Lacey v. State ex rel. Morgan, Dist. Atty
| Decision Date | 02 January 1940 |
| Docket Number | 33980 |
| Citation | 187 Miss. 292,192 So. 576 |
| Court | Mississippi Supreme Court |
| Parties | LACEY et al. v. STATE ex rel. MORGAN, DIST. ATTY |
APPEAL from the circuit court of Attala county HON. JOHN F. ALLEN Judge.
Quo warranto proceeding by the State, on the relation of one Morgan, District Attorney, against Dr. W. R. Lacey and another. From a judgment removing the defendants from office of trustees of the Kosciusko municipal separate school district, the defendants appeal. Reversed and judgment entered for the defendant.
Reversed and judgment here for appellant.
W. E Gore, of Jackson, and H. T. Leonard and D. H. Glass, both of Kosciusko, for appellants.
Two questions are presented: (1) Can the Legislature add qualifications to those prescribed by Section 250 of the Constitution, to govern eligibility for the office of school trustee? (2) Can the provision requiring that trustees shall be patrons be separated from its other provisions and leave Chapter 222 of the Laws of 1938 in force to govern the office of trustee?
The plain words of Section 250 are sufficient to settle this question, for it provides that all qualified electors are eligible to office, not all qualified electors who are patrons "of the school, provided that a member appointed for a given term may complete said term notwithstanding the fact that said member may cease to be a patron before the expiration of the term for which he was appointed, " as provided by Section 6664 of the Code, as amended by Chapter 222 of the Laws of 1938.
Wynn v State, 7 So. 353, 67 Miss. 312; State ex rel. Greaves v Henry, 87 Miss. 125, 40 So. 152 at page 154.
Section 250 of the Constitution of 1890 contains a clearly expressed prohibition, in itself, against adding qualifications. It provides that all qualified electors shall be eligible to office. Its terms are plain. No interpretatoin appears to us to be necessary.
McCool v. State, 115 So. 121, 149 Miss. 82.
The second question to be settled is whether the unconstitutional part of Section 6664, Chapter 222 of the Laws of 1938, can be separated from the constitutional part of it.
The rule is stated in 11 Am. Jur., Section 152, page 834, as follows: "It is a fundamental principle that a statute may be constitutional in one part and unconstitutional in another part and that if the invalid part is severable from the rest, the portion which is constitutional in another part and that if the invalid part is may stand while that which is unconstitutional is stricken out and rejected."
Am. Express Co. v. Beer, 107 Miss. 528, 65 So. 575, L.R.A., 1918B, 446, Ann. Cas., 1916D, 127; Bd. of Suprs. of Holmes County v. Black Creek Drainage Dist., 99 Miss. 739, 55 So. 963; The General Thompkins, 9 F. 620; Campbell v. Union Bank, 6 How. 625; Southern Express Co. v. Longinotti, 65 So. 583; Am. Express Co. v. Miller, 65 So. 652; Enochs v. State, 97 So. 534, 133 Miss. 107; State v. Jackson Cotton Oil Co., 48 So. 300, 95 Miss. 6; City of Jackson v. State, 59 So. 873, 102 Miss. 663, Ann. Cas., 1915A, 1213; Hatten v. Bond, 73 So. 612, 112 Miss. 590; Moore v. Tunica County, 107 So. 659, 143 Miss. 821, 108 So. 900, 143 Miss. 839; Runnels v. State, 122 So. 769, 154 Miss. 621; State v. Speakes, 109 So. 129, 144 Miss. 125; Adams v. Standard Oil Co., 53 So. 692, 97 Miss. 879; State v. Rombach, 73 So. 731, 112 Miss. 737; Johnston v. Long Furniture Co., 74 So. 283, 113 Miss. 373; State v. G. M. & N. R. Co., 104 So. 68, 138 Miss. 70; Gulfport Building & Loan Assn. v. City of Gulfport, 124 So. 658, 155 Miss. 498; Magnolia Building & Loan Assn. v. Miller, 128 So. 585, 51 S.Ct. 86, 282 U.S. 803, 75 L.Ed. 722; Hudson v. Stuart, 145 So. 611, 166 Miss. 339; Holloway v. Jordan, 154 So. 340, 170 Miss. 99.
We submit that the case should be reversed and judgment entered here for the appellants.
Chapter 222, Laws of 1938 (a) designates the method of creation of trustees of such school districts:
The statute nowhere uses the word "appoint." In fact, if it did use the word "appoint" in place of "elect" such term would in no wise relate to the qualifications or lack of qualifications of such officeholder and would only be a matter of procedure prescribing the machinery of selection. Counsel attempts to draw a distinction between constitutional and statutory officers and contends that Section 250 of the Constitution should not apply because the office of municipal school trustee is not a constitutional office. This argument is exploded by Section 250 itself wherein it says, "All qualified electors shall be eligible to office, except as other wise provided in this constitution." The constitution nowhere mentions the word "alderman" but in the case of McCool v. State, 149 So. 182, appellant, McCool, was a legislative officer, that is, holding an office created by the Legislature, and no such distinction was made in that case as counsel attempts to create here.
Counsel for appellee likewise urges that because of the fact that the requirement that a trustee should be a patron of the school has been on the statute books for fifty-nine years, it should now be so declared the organic law of the land. In the McCool case, 115 So. 121, this court had no hesitancy in striking down a statute which had been in the code since 1892, and which statute had accumulated a little age itself--more than thirty-five years. This rule only applies where there is ambiguity in a statute or where the court itself is in doubt as to the proper construction and mere practice, custom, or usage can never ripen into constitutionality.
It is very apparent on the face of the act that the Legislature or the courts could entirely eliminate the provision requiring such trustees to be patrons of the school and still leave a complete workable scheme. If this is true, and the provision in question is unconstitutional it is the duty of the courts to strike it therefrom and leave the remainder of the act in force and unimpaired by such objectionable feature.
J. D. Guyton, of Kosciusko, for appellee.
In the case at bar, the power to appoint trustees of this separate school district is not vested by the Constitution in the Mayor and Board of Aldermen of Kosciusko. The Mayor and Board of Aldermen are not required by the Constitution, or the statute, to obtain the advice and consent of the senate to such appointments. The power of said Mayor and Board of Aldermen to appoint trustees is purely statutory. The Legislature created or designated the appointive authority by enacting Chapter 222, Laws of 1938. It, the Legislature, saw fit to limit the right and power of the Mayor and Board of Aldermen to appoint trustees to those who are patrons of the school.
A construction will be given a statute, if reasonably possible, which will render it constitutional and carry out the legislative plan or purpose. A plausible construction is a reasonable one.
Sanford v. Dixie Const. Co., 128 So. 887; Chassanoil v. Greenwood, 148 So. 781, 166 Miss. 848; Tucker Printing Co. v. Attala County, 158 So. 336; Miller v. State, 94 So. 706, 130 Miss. 564; Robinson v. State, 108 So. 903, 143 Miss. 247.
It has been the consistent, constant, and unbroken legislative history for at least the last 59 years that the law has required trustees of separate school districts to be patrons of the school.
Sec. 703, Code of 1880; Sec. 4007, Code of 1892; Sec. 4526, Code of 1906; Secs. 7338 and 7347, Hemingway's Code of 1917; Sec. 6664, Code of 1930.
Chapter 222, Laws of 1938, Sec. 6664, Code of 1930, requires that trustees shall be patrons of separate school districts, with the proviso that should any trustee cease to be a patron during his term he may nevertheless serve out his unexpired term.
The Legislature, prior to the Constitution of 1890, as well as subsequent thereto, has claimed the right and power to require trustees of separate school districts to be patrons of the school. The very first Legislature which met after the Constitution of 1890 was established, in enacting the Code of 1892, adhered to its long established policy in requiring trustees to be patrons of the schools they managed and governed. In that Legislature there were doubtless a goodly number who were members of the Constitutional Convention of 1890.
This court has said that a long established policy by the Legislature will not be held unconstitutional.
State ex rel. Hairston v. Baggett, 110 So. 241, 145 Miss. 142; Dantzler Lumber Co. v. State, 53 So. 1, 97 Miss. 355; State v. Henry, 87 Miss. 125, 40 So. 152; Teachers College v. Morris, 144 So. 374, 165 Miss. 758.
A school trustee is an "officer" insofar as the law on Quo Warranto is concerned, yet he is not an "officer" as defined in and by the Constitution. It may be that this is the reason why the Legislature has consistently and continuously for the past 59 years required trustees of schools to be patrons thereof, in addition to requiring that they be qualified electors.
Ellis v. Greaves, 34 So. 81, 82 Miss. 36; Moore v. Tunica County, 107 So. 659, 143 Miss. 201; McClure v. Whitney, 82 So. 259, 120 Miss. 350.
Each of the appellants, having accepted and entered upon the discharge of the duties of the office of school trustee created by Chapter 222, Laws of 1938, and not elsewhere provided for by law or the constitution, and having accepted a commission from the Mayor and Board of Aldermen of the City of Kosciusko, which derives its powers from this law, as trustees, are estopped from asserting that this law is...
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