Special School District No. 5 v. State

• Decision Date: 23 June 1919
• Docket Number: 47
• Parties: SPECIAL SCHOOL DISTRICT No. 5 v. STATE
• Court: Arkansas Supreme Court

213 S.W. 961

139 Ark. 263

SPECIAL SCHOOL DISTRICT No. 5 v. STATE

No. 47

Supreme Court of Arkansas

June 23, 1919

Appeal from Mississippi Chancery Court, Chickasawba District; Archer Wheatley, Chancellor; affirmed.

STATEMENT OF FACTS.

Act 465 of the Acts of 1919, passed on the 28th of March, 1919 provided "that the school district of Special School District No. 5 of Mississippi County, Arkansas, be authorized to sell and convey by warranty deed a fee simple title to the SE 1/4 and E 1/2 of the SW 1/4 of section 16, township 15 north, range 11 east, Mississippi County, Arkansas, and to reinvest the money obtained from such sale. Section 2 of the act provided: "That the lands may be disposed of by the directors after four weeks' advertisement in the paper or papers published in Blytheville, Arkansas, for a general circulation in Mississippi County, Arkansas; that the directors may dispose of the lands described in such small divisions and at public auction or private sale as they deem advisable in order to secure the best price." Section 3 provided: "That the funds derived from sale of the lands shall be reinvested in a building and equipment to be constructed in Blytheville, Mississippi County, Arkansas, and used for high school purposes." Section 4 provided "That the building so constructed shall be for the benefit of children living in school districts numbers 33 42, 49 and Special School District No. 5, who may attend the school without paying tuition."

Pursuant to the authority of the act, the directors caused to be published in the Herald-News, a newspaper published in the city of Blytheville having a general circulation in Mississippi County, Arkansas, a notice of sale of the lands above described.

This suit was instituted in the name of the State for the use and benefit of the common school fund and by school districts numbers 27 and 33 and by J. B. Fields, a taxpayer of School District No. 27, and Herman Cross, a taxpayer of School District No. 5 of Mississippi County, in their individual capacities against Special School District No. 5 of Mississippi County, Arkansas, and the directors of such district.

The plaintiffs in their complaint set up the above act and alleged that it was void, among other things, for the reason that it violated the act of Congress granting the land in section 16 in each township of the State. They alleged that the act of Congress granting the 16th section of lands to the State created a trust, the revenue or proceeds only from which could be used for the support of schools; that the act was a discrimination against certain of the inhabitants of the township in which the lands are located; that the act does not provide any manner for obtaining the consent of the inhabitants of such township; that the act is an attempt to take the proceeds from the sale of school lands and invest in buildings for which no sites are provided, and for obtaining which no provision is made.

The answer denied all the material allegations of the complaint as to the invalidity of the act and alleged that the defendants did advertise and their purpose was to proceed to sell the land in pursuance of the terms of the act and to reinvest the proceeds in accordance with its terms.

The court found that Act 465 was unconstitutional and void "in that it is violative of the trust imposed by the Congress upon sixteenth section lands at the time said lands were granted to the State of Arkansas, for the use of the inhabitants of the several townships for the use of the schools, in that the investment of the proceeds of the land as outlined in the act, would be a discrimination against the inhabitants of township 15 north, range 11 east, who do not live within the boundaries of School Districts Nos. 33, 42, 49 and Special School District No. 5 of Mississippi County."

The court thereupon entered a decree perpetually enjoining the defendants, as directors of Special School District No. 5, from selling the lands and their attempting to carry out the purposes of the act. From that decree is this appeal.

Decree affirmed.

Davis, Costen & Harrison, for appellant.

Act No. 465, Acts of 1919, is not unconstitutional and void, nor violative of the trust imposed upon the State in the act of Congress granting the sixteenth section lands to the State for school purposes, etc.

The act of Congress is not binding upon the State, and it is not necessary to obtain the consent of the inhabitants to such a sale as this. 19 Ark. 308; 11 Id. 332. One acting under authority granted by statute has, in addition to the authority expressly granted, that necessarily implied and essential to carry out the power granted. 36 Cyc. 1112; 111 Ark. 332 (335). An executory trust was created by the act of Congress, but the object and intent was to be carried into effect in a manner at the sound discretion of the trustee. 39 Cyc. 195. The State derived no more power from the act of Congress of February 15, 1843, than it already had to sell its lands. 15 U.S. (Lawy. ed.) 338-341. The State can sell the sixteenth section lands without permission of Congress. Ib. 558. Only on the theory that the trust is an executory one could the State have authorized the sale of these school lands as she has done. See 19 Ark. 308; 49 Id. 174; 50 Id. 346; 111 Id. 333.

The act is not a discrimination against the inhabitants of the township who do not live in School Districts 33, 42, 49 and Special District No. 5. The manner of carrying out the trust is left to the State, and it has determined that a high school building would be for the benefit of the inhabitants of the township under the terms and conditions of the act, and that is conclusive, conceding that the act was a discrimination, yet the unconstitutional parts of the act may be eliminated and the constitutional sections may stand. 37 Ark. 356; 46 Id. 312; 92 Id. 93,

John D. Arbuckle, Attorney General, and Robert C. Knox, Assistant, for appellee.

1. The lands were granted for the use of the townships for schools, and the "use" means that the trust shall be carried out by using the incomes for the maintenance of schools and cannot be determined and destroyed by the Legislature selling the lands at any time it sees fit. Funk & Wag. New St. Dict., 2626; 39 Cyc. 845. For definitions of "use" see, also, 152 Ind. 111; 52 N.E. 599; 6 Misc. (N. Y.) 524; 27 N.Y.S. 879; 62 Conn. 62; 16 L. R. A. 461; 34 Me. 394; 81 Conn. 372.

The act is clearly invalid. 120 Ark. 80; 96 N.W. 310.

The act is also discriminatory, and violates a doctrine of uniformity in the disbursements of the school funds. 120 Ark. 80, deprives those inhabitants.

2. See Pomeroy, Equity, § 982.

3. The fact that the trust is executory does not authorize the trustee to destroy it. 39 Cyc. 195.

4. The act, by its own terms, is nugatory, and no portion of it can stand. Const. 1874, Art. 14, § 2.

P. A. Lasley, R. A. Nelson and C. A. Cunningham, also of counsel, for appellee, join in appellee's brief.

WOOD J. McCULLOCH, C. J., not participating.

OPINION

WOOD, J., (after stating the facts).

The lands in suit are part of section 16, township 15 north, range 11 east, immediately south of and adjacent to the town of Blytheville, which were granted to the State of Arkansas by the act of Congress, approved June 23, 1836, supplementary to the act for the admission of the State of Arkansas into the Union.

The act provided: "That the section numbering 16 in every township, and when such section has been sold or otherwise disposed of, other lands equivalent thereto, or as contiguous as may be, shall be granted to the State, for the use of the inhabitants of such townships for the use of schools."

By an ordinance of the Legislature approved October 18, 1836, the General Assembly of the State of Arkansas "freely accepted, ratified, and irrevocably confirmed as articles of compact and union between the State of Arkansas and the United States" the act of Congress containing the above grant of lands.

The language of the act of Congress, to-wit: "For the use of the inhabitants of such townships for the use of schools," shows clearly that the purpose of the grant was to convey to the State absolute title to the sixteenth section in every township to be held in trust for the benefit of the inhabitants of the townships in which such sections are situated for the use of the schools.

The act of Congress of February 15, 1843, conferred upon certain States, among them Arkansas, the right to provide for the sale of lands reserved and appropriated by Congress for the use of schools within those States "and to invest the money arising from sales thereof in some productive fund, the proceeds of which shall be forever applied under the direction of said Legislature to the use and support of schools within the several townships and districts of the county for which they were originally reserved and set apart, and for no other purpose whatever."

There is also other language in the act of 1843 showing that Congress interpreted the language of the original grant in the act of 1836 to mean that the money arising from the sale of the sixteenth section should be invested in some productive fund for the use and support of the schools within the townships where the sixteenth sections are situated.

While the act of Congress of 1843, supra, was declared by this court, in Mayers v. Byrne, 19 Ark. 308, not binding upon the State as to the disposition of the land, the act nevertheless is a construction by Congress of the meaning of the terms of the original grant as to how the money derived from the sale of the sixteenth sections should be used by the State to which such lands were granted.

The Legislature as early as 1853 provided that the accruing annual...