Chrisman v. Town of Brookhaven

• Decision Date: 30 January 1893
• Citation: 70 Miss. 477,12 So. 458
• Court: Mississippi Supreme Court
• Parties: C. C. CHRISMAN ET AL. v. CITY OF BROOKHAVEN

12 So. 458

70 Miss. 477

C. C. CHRISMAN ET AL. v. CITY OF BROOKHAVEN

Supreme Court of Mississippi

January 30, 1893

FROM the chancery court of Lincoln county, HON. H. C. CONN Chancellor.

By § 5 of "an act to amend the charter of the city of Brookhaven," approved February 17, 1890, the board of mayor and aldermen of said city were authorized to issue bonds, in an amount not exceeding fifteen thousand dollars "for the purpose of purchasing a site and erecting thereon suitable buildings for the use of the public schools of said city, and to purchase all necessary furniture, etc for said schools." It further provided, that of the said bonds, $ 3,000 might be used for the purchase of a site and the erection of a suitable building for the free public school for colored children, and the balance of the proceeds of the bonds should be used for said purposes for the white schools.

Other sections of the act provide for the levy of a special tax to pay the bonds and interest, and it is provided that the title to the lot and buildings and apparatus so purchased or acquired shall vest absolutely in the city. Power is also conferred on the trustees of the public schools to lease out the school-buildings for a series of years, provided the lessee carries on the schools for at least ten months in each year, and free tuition is afforded the educable children of the city.

Section 9 of the act, in seeming conflict with § 5, provides that "the proceeds of said bonds shall be used by the mayor and board of aldermen for purchasing a suitable site and erecting thereon suitable buildings, for the white public school of said city."

Bonds were issued as provided for by said act, for the purpose of building and equipping a separate school for whites in said city, and a special tax was levied to pay the accruing interest thereon.

This bill was filed by certain resident tax-payers of the city seeking to enjoin the collection of the tax, their contention being that the bonds are void, because so much of the. act authorizing the establishment of separate schools for whites and blacks, and taxation to pay therefor, is violative of the fourteenth amendment of the constitution of the United States, and also of the constitution of 1869 of this state.

Section 21, article 1, which it is claimed is violated by said act, is as follows: "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, That nothing herein contained shall be so construed as to prevent the legislature from appropriating the school-fund in accordance with the article in this constitution relating to public schools."

The other provisions involved are those providing for the establishment of a uniform system of free public schools ( § 1, art. 8), and for equality and uniformity of taxation (§ 20, art. 12).

Aside from the alleged invalidity of the bonds on constitutional grounds, the bill alleges certain irregularities and misconduct on the part of the trustees in selling a portion of the bonds, in selling some to persons interested as aldermen or trustees, and in purchasing a site, the title to which is doubtful and in controversy. But, as these and other matters alleged do not affect the validity of the bonds and only relate to the conduct and management of the schools, and are not insisted on in this court, it is not deemed necessary to state the case in any other aspect.

The court sustained a demurrer to the bill, and dismissed it, and from this decree complainants appeal.

Affirmed.

R. N. Miller and Nugent & Mc Willie, for appellants.

The Brookhaven charter provides for a system of public schools wholly irreconcilable with the general system provided by the act of 1886 for all public schools in the state. The latter squares with the organic law; the former is a wide departure from it. It provides for a public school under the entire control of trustees, whose duties are nowhere defined in the charter or its amendments. We submit that, in view of the utterance of this court in Otken v. Lamkin, 56 Miss. 758, the act is unconstitutional in so far as it authorizes the purchase of grounds, the establishment of the school and issuance of bonds. The scheme provided by the act for leasing the school-building is wholly different from the constitutional scheme. If the act is maintainable, it overthrows the uniform system of free public schools.

We concede that a local tax to construct a public school-building is valid. Daily v. Swope, 47 Miss. 378. But it must be a school-house, constructed as a common free school-building, under art. 8 of the constitution.

We do not contend that the races may not be separately educated upon equal terms at public expense. This is to be commended. We, however, assume from the act itself that equal advantages are not secured to the colored children of the city. For this reason the act is violative of § 21, art. 1, const. 1869. This section refers to any moneys raised by taxation, whether in a city or in the state. The school-building is a "public institution," the charter makes the appropriation, and the money from taxation is "public money," and the exclusion of negro children is a "distinction among the citizens of the state."

The act also violates the fourteenth amendment to the constitution of the United States. See Ward v. Flood, 17 Am. Rep., 405; Roberts v. Boston, 5 Cush. (Mass.), 198.

Since the main and obvious scheme of the act of 1890 is to provide for the issuance of bonds and taxation for a public school for whites, and this is unconstitutional, the whole act must fail.

R. H. Thompson, for appellees.

Complainants cannot, in this suit, complain of any mismanagement of the school taught in the building, to pay for which the bonds were issued. The only matter involved is the validity of the bonds and of the tax. The argument for appellants is, that, while the races may be separated in public schools, this must be done as a matter of management, after buildings are provided; that when a public school-building is being provided and a tax levied, the real purpose--to separate the races--must be concealed or obscured. Of course, such a conception is without merit. The main controversy involved is too well settled to need argument.

H. Cassedy, on the same side.

The legislation under which the bonds were issued is in strict harmony with the general scheme provided for free public...