J.M. Thompson & Co. v. Lamar County Agr. High School
| Decision Date | 06 May 1918 |
| Docket Number | 19643 |
| Citation | 78 So. 547,117 Miss. 621 |
| Parties | J. M. THOMPSON & CO. v. LAMAR COUNTY AGRICULTURAL HIGH SCHOOL ET AL |
| Court | Mississippi Supreme Court |
APPEAL from the circuit court of Lamar county, HON A. E. WEATHERBY Judge.
Suit by J. M. Thompson & Company, against the Lamar County Agricultural High School and A. B. Talbert. From a judgment for defendant, plaintiff appeals.
The facts are fully stated in the opinion of the court.
Suggestion of error overruled.
Salter & Hawthorn, for appellants.
The school is the board of trustees, and vice versa the board of trustees is the school. It might as plausibly be said that a suit against a corporation could not be maintained because against the corporation by name instead of against its board of directors.
Lamar County Agricultural High School is merely the name of this corporation, or quasi-corporation, as it may be termed, and its affairs are managed by its board of trustees just as the affairs of a corporation are managed by its directors, of a county by its board of supervisors, or of a municipality by its mayor and board of aldermen.
We think that the case of Connell et al. v. Woodward et al., 5 Howard 665, practically settles this, the court there saying: "They might have sued under the general title of trustees of schools and school lands, and having the power to do so, the rule is not varied because the names of the several persons who composed the board have been stated in the pleadings."
Is there a different rule to be applied to schools and school districts, than applies to counties, municipalities, or other corporations or to individuals? We say that a thorough search of the authorities throughout the United States, fails to disclose to us a single such distinction. This then drives us inevitably back to the central question in this case, and the one that controlled the lower court in sustaining appellee's demurrer. Can the Agricultural High School be sued at all?
If it can be sued at all, then the same rules of pleading and evidence must apply to appellee as applies to any other defendant in a justice court, whether it be individual private corporation, quasi-corporation, county or municipality.
This question has never been settled in this state by direct holding of this honorable court, and we think that in view of the fact there is now a very great number of agricultural high schools in the state, as well as consolidated school districts and rural school districts, constantly making contracts and necessarily so if they may successfully operate, there ought to be a direct ruling on this point, so that the public may know whether it can make a contract with these schools that can be enforced in the courts or not.
We respectfully ask the court to settle this vexed question once and for all, and if desired, will gladly file additional briefs on this phase of the case. This suggestion of error is respectfully submitted, trusting and believing that same will be sustained, or if not, the court will say, once and for all, that schools cannot be sued.
Tally & Mayson, for appellee.
1. Does the law of the state authorize suits against Agricultural High Schools? That question can be best determined by a consideration of several matters. It will be necessary to determine the character of the corporate entity to which an institution of that kind belongs; the object or end of its creation and the duration or extent of its life; the powers conferred either express or implied; its relation to the sovereign power of the state of which it is an inferior agent.
The principle is fundamental that neither the general government nor the state can be sued, except in cases where they expressly, through statute, consent to be sued, nor can the state be sued, except on such claims or demands as the auditor has authority to audit. Gulfport Export v. State et al., 112 Miss. 452, 73 So. 281.
Since an Agricultural high School is the creation of the state, in its sovereign capacity, what then is its relation to the state and in what instance is it subject to action or suit? The state of course delegated to its agency certain powers. It is a parcel and part of sovereignty operating in a very limited sphere and with certain well-defined powers. "Imperium in imperio" as Hamilton, in the Federalist, expressed the relation of the several states to the general government. It being necessarily admitted that the school was endued with life by legislative act we must look to the act in question to determine the measure of its powers and its liability to action or suit.
"Civil corporations are of different grades or classes, but in essence and matter they must all be regarded as public. The school district or the road district is usually invested by general laws operating throughout the state with a corporate character, the better to perform within and for the locality its special function, which is indicated by its name. It is an instrumentality of the state and the state incorporates it that it may the more effectually discharge its appointed duty. . . . They are purely auxiliaries of the state; and to the general statutes of the state they owe their creation and the statutes confer upon them all the powers they possess prescribe all the duties they owe, and impose all liabilities to which they are subject. Considered with respect to the limited number of their corporate powers, the bodies above named, rank low down, in the scale or grade of corporate existence; and hence have frequently been termed quasi-corporations. 1 Dillon Mun. Corp. (4 Ed.), p. 25.
The law creating Agricultural High Schools in this state provided for the levy of a tax to support the schools; a board of trustees for the government of the schools; also prescribing the duties of the trustees with reference to the receipt and disbursement of funds. Acts of 1910, ch. 122, Hemingway's Code, secs. 3420, 1-6. In no event could the tax levy exceed two mills. Acts of 1910, ch. 122, 123.
Page 3 of same act confers upon the trustees the only power they have: control of the property, fixing salaries of teachers and doing things generally, for the successful operations of the school, while page 6 places on the trustees the obligation to keep and make statements in detail as to receipts and disbursements.
Nothing is said in the original acts or in the acts supplemented thereto about the right to sue and be sued. The right to sue and the liability to be sued is usually set out in the charter governing statutes of a municipal corporation proper. Most municipalities act in a dual capacity, public and private. In its private capacity, such as operating light plants, waterworks, etc., a municipal corporation is liable on principle and to same extent as a private corporation. The functions of an agricultural high school are wholly public. It is supported by public taxation; created by legislation and unless it was in the legislative contemplation that all or a portion of the annual tax should be donated for the purpose of paying board for the pupils, the power to levy a tax for that purpose does not exist. We say that it cannot be gainsaid that an agricultural high school does not, and cannot perform any private duties; that the cacaothes accrescendi did not exist in the legislative mind which created it and therefore it inevitably follows that the power to sue does not exist. The right to sue it must be expressly conferred by the state or it cannot be asserted. 2. Has the board of trustees of an Agricultural High School power to contract an indebtedness for boarding students, and is the school, if suable, liable for supplies for boarding students?
The proper solution of this question is to be determined by an examination of the several statutes on the subject. We have heretofore briefly adverted to the existence vel non of this power. If it was the intention of the law-maker to authorize the trustees of the school to contract debts for boarding pupils it was an easy matter to have voiced that intent in the act; since that authority is not conferred in express terms, its existence is denied. Before the enactment of the law it did not exist. The statutes then are enabling statutes. Enabling statutes on the theory of "expressio unius exclusio est alterius," prohibit by implication the doing of any act other than those enumerated in the act, or exercise of any power other than in the statutory mode, designated by the act.
If anyone whether trustees or teacher had power to contract debts for boarding students the tax and donations should have been graduated in proportion to students in attendance. It is believed that a glance at the catalogue issued by the school authorities from time to time, will reveal that many of the students were from other counties. In that event the query necessarily arises, if the tax-payers of any county, in addition to providing dormitory facilities and teachers should be taxed to board students from other counties.
Other considerations forbid the inference that the trustees have power to contract a debt for boarding pupils. Such a power if attempted to be exercised would be not only ultra vires in all that term implies as we have attempted to demonstrate but would be malum prohibita; it would not only be an unlawful diversion, but a criminal perversion of the funds of the institution. The school was ordained and established for no ephemeral purpose; but like the common law, civil and eleemosynary corporations has the right to perpetual succession. While the tenure of office of those vested with authority to manage its affairs is of short duration, yet the contention is seriously advanced that those evanescent creatures are clothed with an authority to create a debt that will impair or destroy the...
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