Morgan v. Board of School Com'rs of Mobile County

• Decision Date: 16 May 1946
• Docket Number: 1 Div. 254.
• Citation: 26 So.2d 108,248 Ala. 22
• Parties: MORGAN, Director of Conservation, v. BOARD OF SCHOOL COM'RS OF MOBILE COUNTY.
• Court: Alabama Supreme Court

26 So.2d 108

248 Ala. 22

MORGAN, Director of Conservation, v. BOARD OF SCHOOL COM'RS OF MOBILE COUNTY.

1 Div. 254.

Supreme Court of Alabama

May 16, 1946

Wm N. McQueen, Atty. Gen., and Jas. F. Matthews, Asst. Atty Gen., for appellant.

Palmer Pillans and Pillans & Cowley, all of Mobile, for appellee.

STAKELY Justice.

The question for decision is whether the Board of School Commissioners of Mobile County or the Director of Conservation has the right to the control, direction and management of school lands in Mobile County. The question is presented by a bill in equity, filed by the Board of School Commissioners (appellee), seeking a declaratory judgment. The bill of complaint sets forth the various statutes and constitutional provisions, which must be interpreted in order to solve the problem, and which have produced the controversy. The answer of the Director of Conservation (appellant) admits the allegations of fact contained in the bill, but denies its legal conclusions. The cause was submitted for final decree on 'the pleadings' with the result that the court rendered a decree declaring in effect that the Board of School Commissioners of Mobile County has the right to the direction, control and management of school lands in Mobile County. This appeal is from that decree.

Since 1826 appellee, under various names given it by various statutes, has continuously conducted, maintained and operated the public schools of Mobile County and has controlled managed and operated school properties in Mobile County. By Act approved December 19, 1836, Acts 1836, p. 48, the direction, management and control of school lands in Mobile County was placed in appellee. We quote from that act as follows:

'Sec. 2. And, be it further enacted, That all lands granted and immunities already conferred or which may hereafter be conferred on the inhabitants of said county, or any city, town or township therein for purposes of education, either by the United States, this State or otherwise, shall be and the same are hereby placed under the direction, management and control of said Commissioners. Provided, That nothing therein contained shall empower said Commissioners to appropriate any of the funds arising from the sixteenth sections, to any other purpose than the support of schools in the township in which such sixteenth sections may be situated.'

By Act approved January 16, 1854, Acts 1853-54, p. 190, the Legislature of Alabama reaffirmed that the control, direction and management of school lands in Mobile County was in appellee in the following language contained in Section 2 of the Act:

'All lands, grants and immunities already conferred, or which may hereafter be conferred upon the inhabitants of said County, or any city, town or township therein, for purposes of education, either by the United States, this State, or otherwise, shall be under the control, direction and management of said Commissioners; * * *.'

By virtue of the Act of Congress, 3 Stat. 489, admitting Alabama as a state in 1819 and the acceptance of that act, with its provisions and conditions, there was made effective a grant from the United States 'to the inhabitants of such townships for the use of schools' of the sixteenth sections in each township. Section 6, subd. 1. Where for appropriate reasons, sixteenth section lands were not available, there was provivision in the act for lieu lands. It will be seen that under both of the foregoing acts direction, management and control of such lands were conferred on appellee by the Legislature of Alabama.

By Act of February 15, 1854, Acts 1853-54, p. 8, the State of Alabama set up its first comprehensive school system. It should be noted that at that time the County of Mobile had been operating its system of public schools for twenty-eight years. The Legislature recognized this situation by providing in Section 2 of Article VI, as follows:

'As the county of Mobile now has established a public school system of its own, the provisions of this Act shall apply to that county, only so far as to authorize and require its school commissioners to draw the portion of the funds to which that county will be entitled under this Act and to make the reports of the superintendent herein required.'

In 1875 the settled policy of taking Mobile County out from the general scheme of public school legislation was written into the Constitution of Alabama of 1875 as Section 11 of Article XII. The same constitutional provision was carried forward without substantial change into the Constitution of 1901, where it forms Section 270 of Article XIV, the Article on Education. Section 270 of the Constitution of 1901 is as follows:

'Section 270. The provisions of this article and of any act of the Legislature passed in pursuance thereof to establish, organize and maintain a system of public schools throughout the State, shall apply to Mobile county only so far as to authorize and require the authorities designated by law to draw the portion of the funds to which said county will be entitled for school purposes and to make reports to the Superintendent of Education, as may be prescribed by law; and all special incomes and powers of taxation as now authorized by law for the benefit of public schools in said county shall remain undisturbed until otherwise provided by the Legislature; provided, that separate schools for each race shall always be maintained by said school authorities.'

On September 22, 1939, General Acts 1939, p. 949, there was approved an Act to confer upon the Department of Conservation 'the complete management of and supervision over' certain public lands, including school lands. The section of the Act which vests the management of school lands in the Director of Conservation is as follows:

'Section 1. The Director of Conservation is hereby expressly authorized and empowered to have complete management of, and supervision over, lands which are known as school lands, as defined by Section 629 of the 1927 Alabama School Code; which lands are vested in, or which may hereafter be vested in, the State of Alabama in trust for the use of schools.'

The aforesaid Act of 1939 also contains a repealer clause as follows:

'Section 23. All laws or parts of laws, whether general, local or special in conflict with any of the provisions of this Act are hereby expressly repealed.'

The aforesaid Act of 1939 was subsequently codified and appears as §§ 232-252, Title 8, Code of 1940.

The Director of Conservation asserts the position that the aforesaid local acts applicable to school lands in Mobile County were repealed by the repealer clause in the Act of 1939 and that the Act of 1939 gives him the right and imposes on him the duty to manage and control the school lands of Mobile County. The Board of School Commissioners of Mobile County, on the contrary, assert that the direction, management and control of such lands under the aforesaid local acts is preserved to it under the provisions of section 270 of the Constitution of 1901. It seems to be conceded by appellee and we think properly so, that, omitting consideration of Section 270 of the Constitution of 1901, the repealer clause of the Act of 1939 would repeal the local acts so far as direction, control and management of school lands in Mobile County is concerned, because there appears to be no doubt of a legislative intent to put all sixteenth section school lands throughout the state under control of the Director of Conservation. Shepherd v. Clements, 224 Ala. 1, 141 So. 255, 256.

This brings us to the point, except for a preliminary question of procedure, where we must see if the local acts conferring direction, management and control of school lands in Mobile County, have been saved by Section 270 of the Constitution of 1901.

It is insisted by appellant that appellee was not entitled to a declaratory judgment, for the reason that the petition or bill of complaint only sought an advisory opinion as to whether certain legislation repealed or otherwise affected prior legislation and no specific or express relief was sought with reference to any transaction or dispute set forth in the petition or bill of complaint. Our cases point out, however, that the declaratory judgment statute will be extended to cases involving public rights or important public matters and to controversies in which the legality of action of public officials or public agencies is challenged. We have said in effect that where official action done or threatened is challenged as unlawful, whether the lack of authority appears in the provisions of a statute or because of its unconstitutionality, the controversy can be determined under the declaratory judgment statute rather than force the parties to seek injunctive relief. Donoghue v. Bunkley, Comm'r. of Licenses, Ala.Sup., 25 So.2d 61; State v. Inman, 238 Ala. 555, 191 So. 224; State v. Tuscaloosa County, 233 Ala. 611, 172 So. 892; Lang v. City of Mobile, 239 Ala. 331, 195 So. 248; Scott v. Alabama Bridge Corp., 233 Ala. 12, 169 So. 273.

In addition to the historical background shown by the foregoing enactments, the words of the members of the Constitutional Convention of 1901 uttered on the floor of the convention are helpful in arriving at a correct construction of Section 270 of the Constitution of 1901. Louisville & N. R. Co. v. State, 201 Ala. 317, 78 So. 93; Board of Revenue of Jefferson County et al. v. Kayser, 205 Ala. 289, 88 So. 19.

On motion to adopt Section 13 of the Article as reported favorably by the Committee on Education--this is § 270 of the Constitution of 1901--Mr. Long, in speaking for the motion said:

'* * * We are not here to take away from Mobile the right given her in the past and which she has by the Constitution of 1875 * * *....