Ellis v. Greaves

• Decision Date: 13 April 1903
• Citation: 82 Miss. 36,34 So. 81
• Court: Mississippi Supreme Court
• Parties: ISAAC N. ELLIS v. J. B. GREAVES, DISTRICT ATTORNEY

34 So. 81

82 Miss. 36

ISAAC N. ELLIS v. J. B. GREAVES, DISTRICT ATTORNEY

Supreme Court of Mississippi

April 13, 1903

FROM the circuit court of Copiah county. HON. ROBERT POWELL Judge.

Greaves district attorney, appellee, was plaintiff in the court below; Ellis, appellant, was defendant there. The suit was a quo warranto proceeding to remove Ellis from the office of trustee of the Hazlehurst public school. From a judgment in plaintiff's favor defendant appealed to the supreme court.

The case was tried upon an agreed state of facts, published in full by order of the court, which was as follows:

AGREED STATE OF FACTS.

"In 1888 the legislature of the state passed an act 'to authorize the board of mayor and aldermen of the town of Hazlehurst, Miss., to issue the bonds of the said town for the purpose of purchasing a site and erecting buildings thereon for the public schools of said town, and for other purposes.' See Acts 1888, p. 173, c. 148. And it is agreed that the whole act is a part of these agreed facts though not set out in full here. After providing for the issuance of $ 15,000 in bonds, for the purpose as indicated in the act, by the board of mayor and aldermen of the said town of Hazlehurst, the rate of interest, the time the bonds should run, etc., and giving the mayor and board of aldermen certain powers therein named with respect to the then school building, the act proceeds, in section 6, as follows: 'Be it further enacted, that L. B. Harris,' etc., naming therein thirty-two others, Isaac N. Ellis being one of them--'be and they are hereby appointed a board of trustees of the public schools of the town of Hazlehurst, and shall hold their office for twenty years, and until their successors are elected; provided, no person shall hold the office of trustee unless they reside within the corporate limits of said town, and in case of any vacancy caused by death, resignation or removal from the corporate limits of the said town, or from any other cause, the remaining members of said board of trustees shall meet on the first Monday in May, 1888, and organize by electing a president and secretary, who shall hold their office for one year, and a majority of said board shall constitute a quorum. Said board may meet at any time upon the call of the president. They shall, on the first Monday of May, 1888, and annually thereafter, elect by ballot seven of their number, who shall constitute a board of control for the public schools of said town, and shall hold their office for one year, and until their successors are elected.'

"It is agreed that Isaac N. Ellis was appointed a member under the original act, and has been a member of the board of trustees ever since, and is also one of the board of control authorized to be selected under the above act, and that he was regularly selected, agreeably to the provisions of the said act, by other trustees. It is also agreed that the number of trustees now acting is only twenty-six, and has never exceeded that number, for the reason that, when the trustees originally organized under said charter, they found that all of the balance of the members named in said charter were non-residents of the town of Hazlehurst, and not eligible under the terms of the charter to act as trustees. That since said organization there has never been any election of trustees to fill the vacancies occasioned by the ineligibility of those who were non-residents of the town but the original number of twenty-six trustees as organized under the act has been kept up, except, perhaps, in one or two instances, in the case of death or removal, the vacancy was not promptly filled through oversight or inadvertence.

"It is also agreed that only fifteen of the original trustees who organized under the original act are now acting as such, the balance having died, resigned, or moved away, and their places having been filled under the act of 1888. Since the code of 1892 was adopted, five members of the acting board have been elected as members of the board of trustees, and are now acting as such with said board, and their actions are governed by the act of 1888, and not by the code chapter on schools.

"It is also agreed that, in 1900, Isaac N. Ellis was elected as a member of the board of aldermen of the town of Hazlehurst and that he qualified as a member of the same, and is now on the beard of aldermen of the town of Hazlehurst, and acting in that capacity for the said town, and is also a member of the board of trustees for the public schools of said town. It is also agreed that by acts 1890, p. 186, c. 135, § 3, the following power is given the board of control of the said town of Hazlehurst, of which Ellis is a member, to-wit: That the board of control of the said town of Hazlehurst shall annually, prior to the time the board of mayor and aldermen of the said town makes the levy for the corporation taxes in each year, make an estimate of the amount of money necessary to carry on the public schools of the town of Hazlehurst for the ensuing year, and it shall be the duty of the said board of mayor and aldermen to levy a tax upon the persons and property of the said town, subject to other taxation, sufficient to raise the amount so reported by them by the said board of control, to be collected the same as other taxes are now collected; said sum so raised to be used by the said board of control to carry on the public schools of said town. Should the board of control, from any cause, fail or neglect in any year to make and report said estimate of the amount of money necessary to carry on the public schools, then the board of mayor, and aldermen shall make such levy as will, in their judgment, be necessary to carry on said schools for the ensuing year. All of the foregoing facts are agreed to, subject to objections for irrelevancy, incompetency, and insufficiency.

"(Signed)

R. B. MAYES, Attorney for Plaintiff.

J. S. SEXTON, Attorney for Defendant."

Judgment affirmed.

J. S. Sexton, for appellant.

Of course it is well understood that statutes are not to be set aside as unconstitutional unless they are manifestly so, and, for my part, I have not been able to find any apparent conflict between this statute and any constitutional provision. As was well said by Judge Campbell in the case of Wynn v. State, 67 Miss. 317, "It may be difficult to determine the precise meaning of the expression 'uniform system of free public schools' as used in the constitution," but in that case the court held that the acts of 1888, p. 36, providing for the election of county superintendents of education in some, but not all, of the counties, did not violate the constitution in respect to the "uniform system of free public schools" provided for thereby, and when it is remembered that a very large number of separate school districts were organized under the constitution of 1869 with substantially similar provisions to those found in the act complained of, and when it is further remembered that, notwithstanding this contemporaneous construction of the constitution of 1869 by all of the legislatures held in the state from that date to the time when the constitutional convention of 1890 adopted the constitution of that year, it is remarkable, to say the least that, if such statutes trenched upon the constitution, it was not discovered by any of said legislative bodies, and it is still further remarkable that the convention of 1890, in section 201 of the constitution enacted by it, should have re-enacted, word for word (omitting the preface), section 1 of article 8 of the constitution of 1869, without any reference to such conflicts or without the addition of such precautions as would have prevented such conflicts in the future.

The first legislature which met in the state, after the constitution of 1869 was adopted, in the acts of 1870, incorporating "Whitworth College," "Meridian Female College," "Verona Female College" and several others, enacted provisions for the selection of the trustees thereof, precisely of the same character as the provisions of the charter of the Hazlehurst high school, which are now objected to, and this practice has continued in this state ever since. In fact, if there is any one thing about which the legislative power had never been questioned in this state, it is its power to provide for the selection of trustees of schools and officers of private corporations according to its own will. The University of Mississippi furnishes another illustration here, because, notwithstanding its original charter provided for the appointment of the original trustees, which was made by the legislature, and for filling vacancies by their own body, chapter 68 of the acts of 1870 provides that all of said appointments shall be made by the governor of the state, and my recollection is, though I have not taken the pains to verify it, that at one time during the reconstruction regime the legislature provided for the selection of the trustees of the university by the legislature itself.

There is no mode provided for in the constitution of 1869 by which the trustees of the public schools of the state, and the separate school districts thereof, are to be selected or vacancies in such boards supplied, and the legislature was left perfectly free in the matter of making such selections and filling such vacancies.

It is stated in the opinion of the circuit court that the powers conferred upon this board of trustees are "powers which vitally effect the domestic affairs of the town of Hazlehurst." That the trustees of the school have the power, among other things, "to assess an annual tax upon all of the property of the...