1. In the consideration of this case we have not, as counsel fear we have, overlooked the case of Board ofCommissioners v. Basalt Union High School District,82 Colo. 438, 261 P. 457. There the question was whether or not the Basalt union high school district was a lawfully existing district. The county superintendent of schools of Pitkin county and the county commissioners of that county contended that it was not. For that reason the former refused to certify, and the latter refused to levy, the tax called for by the union high school district, and we sustained the judgment directing them to do so. Among the items to be levied was one for salaries under the Teachers' Salary Act of 1921, as amended in 1923. But the question as to whether or not that act applies to union high school districts was not raised and was not decided. The attitude of both counsel and court was that if the district was a lawfully existing district, the writ of mandamus should issue; otherwise, not.
2. In paragraph 3 of the main opinion we called attention to considerations that may have caused the legislature, in 1919, to give to school districts of the first, second and third classes the assistance afforded by the Teachers' Salary Act of that year, and withhold such assistance from county high school districts, and that also may have induced the legislature to carry out the same policy in the Teachers' Salary Act of 1921. Counsel contend that these considerations would apply with equal force to high schools organized by school districts of the first, second and third classes; that the act does apply to such districts, and therefore to teachers in the *Page 82 high schools organized by those districts; and that this results in a discrimination between the teachers in the two kinds of high schools. That may be so. But we were presenting considerations that may well induce a legislature to give to teachers in primary schools the benefit of the act and withhold such benefit from teachers in high schools. True, in giving such benefit to districts of the first, second and third classes, teachers in high schools organized by such districts receive a benefit withheld from teachers in county high school districts. The legislature, if it gave any weight to considerations such as we suggested in our main opinion, may have believed that other considerations are of controlling weight where high schools organized by school districts of the first, second and third classes are concerned. Be that as it may, the legislature, in 1909, did in fact discriminate between such districts and county high school districts; and we must assume that it had satisfactory reasons for doing so. And it is our opinion that in the Act of 1921, as amended in 1923, the same policy is carried out. If the General Assembly — it is now in session — should consider that the discrimination is unfair, it is within its power to remedy such condition.
Rehearing denied.
MR. JUSTICE ADAMS dissents. *Page 83