I agree with Judge COOK in his dissent that the statute authorized the school to charge the fees in question, but in my opinion the statute is violative of section 201 of the Constitution. The result of my view is that I join Judges SMITH, ETHRIDGE, and McGOWEN in reversing the judgment.
I reach the conclusion that that the statute violates section 201 of the Constitution by the following process of reasoning: Section 201 of the Constitution is in this language: "It shall be the duty of the Legislature to encourage by all suitable means, the promotion of intellectual, scientific, moral and agricultural improvement, by establishing 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 higher grade." This section is a rescript of section 1 of article 8 of the Constitution of 1869.
At the time of the adoption of the Constitution of 1869, and also at the time of the adoption of the Constitution of 1890, only the elementary branches of learning were taught in the common schools, approximately corresponding to the grammar and junior high grades of the common free schools of the present time. When the Constitution of 1869 was adopted, the University was the only *Page 498 state supported college in Mississippi. By the Act of July 2, 1862 (12 Stat. 503), Congress had donated large tracts of land to the state for the support of agricultural and mechanical colleges. Between the time of the adoption of the Constitution of 1869 and that of 1890, the state established the Agricultural Mechanical College at Starkville and the Alcorn Agricultural Mechanical College at Rodney. Section 213 of the Constitution of 1890 made it the duty of the Legislature to carry out the conditions of that act of Congress. When the Constitution of 1890 was adopted, the female college at Columbus had been established. They were all colleges in the definition of that term. They were "institutions of higher learning, having but a single faculty and curriculum, leading to the degree of Bachelor of Arts." Webster's New International Dictionary. So, when section 201 of the Constitution of 1890 was adopted, the members of the convention knew that the state had established, and was supporting in whole or in part, these four colleges, and they also knew that the curriculum of the common schools of the state, as a rule, did not go beyond the junior high school grades. With this knowledge, what did the framers of the Constitution mean by the last clause of section 1, article 8, of the Constitution of 1869, and of section 201 of the Constitution of 1890, which made it the duty of the Legislature "as soon as practicable, to establish schools of higher grade?" The question is, How much "higher grade?" Did the framers of the Constitution intend to empower the Legislature to establish all the necessary schools to fill up the gap between the common schools and the colleges, or to just go part of the way, and, if only part of the way, how far?
Chrisman v. City of Brookhaven, 70 Miss. 477, 12 So. 458, is usually referred to as holding that the Legislature has power to establish schools lower in grade than the *Page 499 colleges, not subject to the provisions of section 201 of the Constitution. The statute involved in that case was chapter 242, p. 376, Laws of 1890. The particular provision of the act passed on by the court was section 5, authorizing the board of mayor and aldermen of the city of Brookhaven to issue bonds in the sum of "fifty thousand dollars, for the purpose of purchasing a site and erecting thereon suitable buildings for the use of the public schools of said city; and to purchase all necessary furniture [etc.], for said school," and that three thousand dollars of the amount might be used for the purchase of a site and the erection of a suitable building for a free public school for colored children. The court held that these schools were schools outside of the common free school system, and that their establishment was not violative of section 1, article 8, of the Constitution of 1869, requiring the Legislature to establish a uniform system of free public schools.
Later the case of Ellis v. Greaves, 82 Miss. 36, 34 So. 81, was decided. There was involved in that case the constitutionality of chapter 148 of the Laws of 1888. Leaving out the first four sections of chapter 242 of the Laws of 1890, which were not involved in the decision of the Chrisman case, the other provisions of the statute that were involved are substantially the same as those provisions of chapter 148 of the Laws of 1888, considered and passed on in Ellis v. Greaves. In fact, sections 5, 6, 8, 9, and 11 of the act of 1890 are very largely in the identical language of sections 1, 2, 3, 4, and 6 of the act of 1888.
The general purpose of the act of 1890 was to establish and maintain free public schools for the white and colored races in the city of Brookhaven. Likewise it was the purpose of the act of 1888 to establish free public schools for the city of Hazlehurst. In the Brookhaven case the court held that the schools sought to be established *Page 500 were outside of the common school system, and therefore the statute was not violative of section 1, article 8, of the Constitution of 1869. While in the Hazlehurst case the court held exactly to the contrary — that the schools were part of the common free school system, and that that provision of the statute designating certain persons as trustees of the schools for a term of twenty years and granting them power to fill vacancies violated section 201 of the Constitution of 1890. Section 11, chapter 242 of the Laws of 1890, is an exact copy of section 6, chapter 149, Laws of 1888, except as to the names of the trustees designated and the date fixed for the first meeting of the trustees. It appears to me, therefore, that whatever value the Brookhaven case might have had as a precedent in the case at bar was destroyed by the Hazlehurst case.
In Otken v. Lamkin, 56 Miss. 758, 759, the court held that schools of a higher grade than the common schools came within the meaning of the last clause of section 1, article 8, of the Constitution of 1869 (which is the same as the last clause of section 201 of the present Constitution), and when established were part of the common free school system.
In McLeod v. State ex rel. Colmer, 154 Miss. 468, 122 So. 737, 63 A.L.R. 1161, the court held that our system of high schools came within the definition of "schools of a higher grade" in the meaning of the last clause of section 201 of the Constitution.
None of the grades of the common free schools are taught in the high schools. If high schools are part of the common free school system, why not agricultural high schools and junior colleges? Where is the line of demarcation between the common free schools and the colleges? My answer to the question is that, under section 201 of the Constitution, there can be no other schools established independent of and occupying a place *Page 501 between the common free school system and the colleges. If junior colleges and agricultural high schools are not covered by section 201 of the Constitution, and therefore not a part of the common free school system, it appears to me that the Legislature can go on establishing such schools to the extent of absolutely destroying the common free school system.
My conclusion is that, under our system of public education in this state, there are only two classes of schools provided for, the colleges and the common free schools. Section 201 of the Constitution makes provision for the latter. The colleges are provided for alone by statute, except the provision made by section 213 for the Agricultural Mechanical College and the Alcorn Agricultural Mechanical College. All schools of a lower grade than colleges are provided for by section 201; they are a part of the common free school system.
All the members of the court agree, as I understand, that, if the Sunflower County Agricultural High School is a part of the common free school system, then, under section 208 of the Constitution, tuition fees could not be charged.