Opinion
No. 32555 1/2.
November 9, 1936.
1. SCHOOLS AND SCHOOL DISTRICTS.
Under statute creating and regulating agricultural high schools-junior colleges and providing for support from means other than common school fund, chancery court had jurisdiction to validate notes issued for building program of such a school, since it was "school district" within meaning of statute governing court's jurisdiction in such matters (Laws 1935, Ex. Sess., chap. 48; Code 1930, sec. 312 et seq.; secs. 6674-6700).
2. STATUTES.
Statute authorizing issuance of bonds for building program by agricultural high schools and providing exception from limitation of maximum indebtedness for benefit of counties bordering Gulf of Mexico held not violative of constitutional prohibition against local laws applicable to common school system, since such schools were established by exercise of constitutional right of Legislature to establish schools separate from common school system (Laws 1935, Ex. Sess., chap. 48; Code 1930, secs. 6674-6700; Const. 1890, sec. 90, cl. (p); secs. 201, 205, 206).
APPEAL from the chancery court of Hinds county. HON. V.J. STRICKER, Chancellor.
H. Chalmers Alexander, of Jackson, for appellant.
The agreed statement of facts shows that none of the forty-six thousand dollars of notes have actually been sold, or delivered and that the only relief asked for in the proceeding was a decree of validation pursuant to chapter 10 of the Mississippi Code of 1930. Such a proceeding is a judicial inquiry into the validity of the proposed notes prior to their actual sale and delivery and before any rights thereto have vested in any one. While not so denominated in the statute the proceeding is essentially one for a declaratory judgment or decree before any justiceable controversy has arisen. In the absence of any specific statutory authority for such a proceeding the courts in Mississippi are wholly without power or authority to hear a moot question or to render any purely declaratory judgment or decree.
Yates v. Beasley, 133 Miss. 301, 97 So. 676.
A comparison of the definitions of each of the five classes of school districts with the agricultural high school — junior college as defined in sections 6674 to 6700, inclusive, Code of 1930, shows that appellee cannot be classed as a school district.
It may be argued that the phrase "or any other district or subdivision" can be held to include appellant. We do not think so for the word "district" and the word "subdivision" both imply some territorial subdivision of the state. The appellee has no such characteristic.
Lienkouff v. Barnes, 66 Miss. 207, 5 So. 402; Greenville Ice Coal Co. v. City of Greenville, 69 Miss. 86, 10 So. 574; Anderson v. City of Hattiesburg, 131 Miss. 216, 94 So. 163.
The appellee does not come within the class of parties authorized to institute a proceeding of this character and the chancery court had no jurisdiction of the cause.
We contend that the proviso at the end of section 7, chapter 48, Laws of Mississippi Extraordinary Session of 1935, makes the statute a local, private and special law in violation of section 90 (p) of the Mississippi Constitution of 1890.
We are of the opinion with Judge ANDERSON that the entire system of public education in this state is divided into only two classes, (1) the common school system and (2) the university and colleges or institutions of higher learning. The agricultural high schools are either a part of the uniform system of free schools and therefore "common schools" within the meaning of section 90 (p) of the Constitution or else they are prohibited by section 201 of the Constitution.
2 Words Phrases (First Series), page 1335; Le Couteulx v. City of Buffalo, 33 N.Y. 333; People v. Brooklyn Board of Education, 13 Barb. 400; Powell v. Board of Education, 97 Ill. 375, 37 Am. Rep. 123; Roach v. Board of Trustees of St. Louis Public Schools, 77 Mo. 484; Board of Education of City of Topeka v. Welch, 33 P. 654; Ballinger's Ann. Codes St. Wash. 1897, p. 2334; 1 Words Phrases, 814, 815; School Dist. No. 20 Spokane Co. v. Bryan, 99 P. 28, 51 Wn. 498, 20 L.R.A. (N.S.), 1033; 2 Words Phrases (Third Series), 219, 220; 1 Words Phrases (Fourth Series), 464.
The term "common schools," in addition to appearing in section 90 (p) of the Mississippi Constitution, also appears in sections 202 and 206. At all other places in the Constitution, the schools are referred to as "a uniform system of free public schools" (sec. 201), and as "public school" (sec. 205, 206 and 207). We have examined the cases decided under all of these sections of the Constitution and find the following which shed light upon the question before the court, to-wit:
Otkin v. Lambin, 56 Miss. 658; Chrisman v. Brookhaven, 70 Miss. 477, 12 So. 458; Ellis v. Greaves, 82 Miss. 36, 34 So. 81; Turner v. City of Hattiesburg, 98 Miss. 337, 53 So. 681; Scarborough v. McAdams Consolidated School District, 124 Miss. 844, 87 So. 140; McLeod v. State, 154 Miss. 468, 122 So. 737; State Teachers College v. Morris, 165 Miss. 758, 144 So. 374; Morris v. Vandiver, 164 Miss. 476, 145 So. 228.
All of sections 6 and 7 of chapter 48, Laws of 1935, including the proviso in section 7 are phrased as general law. However, it is the well settled rule in Mississippi that in determining whether a statute is a general law or is a local, special or private law the court will consider its substance and its application rather than its form.
Toombs v. Sharkey, 140 Miss. 676, 106 So. 273; State v. Speakes, 144 Miss. 125, 109 So. 129.
It is also well settled that the Legislature may, within certain limitations, classify subjects of legislation and prescribe different rules for different classes without transgressing constitutional prohibitions against local, private or special legislation.
Toombs v. Sharkey, 140 Miss. 676, 106 So. 273; State v. Speakes, 144 Miss. 125, 109 So. 129; 25 R.C.L. 815; 1 Sutherland Statutory Constructions 196; Drainage District v. Buckner, 108 Miss. 427, 66 So. 784; Cox v. Wallace, 100 Miss. 525, 56 So. 461; Rankin County v. Davis, 102 Miss. 497; Halsell v. Mer. Union Ins. Co., 105 Miss. 268, 62 So. 235; Magee v. Lincoln County, 109 Miss. 181, 68 So. 76; Johnson v. Reeves, 112 Miss. 227; Coal Co. v. Ice Co., 118 Miss. 860; Jackson v. Inc. Co., 132 Miss. 415, 95 So. 845; Bank v. Miller, 147 Miss. 695, 112 So. 877; State v. Gilmer Gro. Co., 156 Miss. 99, 125 So. 710; Clarke v. State, 169 Miss. 369; Witty v. Drainage Dist., 126 Miss. 645, 89 So. 268.
Does chapter 48, Laws of 1935, provide for the management or support of the school, or incorporate it or grant it any privilege within the meaning of section 90 (p) of the Constitution? In the case of Scarborough v. McAdams Consolidated School District, 124 Miss. 844, 87 So. 140, it was directly held that a local and private act purporting to authorize issuance of bonds of a consolidated school district to aid in building, equipping and establishing a county agricultural high school was void as being in conflict with section 90 (p) Const. of 1890.
Hamilton v. Lafayette County, 133 Miss. 14, 96 So. 465.
Since the Hinds Agricultural High School-Junior College is owned solely by Hinds county which does not border on the Gulf the objectionable proviso does not apply to this case. The question, therefore, arises as to whether or not the objectionable proviso can be severed and stricken out leaving the balance of the statute as a consistent workable whole.
This court has, in many cases, applied the rule that an unconstitutional or invalid portion of a statute may be so stricken out. The rule is unquestioned. It is the application thereof which is the problem.
Fant v. Gibbs, 54 Miss. 396; Ballard v. Oil Co., 81 Miss. 507, 34 So. 533, 95 A.S.R. 476, 62 L.R.A. 407; State v. Sansome, 133 Miss. 428, 97 So. 753; State v. Jackson, 45 Miss. 745, 109 So. 724.
The elimination of the proviso only would be a radical re-writing of the limitations contained in sections 6 and 7, and would constitute "judicial legislation" of the type condemned in Ballard v. Oil Co., 81 Miss. 507; while the elimination of these two sections in their entirety would remove a standard provision which uniformly appears in all statutes authorizing issuance of bonds payable from taxes. An examination of the statutes of this state for the past generation authorizing issuance of bonds payable from taxes will thoroughly convince any one that some such limitation is considered by the Legislature to be essential in such statutes. We do not believe this court can indulge the presumption that the Legislature would have passed the bill without some such limitation contained in it.
We contend that such invalid portion of said statute is an integral portion of one inseparable and indivisible whole and that the entire statute is void because thereof.
H.V. Watkins and Ralph B. Avery, both of Jackson, for appellee.
We concede that chapter 10, Code of 1930, is the sole basis for the jurisdiction of the court.
In the present case the notes are authorized by chapter 48, Laws of 1935, to be issued by the Board of Trustees of the school and in the name of the school but they must also be authorized by the Board of Supervisors and are payable from county-wide ad valorem taxes to be levied by the Board of Supervisors. In all essential features the notes are obligations of the county. They are issued by an agency of the county, for the benefit of the county and are payable just as other county debts. Only in a mere matter of form or nomenclature do they purport to be anything else. We earnestly contend that in actual fact it is Hinds County issuing these notes and that the form is immaterial.
Is the Agricultural High School-Junior School a "school district?" It is not one of the five classes of school districts enumerated and defined by section 6622 of the Code of 1930, into which every county and every bit of land in the state must be divided. But is it not a county-wide district or subdivision for the purpose of constructing, operating and maintaining a particular kind of school? The fact that Hinds County is already divided into school districts as required by law does not prohibit the formation of another and county-wide district — to maintain a school of a different character. This court has approved a county-wide road district. Rosenstock v. Washington County, 112 Miss. 124, 78 So. 876, and has held that the indebtedness of the county for road purposes would not be counted against the statutory debt limit of the road district.
This court has also held that an overlapping road district might be created out of portions of two existing contiguous road districts and all three districts continue to exist and operate.
Wright v. Board of Supervisors of Lauderdale County, 124 Miss. 4, 86 So. 643.
On the question of whether or not appellee is "any other district or subdivision" we wish to call attention of the court to the language of section 315, Code of 1930, as follows: "any other district or subdivision whatsoever, as now existing or as may be hereafter created."
Is an Agricultural High School-Junior College a "common school?" At the threshold we meet the question of whether or not the Legislature has the power to create, by local or general law, a school supported by taxation which is not a common school.
It is a fundamental rule that the state constitution is a limitation upon the powers of the legislature and not a grant of powers. Therefore, if the constitution does not, either expressly or by necessary implication, deny such power to the Legislature then it exists.
Hinton v. Perry County, 84 Miss. 536, 36 So. 565.
There is no prohibition in the Constitution of 1890 against the creation of such schools by the Legislature unless it be in section 201. This section requires the Legislature to establish "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 high grade." The gist of the argument against the power of the legislature to create such schools outside of and in addition to the common school system is that the words "uniform system of free public schools" by implication prohibit the creation of any schools which are not a part of such uniform system. We do not believe the constitution should be given any such meaning. After requiring such a system to be established the writers of the constitution proceeded in section 205 to specify what should constitute the system, to-wit: "A public school shall be maintained in each school district in the county at least four months during each scholastic year." The same thought is again expressed in section 206 which provides for a "common school fund" sufficient to maintain the "common schools" for the term of four months in each scholastic year. This court has repeatedly said that the Legislature does have such power.
Chrisman v. Brookhaven, 70 Miss. 477, 12 So. 458; State Teachers College v. Morris, 164 Miss. 158, 144 So. 374.
The Legislature has power to establish schools outside of and in addition to the "uniform system of free public schools" so long as such schools do not invade the constitutional scheme, that the Legislature has established the uniform system required by the constitution, and the agricultural high school-junior colleges do not invade such scheme and therefore are outside of the "uniform system."
This court has held that words in the constitution will be given their common and ordinary meaning unless a contrary meaning be clearly indicated.
Dantzler Lbr. Co. v. State, 97 Miss. 355, 53 So. 1; Greene v. Weller, 32 Miss. 650; Brien v. Williamson, 7 How. 14.
The expression "common school" used in section 90 (p) of the Constitution is also used in section 206 of the Constitution where provision is made for a "county common school fund," which "shall be sufficient to maintain the common schools for the term of four months in each scholastic year." This expression, used by the constitution makers, was used in its common and ordinary meaning as such meaning had been developed by statute and usage in Mississippi from its earliest days.
From the earliest times, in Mississippi, down to the present time, a sharp line of demarcation has been drawn between "common schools" and all other schools, including free public high schools, and it is inconceivable that the Constitutional Convention did not have in mind this meaning of the expression "common schools" when it used it more than once in the constitution, nor that they did not mean to limit what was said in the constitution to be common schools as thus defined.
Does the proviso in section 7, chapter 48, Laws of 1935, make the statute a local, private or special law? We have carefully examined the Mississippi decisions upon the question of when a statute is a general law and when it is a local, private or special law. The rule laid down by this court in Toombs v. Sharkey, 140 Miss. 676, 106 So. 273, and in State v. Speakes, 144 Miss. 125, 109 So. 129, appears to be the settled law in this state. The other cases decided by this court all appear to be simply applications of the rule rather than variations therefrom. Our examination of authorities outside of Mississippi indicates that these two cases state the generally accepted rule. We, therefore, concede that the proviso is local and special law so far as the coast counties are concerned.
This court has held in the cases of Scarborough v. McAdams Consolidated School District, 124 Miss. 844, 87 So. 140, and Hamilton v. Lafayette County, 133 Miss. 14, 96 So. 465, that a statute authorizing issuance of bonds of a school district did grant a privilege to the school.
This court is committed to the rule that an unconstitutional portion of a statute which is separate and distinct from the balance of the statute may be stricken out and the remainder of the statute held to be valid.
Campbell v. Miss. Union Bank, 6 How. 625; Williams v. Cammack, 27 Miss. 208, 61 Am. Dec. 508; Brown v. Beatty, 34 Miss. 227, 69 Am. Dec. 389; State v. Cotton Oil Co., 95 Miss. 6, 48 So. 300; Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692; Holmes County v. Black Creek Drainage Dist., 99 Miss. 739, 55 So. 963; American Express Co. v. Beer, 107 Miss. 528, 65 So. 575; Hatten v. Bond, 112 Miss. 590, 73 So. 612; State v. Romback, 112 Miss. 737, 73 So. 731; Johnson v. Long Furniture Co., 113 Miss. 373, 74 So. 283; Enochs v. State, 133 Miss. 107, 97 So. 534; Moore v. Tunica County, 143 Miss. 125, 109 So. 129; B. L. Assn. v. Gulfport, 155 Miss. 498, 124 So. 658; Trahan v. State Highway Commission, 169 Miss. 732, 151 So. 178; Holloway v. Jones, 170 Miss. 99, 154 So. 340.
It is argued on behalf of appellant that the proviso in section 7 does not deal with a separate and independent portion of the act but that on the contrary it modifies and becomes an integral part of both sections 6 and 7 in their entirety and that the proviso cannot be stricken out without destroying, or at least re-writing sections 6 and 7 entirely. On a strictly logical basis this may be true. But in the final analysis is it not true that whenever the court severs an unconstitutional portion of a statute and enforces the remainder it is, in some measure, enforcing a statute different in meaning and effect from that passed by the Legislature. If the portion which is stricken out is meaningless so that its elimination does not change the effect of the act then its presence in the act would not render the act unconstitutional. Before any portion of a statute is declared unconstitutional the court must construe it to have a meaning and that such meaning violates the constitution. Then its elimination from the statute necessarily leaves the remainder with a meaning different from that which it had as enacted by the Legislature. The argument carried to its logical conclusion destroys the power of the court to ever sever an unconstitutional provision. We do not believe this court is going to utterly abandon this rule which is embedded in our jurisprudence for nearly a century and which has survived two revisions of our state constitution. Feeling certain, therefore, that this court will eliminate invalid provisions of the statute, even though it makes a law somewhat different from that drafted by Legislature, we will, in the light of the rules laid down by the Supreme Court of the United States in Carter v. Carter Coal Co., 80 L.Ed. 749, and the decisions of this court, undertake to show that the proviso, and the proviso alone, can and should be stricken from the statute as unconstitutional.
Holmes County v. Black Creek Drainage District, 99 Miss. 739, 55 So. 963; Campbell v. Bank, 6 How. 625; Williams v. Cammack, 27 Miss. 208, 61 Am. Dec. 508; State v. Cotton Oil Co., 95 Miss. 6, 48 So. 300.
Of course, there is another limitation on the power of the court to sever invalid portions of a statute and that is that the remainder of the statute constitute a consistent, complete, workable whole reasonably designed to accomplish the main purpose for which the statute was enacted. We think it is obvious that the elimination of the proviso will not affect the act in this respect. Such elimination will only operate to prevent one school qualifying under the act leaving all others bound by the same rules as they would be if the proviso was valid.
We say that the Chancellor did not err in validating the notes because: (a) The Agricultural High School-Junior Colleges are not "common schools" within the meaning of section 90 (p), Constitution of 1890, and therefore local, private and special legislation relating thereto is not violative of said constitution; and (b) If Agricultural High School-Junior Colleges are such "common schools" then the proviso in section 7 of the statute is the only portion of said statute which is invalid and the same can and should be severed and the remainder of the statute held valid.
The Hinds County Agricultural High School-Junior College was duly created by the local authorities; the territorial limit of the taxing power to support said school is confined to Hinds county, and the funded indebtedness of Hinds county does not exceed the ten per cent. provided for in chapter 48, Laws of Mississippi 1935, Extraordinary Session, when the proposed loan is added to the total funded indebtedness. The Board of Trustees of Hinds county passed a resolution to accept a loan from the government, complying, in all respects, with the law in making application therefor, and certified its resolution to the Board of Supervisors of Hinds County. The Board of Supervisors duly considered this resolution and passed the necessary orders to comply with chapter 48, Laws of Mississippi 1935, Extraordinary Session, and with the requirements of the Federal Government; approved said proceedings, and certified same to the State Bond Attorney for his opinion. The State Bond Attorney certified that the notes were, in all respects, lawful, and that the law had been complied with in the proceedings, and the bonds were valid. The proceedings were then sent to the chancery court of Hinds county, notice was served to all persons to show cause, on a given date, why the bonds should not be validated, as provided by law.
L.R. Humphreys filed objections thereto upon the same grounds relied on in the case of Wyatt v. Harrison-Stone-Jackson Agricultural High School-Junior College (Miss.), 170 So. 526, this day decided, and the two cases presented the same questions, with the exception that the Hinds County Agricultural High School-Junior College is confined to the territorial limits of Hinds county, while the other is composed of two or more counties.
The case at bar is controlled by the principles announced in the case of Wyatt v. Harrison-Stone-Jackson Agricultural High School-Junior College, supra, and the judgment of the chancery court of Hinds county must be affirmed.
Affirmed.