Opinion
No. 30195.
September 26, 1932. Suggestion of Error Overruled, October 24, 1932.
1. STATUTES.
Question whether superintendent of five-trustee consolidated school may be employed for three-year term being doubtful, supreme court will follow interpretation of statute adopted by Attorney General and generally observed by department of education (Code 1930, sections 6648, 6665).
2. SCHOOLS AND SCHOOL DISTRICTS.
Teaching force in consolidated school cannot be employed for term of years (Code 1930, sections 6648, 6665).
3. STATUTES.
Interpretation placed on doubtful statute and followed for considerable time by administrative department should be followed by court.
ON SUGGESTION OF ERROR. (Division B. Oct. 24, 1932.) [143 So. 887. No. 30195.]1. STATUTES.
Contemporary construction, as rule of construing statutes, is as old as common law, and has always been recognized in Mississippi as proper course in doubtful cases.
2. EVIDENCE.
Court takes judicial knowledge of attorney-general's holdings and rules of practice of state departments of government.
3. EVIDENCE.
Court will resort to every proper method of ascertaining from state departments whatever it must know judicially, but does not actually know.
APPEAL from chancery court of Marshall county. HON. NORFLEET R. SLEDGE, Chancellor.
Smith Smith and Lester Fant, Sr. Jr., all of Holly Springs, for appellant.
The trustee had the power to contract with appellant, for a period of three years.
Privileges of a consolidated school. Consolidated schools shall have all the privileges granted to separate school districts.
Section 6648, Code of 1930.
The powers and duties of separate school district trustees are as follows: . . . To contract with superintendents, principals, and teachers, for a term of years not exceeding three years, said salaries at the option of the board to be made payable monthly, etc.
Sec. 6665, Code of 1930.
The word "privileges" means "power and authority."
Pike v. Chicago, 155 Ill. 656, 667, 40 N.E. 567.
Privilege definition . . . A power granted to an individual or corporation to do something . . . which is not of common right; legal power, authority, immunity, granted by authority . . . a special right or power conferred or possessed by one or more individuals, in derogation of the general right.
50 C.J., pp. 401-2.
Right has been compared with certain terms and held to be equivalent to or synonymous with them in particular connection in which employed, such as "power," "privilege."
54 C.J. 814, sec. 12.
It may be conceded that to one accustomed to legal nicety in the choice of words there is a distinct difference in definition between "privilege" and "right," nevertheless the two words are commonly used interchangeably as synonymous, not only by laymen but by lawyers, and, indeed, not infrequently, it must be admitted, even in judicial opinions.
Tantum v. Keller, 95 N.J. Eq. 466, 467, 123 A. 299.
The Legislature, in granting to consolidated schools the same privileges granted to separate schools, thus made specific provision for the employment of superintendents, principals and teachers by consolidated schools on the same terms as provided for separate schools, just as surely as if these privileges had been fully renumerated.
Since the Legislature invested the trustees with the power of conducting the affairs of the districts, by necessary implication power was conferred on them to employ teachers, principals and superintendents. Such a power may be conferred as effectually by implication as by express grant.
Peets v. Martin, 135 Miss. 720, 101 So. 78.
In the absence of an express or implied statutory limitation on the length of term for which the board is authorized to make employment contracts, it may itself fix the terms, provided only it be for a reasonable length of time and the reasonableness of the contract is determined in view of all the circumstances surrounding it.
56 C.J. 310.
Public policy requires that heads of such institutions be assured a tenure of their positions for a reasonable period of time in order that they may be secured from the whim and caprice of political boards and may become settled in the school and community, and serve the purpose for which they were selected without the continual necessity of canvassing for re-employment. Indeed, this fact was recognized by the Legislature and it is provided by statute that removal of these employees can be accomplished in only one lawful way, upon written charges, before the proper tribunal.
Brown v. Owens, 75 Miss. 319, 23 So. 35.
The fact that it was within the power of a majority of the board who would remain in office past the time when the second year of the term might be contracted for affords a reason, if no other existed, for the holding that the contract was not unreasonable.
Gardner v. North Little Rock Special School Dist., 257 S.W. 73, 161 Ark. 466.
In the absence of a statutory provision limiting either expressly or impliedly, the time for which a contract for a school board's term of office, such board may bind their successors in office by employing a teacher or superintendent for a period extending beyond their term of office, or for the term of school succeeding the term of office of the board.
56 C.J. 312; Miss. Code 1930, sec. 6629.
This restriction does not apply to the present case for being a statute in derogation of the common right to contract, this restriction must be strictly construed, and cannot be expanded by implication to include others than teachers, specifically named, nor to include superintendents and principals, significantly omitted from its application.
Gates v. School Dist., 53 Ark. 468, 14 S.W. 656, 10 L.R.A. 186; 56 C.J., p. 368, last part number 260 (3); 56 C.J., p. 368; 56 C.J., p. 385, 309d; Barry v. Goad, 89 Cal. 215, 26 P. 785, 24 P. 823; Gardner v. N. Little Rock Special School Dist., 257 S.W. 73, 161 Ark. 466.
Where a part of a chapter is susceptible of two constructions, and the language of another part is clear and definite, and is consistent with one of such constructions, and opposed to the other, that construction must be adopted which will render all clauses harmonious.
36 Cyc. 1152.
A common school and a consolidated school are not the same.
One important difference is that a consolidated school may have five trustees, each serving five years, one appointed each year by the superintendent of education.
Code 1930, sec. 6638.
There is no such provision for common schools; they have only three trustees and the trustees are elected.
The trustees of a consolidated school are empowered to provide transportation for pupils.
Code 1930, secs. 6639-6641.
The trustee of common schools have no such powers.
Consolidated schools have all the privileges of separate schools.
Code 1930, sec. 6648.
The only place which mentions a maximum term is paragraph (10) of section 6665, providing contracts for separate schools of no more than three years. Nowhere is it stated that contracts for three years are prohibited, or that the maximum term shall be one year.
Nowhere in the record does it appear that the administrative department has placed any construction upon the statutes, or that it has followed in any instance the opinions of the attorney-general.
Hindman Doxey, of Holly Springs, for appellees.
A consolidated school district is simply a common school district where two or more existing schools have been consolidated into one single school district.
Walton v. Covington County, 115 Miss. 117, 75 So. 833; Rice v. Gong Lum, 139 Miss. 761, 104 So. 105.
A consolidated school district is not a separate school district but simply a combination of two or more existing common schools, consolidated into one single school district.
St. Louis San Francisco R.R. Co. v. Benton County, 139 Miss. 761, 104 So. 105.
Any election of teachers by trustees for the ensuing school term, before the annual election of trustees, shall be illegal.
Sec. 6629, Code 1930.
In addition to the fixed salary there shall be stated in the contract two successively smaller amounts which shall be the salary in case the attendance decreases to a number for which the conditional amounts would be the fixed salary, etc.
Section 6610, Code of 1930.
Privileges of a consolidated school. The trustees, on consultation with the principal of the consolidated school, may add the high school department or may have as many high school grades as, in their judgment, is best for the school. They may fix reasonable tuition fees for the high school department, or it may be free. They may prescribe what other subjects may be taught in the high school. Consolidated schools have all the privileges granted to separate school districts.
Sec. 6648, Code 1930.
The maximum term of a contract is for one scholastic year or for the ensuing term, said contract to be made after the selection of the trustee whose term of office begins on January 1st.
Sec. 6629, Code 1930.
Where the construction of the statute is doubtful, the construction placed thereon by the administrative departments, if reasonable, should be followed.
Peets v. Martin, 135 Miss. 720, 101 So. 78.
Attorney-general's opinion hold consolidated schools cannot contract with teacher for three years.
Opinion of Attorney-General, 1919-1921, p. 154, date July 1, 1920.
Opinion of Attorney-General, dated March 11, 1929.
Taylor H. McElroy, of Oxford, for appellees.
A consolidated school district is simply a common school district where two or more existing schools have been consolidated into one single school district.
Trustees of the Walton School v. Covington County, 115 Miss. 117, 75 So. 833; St. Louis R.R. Co. v. Benton County, 132 Miss. 325, 96 So. 689; Rice v. Gong Lum, 139 Miss. 760, 104 So. 105.
There are certain differences in the control and management of separate school districts and consolidated school districts and special consolidated school districts.
Ladner v. Talbert, 83 So. 748.
The appellees cite the following sections of the school code:
Secs. 6610, 6611, 6629, 6638, 6639, 6648, 6653, 6656, 6665, Code 1930.
The contract shall show the name of the school, the position of teacher whether a principal or assistant and the monthly salary. The contract will be valid for the number of months the school is to be taught during the scholastic year.
Section 6610, Code 1930.
The contract is illegal and void because it was made before the annual election of trustees and is made for three years when the law provides for the election of teachers for the ensuing school term.
Section 6629, Code 1930; Public School v. Holson, 252 P. 509; Treadway v. Daniels, 92 S.W. 981.
No authority is granted by statute to employ teachers and principals in a common school, rural school or consolidated school district except for the ensuing school term except in the case of a separate school district which the statute specifically states that even the teachers as well as the principals and superintendents may be employed for as long a term as three (3) years.
Argued orally by Lester Fant, Jr., and L.A. Smith, Sr., for appellant, and by Hindman Doxey and Taylor McElroy, for appellee.
The question in this case is whether the superintendent of a five-trustee consolidated school may be employed under a valid contract for three years. Appellant, the former superintendent, contends for the affirmative of this issue and relies principally on sections 6648 and 6665, Code 1930. The first of these sections provides as its concluding sentence that "consolidated schools shall have all the privileges granted to separate school districts." Under the second section, above mentioned, it is enacted that the trustees of separate school districts shall have, among many others, the following powers and duties: "(10) To contract with superintendents, principals and teachers, for a term of . . . three years. . . ." It is therefore argued that the word "privileges" as used in the first of the quoted statutes is synonymous with powers and duties in the other.
Appellees contend that a consolidated school is simply a common school where two or more existing schools of that character have been consolidated into a single common school, citing Walton v. Covington County, 115 Miss. 117, 75 So. 833; Rice v. Gong Lum, 139 Miss. 761, 104 So. 105, and that in consequence teachers can be elected only for the ensuing year. They call attention to the fact that the three-trustee consolidated school district has the same privileges as a five-trustee school, and that, if the three-trustee consolidated school could elect a superintendent for three years, the term would extend beyond that of the majority of the trustees in service at the time of the election.
We have carefully considered all the statutes cited to us by counsel and have reviewed the entire chapter on schools. No section definitely deals with the subject here in hand, and we must pronounce the question, like so many others in respect to the details of school administration, as doubtful. In such a case we will follow the interpretation adopted by the attorney-general, and generally observed by the department of education in accordance with his opinions. Peets v. Martin, 135 Miss. 720, 101 So. 78. Turning to the opinions of the attorney-general, 1919-21, p. 154, we find a ruling that employments of the teaching force in consolidated schools cannot be made for a term of years, and the same opinion was adhered to by the attorney-general on March 11, 1929.
Where the construction of a statute is doubtful, the interpretation placed thereon and followed for a considerable course of time by the administrative departments should be followed.
Affirmed.
ON SUGGESTION OF ERROR.
It is insisted in the suggestion of error that we erred in our former holding, and that we were led into resting our decision of the case upon a matter of fact which was not in the record; and it is urged that there is nothing in the record to show what contemporary construction or practice had been placed upon the statutes involved, and that counsel did not have a chance to meet such theory of the case.
Contemporary construction as a rule of construing statutes is as old as the common law, and has, throughout the history of the state, been recognized as the proper course in doubtful cases. 25 Mississippi and Southern Digest, Annotated, title "Statutes," 218; Chrisman v. City of Brookhaven, 70 Miss. 477, 18 So. 458; Town of Wesson v. Collins, 72 Miss. 844, 18 So. 360, 917. Black's Interpretation of Law (2 Ed.), p. 289.
The briefs in the case cited the opinion of the attorney-general referred to in the opinion, and this court, in the case of Peets v. Martin, 135 Miss. 720, 101 So. 78, announced the rule and cited opinions from the attorney-general's office. The court takes judicial knowledge of all holdings of the attorney-general's office, and the rules of practice of the state departments of government. The attorney-general is required by the law to give his legal opinion to the head of every department of government on request, and to other officers, including the Legislature, and is required to make a biennial report to the Legislature and to keep copies of his official opinions.
The court will take such judicial notice and resort to every proper method of ascertaining from the departments whatever it is required judicially to know, but does not actually know. This is fully discussed in Witherspoon v. West, 138 Miss. 310, 103 So. 134. See, also, Vicksburg Waterworks Company v. Guffy Petroleum Co., 86 Miss. 60, 38 So. 302; Adams v. Standard Oil Company, 97 Miss. 879, 53 So. 692.
Suggestion of error overruled.