Miller v. State ex rel. Russell

94 So. 706, 130 Miss. 564

• Court: Mississippi Supreme Court
• Decided: September 15, 1922
• Docket: No. 23220
• Status: Published

Opinions

Holden, J.,

delivered the opinion of the court.

This is an appeal from a judgment awarding a writ of mandamus directed to the appellant, state auditor, and ordering him to issue a Avarrant for the sum of four hundred forty-five dollars and sixty-one cents to the appellee, Mt. Olive- separate school district of Covington county, representing the share of said school district in the semiannual distribution of the equalization school fund provided for in section 2, chapter 21, Laws 1922. There is also before us a companion case (No. 23221) 94 So. 716, involving the same question, and which Avill be determined by the decision of the case at bar.

The suit is for the purpose of determining whether or not the auditor is' legally authorized to issue warrants in the distribution of the additional equalization school fund provided for in section 2, chapter 21, Laws 1922; it being the contention of the assistant attorney-general, representing the auditor, that said section 2 is void because, first, it is in conflict with section 206 of the Constitution, and, second, that it is invalid because it contravenes section 90 of the Constitution. Chapter 21, Laws 1922, is as follows:

“Section 1. That the sum of two million one hundred fourteen thousand five hundred thirty-five dollars ($2,114,-535) be, and the same is hereby appropriated out of any money in the state treasury not otherwise appropriated, for the support and maintenance of the public schools of the state of Mississippi for each of the calendar years 1922 and 1923.

“Sec. 2. That the additional sum of one million two hundred sixty-eight thousand seven hundred and twenty-one dollars ($1,268,'721) he, and the same is hereby appropriated out of any money in the state treasury not otherwise appropriated, for the support and maintenance of the public schools of the state of Mississippi for each of the calendar years of 1922 and 1923,' which sum shall be dis: bursed by the state board of education, consisting of the state superintendent of education, secretary of state, and the attorney-general, in such a manner as to equalize public school terms as nearly as possible throughout the state in accordance with the following conditions:

“ (a)' In equalizing school terms, teachers’ salaries shall also be equalized, grade of license held, competency of the teacher and living conditions being taken into consideration.

“(b) County and district school levies shall not be counted against any county or district in the disbursing of this fund.

“(c) The state board of education shall apportion the fund provided for in this act semiannually to the several counties and separate school districts, the auditor being furnished with a certified copy of the apportionment to be used by him in making out the warrants on this fund in favor of the county treasurers and treasurers of separate school districts. Certified copies of the apportionment shall also be sent by the state superintendent to the state treasurer, the superintendent of public education of each county, each county treasurér and the treasurer of each separate school district.

“(d) The manner in which this fund has been disbursed shall be included in the biennial report of the state superintendent of education to the legislature.

“Sec. 3. That this act take effect and be in force from and after its passage.”

The opposing contention of the appellees is that the mandamus should issue: First, because said section 2 is valid as an exercise of the legislative power, and does not contravene sections 206 and 90 of the Constitution; and, second, that to deny the relief would be to impair the obligation of contracts between the state, through its school authorities, with the school districts and employed teachers, as to the distribution of the school fund provided in section 2 of the act.

Some light may be thrown ripon the questions involved by giving a brief history of the situation. In 1919, section 206 of the Constitution was amended under the initiative and referendum amendment to the Constitution, which at that time this court had declared valid and a part of the Constitution. This amendment to section 206 provided as follows: .

“But the legislature shall have power to make an additional appropriation to be disbursed by the state board of education in such manner as to equalize public school terms throughout the state.”

The amendment to section 206 became a part of the Constitution in 1920. Thus after section 206 was amended chapter 21, Laws 1922, was enacted by the legislature.

Recently this court, in the case of Jos. W. Power, Secretary of State, v. Robertson, 98 So. 769, decided that the initiative and referendum amendment to the Constitution was null and void, and overruled the Howie v. Brantley Case, 113 Miss. 786, 74 So. 662, Ann. Cas. 1917E, 723. It will be observed, therefore, that the amendment to section 206 of the Constitution adopted in 1919 was void because the initiative and referendum law under which it was submitted was void. So we are to now consider section- 206 in its original form, before it was attempted to- be amended.

The main and decisive question in the case before us is whether or not section 2 of chapter 21, Laws of 1922, shall stand or be struck down as violative of either section 206 or section 90 of the Constitution. A consideration of the inquiry brings into review for construction sections 201, 205, 206, and 90 of the Constitution, which sections we here set out in the order named :

“Section 201. It shall be the duty of the legislature to encourage, by all suitable means, the promotion of intellectual, scientific, moral, and agricultural improvement, by establishing a uniform system of free public schools, by taxation or otherwise, for all children between the ages of five and twenty-one years, and, as soon as practicable, to establish schools of higher grade.”

“Section 205. A public school shall be maintained in each school district in the county at least four months during each scholastic year. A school district neglecting to maintain its school four months, shall be entitled to only such part of the free school fund as may be required to pay the teacher for the time actually taught.

“Section 206. There shall be a county common school fund, which shall consist of the poll tax, to be retained in the counties where the same is collected, and a state common school fund, to be taken from the general fund in the state treasury, which together shall be sufficient to maintain the common schools for the term of four months in each scholastic year. But any county or separate school district may levy an additional tax to maintain its schools for a longer time than the term of four months. The state common school fund shall be distributed among the several counties and separate school district's in proportion to the nmber of educable children in each, to be determined from data- collected through the office of the state superintendent of education in the manner to be prescribed by law.”

“Section 90. The legislature shall not pass local, private, or special laws in any of the following enumerated cases, but such matters shall be provided for only by general laws, viz.: . . .

“(p) Providing for the management or support of any private or common school, incorporating the same, or granting such school any privileges.”

We think it proper to consider together the first three sections of the Constitution, as they deal with the subject-matter involved. It will be observed that section 201 makes it the duty of the legislature to encourage and promote education by a uniform system of free public schools; that it must promote and encourage public schools by all suitable means, and by taxation and otherwise, as soon as practicable. Section 205 commands that a public school shall be maintained in each school district in the county “at least four months” during each scholastic year. Section 206 then provides there shall be a common school fund, consisting of the poll tax, to be retained in the counties where collected, and a state common school fund, to be taken from the general fund in the state treasury, which together shall be sufficient to maintain the common schools for the term of four months in each scholastic year. But any county may maintain its schools for a longer term by an additional tax in the county. It then provides that the state common school fund shall be distributed among the several counties and school districts in proportion to the number of educable children therein; that is, that this fund shall be distributed on a per capita basis.

It is the contention of the appellant that section 2 of chapter 21, Laws 1922, is void because section 206 of the Constitution furnished a complete and exclusive scheme and provision for maintaining the public schools by state aid; that by implication the legislature is prohibited from extending any further state aid than to maintain the schools for four months as provided in the section; and that moreover the said section 2 is void because it does not provide a distribution of the fund on a per capita basis. The Pridgen case, 106 Miss. 219, 63 So. 416, is cited and relied upon to support these views.

We confess this interpretation of the Constitution is not without merit, and may be said to be a reasonable construction; but we think there is another and different construction, which expresses the true intent, that is equally as reasonable as the one contended for by the appellant, and is the better view.

It is our opinion that, when section 206 .is viewed in the light reflected from sections 201 and 205, it may be reasonably construed to mean that the legislature was commanded to provide for a common school term of “not less than four months,” and that sufficient funds be appropriated out of the state treasury to maintain such school for the period of four months, and that the public funds appropriated for that purpose must be distributed in proportion to the number of educable children, or upon a per capita basis, and not otherwise. We think it was in the minds of the Constitution makers that the state should provide for at least four months of public schooling in each year. This provision should be carried out in the manner prescribed in section 206, and as supported by the appropriation in section 1, chapter 21, Laws 1922.

We find section 201 plainly making it the duty of the legislature to promote public education in the state by all suitable means, by taxation and otherwise, by establishing a uniform system of free public schools, and that they should do this as soon as practicable. Not content with this- command to the legislature, the framers of the Constitution went farther, and clearly enjoined upon the legislature, in section 205, that public schools must be maintained in each school district at least four months during each scholastic year. When they said “at least four months” we understand they meant that four months was to be the minimum term; or, to put it in another way, there must be not less than four months of schooling, and, inferentially, there may be a longer term, or at least a longer term was not intended to be prohibited, either expressly or by implication.

We cannot bring ourselves in accord with the view that the makers of the organic law intended to circumscribe or restrict state aid for public school education in this state, for all time to come, to only four months in the year. It clearly appears to us their purpose under section 206 was to provide for “at least four months” of public schooling, inclusively, not exclusively, without inhibition as to any longer term.

We think it is a reasonable view to interpret that part of section 206 which provides for a per capita distribution as meaning that the distribution on this basis should be made with reference solely to the funds provided for the four months term named in the section. It was not intended that the per capita distribution should apply to any school funds outside of the funds necessary to carry on the schools for the four months.

This construction of section 206 is reasonable, and, while the opposite construction put upon it by the appellant may also be reasonable, yet it is our plain duty to adopt the construction upholding the statute where there are two reasonable constructions, one of which upholds the statute and the other invalidates it. Furthermore, we should follow the rule that this court will not declare a legislative act void uiiless it appears to us beyond a reasonable doubt that it conflicts with the Constitution. We do not think beyond a reasonable doubt that section 2 of chapter 21, Laws 1922, contravenes the Constitution. State V. Henry, 87 Miss. 125, 40 So. 152, 5 L. R. A. (N. S.) 340; Hart v. State, 87 Miss. 171, 39 So. 523, 112 Am. St. Rep. 437; Dantzler v. State, 97 Miss. 355, 53 So. 1; Natchez v. Crawford, 99 Miss. 697, 55 So. 596; State v. Wheatley, 113 Miss. 555, 74 So. 427; Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977; University of Miss. v. Waugh, 105 Miss. 623, 62 So. 827, L. R. A. 1915D, 588 n., Ann., Cas. 1916E, 522; State v. Jones (Miss.), 64 So. 469; Darnell v. Johnson, 109 Miss. 570, 68 So. 780; Postal Tel. & Cable Co. v. Robertson, 116 Miss. 204, 76 So. 560; Fletcher v. Peck, 6 Cranch, 87, 3 L. Ed. 162.

The Pridgen Case, supra, is cited and urged as decisive of this case, but we disagree with counsel in this contention, for the reason that the Pridgen case was not dealing with a fund such as is provided in section 2 of chapter 21, Laws 1922. In that case the court had before it the question of whether a supplemental fund of five thousand dollars could be distributed to supply certain deficiencies in the school term of four months as provided by section 206 of the Constitution, and the court there had in mind only the question of per capita distribution of the supplemental fund in carrying out the four-month term. The decision in that case is sound as to. per capita, distribution because it was dealing with the four-month term prescribed by section 206, and the funds to be used to maintain that four-month term could be distributed only upon a per capita basis, and Avhen the school authorities attempted to distribute it otherwise under the act it was contrary to the method of distribution provided by the Constitution.

In the Pridgen case the court could have decided only the question that it had before it, namely, the four-month-term funds; any language in the opinion which may seem to have indicated that all other school funds provided by the state should be distributed per capita was no more than dicta, because such question was not before the court.

There being two reasonable theories of construction of section 206, it is not strange the legislature, and other officials, took the view that it was necessary to amend the section before any appropriation of additional state funds for schooling could be made beyond the four-month term provided for by section 206. This plausible construction was thought by many to have been indicated by the language of the opinion in the Pridgen case, though the court there was only dealing with a supplemental appropriation for the four-month term. Judicial dicta often leads to erroneous conclusions, even for several generations, until corrected by exposing its nothingness.

The history of public school legislation in our state does not, in our opinion, justify the exclusive, narrow, and un- • progressive construction contended by appellant, but the other reasonable construction that section 206 does not limit appropriations to the four-month term is indeed more harmonious with the educational policy and progressive thought of our state as expressed in section 201 of the Constitution and by the people and the Legislature.

Section 1 of chapter 21 of the Act of 1922 provides funds for the four-month term prescribed by section 206, and must be distributed according to its requirement.

Section 2 of the act provides a different and distinct fund to be used, not for the four-month period of section 206, but for an independent schooling purpose beyond the mandatory four-month period of section 206; and therefore it need not be distributed on a per capita basis, but may be fairly and justly distributed and used for the purpose of promoting education, on a uniform, equal, and equitable basis throughout the state.

Coming now to section 90 of the Constitution, it is our opinion that the funds appnopriated under section 2, chapter 21, Laws 1922, here involved, is not an appropriation contrary to said section 90, because the appropriation is a general law, is not class legislation, nor a local or special law, since the funds are to equalize public school terms throughout the state by a fair and equitable distribution, and may be used for any school district in any county, or for all of them, for uniform education, in the judgment of the state board of education, as provided by the act.

In view of the conclusions reached above, it is our judgment that section 206 does not expressly or by implication limit or restrict the legislature to appropriations for the four-month term mentioned in the section of the Constitution, but that the sovereign power of the legislature to provide funds for public education as commanded by section 201 of the Constitution is not limited to a four-month term by section 206, and may be extended within the bounds of legislative discretion.

The view we announce will tend to advance and promote education in our state, while the other view would restrict it contrary to the public policy of the state.

■Restriction by implication of the sovereign power to enact legislation for the public good is not favored, and where the inhibition is not clear and certain the inherent power of the sovereign as represented by the legislature may be exercised without limit.

We have not discussed the question of,the impairment of obligation of contract as presented by the appellees, because it is unnecessary to do so, since a decision in their favor is rendered upon another ground.

The judgment of the lower court is affirmed.