Mumme v. Marrs

• Decision Date: 16 May 1931
• Docket Number: No. 17401.,17401.
• Citation: 40 S.W.2d 31
• Parties: MUMME et al. v. MARRS, Superintendent of Public Instruction, et al.
• Court: Texas Supreme Court

40 S.W.2d 31

MUMME et al. v. MARRS, Superintendent of Public Instruction, et al.

No. 17401.

Supreme Court of Texas.

May 16, 1931.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Lillie Mae Mumme, a minor, by her next friend, Mrs. Louise Mumme, and by Mrs. Louise Mumme in her own right, against S. M. N. Marrs, Superintendent of Public Instruction, and others. An order granting an injunction was reversed by the Court of Civil Appeals [25 S.W.(2d) 215], and plaintiffs apply for writ of error.

Application denied.

King & York, of Austin, for plaintiffs in error.

Robert Lee Bobbitt, formerly Atty. Gen., and Rice M. Tilley, formerly Asst. Atty. Gen., for defendants in error.

CURETON, C. J.

This case is pending before us on petition for writ of error. The action was originally brought in the district court by Lillie Mae Mumme, a minor within the scholastic age, pupil of a rural school in Medina county having less than 20 scholastics, and by Mrs. Louise Mumme, a taxpayer of that county. The cause was heard on an application for a temporary injunction, which was granted in favor of Mrs. Mumme, but denied as to the minor plaintiff. On appeal to the Court of Civil Appeals, the order granting the injunction was reversed, and the application therefor denied. 25 S.W.(2d) 215. The sole question involved is the constitutionality of the Rural Aid Appropriation Act, effective for the biennium beginning September 1, 1929.

The law involved is chapter 14, General Laws of the Third Called Session of the Forty-First Legislature (1929). Section 1 thereof states its general object as follows: "For the purpose of promoting the public school interest of rural schools and equalizing the educational opportunities afforded by the State to all children of scholastic age living in small and financially weak school districts."

The act is a complete law governing the distribution of the $5,000,000 appropriated for the two-year period.

The constitutional provisions primarily invoked against the validity of the act are those which in effect prohibit discriminatory and class legislation, and section 5 of article 7, which defines the "available school fund," and declares this fund "shall be distributed to the several counties according to their scholastic population." The insistence is strongly made that appropriations from the general fund of the state for common school purposes can only be made in accordance with this provision. We have concluded, however, that the limitation quoted has no application to the act before us, and that the objection urged against the validity of the act is without merit. Our reasons for this conclusion will now be stated.

The history of educational legislation in this state shows that the provisions of article 7, the educational article of the Constitution, have never been regarded as limitations by implication on the general power of the Legislature to pass laws upon the subject of education. This article discloses a well-considered purpose on the part of those who framed it to bring about the establishment and maintenance of a comprehensive system of public education, consisting of a general public free school system and a system of higher education. Three institutions of higher learning were expressly provided for. Constitution, article 7, §§ 10 to 15. These express requirements of the Constitution have been met by the creation and maintenance of the University of Texas, the Agricultural and Mechanical College, and the Prairie View Normal. The Legislature, however, has gone far beyond the creation of the three institutions of higher learning specifically required by the organic law, and has created ten additional institutions of similar character without direct constitutional grant, beginning with the Sam Houston Normal at Huntsville in 1879. Marrs' Texas School Laws (Ed. 1929). In founding these ten institutions, beginning more than fifty years ago, the Legislature has necessarily held that the specific grants of power contained in the Constitution to erect and maintain the University of Texas, the A. & M. College, and Prairie View Normal were not limitations on its power to create other schools of similar purpose, and to maintain them by appropriations from the general revenue. This interpretation has never been questioned, and is consistent with authorities from other jurisdictions. 24 R. C. L. p. 561, § 3; Briggs v. Johnson County, 4 Fed. Cas. 120, No. 1,872; Burr v. City of Carbondale, 76 Ill. 455; State Female Normal School v. Auditors, 79 Va. 233; Ransom v. Rutherford County, 123 Tenn. 1, 130 S. W. 1057, Ann. Cas. 1912B, page 1356, and annotations. See, also, In re Kindergarten Schools, 18 Colo. 234, 32 P. 422, 19 L. R. A. 469.

The Legislature, in obedience to the constitutional mandate, has created a public school system, and the act here in controversy is a part of the legislative effort to make it an efficient one. This system now has five general sources of support expressly provided for in the Constitution: (1) The income from the permanent school fund; (2) one-fourth of the revenue from occupation taxes and poll taxes; (3) local school taxes by districts; (4) an ad valorem state school tax; and (5) appropriations by the Legislature from the general funds of the state.

The insistence is made that all appropriations from the general revenue must necessarily be made a part of the available school fund, and be apportioned to the counties in accordance with their scholastic population, as provided in article 7, § 5, of the Constitution. We cannot agree with this interpretation of the organic law. As just shown above, the Constitution has been liberally construed with reference to the creation of institutions of higher education, and the same liberal rules should apply in determining the power of the Legislature with reference to the public school system. We cannot readily suppose that those who framed the Constitution would have left the Legislature with plenary power to create and maintain a system of higher education, and at the same time have intentionally so drawn the instrument that the legislative hands would be tied when changed conditions rendered it desirable or necessary to give aid to the public school system in the manner outlined in the law before us.

That the enumeration in the Constitution of what the Legislature may or shall do in providing a system of education is not to be regarded as a limitation on the general power of the Legislature to pass laws on the subject is shown by the decision of the Court of Appeals in Ex parte Cooper, 3 Tex. App. page 489, 30 Am. Rep. 152, as well as by the history of legislation touching the subject of education. In the case named, the court had before it a legislative act which levied a privilege tax. There was urged against its validity the provision thereof which declared that this tax, when collected, should be "paid into the county treasury for the use and benefit of public free schools in the county." It was pointed out that section 3 of article 7 of the Constitution, as it then existed, declared that not more than "one-fourth of the general revenue of the State, and a poll tax of one dollar on all male inhabitants," etc., could be set apart for the benefit of the public free schools. It was argued that this provision was a limitation on the power of the Legislature to set apart any tax other than one-fourth of the general revenue and the poll tax for school purposes. The court held that the insistence was erroneous, and that the tax and its assignment to free school purposes was valid, stating: "We do not think the position well taken; the section mentioned, as we conceive, only intended to limit and restrict the Legislature in using and appropriating out of the general revenue for school purposes to the amount specified, and not as a limit to their right to replenish, or add to, the school fund from other sources." (Italics ours.)

This case is clearly authority for the proposition that, in ascertaining the power which the Legislature may constitutionally exercise with reference to the school system, we are not to limit or restrict that power, including the power to assign revenue derived from sources other than those specifically named, to the school fund, unless we find in the Constitution itself a specific limitation, or one which arises by necessary implication from the language used. This decision was made in 1878, only two years after the adoption of the Constitution. After this decision, in 1883, section 3 of article 7 of the Constitution was amended, and in that amendment, as in each subsequent amendment thereof, down to the present time, the limitation as to funds which could be appropriated from the general revenue was omitted, and there is now no express limitation in the section as to appropriations which may be made from the general revenue. Beginning in 1915, eight general laws making appropriations from the general revenue in aid of rural schools have been enacted. The acts of 1915 and 1917 were passed before the adoption of the amendment to section 3, article 7, which in express terms authorized the Legislature to make an appropriation out of the general revenue to supplement the available school fund otherwise provided for. General Laws, First Called Session, 34th Leg. (1915), p. 22, c. 10; General Laws 35th Leg. (1917), p. 151, c. 80; Harris' Anno. Const. p. 517. The act of 1915, in so far as we know, was unchallenged in the courts, and its essential elements have been embraced in each succeeding enactment, including the one now before the court for review.

In 1917, however, the Legislature submitted, and in November, 1918, the people adopted, an amendment of section 3, article 7, which contained a special grant of power to the Legislature to make appropriations from the general revenue, which, in so far as here involved, then read, and now reads, as follows: "Provided, however,...