From Casetext: Smarter Legal Research

Hamiel v. Rice

Supreme Court of Mississippi, Division B
Sep 28, 1936
176 Miss. 462 (Miss. 1936)

Opinion

No. 32372.

September 28, 1936.

1. SCHOOLS AND SCHOOL DISTRICTS.

Maintenance of minimum or constitutional school term of four months is mandatory on Legislature and local authorities out of only three funds, county poll taxes, school taxes levied by board of supervisors, on property of county outside of separate school districts, and on property within rural separate school districts and by municipal authorities within municipal separate districts and common school per capita fund appropriated by state (Code 1930, secs. 6662, 6663, 6725; Laws 1936, chap. 101, sec. 20; Const. 1890, secs 205, 206).

2. SCHOOLS AND SCHOOL DISTRICTS.

Equalization fund separately appropriated by state cannot be applied to maintenance of minimum or constitutional school term of four months, since purpose of equalizing fund is to equalize educational advantages of rich and poor counties, which purpose would be defeated if counties, by wasting per capita allotment and raising little or no taxes to complete constitutional minimum term, could call on other counties to supply deficit out of equalizing fund (Code 1930, secs. 6662, 6663, 6725; Laws 1936, chap. 101, sec. 20; Const. 1890, secs. 205, 206).

3. SCHOOLS AND SCHOOL DISTRICTS.

County clerk held not entitled to issue warrants against equalization fund to meet salaries and expenses of third and fourth months of constitutional four-month term of county schools, but only to meet salaries and expenses of fifth, sixth, seventh and eighth month term (Code 1930, secs. 6662, 6663, 6725; Laws 1936, chap. 101, sec. 20; Const. 1890, secs. 205, 206).

APPEAL from circuit court of Leake county. HON. D.M. ANDERSON, Judge.

F.E. Leach, of Carthage, and Green, Green Jackson, of Jackson, for appellant.

The State Board of Education is not authorized to allocate funds for any particular month, and, if authorized, the State Board of Education did not officially make such allocation.

Chapter 101, Laws of 1936; Sections 261, 262, 6548 through 6554, 6570, 6610, 6614, 6621 and 6641, Code of 1930; Sunflower County v. Harry Brothers, 107 Miss. 15, 64 So. 846; Hebron Bank v. Lawrence County, 109 Miss. 397, 69 So. 209; Section 4627, Code of 1906.

The sole authority for the disbursement of the equalizing fund is that contained in the appropriation act which does not grant any authority to the State Board of Education to make any allocation of said equalizing funds after the funds have been disbursed and have become a part of the common school fund of the county to which the disbursement is made.

If, however, it should be urged that the State Board of Education "was authorized," under the necessary implications, to be drawn from the language of the appropriating act, yet we earnestly urge and respectfully submit that the State Board of Education, in this instance, has not lawfully made any allocation of said funds.

This court, in the very recent case of Trantham v. Russell, 171 Miss. 481, 158 So. 143, speaking through Mr. Justice ANDERSON, in a unanimous opinion, specifically held that the State Board of Education must act as a board and must keep regular minutes of its proceedings, and necessarily, that any act of the State Board of Education must be the act of the entire board sitting and acting as a board.

The general rule is that the powers of a board of this type must be exercised at a meeting legally held for the purpose of transacting the business in question.

19 R.C.L. 884, Municipal Corporations, sec. 184; Zottman v. San Francisco, 20 Cal. 96, 81 Am. Dec. 96; Murphy v. Albina, 22 Or. 106, 29 P. 353, 29 A.S.R. 578; Ft. Worth v. Ft. Worth First Baptist Church, 268 S.W. 1016; Dunfield v. School District, 138 Kan. 800, 28 P.2d 987; Corinth v. Carothers, 129 Miss. 645, 92 So. 696; Smith County v. Mangum, 127 Miss. 192, 89 So. 913; American Disinfecting Co. v. Oktibbeha County, 110 So. 869; Crump v. Colfax County, 52 Miss. 107; Smith v. Tallahatchie County, 124 Miss. 36, 86 So. 707.

The Legislature and the State Board of Education could not constitutionally direct the allocation of the equalizing funds to the payment of the fifth through the eighth months unless and until the outstanding indebtedness for the third and fourth months had been paid.

Sections 201, 202, 203, 204, 206, of the Constitution.

It is the contention of the appellant that the first four months of the scholastic session are necessarily the constitutional four months' term required by specific constitutional demand upon the counties and upon the state, and that the county and the state must provide for the maintenance of the four months in each scholastic year regardless of whether the schools remain open for an additional period or not.

Hodges v. Trantham, 171 Miss. 374, 157 So. 715; State Board of Education v. Pridgen, 106 Miss. 219, 63 So. 416; Bufkin v. Mitchell, 106 Miss. 253, 63 So. 458; Miller v. State ex rel. Russell, 130 Miss. 564, 94 So. 706; Miller v. State ex rel. Board of Supervisors, Smith County, 94 So. 716; State ex rel. Cowan v. Morgan, 141 Miss. 585, 106 So. 820; Myers v. DeSoto County, 156 Miss. 251, 125 So. 718.

We respectfully submit that neither the Legislature nor the State Board of Education can constitutionally allocate any funds appropriated from the State Treasury to the payment for the maintenance of specific months of the scholastic term until after there has been satisfaction of the constitutional requirement that four months be maintained.

Greek L. Rice, Attorney-General, and T.J. Barnett, of Carthage, and C.E. Morgan, of Kosciusko, for appellee.

It will be seen and appears clearly from the reading of the bill that a quasi judicial function is conferred on the State Board of Education as the constituted authority with delegated power to distribute said funds as is therein provided in such way so as to nearly as possible provide a normal school term throughout the state for the scholastic year of 1935-36, and if it was not intended that they may allocate said money so as to provide a normal school term, we respectfully submit, then, that they have no authority and the law does not mean what it says.

While it is true that the Legislature, in appropriating the money, did not allocate the funds to the particular months or for the payment of any particular certificates, it gave the quasi judicial function to the Board of Education to equalize the school terms with the use of that money, and we humbly submit that the funds had not been distributed and had become a part of the common school fund when the same was allocated, but that the letter of direction from the State Board of Education accompanied the warrant in its condition and direction becoming a part of the warrant by virtue thereof.

We respectfully submit to the court that there is the legal presumption that the Board of Education, a quasi judicial body, did what the law required it to do and that its minutes reflect that fact. If parol evidence had been heard that may have overthrown this presumption, then the appellant may be in a different position, but this is not the case.

22 C.J., 128, sec. 68B; Smith v. Kirkland, 42 So. 285.

We cannot subscribe to the inference of the appellant contending that the act of the State Board of Education in allocating the sum of twenty thousand one hundred seventy dollars for the purpose of paying the teachers and school bus drivers for the fifth, sixth, seventh and eighth months, would defeat any right of alleged holders of certificates for the third and fourth months, as our courts have repeatedly held that the Board of Supervisors, if necessary, would be authorized to levy an ad valorem tax to support the common schools, before, during, or after the expiration of the four months terms.

St. Louis S.F. Ry. v. Benton County, 96 So. 689.

It is contended by the appellant that the four months required by section 206 of the Constitution of 1890 is the first four months. I find no place in the law where this is so prescribed. As a matter of usage or common acceptation that may be true, but we have been unable to find where the first four months has any more sanctity than the last four months, in an eight months school.

It occurs to the appellee from the reading of chapter 101 of the Laws of 1936, with the view of the distribution in this case, that the equalizing fund, especially when ear-marked, was not intended to supply funds for the constitutional four months, as is provided for in section 205 and especially designated in section 206.


In the general appropriation bill, chapter 101, Laws 1936, and by section 20 thereof, the Legislature appropriated one million one hundred twenty thousand dollars for the support and maintenance of the common schools, to be disbursed in proportion to the number of educable children in each county or separate school district; and in the second paragraph of said section there was appropriated an additional sum of one million one hundred twenty thousand dollars to constitute the equalizing fund to be disbursed by the state board of education exclusively for the equalization of school terms.

On April 20, 1936, the auditor sent his warrant, payable to Leake county depository, for twenty-three thousand nine hundred ninety-five dollars and twenty-five cents, for account of common schools, the warrant plainly stating on its face that the disbursement represented thereby was out of the above mentioned equalizing fund. When the said warrant reached the county clerk, he deposited the same in the county depository to the general credit of the county common school fund; and, there having been immediately theretofore a deficiency in that fund, so that the salaries and expenses of the third and fourth months of the constitutional four-month term of the schools in that county had not been paid, the clerk proposed to apply the funds received under the warrant aforesaid first to the liquidation of said deficiency for said third and fourth months, rather than exclusively to the salaries and expenses of the fifth, sixth, seventh, and eighth months during which the school terms were being extended in that county beyond the constitutional four-month term. Learning of this purpose, the Attorney-General filed a petition for a writ of mandamus against the clerk to compel him to issue his warrants against said equalization fund, so that the fund should be applied only to the months subsequent to the first four months of said school term, to which petition the clerk demurred. The court overruled the demurrer; the clerk declined to plead further; the writ was ordered by the court; and the clerk has appealed.

Sections 205 and 206 of the Constitution made it mandatory upon the Legislature and the local authorities of and in the several counties that a public school shall be maintained in each school district at least four months during each scholastic year; and a fund was created for this purpose consisting, first, of the poll tax to be retained in the respective counties where collected, and, second, an appropriation by the Legislature out of general funds in the state treasury, which appropriation was expressly directed to be distributed among the several counties and separate school districts in proportion to the number of educable children in each. It was contemplated that the Legislature would have before it, at each session wherein appropriations were to be made, all the facts and figures sufficient to enable it to make a fair calculation of the amount of money necessary and proper to operate the schools for the minimum constitutional term of four months estimated upon a state-wide, as well as a county, per capita basis, and that the counties and districts in making their expenditures for the four-month constitutional term would each come within the funds so appropriated and distributed on the said per capita basis; and, with this in view, section 206 provided further that "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."

Experience soon demonstrated that some counties, owing to exceptional local conditions, would not well be able to conduct their schools for the four-month constitutional term on the two funds above mentioned, or else preferred not to be confined solely to those funds, wherefore a statute was enacted, which, as amended, now appears as section 6725, Code 1930, allowing the board of supervisors to levy annually for public schools a tax upon the taxable property of the county outside of separate school districts to be used for the maintenance of the public schools before, during, or after the expiration of the four months required by the Constitution. This statute was attacked as unconstitutional insofar as it allowed a levy for use during the four-month constitutional term; but the court in St. Louis S.F.R. Co. v. Benton County, 132 Miss. 325, 96 So. 689, overruled the contention and held the statute valid. And the same reasoning and result would apply to the local levies of school taxes in separate school districts as allowed by sections 6662, 6663, Code 1930.

Subsequent experience further demonstrated that many of the wealthier counties were able, under local taxation, to maintain their schools for several months beyond the four-month constitutional term, while at the same time a large number of counties, because of a want of wealth in taxable property, were unable to maintain their schools with terms of equal additional lengths as compared with the more fortunate counties, thus depriving the children in the poor counties of equal privilege with those in the rich counties. To meet this condition, the Legislature established a supplemental school extension fund, known as the equalizing fund, and which was to be distributed under the directions of the state board of education to equalize the advantages of the state's total appropriation upon such fair bases of calculation as would take into view the entire school situation throughout the state, and its several parts, including the relative property valuations and the relative necessary expenses of school operations, as brought about by the variety of local conditions, and without being confined as to the supplemental fund to the fixed and inflexible factor of the number of educable children in each county or separate district. This plan of supplemental distribution for the extension of terms was challenged as unconstitutional in Miller v. State, 130 Miss. 564, 94 So. 706, but the court upheld the plan and the appropriation thereunder as being valid.

An examination of the opinions in two foregoing cases decided by this court, together with the cases cited therein requires that we must now definitely hold that the minimum or constitutional term of four months shall be maintained — and, as already said, this minimum maintenance is mandatory upon the Legislature and the local authorities — out of three funds, and those only: (1) The poll taxes collected in the county; (2) the school taxes levied by the board of supervisors on the property of the county outside of separate school districts and on the property within rural separate school districts, and by the municipal authorities within municipal separate districts; and (3) the common school per capita fund appropriated by the state. The equalizing fund, separately appropriated by the state, is not applicable to the maintenance, in whole or in part, of the minimum constitutional term of the first four months, because of the said constitutional mandatory minimum of said four months is already equalized. As said in Miller v. State, 130 Miss. 564, 587, 94 So. 706, 709: "Section 2 of the act [which was the section in that case which appropriated the equalizing fund] provides a different and distinct fund to be used, not for the four-month period of section 206 [of the Constitution], but for an independent schooling purpose beyond the mandatory four-month period of section 206."

By the plain provisions of the Constitution, any state appropriation to the constitutional four-month term must be distributed solely upon the per capita basis, whereas the equalizing fund is allotted, as already mentioned, upon calculations which admit many other elements into the equation in addition to the per capita feature. To allow the equalizing fund, or any part thereof, to be used to cover deficits in the constitutional four-month term, would be to subvert the constitutional plan of distribution for the maintenance of that term; it would permit the local authorities to wastefully or extravagantly spend this per capita allotment, and fail or refuse to raise any, or not enough, local taxes to complete the constitutional minimum of four months, and then call on the other counties to supply the deficit out of the equalizing fund, so that thereby the delinquents would have both a pardon and a reward for their said constitutional delinquency. State Board v. Pridgen, 106 Miss. 219, 63 So. 416. This is neither contemplated nor allowable under the law, interpreted in the light of the Constitution.

The warrant in this case, as hereinabove stated, showed on its face that it was drawn against the equalizing and not the per capita fund. The proceeds cannot be used to meet deficits in the first four-month constitutional term; and the court was correct in ordering the writ of mandamus as prayed.

Affirmed.


Summaries of

Hamiel v. Rice

Supreme Court of Mississippi, Division B
Sep 28, 1936
176 Miss. 462 (Miss. 1936)
Case details for

Hamiel v. Rice

Case Details

Full title:HAMIEL, CHANCERY CLERK, v. RICE, ATTY.-GEN

Court:Supreme Court of Mississippi, Division B

Date published: Sep 28, 1936

Citations

176 Miss. 462 (Miss. 1936)
169 So. 687

Citing Cases

Williams v. State, ex rel

herein, but to force him by writ of mandamus to sign said warrant would be requiring him to perform an…