Board of Trustees of University v. Waugh

62 So. 827, 105 Miss. 623

Opinion

Mayes, Special Judge,

delivered the opinion of the-Court.

The legislature of 1912 passed an act entitled “An act to abolish and prohibit Greek letter fraternities and sororities and all secret orders among students in the University of Mississippi and in all other educational institutions supported, in whole or in part, by the state,, providing penalties for any trustee, teacher, or other officer connected with the institution for failure or refusal to enforce the provisions of this act, providing penalty for any student who knowingly violates the provisions of this act,” etc. See chapter 177, p. 192, Laws of 1912. For purposes of decision we deem it unnecessary to set out the act in full. We shall content ourselves with setting out in this opinion only the particular sections of the act which are involved in this controversy. These sections are 1, 2, 3, and 4.

By section 1 it is provided that the fraternities and sororities, or Greek letter societies known as “Delta. Kappa Epsilon,” etc., and all other secret orders, chapters, fraternities, sororities, societies, and organizations, of whatever name, or without a name, of similar name and purpose, among students are hereby abolished and further prohibited to exist in the University of Mississippi and in all other educational institutions supported, in whole or in part, by the state. Section 2 provides that no student in the University, or in any other educational institution supported, in whole or in part, by the state, who is a member of any of the orders, chapters, fraternities, sororities, societies and organizations hereby prohibited, shall be permitted to receive any class honors, diplomas or distinctions conferred by the institution of which he is a student, ñor to compete nor contend for any prize or medal offered by his respective school, or by any association or individual. But any student who is a member of any of- the orders, chapters, fraternities, sororities, societies or organizations aforesaid may, upon entrance to any of the aforesaid schools, file with the chancellor, president or superintendent, as the case may be, an agreement in writing that he will not, during his attendance at said school, affiliate with same, nor attend their meetings, nor in anywise contribute any dues or donations to them, and thereafter, so long as such agreement is complied with in good faith, such student shall not be subjected to the restrictions created by this section. Section 3 commands that the act shall be enforced by the trustees and faculties by such rules and punishments as they may prescribe. Section 4 provides that any member of the board of trustees or faculty or other officer connected with any educational institution supported, in whole or in part, by the state, who shall knowingly permit any violation of this act, and shall fail or refuse to take proper steps to enforce this act, shall be removed from such position by the G-overnor.

Let it be here noted that the enforcement of this act is imposed upon the trustees and faculties of the educational institutions of the state, and they are required to do it by such rules and punishments as they may prescribe. Let it further be noted that section 4 emphasizes the duty of the trustees and faculties to enforce the act by providing that, if they fail or refuse to take proper steps to enforce it, they shall be removed from their positions by the Governor. When the above act is read, it discloses the fact that in its passage the legislature had two purposes in view. The primary purpose was to prohibit the existence of any secret society at the University of Mississippi, or any other educational institution supported by the state. Its second purpose is to prohibit any student in any of the above institutions continuing to hold membership in any secret society, or affiliating with same in any way, after admission to the educational institutions of the state, from receiving any class honors, diplomas, distinctions, etc., or for competing for any prize or metal at any of such institutions, unless the student will file with the chancellor, president, or superintendent an agreement that he will not during his attendance at any such school affiliate with any of the prohibited secret societies, nor attend any of their meetings, nor contribute in dues or donations while he is a student at any of the educational institutions above named.

The enforcement of the act is committed to the rules prescribed by the trustees and faculties, and it is made their imperative duty, under penalty of removal from office, to see that the act is enforced. In order to carry out the duty which the legislature imposed upon them of enforcing the act, the trustees, by an order placed upon their minutes at the September meeting in 1912, made it a condition precedent to the right of any student to 'enter the University that each student making an application for admission should be required to sign the following statement: “I hereby state and affirm upon my honor that I am not now pledged to become a member of any of the Greek letter fraternities, societies or sororities named in the Senate Bill 227 of the Laws of Mississippi, 1912, pages 192 and 193, chapter 177, and that I have not become a member of any of said fraternities, sororities or societies within the sixty days preceding the opening of the session of 1912-13. I further pledge and promise not to join any such organizations while I am a student of the University, and that I will not aid or abet or encourage the organization or perpetuation of any such orders or societies while I am a student of the University. I further promise and pledge that I will not apply for nor accept any scholarship or medal, or in any way be the beneficiary of any student’s self-help fund, or accept.any position in the University while I am a student' therein, if I fail to keep or violate any of the provisions of the foregoing pledge. I furthermore promise and pledge to regard this obligation as binding between the sessions of 1912-13 and 1913-14, and that it shall be my purpose and constant endeavor to so act that no word or deed of mine could be even remotely construed as being violative to the letter and the spirit of what is known as the ‘Anti-Fraternity Bill,’ passed by „the last legislature and approved by the Governor February 27, 1912.”

When the order of the trustees is examined, it is readily seen that the pledge which the student is required to sign is nothing more than that he will comply with the act of the legislature while he is in the institution. If the statute is constitutional, it occurs to us that the trus.-tees adopted the only practicable way they could of enforcing the act of the legislature. The act is a mere disciplinary regulation. It was the judgment of the legislature that all secret orders were detrimental to the welfare of the educational institutions of the state. These educational institutions are under the control of the legislature. It had the power to create and abolish them, and, having the power to create and abolish, it had the power to regulate; and when the legislature has passed a law disciplinary in its nature, controlling and regulating any subject which it considered to.be inimical to the welfare of the institution, it is certainly not within the power of any court to supervise the wisdom of legislative acts and declare its acts unenforceable, merely because it might be the view of the court that the act was unwise and unnecessary. All acts of a legislature are valid unless they conflict with, the Constitution of the state or United States, and the acts of the legislature are to be upheld by the courts, unless it is plainly apparent that they conflict with the organic law, after solving all doubts in favor of the validity of the law. An nouncing this rule of construction as our guide, a rule that has been repeatedly announced by this court, we proceed to discuss further the act of the legislature under review, and the order of the trustees passed in pursuance of the act.

It appears from the complaint that some time after the legislature passed the law, and after the board of trustees, in order to carry out the act of the legislature, had passed the above order requiring this pledge to be taken, the complainant made application for admission to the University, and was declined admittance because he refused to sign the pledge which the trustees said he should sign before he could enter the University. When this was done complainant made application to the chancery court of Lafayette county for an injunction against the board of trustees of the University of Mississippi, asking that the court enjoin them from enforcing the •order and require them to refrain from requiring him to sign the pledge incorporated in the application for admission to the University as a student, and prayed further that upon final hearing the act of the legislature in question be declared unconstitutional, as being in conflict with both the Constitution of the United States and the Constitution of the state of Mississippi, and that the order of the board be declared to be unreasonable, and ultra vires, etc. The application for the injunction sets out the fact that the University of Mississippi, was incorporated in 1844, and states many features of the incorporating act, which we deem unnecessary to rehearse here. The complaint then sets out the act of the legislature in full, and alleges that the complainant is now, and has been for several years, a member of what is known as the Kfippa Sigma fraternity, and is affiliated and identified with the chapter at Millsaps College; that the Kappa Sigma fraternity is one of the fraternities embraced in the above-recited act. The complaint then sets out the order of the board of trustees, and alleges that in November, 1912, he applied to the chancellor of the University for admission as a student, and that the chancellor presented him with the pledge required to be signed by students desiring to enter the University and requested him, to sign as a prerequisite to admission as a student to the University; that complainant refused to do this, and the chancellor thereupon refused to admit him as a student in the University; and that the refusal was based alone upon the ground that complainant refused to sign the pledge. Complainant then alleges that he has never been a member of, nor has he affiliated with,, or paid dues to, any chapter of any so-called Greek letter fraternity organized among the student body of the University. Complainant then alleges that he is affiliated with and pays dues to, the chapter of the Kappa Sigma fraternity at Millsaps College, and alleges that if he is admitted as a student at the University it is not his intention or purpose to encourage the organization, continuance, or maintenance of any Greek letter fraternity in the University of Mississippi, or to affiliate with or pay dues to, or in any way support or encourage any such organisation at the University, or he connected with any sort of active work, or meeting with any fraternity in the University. He then alleges that the act of the legislature is in conflict with the Constitution of the state of Mississippi, and the Constitution of the United States; that it violates section 71 of the Constitution of the state, in that the title is not sufficient; that the act is further violative of sections 1 and 2 of the Constitution of the state of Mississippi, in that under the charter of the University and all statutes relating to it the government and discipline of the University, and the control of its students, is delegated to a hoard of trustees, and that such control is an executive and not a legislative function; that under section 2 of the Constitution of the state all power properly belongs to the hoard of trustees, and the legislature has no control over it; that as a citizen of the United States and the state of Mississippi, within the jurisdiction of the state, under the fourteenth amendment to the Constitution of the United States, he is entitled to the protection of life, liberty, and property, and the pursuit of happiness, and entitled to the equal protection of the law, and that the above act of the legislature and the regulations of the board of trustees of the University of Mississippi, refusing him admission to the University, deprives him of his property, property rights, and liberty, and denies him the equal protection of the law. Complainant then proceeds to allege that the fraternity of which he is a member has for its paramount purpose the enforcement and promotion of good morals, the highest possible attainment and standing in class, good order and discipline in the student body of the different colleges with which it is connected, and that section 2 of the act of the legislature is unreasonable, in that it assumes extraterritorial jurisdiction, in prohibiting any member of any fraternity not connected with the University from receiving any class honors, diplomas, distinctions, etc., conferred by the University, and because’ it prohibits any student of the University from affiliating with or paying dues to, any chapter whatever, wherever situated, although entirely disconnected with the University.

This bill was demurred to on many grounds, but we see no occasion to go beyond the first. The first ground of the demurrer challenges the fact that there is any equity on the face of the bill. We think this challenge brings into review, at once, the whole of this case. Counsel for appellee stress the fact that the demurrer admits all the allegations of the bill, and call the court’s attention to the allegation wherein the high moral purposes of the order to which complainant belongs is set out, and argues that, whatever the general result may be, this ease is bound to be affirmed, because with these admissions an institution cannot drive out of its halls, even before an act of the legislature, an order that is fruitful of so much good as is claimed for the order to which complainant belongs. But let it also be kept in mind that the court takes judicial knowledge of the law, and reads into every alleged complaint the law of the land, and where the thing complained of,- and against which relief is sought, is a thing which the law prohibits the complainant from doing, the court will not grant relief merely because complainant alleges that, if allowed to do the thing which the law says he must not, a great moral good will be 'accomplished. The allegation of fact amounts to nothing, when it merely shows that a complainant is seeking to disobey the 'law, no matter how strong the allegation that a great good will be accomplished if allowed to violate the law. We think this ends any discussion as to any admission of fact made by the demurrer.

In answer to that portion of the argument made by counsel for appellee that the act is void because the title is bad, we need only cite the case of Mayor, etc., of City of Jackson v. State, 59 South. 873, holding that the sufficiency of the title is a legislative and not a judicial question.

A further contention of appellee is that the act of the legislature violates sections 1 and 2 of the Constitution. We fail to see how the act of the legislature violates either section above-named. Section 1 of the Constitution merely provides for the distribution of the powers of government into three distinct departments, and section 2 prohibits any person, or collection of persons, being one or belonging to one of these departments of government, from exercising any powers properly belonging to either of the others. We do not see how either of these sections is invaded by this act. The legislature did nothing but pass a law for the regulation of the educational institutions of the state, and why it may not do so is something that a reading of the sections of the Constitution above referred to does not disclose to us. The trustees are mere instruments to carry out the will of the legislature in regard to the' educational institutions of the state. Both the institutions and the trustees are under the absolute control of the legislature. The legis lature has the undoubted power to pass a law prohibiting-Greek letter fraternities from being organized or carried on at any educational institution in the state. The legislature has the right to say that any student desiring to enter any educational institution of the state shall renounce his allegiance to any Greek letter fraternity, while he is a student in the state institution. The law requires the trustees of the educational' institutions of the state to see that this act is enforced, and in order to do this they have a right to exact of any student who desires te enter, as a condition precedent to his entry, that he will promise to obey the statute law of the state, and this is all that the trustees have required. If complainant desires to enter the University, all he has to do is to promise obedience to the law of the state and the doors of the University will be open to him.

But. complainant says that by requiring him to sign a pledge to obey the law of the state while he is a student in the educational institutions of the state, and to renounce his allegiance to, and affiliation with, secret societies at other institutions, he is denied a right guaranteed to him by the fourteenth amendment to the Constitution of the United States. We fail to see any force in this contention. The fourteenth amendment to the Constitution of the United States was never intended to act as an accomplice to any young man who wanted to take advantage of the gratuitous advantages offered the youths to obtain an education, and yet refuse to obey and submit to the disciplinary regulations enacted by the legislature for the welfare of the institutions of learning. The right to attend the educational institutions of the state is not a natural right. It is a gift of civilization,, a benefaction of the law. If a person seeks to become a beneficiary of this gift, he must submit to such conditions as the law imposes as a condition precedent to this right. The act in question is not class legislation. It is quite the reverse, and seeks to destroy the possibility of the existence of any class at the educational institutions. No state or federal Constitution is violated by this act in any way. Complainant is not deprived of any constitutional right, unless complainant can be said to have a constitutional right to breach the discipline of the school and set at naught the laws of the state. If it be true that the board of trustees, or the legislature, have extended the operation of the rule beyond what would seem to be the necessities, they have done it in order to effectuate the purpose of the legislature in prohibiting the existence of Greek letter fraternities at any of the educational institutions in the state. The trustees, and the legislature, both have the right to say that any student who desires to enter the University shall not only promise not to affiliate with any Greek letter fraternity while there, but that he shall not encourage the organization of any Greek letter fraternity elsewhere, by paying dues, etc., while a member of that institution. If this were not true, there might be organized at the University, although the dues were paid elsewhere, as complete a Greek letter fraternity, save the meetings, as if it were organized at the institution. Young men attending the educational institutions of the state, if allowed to hold their memberships in fraternities at other institutions while attending the state institutions, could as effectually carry on their fraternity relation as if an organization existed at the particular place. The legislature knew this, and to make the law effective prohibited all affiliation with secret societies while a student at a state institution.

In the case of Purity Tonic Extract Co. v. Lynch, 100 Miss. 650, 56 South. 316, the supreme court of this state and of the United States held that the legislature might, in order to make a police regulation effective, press the act beyond the seeming necessities in order to effectuate its purpose. The case of Hobbs v. Germany, 94 Miss. 469, 49 South. 515, 22 L. R. A. (N. S.) 983, is not a parallel ease to this. The trustees in that case were not acting under the power conferred upon them by an act of the legislature. They were not trying to break up any secret orders; but the trustees of the public schools, to which a child has a constitutional right to attend between ■certain ages, undertook to say that after the child had reached its home it should not be controlled by its own parents, but that they would establish rules that would reach into the fireside and control the child around the hearthstone of its own parents. This court said this •could not be done. Many decisions are cited by appellee, but we refuse to follow any decisions that would hold this act unconstitutional.

We can see nothing in the act which is violative of .any section of the Constitution. Whether the act was a wise one, or an unwise one was a question for the legislature to determine. The legislature is in control óf the •colleges and universities of the state, and has a right to legislate for their welfare, and to enact measures for their discipline, and to impose the duty upon the trustees •of each of these institutions to see that the requirements ■of the legislature are enforced; and when the legislature has done this, it is not subject to any control by the •courts.

The decree of the court below is reversed, the demurrer sustained, and the bill dismissed.

Dismissed.