*1 270 burglary. charge attempted Both to the
material
defense counsel’s
given by
trial court and
instructions
fairly
presented
jury
adequately
and
argument
final
jury
jury.
then
theory
to the
The
of the case
defendant’s
against the defendant.
disputed
issue
factual
resolved
not seek
have
interesting
defendant did
to note that
It is
jury. Under
to the
submitted
attempted
an
theft verdict
jury
to decide
theory
had
defendant’s
admitted,
guilty
he
of the crime
defendant was
whether
accordingly
him,
he
theft,
acquit
or whether
attempted
and
charged.
attempted burglary as
the crime of
committed
had
liability by
sought
admit-
thus
to avoid criminal
Defendant
charged.
ting
was not
offense for which he
that the information
Defendant’s final
defective,
affirmatively
aver that the
it did
because
phone booth. It is
settled that an
defendant entered the
well
defendant of the
is sufficient if it informs the
information
charges
prepare
enable him to
a defense
against him so as to
any
prosecutions
further
judgment in bar of
plead
and
Mazza,
166,
People v.
182 Colo.
511 P.2d
offense.
same
(1973);Loggins
People,
439,
P.2d
v.
178 Colo.
498
1146
Gallegos
(1972);
409,
v.
No. 25912 children, Pacheco, her Delia C. as next friend of minor Rhoda Pacheco, Pacheco, Pacheco, Waldo T. Charles M. Darlene Pacheco, and Pacheco, Lucas in her behalf own Number situated v. School District similarly behalf others Colorado, Rudy, J. Lee County, William 11 of El Paso Wiman, Grimes, Goodbar, Jr., Robert S. Marion John L. Sonderman, Board Members 629)
(516 P.2d Opinion 3, modified 1973. modified Decided December rehearing December 1973. denied *2 Cannon, Armour, plaintiffs-appellees. A. Tom W. Joe Anderson, Horn, Johnson, R. Anderson & E. for defend- ants-appellants. Boards,
Colorado Association of School curiae. amicus Miller, Attorney. Reese Í,
School No. curiae. District amicus Cockrell, Eggleston, Attorneys. Richard C. Peter M. Education, Harvard Center for Law and amicus curiae. Wright Edelman, McClung, Attorneys. Merle Marian En Banc.
MR. JUSTICE GROVES delivered opinion Court. brought
Mrs. Pacheco this action on behalf her own and as attending elementary next friend of her children who are *3 school, junior high high sought school and school. Plaintiffs (1) following recovery expenditures the relief: the of fees and required by the defendant paid by school district to be (2) students; judgment a declaratory that the collection of Const, (3) such IX, 2; fees is violative of Colo. art. an § injunction requested declaratory judgment; to effectuate the (4) permitting and order to them maintain this suit as a class action. The court entered favor of in the plaintiffs $99.22, they permitted for ruled that would be not action, injunctive as a maintain this class and denied relief. Only appealed. the defendants have We appeal. dismiss the activity cards, gymnasium
The fees involved were for towels, shop addition, materials and books. it was gym necessary clothing purchased rented, for or and expenditures there supplies pens, were for school such as pencils and notebooks. junior high high
The court found that the and school purchase students activity were for cards activi- contests, dances, concerts, plays, ties such as athletic school activities, annual, other like and newspapers, the school activity or payment made for each individual was unless arrangements made with “prior for admission [were] unless principal sponsoring or teacher.” predicate their complaint, plaintiffs did ’not In the However, indigency. for relief Mrs. Pacheco’s claim counsel, a of Pacheco her direct Mrs. examination made, including strong showing a statement of of by reason hardships of which she sustained of some expenditures. fees the school and Const, IX, provides as follows: Colo. art. § shall, general assembly practicable, provide as soon as “The thorough a for the establishment maintenance throughout state, system public free uniform schools state, ages all between the of six wherein residents years, gratuitously. or twenty-one may be educated One public in each school more shall maintained schools state, year; at three months each district within the least failing to not be any school district have such shall any portion entitled to receive of the school fund for that year.” appears acting
It district was under following proviso in the statute: may require pupil
“A not board a who shall not have grade completed pay any fees as twelfth a condition school, any a enrollment in or as condition attendance in class, study, instruction, except course or tuition by law, charges authorized and fees authorized 123-30-19, reasonably and section and those section fees supplies necessary expendable or if such are textbooks charge; provided, that fees free of miscellaneous voluntary a as a be collected on condition sponsored activity at participation or attendance a school program not within *4 123-30-18(2). Supp.,
program.” 1965 Penn. ruling plaintiffs of its in favor the The court based findings the indigency. In its of fact upon Mrs. Pacheco’s activity cards “are requiring the activities court stated that integral parts program provided of the overall education those schools.” Nowhere in its conclusions of law does the expenditures required court that the fees and cannot find be by anyone foregoing paid to be under the constitutional contrast, provision. specify repeat- In the conclusions of law edly pay that Mrs. Pacheco cannot be certain fees by expenditures indigency. her reason court That the ruling solely predicating upon indigency was its and not pleaded following question constitutional is shown statement near the end of the conclusions law: statutory Court not provisions, unmindful “[T]he Attorney opinion, General’s and case law cited defendant district, declaring types charges various of fees and constitutionally proper. however, opinion, It is the Court’s where, here, indigency shown, that though even not pleaded, plaintiff right part has established a on the integral her children to participate parts in all of the of the charge without or payment of fee.” denying the defendants’ motion for a new trial or to judgment, alter and amend the court stated that the evidence supported finding that the non-academic activities in- integral volved are programs. the school The court ruling then constitutionally stated that it that it was impermissible charge fees for these non-academic activi- ties: interpreting statute],
“In [the Court was not unmindful presumption constitutionality corollary nor of the interpretations that where two of a possible, statute are one unconstitutional, constitutional and one presumed it is legislature intended Applying principal former. to the instant simply interpreted this Court statutory language permit the collection of miscellaneous non-indigent fees from If students. the statute were to construed so as to authorize the collection of miscellaneous indigent students, fees clearly from it would be unconstitu- may very tional. It anyway, well be but that need decision not be made in this case where the students in fact indigent.” *5 appeal here argument on of the school district’s
The thrust expenditures deprive “a student do not fees and is that the gratuitous education public of a free school the benefits appellants by the Colorado Constitution.” only No ruling passing. in as to mention the court’s in the briefs protection argument is advanced equal — not to be found. “equal protection” term is parties and the right recovery as an mention of the Where there is some briefs, no indigent amicus there is in some of the simple fact parties. The the briefs of the point on this upon by not ruled directed to matters appeal that this upon the resolution We should not rule court’s trial court. separate argued upon nor matters that has not be an issue argued. which
Appeal dismissed. and MR. JUSTICE
MR. CHIEF JUSTICE PRINGLE KELLEY dissent. dissenting: JUSTICE PRINGLE
MR. CHIEF correctly interpreted legislature Colo. my view Const, a district IX, when it school art. § attending voluntary aon charge a fee as a condition for or not within activities sponsored program. intended of the constitution
I do not believe the drafters should, students, regardless ability pay, for of their all charge. free of I example, proms athletic contests attend judicial restraint which exercise the doctrine would here legislative interpretation of what a compels defer to the us to means, interpretation is provision unless that constitutional provision itself. I find clearly prohibited the constitutional legislative pronouncement clear to the prohibition no such relating to the provision constitutional here in the made of children. education however, would, of the trial court
I affirm prohibited I believe it would be invidious discrimination for clause of the state and federal equal protection pay refuse to students who cannot admit constitutions sponsored pay may can events which students who payment admitted of the fee. dissenting: MR. JUSTICE KELLEY by dismissing appeal deciding The court has avoided is, my the constitutional opinion, properly issue which deciding By only postponing before us. it now arewe inevitable. true, states, court, majority
It is as the that the trial under it, the facts before held proviso unconstitutional of 1965 *6 123-30-18(2) (hereinafter Supp., Perm. set out denying extracts from the court’s order defendants’ trial), primarily motion for new on the of Mrs. indigency. findings Pacheco’s In the of fact on which the judgment premised, court’s the court found: High “6. That Palmer School students and North Junior High School are purchase activity students to cards permit participation to their in such activities as athletic contests, dances, concerts, plays, newspapers, school annual, activities, school and other like unless such activities paid basis, are on an individual prior arrange- or unless ments for admission are made principal sponsor- with the or ing teacher; integral that the enumerated are parts activities of the program overall education schools; in those foregoing finding fact,
Based on the of the court conclud- ed: regard
“1. any activity With integral to which is an part fundamental program, the district constitutionally required provide ‘gratuitously,’ the same (Article IX, Section 2 of Constitution), the Colorado at least indigent as the children parents concerned,. are . . insofar of added.) (Emphasis Despite “3. the fact participation in the various activi- represented by ties the school voluntary, activities cards are important those part activities an of the entire school program and are conducted on property under the supervision personnel. being so, of school This the district has
277 obligation no to make those activities available at cost to indigent parents, . . . children foregoing conclusion, arriving Court is not
“6. In at the statutory provisions, Attorney General’s unmindful district, declaring opinion, and law cited defendant case charges constitutionally types various of fees and however, where, proper. opinion, It is the Court’s here, shown, though pleaded, even right plaintiff established a on the her children to has integral participate parts in all of the of the school charge payment without of fee.” The School District filed a motion for new trial or to alter judgment concerning activity and amend the as to “the issue fees,” stating: encompassed
“The Paragraph issue involved is Findings Paragraphs Court’s Fact and In and 6 of the findings Court’s Conclusions of Law and the extent said Paragraph judg- conclusions are included 2 of within said ment.”1 denying
The trial in a court formal order the motion for new trial or alter and amend the made the following conclusions: principal
“. . . The thrust defendants’ seems no be that there was evidence before the court to substanti- finding subject ate the court’s that the activities to such fees *7 activity integral or covered the cards were parts program necessarily overall educational .... It therefore follows, argue defendants, that those activities do not fall gratuitous public within the ‘free schools’ and education requirements 2, of Section Article IX of the Constitution very easily by Colorado. This could be answered during hearing, pointing plaintiffs out that when offered A, C, purporting in evidence B and Exhibits all to show the 1 Paragraph Judgment: 2 of plaintiffs judgment against “The have defendant school district in the $99.22.” amount of were in the so-called extracurricular activities
extent to which for the programs, the overall school counsel part fact a the case. conceded that such was defendants beyond stipulation, fact of there is indeed “But counsel’s finding support a that evidence in the record to activities, charged, part which are a fees non-academic .... programs of the educational declaring argue erred “The defendants also that the court in unconstitutional, by implication, part at least that 123-30-18(2) amended, provides C.R.S. as which as follows: may voluntary
‘. . . fees be collected on a miscellaneous of participation as a condition or attendance at a school activity sponsored within ” program.’ portion of the educational appeal. The defendants had no doubt about the issue on opening paragraph of The their brief reads: “The issue before this court is whether or not the trial court holding 1963, 123-30-18(2), in committed error amended, permitting is unconstitutional the collection indigent voluntary fees on a miscellaneous basis from students for activities or not within the academic program.” justiciable It seems clear to me a I issue is before us. would briefly problem answer the in this manner.
Although conclusion, part, the trial court based its on plaintiffs, I would conclude activity controlling. nature of the educational is This so because of the constitutional mandate for the establishment thorough system of a maintenance uniform of free residents, ages public wherein all schools between the six twenty-one years, gratuitously. be educated If the activities in issue constitute of the education contem- plated constitution, they then must be furnished gratuitously ages twenty-one to all between the of six and years. general assembly to, clothed plenary power with
279
legislate
government.
purposes
for all
power
civil
This
subject only
restraints of the United States and
Colorado Constitutions. Unlike the United States Constitu-
tion, the Colorado Constitution serves as a
on
limitation
power
general
assembly
grant
rather than as a
legislative authority. Alexander
People,
155,
v.
7 Colo.
2 P.
(1883).
general assembly
rights
894
may expand
The
by
Constitution,
liberties secured
the Colorado
but
guarantees
constitution
that fundamental values
not be
Schools,
legislative
Kindergarten
eroded
In re
action.
18
(1893).
234,
Colo.
which is to be under the constitution include both academic and programs? non-academic considering
In
authority
school district’s
to collect
fees,
governing
activities
it is well
body
settled that the
of a
only
school district
powers expressly
has
those
conferred
by statutory
it
provisions
or constitutional
or such
powers necessarily
Big
incidental
to the
powers.
conferred
Sandy
Carroll,
School District v.
173,
164
433
Colo.
P.2d
(1967);
High
Paul,
325
Union
School District No. 2 v.
105
93,
(1939);
Colo.
Because of the derivative nature of the school district’s power to collect the fees authorized Supp., Perm. 123-30-18(2), I conclude that the fees in question may only be assessed for activities and which of the educational program of the school district. Otherwise the collection of such fees ultra vires. High Union Paul, School supra. District No. 2 v. non-academic, support proposition Further *9 educational sponsored activities presented the trial court. the evidence is found in nature have affirm trial I would On the record in my constitutional interpretation view court. go IX, 2,1 further than the Section would language Article program is the entire educational hold trial court “gratuitously.”2 This to all students activity every carried on at not mean that non-academic does necessarily be a must the school house legislature a authorizes program. If educational which are fees for non-academic activities to collect district and a school district a not game instance, at a football determined, that attendance legislative educational, I would abide not determination. agreement I think I am
To this extent with Chief However, posture present I do think case Justice. course, my permits I, of limit such a conclusion. would respect reasonable in this determinations concession is non-educational. what affirm.
I would 2 Although plain supported by I believe that this conclusion can support constitution, position may language of the substantial for this changes IX, Article be found in textual made in Section as it way through the See PROCEED worked its Constitutional Convention. HALE, also THE OF CONSTITUTIONAL CONVENTION. See INGS SHATTUCK, GOVE, COLORADO, IN 1861-1885 EDUCATION (1885).