Miller v. State ex rel. Russell

• Decision Date: 02 January 1923
• Docket Number: 23220
• Citation: 94 So. 706,130 Miss. 564
• Court: Mississippi Supreme Court
• Parties: MILLER, State Auditor, v. STATE ex rel. RUSSELL, Dist. Atty

94 So. 706

130 Miss. 564

MILLER, State Auditor, v. STATE ex rel. RUSSELL, Dist. Atty

No. 23220

Supreme Court of Mississippi

January 2, 1923

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Mandamus by the state, on the relation of R. C Russell, district attorney, for Mt. Olive separate school district, against W. J. Miller, state auditor. From a judgment awarding the writ, and ordering defendant to issue a warrant to plaintiff representing the share of the school district in the semi-annual distribution of the equalization fund provided in Laws 1922, chapter 21, section 2, defendant appeals. Affirmed.

Judgment affirmed.

H. Cassedy Holden, assistant attorney-general, for the state.

The legislature is without power to appropriate for more than the four-month term.

Since this court has held that the initiative and referendum amendment was never legally adopted and inserted in the Constitution of this state, then it necessarily follows that the pretended amendment to section 206 of the Constitution was never legally adopted and inserted in the Constitution. But the court below held that this pretended amendment to section 206 was not necessary; that the legislature had the power to enact section 2, chapter 21, Laws of 1922, under section 206 of the Constitution in its old or unamended form. The court held that section 206, as it read prior to the attempted amendment, only dealt with the state common school fund as applied to the four-month school term required in section 205, and that the legislature was not prohibited by section 206 from appropriating an additional sum for additional school terms to be distributed otherwise than on a per capita basis.

It is obvious from a reading of sections 201, 205, and 206, that it is the intent of the Constitution to limit the legislature in appropriating the funds of the state for the support and maintenance of the public schools. Reading the three sections together it is clear that the Constitution makers were careful to restrict state aid to public schools by confining appropriations to a four-month school term or period.

Had the makers of the Constitution stopped when they had written section 201, then the power of the legislature to appropriate for the support of the public schools would have been unlimited and restricted. Section 201 is in general terms. It imposes upon the legislature the broad and general duty "to encourage, by all suitable means, the promotion of intellectual, scientific, moral, and agricultural improvements by establishing a uniform system of free public schools, by taxation or otherwise," etc. There is nothing in this section that could limit the legislature as to the extent and manner of appropriating and distributing funds in support of the public schools.

But the Constitution makers did not stop with section 201. They went further and enacted section 205, which is mandatory in requiring that a public school shall be maintained in each school district in the county at least four months during the scholastic year, and a penalty is provided for school districts neglecting to comply with this mandate. This section clearly shows that it was intended to make certain that there would be four months of schooling for children or educable age in every school district in the state. In this section the idea of the four months' school is first set forth. Here we have the first unfoldment of the purpose and plan of the Constitution makers, namely, to insure four months of school to the children of this state.

Nor did the Constitution makers stop with section 205. They were not content with empowering the legislature to establish and support a uniform system of free public schools for children between the ages of five and twenty-one years. They were not willing that this broad and comprehensive authority should be given unrestricted to the legislature. They feared that the legislature might not appropriate sufficient money to support the public schools of the state for a reasonable period each year. They were apprehensive lest some parsimonious legislature might appropriate only enough money to run the schools for one month or a few days; or lest some extravagant legislature might appropriate vast and prodigal sums for the support of the schools for the entire year and thus threaten the state treasury with bankruptcy or fasten upon the state an obligation too onerous and ponderous to carry. So they required that a public school should be maintained in each school district at least four months and they further required, in section 201, that the legislature appropriate a state common-school fund out of the general fund which, together with the county common-school fund would be sufficient to maintain the county schools for the four-month term required by section 205.

All constitutional provisions are presumed to be mandatory unless clearly otherwise. Section 201 is mandatory. Section 205 is mandatory. Section 206 is just as mandatory as section 207 which requires that separate schools "shall be maintained for children of the white and colored races."

Section 206 provides: "There shall be a county common-school fund, which shall consist of the poll tax, and a state common-school fund which, together, shall be sufficient to maintain the common schools for the term of four months in each scholastic year."

The section does not say "at least four months in each scholastic year." It says "which together shall be sufficient to maintain the common schools for the term of four months in each scholastic year." The section does not proceed further and say that the legislature may provide for additional school terms. It does not authorize the legislature to add anything more. It only authorizes that body to appropriate from the general fund, a state common-school fund to be applied for the four-month school term.

But the makers of the Constitution did not arbitrarily require that there should only be four months of schooling. In section 205 it is provided that the public common schools must be maintained "at least four months, " showing that it was contemplated that some schools might be kept open longer than four months; and so, in section 205 it is provided that if it is desired to run the schools more than four months in any county or separate school district, then such county or separate school district, not the legislature, may provide for such additional terms by a special tax levy.

The granting of the power to the counties and separate school districts to provide for additional school terms means that the power of the legislature to provide for additional school terms is denied by necessary implication. It is an established rule of construction that where a Constitution confers a power or enjoins a duty, it also confers by implication all powers that are necessary for the exercise of one or for the performance of the other.

In like manner the legislature may be restrained from the exercise of power, as well by implication from the nature of the statute as by express prohibition. Every positive direction in the Constitution contains an implication against anything contrary to it, or which would destroy or disappoint the purpose of that provision. Cain v. Smith, (Ga.), 44 S.E. 5; State v. Patterson (Ind.), 105 N.E. 228; Collins v. Henderson (Ky.), 11 Bush. 74; State v. Railroad (Mo.), 162 S.W. 144; Hooper v. Britt (N Y.), 96 N.E. 371; Page v. Allen (Pa.), 98 Am Dec. 272; Burton v. Dupree (Tex.), 46 S.W. 272; State v. Thompson (Wis.), 137 N.W. 20; Henry v. State, 87 Miss. ; Lumber Co. v. State, 97 Miss. 355; Beck v. Allen, 58 Miss. 143; Chrisman v. Brookhaven, 70 Miss. 277; Ellis v. Greaves, 82 Miss. 36; Hewes v. Langford (Miss.), 62 So. 358; City of Jackson v. Hinds County (Miss.), 61 So. 175; Underwood v. Wood (Ky.), 15 L. R. A. 825; Shanklin v. Boyd, 146 Ky. 460, 38 L. R. A. (N. S.) 710.

The general rule is that where the means for the exercise of a granted power are given by the Constitution, no other or different means or powers can be implied, either on account of convenience or of being more effectual. And where the manner of exercising a given power is prescribed, the method thus designated is exclusive. Field v. People, 3 Ill. 79; Fletcher v. Oliver, 25 Ark. 289; State v. Barnes. (Fla.), 3 So. 433; State v. Patterson (Ind.), 105 N.E. 228; State v. Stark County, (N. D.), 103 N.W. 913; Parkes v. West (Tex.), 111 S.W. 726.

If section 206 does not contain a limitation upon the legislative power in the matter of supporting the public or common schools, then why was it embodied in the constitution?

So that, it is submitted that the legislature had no power to enact section 2, chapter 21, Laws of 1922, because by that section it appropriated funds of the state to be used in extending the public or common-school terms beyond the four-month period.

Wells, Stevens & Jones, for appellee.

The appropriation of the Mississippi legislature under section 2, chapter 21 of the Laws of 1922, is a valid appropriation which was within the power of the legislature to make, regardless of the constitutionality of the initiative and referendum amendment, and amendments adopted thereunder.

This appeal presents sharply for the decision of the court the constitutionality of chapter 21, Laws of 1922. It also presents the question of the validity of the appropriation provided by section 2 of chapter 21 of Laws of 1922 notwithstanding the recent action of this court in overruling the Brantley case. Thus, the first portion of our brief, will present the primary fundamental proposition whether section 2 aforesaid, is violative of section 205 of our Constitution. This is the question upon which the decisions of the trial court turned and this is the...