Chrisman v. City of Brookhaven

70 Miss. 477

• Court: Mississippi Supreme Court
• Decided: October 15, 1892
• Status: Published

Opinion

Campbell, O. J.,

delivered the opinion of the court.

The single question for decision is the validity of the tax for the bonds issued by the town of Brookhaven, in pursuance of the act of February 17, 1890. There may be provisions of that act which cannot be sustained; but the only question involved in this case is the validity of the levy of taxes to pay interest on the bonds authorized by, and issued under, the act mentioned; arid that involves, as a primary inquiry, the validity of the act authorizing the bonds. It is assailed as violative of the fourteenth amendment of the constitution of the United States and of several provisions of the state, constitution of 1869. The suggestion of violation of the constitution of the United States is without force. The violation of the constitution of the state is said to consist in its invasion of the scheme of a uniform system of free public schools, and of equal and uniform taxation throughout the state provided for by the constitution, and disregard of § 21, art., 1 of that instrument, which declares that “ no public money or moneys shall be appropriated for any charitable or other public institution in this state making any distinction among the citizens thereof; provided,” etc.

The objection, on the ground of a, disregard of the scheme-of the constitution as to a uniform system of free public-schools, does not extend to the authorization to issue bonds, to pay for a school-building, for it is certainly competent for the legislature to authorize a town to expend money, and raise it by issuing bonds for public school-buildings, outside-of and independent of the free public schools provided for by the constitution. It enjoins upon the legislature to establish and maintain a uniform system of free public schools, but does not prohibit the establishment of other schools outside of its system; and the legislature may provide foi~ schools at pleasure, not invading the constitutional scheme. As we held in Otken v. Lampkin, 56 Miss., 758, the legislature may not authorize a diversion of the common school-fund, provided for by the constitution, to the maintenance of schools not within the system of free public schools, for the-support of which that fund was provided,; but there is in that case no support for the proposition that schools may not be established outside of the system provided for by the constitution. The legislature has power to authorize schools in particular localities, to be maintained by taxation, and it may authorize the procurement of the necessary buildings for schools, and the issuance of bonds to pay for them; and this is neither an invasion of the constitutional scheme of uniform free public schools, nor a disregard of the provision for equal and uniform taxation, which does not prohibit local taxation for local purposes and benefits. As the legislature may lawfully provide for the establishment of schools, and the procurement of needed buildings and equipments, and raising money to pay for them by selling bonds, as it may provide, it follows that if there be in an act authorizing this, which it has the right to authorize, one or more provisions as to the management or support of the school provided for which cannot be sustained because of conflict with the constitution, that would not make void the provision which the legislature had the right to make, viz.; the procurement of a school-building and equipments for the use of the community and suitable for school purposes. "We do not say that the act under review contains any provisions that are unmaintainable; but, if it does, the provision for procuring a school-building and equipments for the town, and issuing bonds to pay for them, is free from any legal objection by reason of any such feature. The.main purpose of the act — i. e., the establishment of a school, and the procurement of needed conveniences for it — is not so connected with, or dependent on, provisions for the management and support of the school as to cause the main purpose to fail, if tha others must. The school-house exists as a substantial reality, owned by the town, and if the school provided for by .the act does not consist with law, one which does will find the school-house a suitable place for it, we suppose. :

' The remaining question is as to the effect of § 21, art. 1 of the constitution of 1869. Whatever the purpose and effect of that provision, it cannot be held to deny to the legislature the right to make separate provision for the different races in the matter of schools; and it was admissible for the legislature to authorize the establishment and maintenance of schools for whites and. schools for negroes. If not, much that has been done is violative of the constitution. The practical interpretation of the constitution, begun soon after its adoption and continued until it was superseded, forbids the idea that this declaration of the constitution forbade public support of separate schools for the different races. A literal interpretation of the section would prevent an appropriation for a school or college for boys or girls, as such, and deny the establishment of institutions for the different sexes or ages or conditions, except as expressly authorized by the constitution. To hold thus would pronounce unconstitutional all appropriations for the different universities and schools of various kinds, other than the free public schools provided for by the constitution for males and females, white or colored. The proviso to the section increases the difficulty of determining its meaning.

We confess we do not know what its purpose was. It does not inhibit distinction among citizens on account of race, color or previous condition, although that was prominent when the instrument came into being. It prohibits any distinction, on any ground, for any cause, no matter what, among citizens. It surely does not mean that. It is probable that it was a mere platitude intended to announce the general proposition for legislative observance, that equality and fairness must govern appropriations of public money for public institutions.

Despairing of ascertaining its meaning, we take refuge in contemporaneous, practical interpretation, which caused the establishment of separate schools for the different races and sexes, and appropriation of vast sums for their support. It may be that the section has reference only to appropriations of money from the state treasury, and has no application to local institutions suited to the varying needs of particular localities.

We hold it to have been a lawful exercise of legislative power to authorize the establishment of a school exclusively for whites, and to issue bonds as a means of doing it.

The constitution of 1890 embodies, by express provision in § 207, the rule which always prevailed in this state, that “separate schools shall he maintained for children of the white and colored races,” and the absurd provision of § 21, art. 1, of the constitution of 1869 is not in the new constitution. Whei’efore, our ruling accords both with past usage, universally acquiesced in without question among our citizens of all classes, and with the recent deliberate expression of the sovereign will on this subject.

Affirmed.