Hewes v. Langford

• Decision Date: 23 June 1913
• Citation: 62 So. 358,105 Miss. 375
• Court: Mississippi Supreme Court
• Parties: F. S. HEWES, CLERK OF BOARD OF SUPERVISORS v. W. R. LANGFORD

62 So. 358

105 Miss. 375

F. S. HEWES, CLERK OF BOARD OF SUPERVISORS v. W. R. LANGFORD

Supreme Court of Mississippi

June 23, 1913

March 1913

APPEAL from the circuit court of Harrison county, HON. T. H BARRETT, Judge.

Petition by W. R. Langford against F. S. Hewes, Clerk of the Board of Supervisors for mandamus to compel respondent, as clerk of the board, to issue a warrant for the payment of certain teachers' certificates. A demurrer having been interposed to defendant's answer, and sustained, the writ was ordered and respondent appeals.

The facts are fully stated in the opinion of the court.

Reversed and case dismissed.

Whitfield McNeil & Whitfield, for appellant.

Section 90 of the constitution of 1890 is in the following words "The legislature shall not pass local, private or special laws in any of the following enumerated cases, but such matters shall be provided for only by general laws, viz:

(p) Providing for the management or support of any private or common school, incorporating the same, or granting such school any privileges."

The legislature of the state of Mississippi, in pursuance of said section 90 of the Constitution of Mississippi of 1890, enacted section 4530 of the Code of 1906, which is in the following words: "Any municipality, by an ordinance of the mayor and board of aldermen thereof, or any unincorporated district of not less than sixteen square miles, by the county school board, on a petition of a majority of the qualified electors therein, may be declared a separate school district, but shall not be entitled to the rights and privileges of a separate school district unless a free public school be maintained therein for a term of at least seven months in each scholastic year."

Said section 4530 is a general law, as provided by the constitution, and applicable to every county in the state, and provides an express minimum limitation on the area of every separate school district created or established out of any unincorporated district, to-wit: Sixteen square miles, and is the complete and sole authority for the creation of municipal or rural separate school districts and is clearly constitutional and valid.

Furthermore, said section 4530 of the Code of 1906 has been construed by this court in the case of Jones County v. Grisson et al., 52 So. 629, where MAYES, C. J., speaking for the court, says: "Section 4530 of the Code of 1906, authorizes a separate school district to be created out of 'any unincorporated district of not less than sixteen square miles, by the county school board, on a petition of the majority of the qualified electors therein.' This section, interpreted in the light of the other sections dealing with this subject, leaves no doubt in our minds but that each county must act for itself, and no separate school district of any unincorporated territory can be created, unless it is wholly within the county and contain not less than sixteen square miles. The only exception to this is found in section 4533 of the Code. This last section (that is, 4533) allows separate school districts to be created out of 'any part of a county or counties adjoining a municipality which is a separate school district,' to be included in such district, when a petition is filed for this purpose."

And yet, in the face of subsection (p) of section 90 of the Constitution of 1890, and also directly in the face of section 4530 of the Code of 1906, passed in pursuance of the constitutional provision, the legislature of 1912 did enact chapter 288 of the Laws of 1912.

It is perfectly manifest from a mere reading of said act that the territory described therein is greatly less than sixteen square miles, as required by the general law, section 4530 of the Code of 1906, applicable to every county in the state, and it is further perfectly manifest that said act is applicable only to Harrison county, Mississippi, and no other county said act is therefore necessarily and manifestly a special act, a local act, and a private act in direct conflict with section 90 of the Constitution of 1890, which mandatorily and expressly requires that the legislature shall not pass local, private or special laws providing for the management or support of any private or common school incorporating same or granting such school any privileges. Chapter 288 of the Laws of 1912 plainly undertakes to incorporate a separate school district out of unincorporated territory. In other words, it undertakes to incorporate or establish a common school in Harrison county, Mississippi, by an act which is necessarily local and special and has no applicability to any other county than Harrison county, Mississippi. Not only is it not a general law, as required by the Constitution, but it is in direct conflict with the general law passed in pursuance of the constitutional provision, in that the area described is less than sixteen square miles, and in direct conflict with the opinion of this court in Jones County v. Grisson et al., already quoted from.

It would seem that a mere reading of the constitutional provision, followed by a reading of this statute, would be entirely sufficient to convince the court beyond all doubt that the act is manifestly and beyond all doubt unconstitutional and void, and that, therefore, the circuit court erred in sustaining the demurrer to appellant's answer to the petition for a writ of mandamus, and that the court should have overruled the demurrer promptly, and have denied the writ of mandamus and held that chapter 288 of the Laws of 1912, in pursuance of which, as expressly set out in the petition of appellee, the separate school district was established by the county school board of Harrison county, was unconstitutional and utterly void, for the reasons above pointed out. The question really seems too plain for extending argument, and in fact, almost too plain for any argument at all. In the case of Turner v. City of Hattiesburg, 53 So. 681, SMITH, J., speaking for the court said:

"Another objection urged is that 'the said act of the legislature creating said Mississippi Normal College and the said act of the legislature authorizing municipalities to make donations therefore are violative of subdivision 'p', section 90 of the Mississippi Constitution, which makes it unlawful for the legislature to pass any local, private, or special laws "providing for the management or support of any private or common school, incorporating the same or granting such school any privileges," and that 'said act of the legislature creating said Mississippi Normal College is violative of article eight of the Mississippi Constitution, which makes it the duty of the legislature to establish a uniform system of free public schools in the state and to provide for the government of the same.' This college is neither a private nor a common school. It is a college established for the purpose of enabling the state to equip its teachers for service in its common schools, and, consequently, neither of these objections are well taken." From which quotation it is perfectly manifest and obvious that the court would have held said objections to be well taken, if only the normal college had been a common school, which is the case in the record now before the court.

We, therefore, take it that this court has already passed on the direct and identical question presented by this record, for solution by this court, inferentially at least, in the case of Turner v. Hattiesburg and that this court has also dealt with the same subject in the case of Jones County v. Grisson et al., 52 So. 630, and that surely a careful reading of these two decisions of this court on this question will be conclusive and lead the court inescapably to the conclusion that said chapter 288 of the Laws of 1912, in pursuance of which the school board of Harrison county, Mississippi, attempted to create the separate school district involved in this controversy, is absolutely unconstitutional, null and void, and that therefore this case must be reversed and the petition of appellee dismissed, as was done in the case of Jones County v. Grisson et al., above cited.

George S. Doods and Mayes & Mayes, for appellee.

In 1912 the legislature passed an act authorizing the school board of Harrison county to establish a separate school district in Harrison county. The court will note that this act authorized the school board of Harrison county to do this, which seems to be a little departure from the law as it was before the passage of this act. See Laws 1912, page 350, chapter 288.

The act above referred to authorized the school board to establish a separate school district in Harrison county, containing the territory described in the body of the act, which it seems was less than sixteen square miles as has been required by section 4530, Code 1906. In other words, the general law requires that separate school districts be composed of sixteen square miles, but this act set out the territory which should be included in the school district authorized to be created by it.

We take it, therefore, that if the act is constitutional in so far as it conflicts with section 4530 of the Code of 1906, the section of the Code of 1906 is repealed by it. In other words, counsel for the appellant argue as one of the grounds for assailing the validity of the act that it is in conflict with section 4530 of the Code of 1906, in that it allows a separate school district to be created out of less territory than is allowed to be done by the section of the code referred to. It seems to us that a complete answer to this argument is that if this is true and the act of 1912 violates no provision of the constitution the effect of the act, being later in time than the adoption of the Code, is to repeal the...