PAULSON V.

MINIDOKA COUNTY SCHOOL DISTRICT

NO. 331

McQUADE, Justice.

This action was instituted by Jack Paulson, and his sons Dan and Kirk Paulson,
to secure an alternative writ of mandate, a peremptory writ of prohibition,
declaratory relief, general damages, punitive damages and costs of the action.
They sought to compel the defendants Minidoka County School District, its
trustees and superintendent, hereinafter referred to collectively as the "school,"
to furnish a transcript of grades to Dan Paulson who graduated from Minidoka
County High School in June, 1968. Dan and Kirk both attended the high school
during the school year 1967-1968. Dan graduated that school year, and Kirk
attended school during the 1968-1969 term. The issues in the present case arose
from the adoption in 1967 by the Board of Trustees of the Minidoka County
School District of the following schedule of fees to be charged each student
attending the high school:

"School District Fees $ 2.50 Text Book Fees 10.00 Activity Ticket 3.50 Student Council
Fee 1.00 Newspaper 1.00 Annual (Yearbook) 5.60 Cap and Gown Fee 1.00 Class
Fee .40 $25.00"

In July, 1968, the fee schedule was amended so that although the same total of
$25.00 per student was charged, the fees were itemized only as "Text Book
Fees" — $12.50 and "School Activity Fees" — $12.50, total $25.00.
Dan and Kirk Paulson have each year refused to pay these fees. The school
would not accept partial payment allocated to any one particular item, but
insisted that the fees be paid in their entirety. Failure to pay the fees, however,
did not in any way affect the student's right to attend classes. Not only were
nonpaying students allowed to attend classes, but they were also furnished
textbooks free of charge. Until 1968-1969 all students were regularly given a
student activity card and thereby allowed to attend social and athletic events
even though the fees were not paid. Yearbooks were not furnished, nor were
non-paying students allowed to purchase a yearbook since the school's policy
was that the entire $25.00 fee be paid. Upon graduation Dan Paulson was
furnished a cap and gown and presented a diploma.

Although a student could thus accumulate an "education" without payment of

the fees, the impediment is that the school refuses to furnish a transcript of
courses studied and grades achieved. When Dan applied to Idaho State
University for admission, the school would not furnish a University required
transcript. Dan was, however, provisionally admitted and this action was
instituted to compel the high school to furnish a transcript.

Following trial, the district court rendered judgment that the fee charging
practice of the school district is unconstitutional and issued a writ of mandate
ordering the defendants to furnish Idaho State University a transcript. The court
denied the respondents' prayer for damages. It is from that judgment that the
appellants take this appeal.
Our task in this case is to determine the application of art. 9, sec. 1 of the
Constitution of the State of Idaho to this particular factual situation. That
section is:

"The stability of a republican form of government depending mainly upon the

intelligence of the people, it shall be the duty of the legislature of Idaho, to establish
and maintain a general, uniform and thorough system of public, free common schools."

Because of the delicacy and difficulty in resolving constitutional problems we

settle such questions on a case-by-case basis. We, today, affirm the judgment
of the lower court; and we hold that public high schools in Idaho are "common
schools" within the meaning of art. 9, sec. 1; that the $25.00 fee as it was
charged in this case offended the requirement that the "common schools" be
"free;" and that the appellants were under a clear legal duty to furnish
transcripts to eligible graduates of Minidoka County High School. We decide
these issues because they are necessary for the final determination of this
action.

Appellants contend that the term "common schools" does not include "high
schools" such as the Minidoka County High School. To support this
contention, they have directed our attention to several Idaho statutes of varying
age which distinguish between "elementary" and "secondary" schools. Such
distinction is for administrative convenience, and has no relevance to the term
common schools as used in art. 9, sec. 1 of our constitution. They also refer to
a South Dakota case which is not in point. On this basis they argue that
"common" is limited to "elementary." This argument is not in accord with the
reasoning or the holdings in practically every case deciding this issue.
State ex rel. Prchal v. Dailey, 57 S.D. 554, 234 N.W. 45 (1931).

While we have never decided the question raised in this case, on a number of
occasions this Court has been called upon to review legislation concerning
Idaho's high schools. We have assumed in those instances that the legislature
had determined that high schools were elements of our free common school
system. There are cases decided before 1890 which specifically hold that high
schools were comprehended by constitutional language like our own. These
holdings are in accord with practically the entirety of the case law in the years
since Idaho was admitted to statehood. Only three cases holding that high
schools are not common schools have been called to our attention. The first
two, from Utah and Washington, involve constitutional provisions which
explicitly — and most unusually — distinguish high schools from common
schools. The third case, State ex rel. Prchal v. Dailey, concerns the
interpretation of a statute. In that case, at 234 N.W. 50, the Supreme Court of
South Dakota distinguished the process of construction of a statute from the
interpretation of a constitution, and, in dictum, suggested that a similar
constitutional provision probably would include high schools.
See, e.g., Andrus v. Hill, 73 Idaho 196, 249 P.2d 205 (1952); Robbins v. Joint Class A
School Dist. No. 331, 72 Idaho 500, 244 P.2d 1104 (1952).
E.g., The High School of the County of Clayton v. The County of Clayton, 9 Iowa
175 (1859); Jenkens v. Inhabitants of Andover, 103 Mass. 94 (1869); Richards v.
Raymond, 92 Ill. 612, 34 Am.Rep. 151 (1879); cf. Powell v. Board of Education, 97 Ill.
375, 37 Am.Rep. 123 (1881). Because many of the delegates to the Constitutional
Convention were outstanding lawyers in their day, we generally presume that they knew
and acted on such prior and contemporaneous interpretations of constitutional words which
they used. See Higer v. Hansen, 67 Idaho 45, at 62, 170 P.2d 411 (1946).
E.g. Lynch v. Commissioner of Education, 317 Mass. 73, 56 N.E.2d 896 (1944); State ex
rel. Henderson v. Dawson County, 87 Mont. 122, 286 P. 125 (1930); Greathouse v. Board
of School Com'rs., 198 Ind. 95, 151 N.E. 411 (1926) (construing language like art. 9, sec.
1, from 1816 constitution); Special School District No. 65, Logan County v. Bangs, 144
Ark. 34, 221 S.W. 1060 (1920); Dickinson v. Edmondson, 120 Ark. 80, 178 S.W.
930 (1915); Cook v. Board of Directors of School Dist. No. 80, 266 Ill. 164, 107 N.E.
327 (1914); People v. Moore, 240 Ill. 408, 88 N.E. 979 (1909); City of Louisville v.
Commonwealth, 134 Ky. 488, 121 S.W. 411 (1909); see also Annotation What is Common
or Public School Within Contemplation of Constitutional or Statutory Provisions, 113
A.L.R. 697, 702-710.
Logan City School District v. Kowallis, 94 Utah 342, 77 P.2d 348 (Utah, 1938); School
District No. 20 v. Bryan, 51 Wn. 498, 99 P. 28, 20 L.R.A., N.S., 1033 (1909).
57 S.D. 554, 234 N.W. 45 (1931).

We hold that Minidoka County High School is a "common school" within the
meaning of art. 9, sec. 1 of the Idaho Constitution. Because the appellants' high
school is a "common school," it must, by constitutional command, be "free."

The appellants, however, argue at some length that the high school in this case
was "free" despite the mandatory $25.00 fee. One half of the $25.00 fee is
assigned as payment for what appellants themselves call extra-curricular
activities. If a student of Minidoka County High School wishes a transcript of
his scholastic achievement he must pay the entire $25.00, one-half of which is
expressly consigned to fund extra-curricular activities. Items which are "extra-
curricular" are, by definition outside of or in addition to the regular academic
courses or curriculum of a school. A levy for such purposes, imposed generally
on all students whether they participate in extra-curricular activities or not,
becomes a charge on attendance at the school. Such a charge contravenes the
constitutional mandate that the school be free. But it should be noted that,
because social and extra-curricular activities are not necessary elements of a
high school career, the constitution does not prohibit appellants from setting
fees to cover costs of such activities to be paid by students who wish to exercise
an option to participate in them.
Webster's New International Dictionary of the English Language 902 (2nd ed. unabridged
1942).

The other half of the $25.00 fee, the $12.50 "textbook fees" stands on different
ground. Textbooks are necessary elements of any school's activity. They
represent a fixed expense peculiar to education, the benefits from which inure
to every student in equal proportion (ignoring differences in ability and
motivation) solely as a function of his being a student. Unlike pencils and
paper, the student has no choice in the quality or quantity of textbooks he will
use if he is to earn his education. He will use exactly the books, prescribed by
the school authorities, that his classmates use; and no voluntary act of his can
obviate the need for books nor lessen their expense. School books are, thus,
indistinguishable from other fixed educational expense items such as school
building maintenance or teachers' salaries. The appellants may not charge
students for such items because the common schools are to be "free" as our
constitution requires.
This discussion does not preclude appellants from demanding a reasonable deposit from
students for extraordinary wear and tear or damage to school books. See generally, Segar
v. Board of Education of the School District of the City of Rockford, 317 Ill. 418, 148 N.E.
289 (1925).
Appellants argue that if books must be provided free of charge then it becomes impossible
to draw a line and even school clothing must be given away. This contention is answered
by pointing out that clothing is not an item peculiarly necessary for the use of free schools
— everyone must be clothed if he walks the streets — and it is an item of expense which
is especially subject to personal taste in terms of the cost, quality and quantity of it used by
any individual student.

Appellants contend, however, that they are giving and have given the
respondents "free high school educations," which is all that is required by the
constitution. The appellants would separate the transcript from the educational
experience it evidences and they argue that they are merely making availability
of a transcript contingent upon payment of the fees. They also reason that they
are under no clear legal duty to furnish a transcript and are not subject to
mandamus. This argument evidences a serious misapprehension of the
constitutional requirement of free schools. If the constitution said that all that
was necessary was a "free common school education" the case might be
different, but the constitution instead demands "free common schools."
The school and the entire product to be received from it by the student must be
"free."

The appellants failed to provide "free common schools" when they made
access to the official reports of the students' records contingent on the $25.00
fee charged in this case. This fee bears no apparent relationship to the actual
costs of printing and distributing the transcripts. It instead serves an
enforcement purpose only. The appellants have withheld Dan's transcript to
coerce payment of the lumpsum $25.00 fee. Because they may not charge the
fee it follows that they may not penalize non-payment of the fee by withholding
an incidental but necessary transcript.

The legal duty to make available a transcript arises from the practicality that,
in our society, the ability to obtain a transcript without cost, is a necessary
incident of a high school education. A reasonable fee, after the first free
transcript, representing actual average costs, would be proper and may be
charged for the duplication and issuance of subsequent transcripts.

The judgment of the lower court is affirmed. The district court's denial of
respondents' motion for attorney fees is hereby affirmed.

Costs to respondents.

McFADDEN, C.J., and DONALDSON, and SPEAR, JJ., concur.

SHEPARD, J., sat but did not participate in the opinion.