Harrison v. Day, No. 4929

• Docket Nº: No. 4929
• Citation: 106 S.E.2d 636, 200 Va. 439
• Case Date: January 19, 1959
• Court: Supreme Court of Virginia

Page 636

106 S.E.2d 636 200 Va. 439 ALBERTIS S. HARRISON, JR., ATTORNEY GENERAL OF VIRGINIA
v.
SIDNEY C. DAY, JR., COMPTROLLER OF VIRGINIA. Record No. 4929. Supreme Court of Appeals of Virginia. January 19, 1959.

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[200 Va. 441] A. S. Harrison, Jr., Attorney General and R. D. McIlwaine, III, Assistant Attorney General (Kenneth C. Patty, Assistant Attorney General on brief), for the petitioner.

Samuel H. Williams, for the respondent.

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JUDGE: EGGLESTON

EGGLESTON, C.J., delivered the opinion of the court.

This is a petition for a writ of mandamus filed in this court by the Attorney General against the Comptroller, pursuant to Code, § 8-714, to determine the validity of a number of related acts of the General Assembly affecting the operation of the public schools throughout the Commonwealth. The proceeding was instituted when the Comptroller, in a letter to the Attorney General, expressed doubt as to the validity of certain provisions in the acts and the regulations of the State Board of Education authorizing the issuance of warrants by the Comptroller to reimburse local school boards for the State's share of disbursements made for the payment of tuition grants, to be expended in furtherance of the elementary and secondary education of Virginia students in nonsectarian private schools. The matter is before us on the pleadings and the exhibits filed therewith, and the issue is whether the statutes involved violate certain provisions of the Constitution of Virginia and the fourteenth amendment to the Federal Constitution.

The several acts involved are summarized in the margin. ¹

[200 Va. 442] It will be observed that the stated purpose of the plan embodied in these acts

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is to prevent the enrollment and instruction of white and colored children in the same public schools. To that end, all elementary and secondary public schools in which both white and colored children are enrolled are, upon the happening of that event, automatically closed, removed from the public school system, and placed under the control of the Governor. All State appropriations for the support and maintenance of such schools are cut off and withheld from them. Such State funds so

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withheld, and certain other funds raised by local levies, are to be used for the payment of tuition grants for the education in nonsectarian private schools of [200 Va. 443] children who have been attending such public schools, who cannot be assigned to other public schools, and whose parents or custodians desire that they do not attend schools in which both white and colored children are enrolled and taught. Schools which may be policed under federal authority, or disturbed by such policing,

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are, upon the happening of that event, likewise automatically closed, and, under related statutes, tuition grants are made available for pupils who have been attending such schools.

The immediate question presented is whether the plan meets the requirements of the Constitution of Virginia.

[200 Va. 444] In his opening brief the Attorney General took the position that the mandatory requirement of Section 129 of the Constitution that 'The General Assembly shall establish and maintain an efficient system of public free schools throughout the State,' is no longer effective and binding, because, he said, Section 129 is predicated upon the validity of Section 140 which provides that 'White and colored children shall not be taught in the same school,' and that when Section 140 was invalidated by the decision of the Supreme Court of the United States in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.ed. 873, this 'necessarily entailed the simultaneous emasculation of Section 129 and its extirpation from the organic law of the Commonwealth.'

[200 Va. 445] When it was argued in the brief of the respondent that the statutory plan also violates the provisions of Sections 130, 133, 135 and 136, Article IX, of the Constitution, the Attorney General amended his position and contended in his reply brief and in his oral argument before us, that all of the other provisions in Article IX dealing with 'Education and Public Instruction,' like Section 129, are predicated upon the right of the Commonwealth, as embodied in Section 140, to operate segregated public free schools, and that when Section 140 fell under the axe of the Brown case, all of the provisions in Article IX became inoperative. He thus summarized his position:

[200 Va. 446] 'In light of what has been said, it is manifest that racially integrated public schools and schools comprising an inefficient system are beyond the scope of Article IX of the Virginia Constitution and are not comprehended by any of the provisions of that Article. This is so, not because schools of this character were unknown and given no consideration by the framers of the Virginia Constitution, but because such

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schools were considered by the framers, were found to be fundamentally objectionable, and were consequently excluded from the ambit of Article IX entirely. It follows that no racially integrated public schools and no schools comprising a system deemed to be inefficient by the General Assembly can find any warrant for existence or possess any standing whatever under the Virginia Constitution.'

In short, the Attorney General says, the General Assembly now has plenary power to deal with the public free school system in any manner it may deem fit, unfettered by any requirements of, or limitations in, the Constitution of Virginia.

The provisions of the Constitution do not permit the matter to be so summarily disposed of. In the first place, there is no word or suggestion in any provision in Article IX, or elsewhere in the Constitution, that these provisions which were incorporated in the Constitution along with Section 140 are conditioned upon the validity of that section. It would have been a simple matter to have qualified the mandate of Section 129 by stating that the obligation to establish and maintain an efficient system of public free schools was expressly conditioned upon the segregation of children of the two races, or to have so defined an 'efficient system.' Similarly, by appropriate language, the other provisions in Article IX could have been expressly conditioned upon the validity and operation of Section 140. This was not done.

In the next place, there is nothing in the Debates of the Constitutional Convention to indicate that the framers intended that Section 140 was to have this effect. Article VIII, § 3, of the Constitution[200 Va. 447] of 1869 had provided for the establishment of a public free school system in this language: 'The general assembly shall provide by law, at its first session under this constitution, a uniform system of public free schools, and for its gradual, equal and full introduction into all the counties of the state, by the year 1876, or as much earlier as practicable.' In the Convention of 1901-02 there was considerable debate in reframing this provision in the language of Section 129 of the present Constitution. Likewise, there was considerable discussion of what are now Section 130, dealing with the function of the State Board of Education, and Sections 133, 135 and 136 dealing with the local administration of schools, the State appropriations for school purposes, and the levying and expending of local school taxes. There is nothing in the debates on these sections to indicate that their validity or operation was to be conditioned upon the validity of Section 140.

It is true that the framers of the Constitution of 1902 intended that white and colored children should not be taught in the same public schools. That is the plain purpose and intent of Section 140. They had been assured by Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.ed. 256, decided in 1896, just five years before the members of the Convention assembled, that this was permissible under the Fourteenth Amendment. The Debates of the Convention also show that Section 140 was adopted without discussion. ² It is extremely unlikely that this would have been accomplished had the framers intended, as the Attorney General argues, that all of the provisions in the Constitution dealing with educational matters were predicated upon the validity of Section 140.

In considering other provisions relating to educational matters there was discussion as to whether some of the members of the General Assembly, in carrying out the mandate of the Constitution of 1869 for the establishment of a system of public free schools, favored mixed schools. ³ But beyond

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this, the subject of mixed or segregated schools was not discussed.

Moreover, if it be 'manifest,' as the Attorney General contends, that all of the provisions in Article IX with respect to public education became inoperative when the decision in the Brown case struck down Section 140 of the Constitution, surely that view would have been presented to this court when we had under consideration in [200 Va. 448] Almond v. Day, 197 Va. 419, 89 S.E.2d 851 (decided in 1955 after the decision in the Brown case), the power of the General Assembly under Section 141, as it then read, to appropriate funds for the education of war orphans in private schools.

Furthermore, why then was it necessary that a constitutional convention be held in 1956 to amend Section 141 so as to authorize the appropriation of funds for the education of Virginia students in nonsectarian private schools? If the Attorney General be correct in his position, the General Assembly, at that time, had plenary power to deal with the public school system as it saw fit and no constitutional authority by amendment to Section 141 was necessary.

It is earnestly contended by the Attorney General that the meaning, intent and purpose of Section 129 of the Constitution should be ascertained by resort to extrinsic evidence, especially with regard to the...