a prepositional phrase joined by the correlative conjunction 'and' to other similar phrases that set forth various independent purposes for which appropriations may be made. We think this clearly is a constitutional recognition of power in the General Assembly to make an appropriation for the public schools of the state. 'Public Schools' is the term used in sections 2 and 15 of article 9 and as so used, from the subject-matter of the sections, clearly applies there to schools that serve only those between the ages of 6 and 21 residing in the district. 'In construing the meaning of a particular word, resort may be had to other sections of the same instrument for the sense in which the word is used, since a word repeatedly used in a constitution will generally be given the same meaning throughout the instrument, whether such meaning is technical or popular in its character.' 6 R.C.L. p. 48.

That such an appropriation never Before has been made nor appeared as a part of the general appropriation bill for public schools does not tend to prove or disprove the existence of the power to make or include such as a part of the general appropriation bill. If constitutional power to do an act is nonexistent, it cannot be acquired by legislative assertion or attempted exercise of such power; if it is existent, it is not lost by a failure, for however long a time, to exercise it.

But plaintiff contends that the existence of the power is negatived by section 7 of article 10 of the Constitution, because a school district is a municipal corporation, a quasi-municipal corporation or a part of the county government, citing People ex rel. v. Commissioners, 12 Colo. 89, 19 P. 892; School District v. Pomponi, 79 Colo. 658, 247 P. 1056, 1057. What it is, is immaterial. The issue involved is whether the financial maintenance of the public schools of the state is or is not a state purpose. If it is a state purpose it is immaterial that subordinate agencies of the government also may contribute to it.

The statutory definition of 'public schools' is found in section 8495, C.L.1921, and has remained unchanged since passed by the territorial assembly and approved February 11, 1876. It is as follows: 'A public school is hereby defined to be a school that derives its support entirely, or in part, from moneys raised by a general state, county or district tax.' This differs in no essential respect from the language of section 22, p. 157, Territorial Laws of Colorado 1861, which is as follows: 'Each school district formed and organized under the provisions of this act, is hereby declared to be a body corporate, by the name and style of School District No. ___, in the county of _____, and Territory of Colorado; and in that name it may hold property and be a party to suits and contracts.'

The statutory definition of 'public schools' is sufficiently broad to cover, and unquestionably does cover schools not required to be established by the Constitution, as, for example, the School of Mines, the establishment of which by the Territorial Legislature antedates the Constitution, and a state normal school, at Greeley, which was established in 1889 by the General Assembly subsequent to the adoption of the Constitution. These schools always have been supported by appropriations by the General Assembly. If such schools of higher learning may be established and supported by the state, if kindergartens for pupils under the age of six may be established by the general assembly, as this court held they might be, In re Kindergarten Schools, 18...