Humphreys v. Hinds County Agricultural
| Decision Date | 09 November 1936 |
| Docket Number | 32555 1/2 |
| Citation | 170 So. 530,177 Miss. 1 |
| Court | Mississippi Supreme Court |
| Parties | HUMPHREYS v. HINDS COUNTY AGRICULTURAL, ETC., JUNIOR COLLEGE |
(In Banc.)
1. SCHOOLS AND SCHOOL DISTRICTS.
Under statute creating and regulating agricultural high schools-junior colleges and providing for support from means other than common school fund, chancery court had jurisdiction to validate notes issued for building program of such a school, since it was "school district" within meaning of statute governing court's jurisdiction in such matters (Laws 1935, Ex. Sess., chap. 48; Code 1930 sec. 312 et seq.; secs. 6674-6700).
2 STATUTES.
Statute authorizing issuance of bonds for building program by agricultural high schools and providing exception from limitation of maximum indebtedness for benefit of counties bordering Gulf of Mexico held not violative of constitutional prohibition against local laws applicable to common school system, since such schools were established by exercise of constitutional right of Legislature to establish schools separate from common school system (Laws 1935, Ex. Sess chap. 48; Code 1930, secs. 6674-6700; Const. 1890, sec. 90 cl. (p); secs. 201, 205, 206).
HON. V. J. STRICKER, Chancellor.
APPEAL from the chancery court of Hinds county, HON. V. J. STRICKER, Chancellor.
Proceeding for the validation of notes proposed to be issued to finance a building program of the Hinds County Agricultural High School, etc., Junior College, wherein L. R. Humphreys as a taxpayer filed a protest challenging the legality of the proceeding. From a decree validating the notes, the taxpayer appeals. Affirmed.
Affirmed.
H. Chalmers Alexander, of Jackson, for appellant.
The agreed statement of facts shows that none of the forty-six thousand dollars of notes have actually been sold, or delivered and that the only relief asked for in the proceeding was a decree of validation pursuant to chapter 10 of the Mississippi Code of 1930. Such a proceeding is a judicial inquiry into the validity of the proposed notes prior to their actual sale and delivery and before any rights thereto have vested in any one. While not so denominated in the statute the proceeding is essentially one for a declaratory judgment or decree before any justiceable controversy has arisen. In the absence of any specific statutory authority for such a proceeding the courts in Mississippi are wholly without power or authority to hear a moot question or to render any purely declaratory judgment or decree.
Yates v. Beasley, 133 Miss. 301, 97 So. 676.
A comparison of the definitions of each of the five classes of school districts with the agricultural high school--junior college as defined in sections 6674 to 6700, inclusive, Code of 1930, shows that appellee cannot be classed as a school district.
It may be argued that the phrase "or any other district or subdivision" can be held to include appellant. We do not think so for the word "district" and the word "subdivision" both imply some territorial subdivision of the state. The appellee has no such characteristic.
Lienkouff v. Barnes, 66 Miss. 207, 5 So. 402; Greenville Ice & Coal Co. v. City of Greenville, 69 Miss. 86, 10 So. 574; Anderson v. City of Hattiesburg, 131 Miss. 216, 94 So. 163.
The appellee does not come within the class of parties authorized to institute a proceeding of this character and the chancery court had no jurisdiction of the cause.
We contend that the proviso at the end of section 7, chapter 48, Laws of Mississippi Extraordinary Session of 1935, makes the statute a local, private and special law in violation of section 90 (p) of the Mississippi Constitution of 1890.
We are of the opinion with Judge ANDERSON that the entire system of public education in this state is divided into only two classes, (1) the common school system and (2) the university and colleges or institutions of higher learning. The agricultural high schools are either a part of the uniform system of free schools and therefore "common schools" within the meaning of section 90 (p) of the Constitution or else they are prohibited by section 201 of the Constitution.
2 Words & Phrases (First Series), page 1335; Le Couteulx v. City of Buffalo, 33 N.Y. 333; People v. Brooklyn Board of Education, 13 Barb. 400; Powell v. Board of Education, 97 Ill. 375, 37 Am. Rep. 123; Roach v. Board of Trustees of St. Louis Public Schools, 77 Mo. 484; Board of Education of City of Topeka v. Welch, 33 P. 654; Ballinger's Ann. Codes & St. Wash. 1897, p. 2334; 1 Words & Phrases, 814, 815; School Dist. No. 20 Spokane Co. v. Bryan, 99 P. 28, 51 Wash. 498, 20 L.R.A. (N.S.), 1033; 2 Words & Phrases (Third Series), 219, 220; 1 Words & Phrases (Fourth Series), 464.
The term "common schools," in addition to appearing in section 90 (p) of the Mississippi Constitution, also appears in sections 202 and 206. At all other places in the Constitution, the schools are referred to as "a uniform system of free public schools" (sec. 201), and as "public school" (sec. 205, 206 and 207). We have examined the cases decided under all of these sections of the Constitution and find the following which shed light upon the question before the court, to-wit:
Otkin v. Lambin, 56 Miss. 658; Chrisman v. Brookhaven, 70 Miss. 477, 12 So. 458; Ellis v. Greaves, 82 Miss. 36, 34 So. 81; Turner v. City of Hattiesburg, 98 Miss. 337, 53 So. 681; Scarborough v. McAdams Consolidated School District, 124 Miss. 844, 87 So. 140; McLeod v. State, 154 Miss. 468, 122 So. 737; State Teachers Col-lege, v. Morris, 165 Miss. 758, 144 So. 374; Morris v. Vandiver, 164 Miss. 476, 145 So. 228.
All of sections 6 and 7 of chapter 48, Laws of 1935, including the proviso in section 7 are phrased as general law. However, it is the well settled rule in Mississippi that in determining whether a statute is a general law or is a local, special or private law the court will consider its substance and its application rather than its form.
Toombs v. Sharkey, 140 Miss. 676, 106 So. 273; State v. Speakes, 144 Miss. 125, 109 So. 129.
It is also well settled that the Legislature may, within certain limitations, classify subjects of legislation and prescribe different rules for different classes without transgressing constitutional prohibitions against local, private or special legislation.
Toombs v. Sharkey, 140 Miss. 676, 106. So. 273; State v. Speakes, 144 Miss. 125, 109 So. 129; 25 R. C. L. 815; 1 Sutherland Statutory Constructions 196; Drainage District v. Buckner, 108 Miss. 427, 66 So. 784; Cox v. Wallace, 100 Miss. 525, 56 So. 461; Rankin County v. Davis, 102 Miss. 497; Halsell v. Mer. Union Ins. Co., 105
Miss. 268, 62 So. 235; Magee v. Lincoln County, 109 Miss. 181, 68 So. 76; Johnson v. Reeves, 112 Miss. 227; Coal Co. v. Ice Co., 118 Miss. 860; Jackson v. Inc. Co., 132 Miss. 415, 95 So. 845; Bank v. Miller, 147 Miss. 695, 112 So. 877; State v. Gilmer Gro. Co., 156 Miss. 99, 125 So. 710; Clarke v. State, 169 Miss. 369; Witty v. Drainage Dist., 126 Miss. 645, 89 So. 268.
Does chapter 48, Laws of 1935, provide for the management or support of the school, or incorporate it or grant it any privilege within the meaning of section 90 (p) of the Constitution? In the case of Scarborough v. McAdams Consolidated School District, 124 Miss. 844, 87 So. 140, it was directly held that a local and private act purporting to authorize issuance of bonds of a consolidated school district to aid in building, equipping and establishing a county agricultural high school was section 90 (p) Const. of void as being in conflict with 1890.
Hamilton v. Lafayette County, 133 Miss. 14, 96 So. 465.
Since the Hinds Agricultural High School-Junior College is owned solely by Hinds county which does not border on the Gulf the objectionable proviso does not apply to this case. The question, therefore, arises as to whether or not the objectionable proviso can be severed and stricken out leaving the balance of the statute as a consistent workable whole.
This court has, in many cases, applied the rule that an unconstitutional or invalid portion of a statute may be so stricken out. The rule is unquestioned. It is the application thereof which is the problem.
Fant v. Gibbs, 54 Miss. 396; Ballard v. Oil Co., 81 Miss. 507, 34 So. 533, 95 A. S. R. 476, 62 L.R.A. 407; State v. Sansome, 133 Miss. 428, 97 So. 753; State v. Jackson, 45 Miss. 745, 109 So. 724.
The elimination of the proviso only would be a radical re-writing of the limitations contained in sections 6 and 7, and would constitute "judicial legislation" of the type condemned in Ballard v. Oil Co., 81 Miss. 507; while the elimination of these two sections in their entirety would remove a standard provision which uniformly appears in all statutes authorizing issuance of bonds payable from taxes. An examination of the statutes of this state for the past generation authorizing issuance of bonds payable from taxes will thoroughly convince any one that so me such limitation is considered by the Legislature to be essential in such statutes. We do not believe this court can indulge the presumption that the Legislature would have passed the bill without some such limitation contained in it.
We contend that such invalid portion of said statute is an integral portion of one inseparable and indivisible whole and that the entire statute is void because thereof.
H. V. Watkins and Ralph B. Avery, both of Jackson, for appellee.
We concede that chapter 10, Code of 1930, is the sole basis for the jurisdiction of the court.
In the present case the notes are authorized by chapter 48, Laws of 1935, to be issued by the Board of Trustees of the school and in the name of the school but they must also be authorized by the Board of Supervisors and are payable from...
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