Pacheco v. SCHOOL DISTRICT NUMBER 11 OF EL PASO CTY.

The court by dismissing the appeal has avoided deciding the constitutional issue which is, in my opinion, properly before us. By not deciding it now we are only postponing the inevitable.

It is true, as the majority states, that the trial court, under the facts before it, held unconstitutional the proviso of 1965 Perm. Supp., C.R.S. 1963, 123-30-18(2) (hereinafter set out in extracts from the court’s order denying defendants’ motion for new trial), primarily on the basis of Mrs. Pacheco’s indigency. In the findings of fact on which the court’s judgment was premised, the court found:

“6. That…