Bull v. Read

• Court: Virginia Supreme Court
• Writing for the Court: LEE, J.
• Citation: Bull v. Read, 54 Va. 78 (1855)
• Decision Date: 23 November 1855
• Parties: BULL & als. v. READ & als.

54 Va. 78

BULL & als. v. READ & als.

Supreme Court of Appeals of Virginia.

November 23, 1855

1. A statute having provided for a system of free schools in a particular district in a county, and provided for commissioners to establish and manage the schools; some of the inhabitants of the district may file a bill in behalf of themselves and the other inhabitants against the commissioners, to test the validity of the act, and the propriety of the proceedings of the commissioners under it.

2. Where a large number of persons are interested in a common subject, and acts are done to the injury of the common right the approval of the majority will neither excuse the wrong nor take away from the other parties their remedy by suit.

3. An act is passed providing for the establishment of a system of free schools in a particular district in a county; and it provides that it shall not be carried into effect until the people of the district shall, by a vote taken for the purpose, approve it. A majority of the people of the district having approved it by their vote, the act is a valid and constitutional law.^[a1]

4. The act provides for the election of certain commissioners who are authorized to establish schools in the district, and to levy taxes for their support. This is constitutional.

5. The commissioners being authorized to establish schools and levy taxes sufficient to defray the expenses thereof; they may build the necessary school-houses, and levy sufficient taxes to pay for them.

6. The act authorizes the commissioners to levy a capitation tax upon the white male inhabitants, and an ad valorem tax upon the property of the district, sufficient to raise the amount necessary to defray the expense of the schools. This provision is to be construed in accordance with the constitution; and the capitation tax is properly levied upon the white male inhabitants above twenty-one years of age only; and the ad valorem tax upon slaves is properly levied upon slaves over twelve years of age, and valued each at three hundred dollars. And the ratio of the capitation to the ad valorem tax may be greater than that prescribed in the constitution. Article 4, § 25.

Thomas W. Bull and sixteen others, white male inhabitants of the first magisterial district in the county of Accomack, in behalf of themselves and the other inhabitants of said district, except the defendants, applied to the judge of the Circuit court of that county for an injunction against the board of school commissioners of that magisterial district. In their bill they set out the provisions of an act of the general assembly of Virginia, passed the 31st of March 1853 entitled, " An act to establish the first magisterial district free school in the county of Accomack." By the first section of this act it is provided, that that portion of Accomack county known by the name of the first magisterial district, shall form a district distinct from the other portions of the county. By the second section, the County court of said county is directed to order a vote to be taken in said district for or against the establishment of a separate free school system within and for that district; and the court is directed to appoint a day not exceeding six months after the passage of the act, and a suitable place within the district for holding said election. The third section provides that commissioners of election shall certify the result of the election to the court within ten days from the time of holding the same. The fourth section declares that if three-fifths of the voters be in favor of adopting a separate free school system within and for said district, the said court shall have the fact entered on the minutes of their proceedings: And this section also provides for three commissioners. These commissioners are constituted a corporation under the name and style of " The Board of school commissioners for the first magisterial district free school in Accomack county; " with power to sue and be sued, and to " take and hold, to them and their successors in office, any property which may be given granted, bequeathed or devised to them, or which they may purchase, to an amount not exceeding twenty-five thousand dollars." The commissioners are authorized to establish if they deem it necessary, more than one school for said district, at such place or places therein as they think best adapted to the wants and convenience of the scholars in said district. The ninth section provides for the boards holding annual meetings to " ascertain the amount necessary to defray the expense of the school or schools for said district; " and declares, that " the said board shall levy a capitation tax upon the white male inhabitants, and an ad valorem tax upon the property of said district sufficient to raise the necessary amount: provided such amount be not less than two hundred and fifty dollars per annum. " There is a provision for the appointment of a superintendent, who is to be the treasurer and clerk of the board; and he is to collect the taxes assessed by the board, with the powers of sheriffs in the collection of county and state taxes. And another section provides for abolishing the system by a majority of the votes taken as therein provided.

The vote having been taken according to the directions of the act, the system was adopted by a vote of one hundred and seventy-two to twenty-five; and subsequently, Richard P. Read, Augustus J. F. Kellam and James R. Garrison, were elected commissioners. These commissioners organized by appointing Obed P. Twiford superintendent. They then determined on the number and fixed the location of the school-houses, fixing the number at eight; and they proceeded to let out to the lowest bidder the contracts for building the houses; the aggregate cost of the eight amounting to three thousand seven hundred and ninety-seven dollars and ten cents. At another meeting, in March 1854, they proceeded to assess the tax for that year, laying a capitation tax on white males above twenty-one years old, at five dollars; slaves over twelve years valued at three hundred dollars, tax on land, slaves and personal property, at fifty cents on the hundred dollars; the whole assessment amounting to about six thousand five hundred and twenty-five dollars.

The plaintiffs in their bill insist that the board had no authority, under the act of assembly, to build school-houses, or to raise funds, by taxation, for that purpose. That the board should have levied a capitation tax on all white male inhabitants of the district, of whatever age, instead of restricting it to those above the age of twenty-one years. That the mode of levying the tax on slaves, in confining it to those above the age of twelve years, and fixing the value of all above that age at three hundred dollars, was in violation of the act of assembly: And that the act itself was unconstitutional and void, in providing that it should be submitted to the vote of the people of the district for ratification.

The defendants to the bill were the three commissioners and the superintendent, who filed their answer, and put in issue the several questions raised by the plaintiffs. And the cause coming on to be heard on the 24th day of January 1855, the injunction which had been granted was dissolved and the bill dismissed. Whereupon the plaintiffs applied to this court for an appeal, which was allowed.

Patton, for the appellants:

1st. To show that the mode of proceeding by bill in equity was proper, referred to Calvert on Parties 35, 17 Law Libr.; Story's Equ. Pl. § 114, 115, a, b; Bromley v. Smith, 2 Cond. Eng. Ch. R. 5; Milligan v. Mitchell, 3 Mylne & Craig 72, 84; Goddin v. Crump, 8 Leigh 120; Osborn v. Bank U. S. 9 Wheat. R. 738; Bonaparte v. Camden & Amboy R. R. Co. Baldwin's R. 205, 218; Gardner v. Village of Newburgh, 2 John. Ch. R. 162; Belknap v. Belknap, Id. 463.

2d. To show that this act was to be construed as a private act, he referred to 7 Dodd's Bac. Abr. title Statute, letter F, p. 444; Dwarris on Statutes, p. 629, 9 Law Libr. And to show that a private statute was not to be liberally construed, he referred to Threadneedle v. Lyman, 2 Mod. R. 57. And that when a law is plain and unambiguous, there is no room for construction, but it is to be understood according to its terms, he referred to United States v. Fisher, 2 Cranch's R. 358, 386, 390, 399; Lofft's R. 438; Dwarris on Statutes, 711, 748, 750, 9 Law Libr.; Rex v. Croke, Cowp. R. 26; Jones v. Smart, 1 T. R. 52.

3d. He insisted that though the act, Sess. Acts 1852-3, p. 232, provides for schools, and authorizes a levy for the amount of the annual expenses of the school, it does not authorize a levy for building schoolhouses; and the language is inconsistent with and inapplicable to that object. The word school refers to pupils, not the house in which they are taught. And he referred to many acts of the general assembly establishing such schools, in all of which, except those relating to the county of Accomack, the authority to build or purchase school-houses was expressly given. He referred to Priestman v. The United States, 4 Dall. R. 30, note 1; Moser v. Newman & Boole, 19 Eng. C. L. R. 165; and he insisted that if the general assembly intended to give this power, quod voluit non dixit.

4th. That the act did not authorize the omission of all the white males under twenty-one years old, from the capitation tax nor the omission of slaves under twelve, or the fixing the price of every slave over twelve at three hundred dollars, in laying an ad valorem tax upon personal property. That when the act said white males, it included all of them, and when it authorized an ad valorem tax upon personal property, it meant all of it. That the board had no authority to adapt the act to...