Opinion
No. 33980.
January 2, 1940.
1. SCHOOLS AND SCHOOL DISTRICTS.
The statute requiring school trustees to be patrons of school of which they are trustees is violative of constitutional provision that all qualified electors shall be eligible to office (Laws 1938, chap. 222; Const. 1890, sec. 250).
2. STATUTES.
The unconstitutionality of provision of statute providing that school trustees must be patrons of school of which they are trustees did not affect balance of statute, where there was left a complete legislative plan which Legislature would have left standing if it had known of unconstitutionality of such provision (Laws 1938, chap. 222; Code 1930, sec. 6664; Const. 1890, sec. 250).
APPEAL from the circuit court of Attala county; HON. JOHN F. ALLEN, Judge.
W.E. Gore, of Jackson, and H.T. Leonard and D.H. Glass, both of Kosciusko, for appellants.
Two questions are presented: (1) Can the Legislature add qualifications to those prescribed by Section 250 of the Constitution, to govern eligibility for the office of school trustee? (2) Can the provision requiring that trustees shall be patrons be separated from its other provisions and leave Chapter 222 of the Laws of 1938 in force to govern the office of trustee?
The plain words of Section 250 are sufficient to settle this question, for it provides that all qualified electors are eligible to office, not all qualified electors who are patrons "of the school, provided that a member appointed for a given term may complete said term notwithstanding the fact that said member may cease to be a patron before the expiration of the term for which he was appointed," as provided by Section 6664 of the Code, as amended by Chapter 222 of the Laws of 1938.
Wynn v. State, 7 So. 353, 67 Miss. 312; State ex rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152 at page 154.
Section 250 of the Constitution of 1890 contains a clearly expressed prohibition, in itself, against adding qualifications. It provides that all qualified electors shall be eligible to office. Its terms are plain. No interpretatoin appears to us to be necessary.
McCool v. State, 115 So. 121, 149 Miss. 82.
The second question to be settled is whether the unconstitutional part of Section 6664, as amended by Chapter 222 of the Laws of 1938, can be separated from the constitutional part of it.
The rule is stated in 11 Am. Jur., Section 152, page 834, as follows: "It is a fundamental principle that a statute may be constitutional in one part and unconstitutional in another part and that if the invalid part is severable from the rest, the portion which is constitutional in another part and that if the invalid part is may stand while that which is unconstitutional is stricken out and rejected."
Am. Express Co. v. Beer, 107 Miss. 528, 65 So. 575, L.R.A., 1918B, 446, Ann. Cas., 1916D, 127; Bd. of Suprs. of Holmes County v. Black Creek Drainage Dist., 99 Miss. 739, 55 So. 963; The General Thompkins, 9 Fed. 620; Campbell v. Union Bank, 6 How. 625; Southern Express Co. v. Longinotti, 65 So. 583; Am. Express Co. v. Miller, 65 So. 652; Enochs v. State, 97 So. 534, 133 Miss. 107; State v. Jackson Cotton Oil Co., 48 So. 300, 95 Miss. 6; City of Jackson v. State, 59 So. 873, 102 Miss. 663, Ann. Cas., 1915A, 1213; Hatten v. Bond, 73 So. 612, 112 Miss. 590; Moore v. Tunica County, 107 So. 659, 143 Miss. 821, 108 So. 900, 143 Miss. 839; Runnels v. State, 122 So. 769, 154 Miss. 621; State v. Speakes, 109 So. 129, 144 Miss. 125; Adams v. Standard Oil Co., 53 So. 692, 97 Miss. 879; State v. Rombach, 73 So. 731, 112 Miss. 737; Johnston v. Long Furniture Co., 74 So. 283, 113 Miss. 373; State v. G.M. N.R. Co., 104 So. 68, 138 Miss. 70; Gulfport Building Loan Assn. v. City of Gulfport, 124 So. 658, 155 Miss. 498; Magnolia Building Loan Assn. v. Miller, 128 So. 585, 51 S.Ct. 86, 282 U.S. 803, 75 L.Ed. 722; Hudson v. Stuart, 145 So. 611, 166 Miss. 339; Holloway v. Jordan, 154 So. 340, 170 Miss. 99.
We submit that the case should be reversed and judgment entered here for the appellants.
Chapter 222, Laws of 1938 (a) designates the method of creation of trustees of such school districts: "The trustees of a municipal district shall be elected by the mayor and board of aldermen or other governing body at the first regular meeting in January. All vacancies for the unexpired term shall be filled by selection of the mayor and board of aldermen."
The statute nowhere uses the word "appoint." In fact, if it did use the word "appoint" in place of "elect" such term would in no wise relate to the qualifications or lack of qualifications of such officeholder and would only be a matter of procedure prescribing the machinery of selection. Counsel attempts to draw a distinction between constitutional and statutory officers and contends that Section 250 of the Constitution should not apply because the office of municipal school trustee is not a constitutional office. This argument is exploded by Section 250 itself wherein it says, "All qualified electors shall be eligible to office, except as other wise provided in this constitution." The constitution nowhere mentions the word "alderman" but in the case of McCool v. State, 149 So. 182, appellant, McCool, was a legislative officer, that is, holding an office created by the Legislature, and no such distinction was made in that case as counsel attempts to create here.
Counsel for appellee likewise urges that because of the fact that the requirement that a trustee should be a patron of the school has been on the statute books for fifty-nine years, it should now be so declared the organic law of the land. In the McCool case, 115 So. 121, this court had no hesitancy in striking down a statute which had been in the code since 1892, and which statute had accumulated a little age itself — more than thirty-five years. This rule only applies where there is ambiguity in a statute or where the court itself is in doubt as to the proper construction and mere practice, custom, or usage can never ripen into constitutionality.
It is very apparent on the face of the act that the Legislature or the courts could entirely eliminate the provision requiring such trustees to be patrons of the school and still leave a complete workable scheme. If this is true, and the provision in question is unconstitutional it is the duty of the courts to strike it therefrom and leave the remainder of the act in force and unimpaired by such objectionable feature.
J.D. Guyton, of Kosciusko, for appellee.
In the case at bar, the power to appoint trustees of this separate school district is not vested by the Constitution in the Mayor and Board of Aldermen of Kosciusko. The Mayor and Board of Aldermen are not required by the Constitution, or the statute, to obtain the advice and consent of the senate to such appointments. The power of said Mayor and Board of Aldermen to appoint trustees is purely statutory. The Legislature created or designated the appointive authority by enacting Chapter 222, Laws of 1938. It, the Legislature, saw fit to limit the right and power of the Mayor and Board of Aldermen to appoint trustees to those who are patrons of the school.
A construction will be given a statute, if reasonably possible, which will render it constitutional and carry out the legislative plan or purpose. A plausible construction is a reasonable one.
Sanford v. Dixie Const. Co., 128 So. 887; Chassanoil v. Greenwood, 148 So. 781, 166 Miss. 848; Tucker Printing Co. v. Attala County, 158 So. 336; Miller v. State, 94 So. 706, 130 Miss. 564; Robinson v. State, 108 So. 903, 143 Miss. 247.
It has been the consistent, constant, and unbroken legislative history for at least the last 59 years that the law has required trustees of separate school districts to be patrons of the school.
Sec. 703, Code of 1880; Sec. 4007, Code of 1892; Sec. 4526, Code of 1906; Secs. 7338 and 7347, Hemingway's Code of 1917; Sec. 6664, Code of 1930.
Chapter 222, Laws of 1938, amending Sec. 6664, Code of 1930, requires that trustees shall be patrons of separate school districts, with the proviso that should any trustee cease to be a patron during his term he may nevertheless serve out his unexpired term.
The Legislature, prior to the Constitution of 1890, as well as subsequent thereto, has claimed the right and power to require trustees of separate school districts to be patrons of the school. The very first Legislature which met after the Constitution of 1890 was established, in enacting the Code of 1892, adhered to its long established policy in requiring trustees to be patrons of the schools they managed and governed. In that Legislature there were doubtless a goodly number who were members of the Constitutional Convention of 1890.
This court has said that a long established policy by the Legislature will not be held unconstitutional.
State ex rel. Hairston v. Baggett, 110 So. 241, 145 Miss. 142; Dantzler Lumber Co. v. State, 53 So. 1, 97 Miss. 355; State v. Henry, 87 Miss. 125, 40 So. 152; Teachers College v. Morris, 144 So. 374, 165 Miss. 758.
A school trustee is an "officer" insofar as the law on Quo Warranto is concerned, yet he is not an "officer" as defined in and by the Constitution. It may be that this is the reason why the Legislature has consistently and continuously for the past 59 years required trustees of schools to be patrons thereof, in addition to requiring that they be qualified electors.
Ellis v. Greaves, 34 So. 81, 82 Miss. 36; Moore v. Tunica County, 107 So. 659, 143 Miss. 201; McClure v. Whitney, 82 So. 259, 120 Miss. 350.
Each of the appellants, having accepted and entered upon the discharge of the duties of the office of school trustee created by Chapter 222, Laws of 1938, and not elsewhere provided for by law or the constitution, and having accepted a commission from the Mayor and Board of Aldermen of the City of Kosciusko, which derives its powers from this law, as trustees, are estopped from asserting that this law is unconstitutional.
12 C.J., page 769, Sec. 190, page 770, Sec. 193, page 774, Sec. 202; I.C.R.R. Co. v. King, 13 So. 824, 69 Miss. 852; A. V.R.R. Co. v. Odeneal, 19 So. 202, 73 Miss. 34; Quinn v. State, 33 So. 839, 82 Miss. 75; Pate v. Bank of Newton, 77 So. 601, 116 Miss. 666.
Appellants say that Subsection 3 of Section 6664, Code of 1930, as amended by Chap. 222, Laws of 1938, requiring trustees to be patrons of the school, is separable from the remaining part of this statute; that all the balance of this statute is good and can stand with subsection 3 eliminated as unconstitutional. Several authorities are cited in support of this contention; but all the cited authorities either lay down a rule or apply a particular State of facts. No authority cited is analagous to the case at bar.
There is nothing severable or separable in Chapter 222, Laws of 1938. The act as a whole is one entire scheme of providing for the management and government of separate school districts.
State v. Sansome, 97 So. 753, 133 Miss. 428; State v. Jackson, 109 So. 724, 143 Miss. 745; Commodore Corp. v. Davis, 172 So. 867, 178 Miss. 376; Jefferson S.L. Ins. Co. v. Noble, 188 So. 289.
This entire Chapter 222, Laws of 1938, embraces one scheme and plan for governing and managing separate school districts. The law stands or falls as a whole. There is no logical reason for saying that the Legislature would have given the power to appoint trustees of a municipal separate school district to the Mayor and Board of Aldermen without requiring the trustees by it to be appointed to be patrons of the school; and this is especially true when we note that in 1938 the Legislature emphatically refused to so amend Section 6664, Code of 1930, as to authorize the Mayor and Board of Aldermen to appoint as trustees anyone who is merely a qualified elector.
Appellants, Dr. W.R. Lacey and T.J. Austin, were elected trustees of the Kosciusko municipal separate school district and entered upon the performance of their duties as such. They were ousted from their offices by the judgment of the circuit court of Attala county in a quo warranto proceeding brought on the relation of the district attorney for that purpose. The ground upon which they were removed from office is that they were not patrons of the school of which they were elected as trustees. From that judgment they prosecute this appeal.
The appeal is based upon the contention that Chapter 222 of the Laws of 1938, insofar as it requires school trustees to be patrons of the school of which they are trustees, is violative of Section 250 of the Constitution, and therefore void. We are of the opinion that the contention is well founded. Section 250 of the Constitution provides: "All qualified electors and no others, shall be eligible to office, except as otherwise provided in this Constitution." There is no other provision in the Constitution affecting the qualifications of school trustees. State ex rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152, 5 L.R.A. (N.S.), 340; Wynn v. State, 67 Miss. 312, 7 So. 353; and McCool v. State, 149 Miss. 82, 115 So. 121, are decisive of the question. In the State ex rel. Greaves case the Court used this language [ 87 Miss. 125, 40 So. 154, 5 L.R.A. (N.S.), 340]: "Another principle is that, where the Constitution deals with a subject, its words must be the sole boundary, and sacred from the Legislatures, except where it permits expressly or by necessary implication. Another is that, where the Constitution schedules powers, giving or taking away, it must be presumed to have scheduled all, and it only must be looked to, with its necessary implications, for the limit of authority or restriction."
The Constitution of 1869, Article 7, Section 4 provided that no person should be eligible to any office who was not a qualified elector. The Legislature passed an act adding to the qualifications of county superintendents of education the requirement that they hold a first grade certificate. The Court held in the Wynn case that the act was unconstitutional. In the McCool case the Court had under consideration a statute (Section 3430, Code 1906) which provided that in case of an increase of the municipal indebtedness, without being authorized by a majority vote of the qualified electors of the municipality, the mayor and aldermen in office at the time should not succeed themselves or each other. That statute was held unconstitutional upon the ground that no other qualification could be added to that prescribed by Section 250 of the Constitution.
The unconstitutionality of the particular provision in question of Chapter 222 of the Laws of 1938 does not affect the balance of the Statute. Taken out of the Statute there is left a complete legislative plan which had been embodied in Section 6664 of the Code of 1930, and which no doubt the Legislature would have left standing if they had known the amendment violated the Constitution. Board of Supervisors of Holmes County v. Black Creek Drainage District, 99 Miss. 739, 55 So. 963; American Express Co. v. Beer, 107 Miss. 528, 65 So. 575, L.R.A. 1918B, 446; Ann. Cas., 1916D, 127.
Reversed and judgment here for appellant.