Opinion
No. 32560.
November 9, 1936.
1. SCHOOLS AND SCHOOL DISTRICTS.
Under statute creating and regulating agricultural high schools-junior colleges and providing for support from means other than common school fund, chancery court had jurisdiction to validate notes issued for building program of such a school, since it was "school district" within meaning of statute governing court's jurisdiction in such matters (Laws 1935, Ex. Sess., chap. 48; Code 1930, sec. 312 et seq.; secs. 6674-6700).
2. STATUTES.
Statute authorizing issuance of bonds for building program by agricultural high schools and providing exception from limitation of maximum indebtedness for benefit of counties bordering Gulf of Mexico held not violative of constitutional prohibition against local laws applicable to common school system, since such schools were established by exercise of constitutional right of Legislature to establish schools separate from common school system (Laws 1935, Ex. Sess., chap. 48; Code 1930, secs. 6674-6700; Const. 1890, sec. 90, cl. (p); secs. 201, 205, 206).
ANDERSON, J., dissenting.
APPEAL from the chancery court of Stone county. HON. D.M. RUSSELL, Chancellor.
E.J. Adam, Jr., of Pass Christian, for appellant.
The agreed statement of facts shows that none of the sixty-four thousand dollars, of notes have actually been sold, or delivered and that the only relief asked for in the proceeding was a decree of validation pursuant to chapter 10, of the Mississippi Code of 1930. Such a proceeding is a judicial inquiry into the validity of the proposed notes prior to their actual sale and delivery and before any rights thereto have vested in any one. While not so denominated in the statute the proceeding is essentially one for a declaratory judgment or decree before any justiceable controversy has arisen. In the absence of any specific statutory authority for such a proceeding the courts in Mississippi are wholly without power or authority to hear a moot question or to render any purely declaratory judgment or decree.
Yates v. Beasley, 133 Miss. 301, 97 So. 676.
A comparison of the definitions of each of the five classes of school districts with the agricultural high school-junior college as defined in sections 6674 to 6700, inclusive, Code of 1930, shows that appellee cannot be classed as a school district.
It may be argued that the phrase "or any other district or subdivision" can be held to include appellant. We do not think so for the word "district" and the word "subdivision" both imply some territorial subdivision of the state. The appellee has no such characteristic.
Lienkauff v. Barnes, 66 Miss. 207, 5 So. 402; Greenville Ice Coal Co. v. City of Greenville, 69 Miss. 86, 10 So. 574; Anderson v. City of Hattiesburg, 131 Miss. 216, 94 So. 163.
The appellee does not come within the class of parties authorized to institute a proceeding of this character and the chancery court had no jurisdiction of the cause.
We contend that the proviso at the end of section 7, chapter 48, Laws of Mississippi Extraordinary Session of 1935, makes the statute a local, private and special law in violation of section 90 (p) of the Mississippi Constitution of 1890.
We are of the opinion with Judge ANDERSON that the entire system of public education in this state is divided into only two classes, (1) the common school system and (2) the university and colleges or institutions of higher learning. The agricultural high schools are either a part of the uniform system of free schools and therefore "common schools" within the meaning of section 90 (p) of the Constitution or else they are prohibited by section 201 of the Constitution.
2 Words Phrases (First Series), page 1335; Le Couteulx v. City of Buffalo, 33 N.Y. 333; People v. Brooklyn Board of Education, 13 Barb. 400; Powell v. Board of Education, 97 Ill. 375, 37 Am. Rep. 123; Roach v. Board of Trustees of St. Louis Public Schools, 77 Mo. 484; Board of Education of City of Topeka v. Welch, 33 P. 654; Ballinger's Ann. Codes St. Wash. 1897, p. 2334; 1 Words Phrases, 814, 815; School Dist. No. 20 Spokane Co. v. Bryan, 99 P. 28, 51 Wn. 498, 20 L.R.A. (N.S.) 1033; 2 Words Phrases (Third Series), 219, 220; 1 Words Phrases (Fourth Series), 464.
The term "common schools," in addition to appearing in section 90 (p) of the Mississippi Constitution, also appears in sections 202 and 206. At all other places in the Constitution, the schools are referred to as "a uniform system of free public schools" (sec. 201) and as "public school" (secs. 205, 206 and 207). We have examined the cases decided under all of these sections of the Constitution and find the following which shed light upon the question before the court, to-wit:
Otkin v. Lambin, 56 Miss. 658; Chrisman v. Brookhaven, 70 Miss. 477, 12 So. 458; Ellis v. Greaves, 82 Miss. 36, 34 So. 81; Turner v. City of Hattiesburg, 98 Miss. 337, 53 So. 681; Scarborough v. McAdams Consolidated School District, 124 Miss. 844, 87 So. 140; McLeod v. State, 154 Miss. 468, 122 So. 737; State Teachers College v. Morris, 165 Miss. 758, 144 So. 374; Morris v. Vandiver, 164 Miss. 476, 145 So. 228.
All of sections 6 and 7 of chapter 48, Laws of 1935, including the proviso in section 7 are phrased as general law. However, it is the well settled rule in Mississippi that in determining whether a statute is a general law or is a local, special or private law the court will consider its substance and its application rather than its form.
Toombs v. Sharkey, 140 Miss. 676, 106 So. 273; State v. Speakes, 144 Miss. 125, 109 So. 129.
It is also well settled that the Legislature may, within certain limitations, classify subjects of legislation and prescribe different rules for different classes without transgressing constitutional prohibitions against local, private or special legislation.
Toombs v. Sharkey, 140 Miss. 676, 106 So. 273; State v. Speakes, 144 Miss. 125, 109 So. 129; 25 R.C.L. 815; 1 Sutherland Statutory Constructions 196; Drainage District v. Buckner, 108 Miss. 427, 66 So. 784; Cox v. Wallace, 100 Miss. 525, 56 So. 461; Rankin County v. Davis, 102 Miss. 497; Halsell v. Mer. Union Ins. Co., 105 Miss. 268, 62 So. 235; Magee v. Lincoln County, 109 Miss. 181, 68 So. 76; Johnson v. Reeves, 112 Miss. 227; Coal Co. v. Ice Co., 118 Miss. 860; Jackson v. Inc. Co., 132 Miss. 415, 95 So. 845; Bank v. Miller, 147 Miss. 695, 112 So. 877; State v. Gilmer Gro. Co., 156 Miss. 99, 125 So. 710; Clarke v. State, 169 Miss. 369; Witty v. Drainage Dist., 126 Miss. 645, 89 So. 268.
Does chapter 48, Laws of 1935, provide for the management or support of the school, or incorporate it or grant it any privilege within the meaning of section 90 (p) of the Constitution? In the case of Scarborough v. McAdams Consolidated School District, 124 Miss. 844, 87 So. 140, it was directly held that a local and private act purporting to authorize issuance of bonds of a consolidated school district to aid in building, equipping and establishing a county agricultural high school was void as being in conflict with section 90 (p), Constitution of 1890.
Hamilton v. Lafayette County, 133 Miss. 14, 96 So. 465.
Since Harrison county is now indebted in excess of ten percent of the assessed valuation of the taxable property in the county, it would not help the appellee if the court should sever the proviso and leave the balance of sections 6 and 7 in the statute. Therefore it is apparent that the contention will be made that the proviso is an integral part of sections 6 and 7, that said sections are, together with the proviso, the invalid portion of the statute and should be severed therefrom. This court has, in many cases, announced and applied the rule that an unconstitutional or invalid portion of a statute may be so stricken out. Probably as clear a statement of the rule as any is found in Cooley on Constitutional Limitations (7 Ed.), pp. 246, 247, which was quoted with approval and followed by this court in Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692.
We concede the rule and its applicability in this case but we insist upon a further qualification thereof, to-wit: That the court should change the statute as little as possible in order to make it constitutional. Frankly we have been unable to find any case, either in the Mississippi decisions or elsewhere, on this point but we confidently assert it is the only possible rule. Applying this rule we say that if the court should eliminate any portion of this statute as being unconstitutional the portion eliminated should be the proviso in section 7 and not the whole of sections 6 and 7.
Carter v. Carter Coal Co., 80 L.Ed. 749.
In further reply to any argument which counsel for appellee may make to the effect that the proviso cannot be served from the balance of sections 6 and 7 we refer the court to its own holdings in the cases of Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692; Johnson v. Long Furniture Co., 113 Miss. 373, 74 So. 283, and Building Loan Assn. v. Gulfport, 155 Miss. 498, 124 So. 658.
R.C. Cowan, of Gulfport, for appellee.
We concede that chapter 10, Code of 1930, is the sole basis for the jurisdiction of the court.
In the present case the notes are authorized by chapter 48, Laws of 1935, to be issued by the Board of Trustees of the school and in the name of the school but they must also be authorized by the Board of Supervisors and are payable from county-wide ad valorem taxes to be levied by the Board of Supervisors. In all essential features the notes are obligations of the counties. They are issued by an agency of the counties, for the benefit of the counties and are payable just as other county debts. Only in a mere matter of form or nomenclature do they purport to be anything else. We earnestly contend that in actual fact it is Harrison and Stone counties issuing these notes and that the form is immaterial.
Is the Agricultural High School-Junior College a "school district?" It is not one of the five classes of school districts enumerated and defined by section 6622 of the Code of 1930, into which every county and every bit of land in the state must be divided. But is it not a two-county district or subdivision for the purpose of constructing, operating and maintaining a particular kind of school? The fact that Harrison and Stone counties are already divided into school districts as required by law does not prohibit the formation of another district including both counties to maintain a school of a different character. This court has approved a county wide road district. Rosenstock v. Washington County, 112 Miss. 124, 78 So. 876, and has held that the indebtedness of the county for road purposes would not be counted against the statutory debt limit of the road district.
This court has also held that an over-lapping road district might be created out of portions of two existing contiguous road districts and all three districts continue to exist and operate.
Wright v. Board of Supervisors of Lauderdale County, 124 Miss. 4, 86 So. 643.
On the question of whether or not appellee is "any other district or subdivision" we wish to call attention of the court to the language of section 315, Code of 1930, as follows: "any other district or subdivision whatsoever, as now existing or as may be hereafter created."
Is an Agricultural High School-Junior College a "common school?" At the threshold we meet the question of whether or not the Legislature has the power to create, by local or general law, a school supported by taxation which is not a common school.
It is a fundamental rule that the state constitution is a limitation upon the powers of the Legislature and not a grant of powers. Therefore, if the Constitution does not, either expressly or by necessary implication, deny such power to the Legislature then it exists.
Hinton v. Perry County, 84 Miss. 536, 36 So. 565.
There is no prohibition in the Constitution of 1890 against the creation of such schools by the Legislature unless it be in section 201. This section requires the Legislature to establish a "uniform system of free public schools, by taxation or otherwise, for all children between the ages of five and twenty-one years, and, as soon as practicable, to establish schools of high grade." The gist of the argument against the power of the Legislature to create such schools outside of and in addition to the common school system is that the words "uniform system of free public schools" by implication prohibit the creation of any schools which are not a part of such uniform system. We do not believe the Constitution should be given any such meaning. After requiring such a system to be established the writers of the Constitution proceeded in section 205 to specify what should constitute the system, to-wit: "a public school shall be maintained in each school district in the county at least four months during each scholastic year." The same thought is again expressed in section 206 which provides for a "common school fund" sufficient to maintain the "common schools" for the term of four months in each scholastic year. This court has repeatedly said that the Legislature does have such power.
Chrisman v. Brookhaven, 70 Miss. 477, 12 So. 458; State Teachers College v. Morris, 164 Miss. 158, 144 So. 374.
The Legislature has power to establish schools outside of and in addition to the "uniform system of free public schools" so long as such schools do not invade the constitutional scheme, that the Legislature has established the uniform system required by the Constitution, and the Agricultural High School-Junior Colleges do not invade such scheme and therefore are outside of the "uniform system."
This court has held that words in the Constitution will be given their common and ordinary meaning unless a contrary meaning be clearly indicated.
Dantzler Lbr. Co. v. State, 97 Miss. 355, 53 So. 1; Greene v. Weller, 32 Miss. 650; Brien v. Williamson, 7 How. 14.
The expression "common school" used in section 90 (p) of the Constitution is also used in section 206 of the Constitution where provision is made for a "county common school fund," which "shall be sufficient to maintain the common schools for the term of four months in each scholastic year." This expression, used by the Constitution makers, was used in its common and ordinary meaning as such meaning had been developed by statute and usage in Mississippi from its earliest days.
From the earliest times, in Mississippi, down to the present time, a sharp line of demarcation has been drawn between "common schools" and all other schools, including free public high schools, and it is inconceivable that the Constitutional Convention did not have in mind this meaning of the expression "common schools" when it used it more than once in the Constitution, nor that they did not mean to limit what was said in the constitution to be common schools as thus defined.
Does the proviso in section 7, chapter 48, Laws of 1935, make the statute a local, private or special law? We have carefully examined the Mississippi decisions upon the question of when a statute is a general law and when it is a local, private or special law. The rule laid down by this court in Toombs v. Sharkey, 140 Miss. 676, 106 So. 273, and in State v. Speakes, 144 Miss. 125, 109 So. 129, appears to be the settled law in this state. The other cases decided by this court all appear to be simply applications of the rule rather than variations therefrom. Our examination of authorities outside of Mississippi indicates that these two cases state the generally accepted rule.
We do not concede, however, that the statute in this case is half as bad as counsel for the appellant contends. According to counsel for the appellant sections 6 and 7 of this statute classify the Agricultural High School-Junior Colleges into four classes, to-wit: (1) those owned solely by one county, (2) those owned by two or more counties, none of which borders on the Gulf, (3) those owned by two or more counties one of which borders on the Gulf and (4) those owned by two or more counties, two or more of which border on the Gulf, and that the proviso applies only to class number three. It seems to us that this is a strained construction of the statute resorted to for the purpose of rendering the classification absurd.
We agree with counsel for the appellant that sections 6 and 7 must be construed together. Although written as two sections they really deal with the same subject matter, namely: the limitation of the amount of money which any school might borrow under authority of the act. Since the two sections must be construed together we say that the proviso applies equally to both sections and that the words "one of the counties" in the proviso means "any of the counties." The statute thus construed would, at worst, classify the Agricultural High School-Junior Colleges into two classes, to-wit: (1) those owned by one or more counties none of which border on the Gulf and (2) those owned by one or more counties where one or more of said counties borders on the Gulf, and the proviso would apply to those in the second class.
But it will be argued that even this construction of the statute would authorize an Agricultural High School-Junior College to borrow money without limit and regardless of the indebtedness of any of the counties owning the school, both the interior counties as well as the coast counties. But is this construction necessary? Is not the more reasonable construction that the proviso removes the limitation only insofar as concerns the indebtedness of the coast counties? We think the language of the statute is susceptible of such a construction.
It is a general and fundamental rule that if a statute be reasonably susceptible of two interpretations, one of which would render it unconstitutional and the other valid, it is the duty of the courts to adopt that construction which will uphold its validity; there being a strong presumption that the lawmaking body has intended to act within, and not in excess of, its constitutional authority.
Plymouth Coal Co. v. Pennsylvania, 232 U.S. 546, 34 Sup. Ct. 363, 58 L.Ed. 720; N.O.M. C.R.R. Co. v. State, 110 Miss. 290, 70 So. 355; Hart v. State, 87 Miss. 171, 39 So. 523, 112 A.S.R. 837; Williams v. Cammack, 27 Miss. 208, 61 Am. Dec. 508.
This court has held in the cases of Scarborough v. McAdams Consolidated School District, 124 Miss. 844, 87 So. 140, and Hamilton v. Lafayette County, 133 Miss. 14, 96 So. 465, that a statute authorizing issuance of bonds of a school district did grant a privilege to the school.
This court is committed to the rule that an unconstitutional portion of a statute which is separate and distinct from the balance of the statute may be stricken out and the remainder of the statute held to be valid.
Campbell v. Miss. Union Bank, 6 How. 625; Williams v. Cammack, 27 Miss. 208, 61 Am. Dec. 508; Brown v. Beatty, 34 Miss. 227, 69 Am. Dec. 389; State v. Cotton Oil Co., 95 Miss. 6, 48 So. 300; Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692; Holmes County v. Black Creek Drainage Dist., 99 Miss. 739, 55 So. 963; American Express Co. v. Beer, 107 Miss. 528, 65 So. 575; Hatten v. Bond, 112 Miss. 590, 73 So. 612; State v. Romback, 112 Miss. 737, 73 So. 731; Johnson v. Long Furniture Co., 113 Miss. 373, 74 So. 283; Enochs v. State, 133 Miss. 107, 97 So. 534; Moore v. Tunica County, 143 Miss. 125, 109 So. 129; B. L. Assn. v. Gulfport, 155 Miss. 498, 124 So. 658; Trahan v. State Highway Commission, 169 Miss. 732, 151 So. 178; Holloway v. Jones, 170 Miss. 99, 154 So. 340.
In this case, since Harrison county already has a funded debt in excess of ten percent of the assessed valuation, it would not benefit the appellee for the court to strike out only the proviso in section 7. We therefore contend that the proviso in section 7 is an essential and integral part of sections 6 and 7, which sections together with the proviso establish what purports to be a general rule for limiting the amount of money which might be borrowed under the act. Counsel for the appellant has so contended in that portion of his brief which urges the unconstitutionality of the law. The court must have first decided that these two sections, together with the proviso, constitute an integral and indivisible rule limiting the amount of money which might be borrowed before it arrives at the conclusion that the statute is unconstitutional at all. We do not concede this, but if the court is of such opinion then we say that, having so decided that these two sections together with the proviso constitute a single and indivisible rule, the court cannot sever the proviso only but must sever the two sections 6 and 7 in their entirety from the statute.
On this point we wish to call the attention of the court to the rule announced in other jurisdictions to the effect that provisos of this character may not be severed but that their invalidity renders the entire statute void. Of course, we do not consider that the proviso renders the entire statute void in this case but it does render void all that portion of the statute to which the proviso applies.
6 R.C.L. 129.
We say that the chancellor did not err in validating the notes because: (a) Agricultural High School-Junior Colleges are not "common schools" within the meaning of section 90 (p), Constitution of 1890, and therefore local, private and special legislation relating thereto is not violative of said Constitution; (b) chapter 48, Laws of 1935, and especially sections 6 and 7, thereof, when properly construed, is not either local, private or special legislation but is general law; and (c) If the Agricultural High School-Junior Colleges are "common schools" and the said statute is a local, private or special law then sections 6 and 7 jointly and inseparably constitute the only invalid portion of the said statute and said sections 6 and 7, in their entirety, can and should be severed and the remainder of the statute held to be valid.
This is an appeal by an objecting taxpayer from a final decree of the chancery court of Stone county validating sixty-four thousand dollars of notes of the Harrison-Stone-Jackson Agricultural High School-Junior College, located at Perkinston, in Stone county, proposed to be issued under the authority of chapter 48, Laws of Mississippi 1935, Extraordinary Session. The Board of Trustees of said school passed a resolution, accepting the offer of the United States Government to lend said school sixty-four thousand dollars, and to donate forty-five per cent. of a project costing one hundred sixteen thousand eight hundred and sixty-four dollars (not to exceed, in any event, fifty-two thousand three hundred and sixty-four dollars) for the improvement of said school; the purposes of said loan being duly recited in said resolution and in the proceedings which come within the terms of chapter 48, Laws of Mississippi 1935, Extraordinary Session. In the resolution applying for said loan, the assessed valuation of the taxable property in said counties separately, as ascertained by the last-completed assessment for taxation, was, for Harrison county nineteen million four hundred and forty-four thousand seven hundred and fourteen dollars, for Stone county the sum of one million three hundred and sixty-six thousand seven hundred and forty-six dollars, and the pro rata share of the loan to be borne by said counties was, for Harrison county, which borders on the Gulf of Mexico, the sum of fifty-nine thousand seven hundred and ninety-eight dollars, and for Stone county, which does not so border, the sum of four thousand two hundred and two dollars. It was further alleged that the amount proportioned to improvements was as follows: For a girls' dormitory, eighty-five thousand eight hundred and sixty-four dollars; heating system, nineteen thousand dollars; and for general repairs, one thousand five hundred dollars — making a total of, approximately, one hundred and sixteen thousand three hundred and sixty-four dollars. The loan was to become payable as follows:
In 1937 to 1941, both inclusive, one thousand five hundred dollars each year.
In 1942 to 1946, both inclusive, three thousand dollars each year.
In 1947 to 1951, both inclusive, three thousand five hundred dollars each year.
In 1952 to 1957, both inclusive, four thousand dollars each year.
The proceedings of the trustees of said school were certified to the Boards of Supervisors of Harrison and Stone counties, and by them ratified and approved.
It was shown that the Junior College Commission had located said college, and in the agreed statement of facts it was recited that all the proceedings had were true and correct, and were in compliance with chapter 48, Laws of Mississippi 1935, Extraordinary Session.
The transcript of the proceedings, after submission to the state bond attorney and his approval secured thereon, was filed in the chancery court for validation. Due notice was made by the clerk to the interested parties, as provided by law, and T.P. Wyatt, a taxpayer of Stone county, filed his protest challenging the legality of the proceedings upon two grounds: First, that the chancery court did not have jurisdiction to validate the notes and proceedings; and, second, that chapter 48, Laws of Mississippi 1935, Extraordinary Session, under which the notes were issued, is unconstitutional inasmuch as it violates clause (p), section 90, of the Constitution of 1890. Section 1 of said chapter 48 provides that the trustees of any agricultural high school, after meeting all the requirements, shall have the power to borrow not exceeding two hundred thousand dollars upon the terms of the act, for the purpose of erecting, constructing, repairing, remodeling, or equipping all buildings connected with the institution. By section 2, it is provided that no loan can be made until a resolution has been passed by the affirmative vote of the trustees of agricultural high schools-junior colleges, specifying the amount, rate of interest, date of maturity, and the cost of the work to be done. By section 3, it is provided that the loans shall be made payable in annual installments, not to exceed twenty-five years, with not less than one-fiftieth of the loan to mature each year, and are to be evidenced by negotiable notes bearing interest at not exceeding four per cent. payable semiannually. Section 5 provides that in case the school is owned by two or more counties, the boards of supervisors of all such counties shall annually levy a special tax sufficient to pay each county's pro rata share of the principal and interest on such loan. Section 7 provides that no agricultural high school-junior college owned by two or more counties shall borrow any money which, when added to all the outstanding funded indebtedness of said county, will cause its indebtedness to exceed ten per centum of its taxable property, provided, this limitation shall not apply, where one of the counties borders on the Gulf of Mexico.
It was shown in the agreed statement of facts that in Harrison county the loan exceeded ten per cent. of its assessed value, but it was not shown whether that condition existed in Stone county.
The chancery court overruled the objection to this loan, and validated the notes issued, and from this decree this appeal is prosecuted.
As to the jurisdiction of the chancery court to validate the notes, appellant contends that said notes did not come within the terms of chapter 10, Code 1930 (section 312 et seq.), providing for the validation of bonds, the pertinent part of which reads as follows: "When any county, municipality, school district, road district, drainage district, levee district, sea wall district, or any other district, or subdivision, authorized to issue bonds shall take steps to issue bonds for any purpose whatever, the officer or officers of such county, municipality or district, charged by law with the custody of the records of same shall if the board issuing same so determine by order entered on its minutes, transmit to said bond attorney a certified copy of all legal papers pertaining to the issuance of said bonds," etc. (Code 1930, sec. 313), and said bond attorney shall, thereupon, as expeditiously as possible, examine said papers, pass upon the sufficiency thereof, and render a written opinion as to the validity of the bonds, and shall transmit all papers, with his opinion, to the clerk of the chancery court of the county in which the district proposing to issue the bonds is situated. At the hearing, if no written objection is filed by any taxpayer, the chancellor shall sign the decree, or, if the chancellor be not present, the clerk shall forward all papers, and the decree prepared by the state's bond attorney, to the chancellor for his signature, and when that is done, the clerk then enters the decree upon the minutes of the court in vacation.
The contention is here made that the Harrison-Stone-Jackson Agricultural High School-Junior College is not a district, or a municipality, as provided in the statute quoted supra, and that this school and others of like kind do not constitute any district provided for in this statute.
This calls for an examination of the acts creating such schools. Sections 6674 to 6700, Code 1930, deal with this subject, and section 6674 provides that the county school board in each county is authorized to establish not over two agricultural high schools in the county, determining their locality, one for white and one for colored children. Section 6675 provides for the support of such schools by a levy on the taxable property of the county or counties. Section 6676 provides that the control of such schools shall be vested in six trustees, one from each supervisor's district, and the County Superintendent of Education. Section 6677 provides for joint schools by two or more counties, and if a site be not agreed upon, the two places receiving the greatest number of votes shall be certified to the State Board of Education, which board shall select a site for the school. Section 6679 provides for the ownership of joint schools. Section 6680 provides for the inspection of such schools, and for their support, in part, by the state; and, among other things, it also provides that such schools shall own and operate a dairy sufficiently large to furnish milk and butter for the dormitories. It also provides that such schools shall own and operate poultry farms, model orchards, gardens, a sufficient number of pure-bred hogs, and plots of land on the school farm demonstrating the yield per acre, and the best method of cultivating such crops. It also provides that each school shall be required to have a minimum of one-eighth of an acre set apart as a vegetable garden for the use of the home economic department, and to own and operate an incubator for the teaching of poultry in said department. It also provides that each school be required to own a canning outfit for the use of the school, and for demonstration work in the different communities, and that all girls graduating from an agricultural school must be able to make their own clothes, prepare and serve meals, and do other things necessary to ordinary household management. It is provided that the above-named standards shall be enforced, and all expenses thereof are to be paid out of the agricultural high school appropriations. Section 6681 authorizes boards of supervisors to levy on the taxable property of the county or counties a tax for the building, repair, and equipment of such schools.
Junior college graduates are required to have completed the work of the freshman and sophomore years, so as to make the work of the agricultural high school and the junior college a connected and correlated whole, or a complete unit of educational work; and section 6695 provides for the standards of junior college work.
From these sections, it will be seen that agricultural high schools are not supported out of the common school fund, but are supported, in part, by taxes levied throughout the counties, and, in part, by specific legislative appropriations. They are, therefore, school districts authorized to issue bonds under the purview of chapter 10, Code 1930, and the chancery court had jurisdiction to validate its bonds.
It is next contended that chapter 48, Laws of Mississippi 1935, Extraordinary Session, is a local law by reason of the concluding paragraph of section 7 thereof, and that it violates section 90, clause (p), of the State Constitution. If an agricultural high school is not a part of the common school system of the state, then this clause has no application.
In the agreed statement of facts, it is recited that the entire territory of the state is divided into common school districts between the white and colored races. The management of the common schools is provided for under different laws from agricultural high schools. They are separate institutions and have, in many respects, different purposes. If agricultural high schools were a part of the common school system, their support would be provided for in sections 201 and 206 of the Constitution.
It is true that section 201 of the Constitution provides for the establishment of schools of a higher grade than the then common schools. It was contemplated by the framers of the Constitution that the Legislature should have the power, under section 201, to establish a higher curriculum than was then used in the common schools, under conditions applicable to all who might come within the terms and provisions of the law, and in Otken v. Lamkin, 56 Miss. 758, it was held that the common school fund can only be applied to such schools as are within the uniform system. In Ellis v. Greaves, 82 Miss. 36, 34 So. 81, it was held that the Constitution of 1890 prohibited the appointment of trustees for a term of twenty years. In Chrisman v. Brookhaven, 70 Miss. 477, 12 So. 458, it was held that section 201 of the Constitution did not prevent the Legislature from establishing special schools supported by public taxation, and in Turner v. Hattiesburg, 98 Miss. 337, 53 So. 681, it was held that the act creating the State Teachers' College did not create a school within the purview of section 201; that the school so created was not a part of the common school system; and that, consequently, allowing the city of Hattiesburg to levy taxes and donate ground in order to secure its location did not violate the Constitution. In State Teachers' College v. Morris, 165 Miss. 758, 144 So. 374, it was held that the power of the Legislature to pay a fund to said college for conducting a practice school embracing the common school curriculum did not violate the Constitution. In Scarbrough v. McAdams Consol. School Dist., 124 Miss. 844, 87 So. 140, it was held that a special act authorizing the issuance of bonds of a consolidated school district for building an agricultural high school violates section 90 (p) of the Constitution of 1890. By other decisions of this court, consolidated schools have been held to be a part of the common schools of the state. See McLeod v. State, 154 Miss. 468, 122 So. 737, 63 A.L.R. 1161, and the authorities cited in Mississippi and Southern Digest, Schools and School Districts, Key No. 33.
The question here presented was not involved, or was not decided, in Morris v. Vandiver, 164 Miss. 476, 145 So. 228. The decision of the majority in that case turned upon the power of the Board of Trustees to levy a fee upon students for certain facilities of said school deemed, by the trustees, to be important, and providing that students who did not pay such fee should not be permitted to attend the school. The majority opinion in that case held that the statute there construed did not confer power upon the trustees to impose such a fee, and that they did not have the power to deprive students of their privileges, the right to attend school. In the minority opinion written by Judge COOK, and concurred in by Judge GRIFFITH, there is an important and valuable discussion of the distinction between agricultural high schools and the common schools.
After a full and mature consideration of the power of the Legislature to create schools separate from the common schools provided for in sections 201, 205, and 206 of the Constitution, we have reached the conclusion that the Legislature has such power, and that agricultural high schools and junior colleges now provided for consititute schools different from, and not a part of, the common school system, and that, consequently, chapter 48, Laws of Mississippi 1935, Extraordinary Session, does not conflict with section 90 (p) of the State Constitution, and the exception, in the concluding paragraph of section 7 of the chapter on agricultural high schools and junior colleges, of counties bordering on the Gulf of Mexico, does not render the act void, nor does it invalidate the proceedings here involved.
It is not necessary for us to now say what would be the effect of the concluding paragraph of section 7, if it should be held that agricultural high schools and junior colleges were a part of the common schools provided for in sections 201, 205, and 206 of the Constitution, nor whether the statute in such case could be saved by striking out the proviso therein.
It follows from what has been said that the decree of the court below validating the proceedings should be affirmed.
Affirmed.
I adhere to the views expressed in my specially concurring opinion in Morris v. Vandiver, 164 Miss. 476, 477, 145 So. 228, that under our system of public education there are only two classes of schools provided for — the colleges and common free schools — and that all schools of lower grade than the colleges are provided for by section 201 of the Constitution; they are a part of the common free school system.
Clause (p) of section 90 of the Constitution prohibits local legislation providing for the management or support of common schools. The proviso to section 7 of the act here under consideration, in fixing the tax limit, expressly excepts from its provisions the coast counties. Those counties, therefore, for the purposes of taxation are put in one class and the balance of the counties of the state in another class. It appears plain that clause (p) of section 90 of the Constitution is violated, unless that provision of the statute is separable from the remainder. Section 11 of the statute provides that the invalidity of any section, paragraph, sentence, clause, or part of the statute shall not affect the remainder of the act. My opinion is that the unconstitutional part of the act is separable from the balance and leaves a complete, consistent, and workable statute.
This view means, however, that as to Harrison county the decree is erroneous, because this construction of the statute would make Harrison county exceed the tax limit of ten per cent. of its assessed valuation of taxable property.