Opinion
No. 33243.
May 16, 1938.
1. STATUTES.
All statutes in pari materia are to be considered together.
2. SCHOOLS AND SCHOOL DISTRICTS.
Under statute governing arrangement of school districts, consolidated district must be established so as to give all children opportunity to attend school, and no territory can be denied educational opportunities for the children living therein (Code 1930, section 6586).
3. STATUTES.
In construing statutes, the word "may" may be considered as mandatory, while "shall" may be construed as permissive, although in ordinary usage "may" is permissive and "shall" is mandatory and excludes discretion, though not always.
4. CONSTITUTIONAL LAW.
A statute will be construed in harmony with the Constitution, if reasonably possible.
5. CONSTITUTIONAL LAW.
The Legislature may confer authority for legislative action or discretion on local boards or governmental subdivisions, stating the conditions under which laws may become effective, but it may not surrender its own discretion to the qualified electors of the state or any part of the state.
6. CONSTITUTIONAL LAW.
The Legislature may determine the conditions under which laws shall operate and leave to local authorities the determination of facts under the conditions in a particular locality, as to the particular subject matter of a statute.
7. SCHOOLS AND SCHOOL DISTRICTS.
A statute providing that, on filing of petition for creation of school district by majority of electors of proposed district, it "shall" be the duty of county school board to create such district, is not mandatory, in view of statute governing arrangement of districts, but petition may be denied if granting thereof would impair or destroy rights of others (Code 1930, sections 6584(b), 6586).
8. MANDAMUS.
Mandamus does not lie to control discretion, where conferred by law.
9. MANDAMUS.
Mandamus did not lie to compel county school board to create special consolidated school district of certain name on petition of majority of electors of proposed district, where board had created district of the same name before filing of petition, and where petition was denied, in exercise of discretion of board, after board heard arguments of petitioners and objectors (Code 1930, sections 6584(b), 6586).
APPEAL from the circuit court of Quitman county. HON. WM. A. ALCORN, Judge.
J.W.T. Falkner, of Oxford, and Eugene Thompson, of Marks, for the State.
The procedure for the organization of a special consolidated school district is set out in Section 6584 of the Mississippi Code of 1930.
A close comparison of the facts of the case, with the statute law, will show that every provision of the law has been complied with, that the creation of the proposed special consolidated school district was mandatory upon defendants, that they refused to act thereupon, leaving to complainants no other adequate remedy than a writ of mandamus as provided for by Section 2348 of the Mississippi Code of 1930.
The lower court erred in sustaining the demurrer to complainants' petition for a writ of mandamus.
Appellee's whole argument is based upon the supposition that the word "may" in some instances will not be given a mandatory effect. That is a good point to remember, but has no application here as the word "may" was not used in the statute in issue, sub-section b, Section 6584, Code of 1930. The word used in the statute is "shall."
Carrolton v. Town of Carroltown, 109 Miss. 494, 69 So. 179.
In view of the fact that the statute was enacted after the decision in the case of State ex rel. Cowan, District Attorney v. Morgan, County Superintendent of Education, et al., 147 Miss. 121, 112 So. 865, the case cited by appellee in his brief, it was clearly the legislative intent that the statute should be mandatory.
No one would attempt to assert that mandamus would lie to compel the performance of an act that was discretionary, but here, even a casual reading of the statute, and by appellee's authorities, there can be no question but that the statute was mandatory.
We agree with appellee's contention that an action to be brought in the name of the state must be affected with a public interest. A casual reading of the statute authorizing the suit to be brought in the name of the state will show this.
A proceeding affecting a public interest is one that affects the general public. To be able to maintain a private suit the injuries sought to be prevented must be to the individual, and must be injuries which are different from those received by other individuals in his class. If they are not different, they partake of a public nature, and are said to be affected with a public interest.
McKee v. Hogan, 110 So. 775, 145 Miss. 747; State ex rel. Trahan v. Price, 151 So. 566, 168 Miss. 818; Storey v. Rhodes, 174 So. 560.
In the case of Tishomingo County School Board v. Crabb, 170 Miss. 146, 154 So. 345, the court was faced with a situation where eight separate districts were desirous of forming a special consolidated school district. These were existing districts, but the court held that the proper procedure to organize into a new consolidated school district was under sub-section (b) of Section 6584.
Botts v. Prentiss Co. School Board, 175 Miss. 62, 166 So. 398.
In the case of Clanton v. Bd. of Suprs., Webster County, 164 Miss. 511, 145 So. 108, there was an objection made to the use of subsection (b) to create a new district by consolidating previously existing districts, and it was held that the procedure followed was the correct one.
Lee v. Bassett, 153 Miss. 854, 121 So. 842.
It is not necessary that a majority of the qualified electors of the special area of each district affected by the proposed action of the board shall sign the petition for the creation of a new district.
Botts v. Prentiss Co. School Board, 175 Miss. 62, 166 So. 398.
Appellant sincerely believes that the only proper procedure to be followed was under sub-section (b) Section 6584, Code of 1930, that in view of the fact that the sub-section is mandatory, a refusal on the part of the board to grant the petition in conformity with the terms of the statute, left no other adequate and speedy remedy other than by mandamus, that for reasons cited in the brief, the only proper person to bring such a suit was the State of Mississippi on the relation of the Attorney-General, therefore petitioner prays that this court will reverse the decision of the lower court, and remand for further proceedings in the lower court.
Pat D. Holcomb, of Clarksdale, and T.N. Gore, of Marks, for appellee.
The petition for writ of mandamus nowhere charges any dereliction of duty on the part of the Quitman County School Board.
In determining the legislative intent, the court will take all statutes in pari materia, considering the whole scheme of statutes in determining their meaning.
It is respectfully submitted that the County School Board had discretion to be exercised for the good of the whole county as well as the particular district and the board in its order having found conditions to exist which made the creation of the New Darling Special Consolidated School District in its judgment, improper and unnecessary, mandamus will not lie to control such discretion.
State ex rel. Cowan v. Morgan, County Superintendent of Education, 147 Miss. 121, 112 So. 865.
The School Board had discretion to be exercised for the good of the schools of the county and this court has consistently held that mandamus will not lie to control discretion.
Section 2348, Code of 1930; Calvert v. Crosby, 163 Miss. 177, 139 So. 608; Anderson v. Robins, 161 Miss. 614, 137 So. 476; Alex Loeb, Inc. v. Board of Trustees of Pearl River Junior College, 171 Miss. 467, 158 So. 333.
Mandamus will not lie to compel the school board to enter an order which is contrary to the better judgment of said board and further, it is respectfully submitted, would have been void if entered, in the case at bar. Mandamus certainly will not lie to compel the doing of a vain act.
The petition for writ of mandamus does not affirmatively show wherein the public interest was affected.
State ex rel. Brown, v. Poplarville Sawmill Co., 119 Miss. 432, 81 So. 124; Patterson v. State, 177 Miss. 227, 170 So. 645; Myers v. State, 61 Miss. 40; Capitol Stages v. State, 157 Miss. 576, 128 So. 759.
The petition and exhibits affirmatively show that the territory sought to be annexed and consolidated into a special consolidated school district was an existing school district.
If the petition had been allowed, the Essex School District would have been by an arbitrary fiat (fiat ut petitur) ushered out of existence and into a scheme of things against their wishes, against the better judgment of the school board, and against the language of the statute and against the contemplation of the legislature.
Section 6584, subsection e, Code of 1930; Belden Consolidated School District v. Lee County, 160 Miss. 157, 133 So. 225.
The territory described in the petition did not constitute a proposed district within the contemplation of the statute; there was already an existing district.
It is respectfully submitted that subsection (b) of Section 6584, of the Mississippi Code of 1930, was not the proper procedure before the said board and has no place in this controversy. The applicable section to have adopted would have been sub-section "d" of Section 6584 of the Mississippi Code of 1930, which deals with existing school districts and which, of course, under the facts as presented by the record would have precluded their purpose. Realizing this, they endeavored to evade the applicable section, and to arrogantly defy the rights of the minority.
Lee v. Bassett, 153 Miss. 845, 121 So. 842; Yarbrough v. Wilson, 159 Miss. 97, 131 So. 228; Gilbert v. Scarbrough, 159 Miss. 679, 131 So. 876.
The said petition and the exhibits thereto nowhere allege or show that there are 250 pupils of free school age and 25 square miles of territory therein as required by the statute.
Sections 6622 and 6653, Code of 1930; Yeager v. Merritt, 153 Miss. 64, 120 So. 832; Green v. Sparks, 104 Miss. 71, 163 So. 895; Botts v. Prentiss County School Board, 175 Miss. 62, 166 So. 398; Leach v. Wileman, 177 So. 13.
The petition for the writ of mandamus and the exhibits thereto nowhere allege or show any of the proper jurisdictional facts.
Sub-section "D" of Section 6584, and sections 6645 and 6654, Code of 1930; Yarbrough, County Supt. of Education v. Wilson, 159 Miss. 97, 131 So. 228; Gilbert v. Scarbrough, 159 Miss. 679, 131 So. 876; Lee v. Bassett, 153 Miss. 855, 121 So. 842.
Argued orally by Eugene Thompson, and J.W.T. Falkner, for appellant, and by Pat D. Holcomb, and T.N. Gore, for appellees.
Certain citizens in Quitman county filed with the county school board a petition for the creation of a special consolidated school, which petition described the territory to be embraced as follows: "Beginning at the northeast corner of Section 4, Township 8 South, Range 11 West, of Quitman county, and running west along the county boundary line to the northwest corner of Quitman county in Range 11 West; thence south and east along the Chickasaw-Choctaw line to the north boundary line of Section 3, Township 29 North, Range 2 West; thence west along this north boundary line of Section 3 to the Northwest corner of said Section 3, Township 29 North, Range 2 West; thence south along the western boundary line of said Quitman county to the northwest corner of Section 3, Township 28 North, Range 2 West; thence east to the northeast corner of Section 1, Township 28 North, Range 2 West; thence south one and one-half miles; thence east one mile; thence south one-half mile; thence east one-half mile; thence south one mile; thence east one and one-half miles; thence north two miles; thence east from this point to the Chickasaw-Choctaw Line; thence in a southerly and easterly direction along said line to the southeast corner of Section 13, Township 9, South, Range 10, West; thence in a northerly direction along the eastern boundary line of Quitman county to the northeast corner of Section 24, Township 8 South, Range 10 West; thence west two miles; thence north one mile; thence west five miles; thence north, one mile; thence west two miles; thence north one mile to the point of beginning."
This petition was signed by a large number of persons claiming to be qualified electors, and to constitute a majority of the qualified electors of the proposed territory to be created into a special consolidated school district. The county superintendent of education gave notice of the meeting of the county school board to be held at the county courthouse at 9:30 a.m. Friday, October 22, 1937, for the purpose of considering the matter, and this notice was published in newspapers of the county on October 7th, 14th, and 21st, and due proof of publication was filed with the county school board. The county school board met, but desiring further information in reference to the matter, adjourned until 9 o'clock on the 25th of October, when it assembled and considered the said matter, and entered the following order with reference thereto: "Whereas, there was on October 6, 1937, at 4:15 o'clock P.M. filed with the county superintendent of education as president of this board a petition by B.L. Blaine and others to create the New Darling Special Consolidated School District, including territory described therein; and whereas, the said petition having come on to be heard in open session, and the said Board having fully considered said petition, and having heard argument of counsel representing both petitioners and citizens and patrons and qualified electors of the Essex School District objecting to the prayer of said petition; and it appearing to the Board that, from time to time since June 15, 1937, various petitions have been presented to this Board affecting the Darling, Essex, McArthur, and Hinchcliff School Districts, and that this Board has, from time to time, entered various orders on said petitions; and that this Board did, at a meeting on the 20th day of August, 1937, act upon a petition praying for the creation of the New Darling Special Consolidated School District, and did, on said date, by order properly entered upon the minutes of this Board, organize and create the New Darling Special Consolidated School District. Now, therefore, be it resolved by the County School Board of Quitman county, Mississippi, that the said petition of B.L. Blaine and others praying for the creation of the New Darling Special Consolidated School District filed on the 6th day of October, 1937, be and the same is hereby dismissed and the prayer of said petition is hereby denied."
It will be noted from the recitals of this order of the county school board that the board considered the petition, with the objections thereto, and that it had had before it at various times school matters pertaining to the territory proposed to be embraced in the district prayed for; and that the board did, on the 20th day of August, 1937, act upon a petition praying for the creation of a New Darling Special Consolidated School District, and did, on said date, by order properly entered upon the minutes of the board, organize and create the New Darling Special Consolidated School District; and they denied the petition to create the new school district, as prayed for herein. Thereupon the state of Mississippi, on the relation of the Attorney-General, filed a petition for a mandamus in the circuit court, setting forth as exhibits to its petition the petition of the residents above mentioned, and the order of the school board denying the same; and prayed that mandamus be issued, commanding the school board to create the Special Consolidated School District. A demurrer to the petition was interposed, and sustained, in the court below, from which the state appeals.
The contention of the appellants that under the provisions of section 6584, par. (b), Code 1930, it was mandatory on the school board to create the Special Consolidated School District, and that the board had no discretion to refuse to do so: Paragraph (b) reads as follows: "Whenever a majority of the qualified electors of a proposed consolidated school district, special consolidated school district, or rural separate school district shall file a petition with the president of the county school board describing the territory to be embraced in such school district and requesting that it be created into one district, then it shall be the duty of the school board to create such district and to determine and describe the boundaries thereof and to name the sections and parts of sections composing such district and to designate the location for a school building. When a school district is created under this provision, then it shall not be necessary for the board to publish its order creating same, and the order shall become final from and after its passage."
The appellants relied upon the language of the statute; "then it shall be the duty of the school board to create such district and to determine and describe the boundaries thereof and to name the sections and parts of sections composing such district and to designate the location for a school building," as a mandatory provision, removing any discretion from the school board to do otherwise than decide whether the petitioners constitute a majority of the qualified electors of the proposed district.
In construing a statute, all statutes in pari materia are to be considered together, and the legislative intention must be ascertained from a consideration thereof. In section 6586, Code 1930, it is made the duty of the county school board to divide the whole territory of the county outside of separate school districts into school districts for the white race, and also for the colored race, prescribing limits and provisions for the government of the school in so doing. It is therein provided that, "The district shall be so arranged as to place all children within reasonable distance of the school house; and one public school shall be maintained in each district," etc. In other words, the scheme of the statute is to embrace every part of the county in a school district, so that all children may have the opportunity to attend a school; and to require schoolhouses to be so located as to effectuate this purpose. A consolidated school district must be laid out and established in accordance with this legislative purpose; and no territory can be denied educational opportunities for the children living therein.
We therefore find from a consideration of the petition for mandamus, and its exhibits, that there are no recitals showing that all the territory of the county has been so laid out that establishing the school district prayed for would leave educational opportunities to children in other parts of the territory adjacent to the consolidated school district.
In construing statutes the word "may" may be construed as mandatory in application, while "shall" may be construed as permissive rather than mandatory; although in ordinary usage "may" is used in a permissive sense, and "shall" is mandatory and excludes discretion — though not always. In Black on Interpretation of Laws (2 Ed.), at page 529, under the heading "Permissive and Mandatory Terms," it is said: "Such terms and phrases are as susceptible of being read in either a mandatory or a directory sense are presumed to have been used in their natural and primary signification, and should not be interpreted otherwise, unless it is necessary to carry out the purpose of the legislature, effect justice, secure public or private rights, or avoid absurdity. But words in a statute importing permission or authorization may be read as mandatory, and words importing a command may be read as permissive or enabling, whenever, in either case, such a construction is rendered necessary by the evident intention of the legislature or the rights of the public or of private persons under the statute." See comments on following pages.
It is more than doubtful, under the case of Browning v. Hooper, 269 U.S. 396, 46 S.Ct. 141, 70 L.Ed. 330, whether a school district can be created on a mere petition of qualified electors or other persons in such district.
When one construction of a statute would endanger its constitutionality, it will be construed in harmony with the Constitution if, under the language of the statute, this may reasonably be done. The legislative power of this state is vested in the Legislature; and while the Legislature may confer authority for legislative action, or discretion, or local boards or governmental subdivisions, stating the conditions under which such laws may become effective as a part of the legislative will, it has not been given the power, under the Constitution, to surrender its own discretion to the qualified electors of the state or any part of the state. It may determine the conditions under which laws shall operate, and leave to local authorities the determination of facts under these conditions in a particular locality, as to the particular subject matter of the statute.
It certainly seems to us that it is not contemplated that all discretion should be removed from the county school board, so that districts would have to be changed whenever a majority of the qualified electors should determine, and as often as they might desire, to have such changes. The rights conferred by the statute, above mentioned, are conditional and discretionary, to the extent that the creation of such district would not operate to impair or destroy the rights of other citizens and children to have reasonable and adequate school facilities, and that without undue hardship and inconvenience. The order of the county school board shows that they had, a short time previous to the filing of the petition, established a special consolidated school district, and reveals that the board was acting with judgment and reason, and not capriciously. As a writ of mandamus does not lie to control discretion, where conferred by law, it follows that it is not an appropriate remedy in the present case; and the judgment of the court below in sustaining the demurrer to the petition and the exhibits thereto was proper.
The judgment is therefore affirmed.
Affirmed.