Miller v. State ex rel. Russell

Smith, C. J.

(dissenting).

It is always a source of regret, to me to he unable to concur in the conclusion reached by a majority of my Associates in the decision of any case, which regret is here more pronounced than usual for the reason that the construction placed by the majority of my Associates on the section of th¿ Constitution here in question confers upon the legislature the unlimited power to support the public schools which I think it should have, but to so concur would cause me to violate what seems to me the plain language of the Constitution, as well as some of the most elementary rules for the construction of written instruments.

The ground on which the majority of my Associates have sustained this appropriation is that section 206 of the Constitution can be reasonably construed so as to either limit or to not limit the power of the legislature to appropriate money for the support of the public schools for that portion of the terms thereof in excess of four months, and since the legislature by making the appropriation has construed the section as placing no limit on its power to so appropriate money, that construction, since it is a reasonable one should not now be departed from.

As I shall hereinafter attempt to demonstrate, the language of the section permits, of only one construction, but, if it does permit of another, it is the duty of this court to enforce the one which will more nearly carry out the purpose of the constitutional convention in adopting the sections. Ratliff v. Beale, 74 Miss. at page 268, 20 So. 869, 34 L. R. A. 472. Of course the construction placed on the Constitution by the legislature in enacting a statute is entitled to great weight, and should prevail unless it is *589clearly wrong.' The construction which the legislature has placed on section 206, instead of being in accord with the construction which the majority of my Associates now place on it is contrary thereto, for in appropriating money for the support of the public schools it has uniformly acted; save in one instance only, on the theory that its power so to do was measured by that section of the Constitution. The one instance in which this section was violated by the legislature was in what seems to have been clearly a bonafide attempt to comply with the requirement of the Constitution for a four-month school term. Chapter 5, Laws 1912.

Section 33 of the Constitution, by providing that “the legislative authority of the state shall be vested in a legislature,” grants to the legislature all legislative power; consequently any other provision in the Constitution dealing with legislative power, in so far as the scope thereof is concerned, is a limitation on and not an enlargement of the poAver granted by section 33. In fact, the object of state Constitutions, as distinguished from the federal Constitution, “is not to grant legislative power but to confine and restrain it. Without constitutional limitation the power to make laws would be absolute.” Quoted from Sill v. Corning, 15 N. Y. 297, in Cooley’s Constitutional Limitations (7th Ed.), 242; 12 C. J. 750; State v. Edwards, 93 Miss. 708, 46 So. 964; State v. Patterson, 181 Ind. 660, 105 N. E. 228; Field v. People, 2 Scam. (3 Ill.) 79; Commonwealth v. International Harvester Co., 131 Ky. 551, 115 S. W. 703, 133 Am. St. Rep. 256.

If section 33 of the Constitution stood alone, the power of the legislature to establish and maintain public schools Avould be unlimited, and this power it could exercise or not as it should deem best, but the makers of the Constitution were not willing to leave the maintenance of the public schools Avholly to the discretion of the legislature. By sections 201, 205, and 206 of the Constitution they not only made it mandatory on the legislature to provide a system of public schools, but provided that each school *590should be part of a uniform system, should be open for at least four months for the benefit of children between the ages of five and twenty-one years, and should be supported for four months by the poll taxes and appropriations from the state treasury which together would be sufficient for that purpose, and thereafter, in event they should be maintained for a term longer than four months, by taxes levied by the county or school district. Section 206 not only provides from what sources the revenue fox; the support of the schools shall be derived, but also to what portion of the terms of the schools the revenue from the different sources shall be applied. The scheme provided therein for the support of the schools is complete, and, since nothing therein indicates a contrary intent, the provision therein therefore necessarily implies the exclusion of any other. Expressio unius est exclusio alterms.

One of the most elementary rules for the construction of a Constitution or statute is that, when it directs how a duty enjoined by it shall be discharged, is in effect a prohibition on the discharge of the duty in any other way. Cooley’s Constitutional Limitations (7th Ed.), 98; Field v. People, 2 Scam. (3 Ill.) 79; 12 C. J. 750; State v. Henry, 87 Miss. 125, 40 So. 152, 5 L. R. A. (N. S.) 340; State v. Barnes, 24 Fla. 29, 3 So. 433; State v. Patterson, 181 Ind. 660, 105 N. E. 228; State v. Stark County, 14 N. D. 374, 103 N. W. 913; Parks v. West, 102 Tex. 11, 111 S. W. 726; State v. Fountain, 6 Pennewill (Del.) 520, 69 Atl. 926.

In State v. Henry, 87 Miss. at page 144, 40 So. at page 154 (5 L. R. A. [N. S.] 340), this court held: “That where the Constitution deals wdth a subject, its words must be the sole boundary and sacred from the legislatures, except where it permits expressly or by necessary implication; . . . 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.”

In 1912 the legislature enacted a statute which appears as chapter 5 in the laws of that session (section 1), providing :

*591“That there is hereby appropriated out of any money in the state treasury not otherwise appropriated, the sum of five thousand dollars ($5,000), or so much thereof as may be necessary, to be known as a supplemental common-school fund.”

And that the money so appropriated should be "distributed to the counties that might be unable to maintain their schools for four months out of their share of the regular common school fund. The second section of the statute here under consideration provides that the money appropriated for the support of the schools by that section shall be disbursed by the board of education in such manner as to equalize school terms and teachers’ salaries throughout the state. Under this statute the board of education is necessarily empowered to aid any county in maintaining its schools for four months that might not be able to do so out of its share of the regular common school fund; consequently every objection that could have been urged to the validity of the statute of 1912 applies with equal force here. The Act of 1912 was construed by this court in Board of Education v. Pridgen, 106 Miss. 219, 63 So. 416, and was held to violate paragraph p of section 90 and sections 205 and 206 of the Constitution, which last section was held to measure the power of the legislature to appropriate money from the state treasury for the support of the common schools, and to prohibit it'from appropriating any money from the state treasury for that purpose except such as should be appropriated as a part of and to be disbursed as the common school fund. But it is said that the court was not there called on to decide that question, for the reason that the appropriation there under consideration was made for the maintenance of the constitutional four-month term of the schools, and consequently all that was there said relative to the measure of the legislature’s power to appropriate money from the state treasury for the support of the schools wThich should not be a part of the regular school fund was mere dieta.

*592Turning, then, again to the two statutes, it will be observed that the appropriation made in each is not from and is no part of the regular common school fund, but each is ■ a “supplemental” or “additional” appropriation “out of any money in the state treasury not otherwise appropriated” to be used for the purpose of equalizing school terms. One of the counsel for the board of education in the Pridgen case was former Chief Justice Campbell, and it will not be doubted that he knew exactly what questions the court should decide in determining the validity of the appropriation. He assumed, as appears from his brief, that an appropriation from the state treasury to the common school fund is governed by section 206, but contended that after that appropriation has been made the legislature has the power to make an additional appropriation for the support of the schools out of any money in the state treasury not otherwise appropriated, and that the supplemental appropriation “is not from the state school fund, but from any money not otherwise appropriated.” The power of the legislature, therefore, to appropriate money for the support of the schools which should not be a part of the regular common school fund was squarely presented to the court for decision, and it had not only the right, but it became its duty, to decide it. This it did, concluding its discussion thereof as follows:

“It thus appears to have been the purpose of the makers of the Constitution to provide for a uniform system of public schools for every county in the state for at least a term of four months in each scholastic year. This could have been done by requiring each county to provide funds to accomplish this purpose, but this was not done. The scheme adopted prescribes what shall be done by the state, and also prescribes the basis for the distribution of the state’s contribution to this purpose, and this basis is necessarily exclusive, otherwise the legislature could ignore the plan of the Constitution and provide another and essentially different plan for the support of the common schools. Each educable child is the unit upon which the state dis*593tributes its bounty to the counties, and the legislature has no power to adopt another and different basis for state aid, which ignores the constitutional unit. A different scheme might have been provided by wiping out county lines and placing the common schools and their support entirely upon the state, but we are not permitted to change the Constitution because the legislative scheme may be more desirable, or may serve as a remedy for admitting evils not anticipated by the framers of the Constitution.”

The holding in that case that the statute there under consideration violated section 205 of the Constitution because it permitted assistance to be given to counties that were unable to maintain their schools for four months out of the regular common school appropriation is also here in point, for, as I have hereinbefore pointed out, the appropriation here in question can and was intended to be so used if necessary.. So, also, is the holding in that case that the statute violated paragraph p of section 90 of the Constitution, for the appropriation here, as ivas the appropriation there, is to be used, not for the benefit of all of the schools of the state, but for such only as may need assistance in lengthening their school terms in order that the school terms throughout the state may be equal. That case is controlling here, and should either be followed or overruled.

I do not mean to intimate by anything herein said that an appropriation to the common school fund which is insufficient or which is more than is necessary to support the schools for four months will be void. In the very nature of things it is impossible for the legislature to determine in advance the exact amount of money that will be necessary therefor; consequently, within probably certain limits, any appropriation, in so far as the amount thereof is concerned, that is made by the legislature to that fund will be valid. Before leaving this branch of the discussion, it may not be amiss to point out that the statute under consideration does not disclose, and this court cannot know, that the appropriation made in the first section *594thereof is and Avas intended by the legislature to be sufficient for the maintenance of the schools for the first four months of their annual terms. Each section, in so far as making the appropriations is concerned, is couched in identical language, except where the first section provides:

“That the sum of tAvo million one hundred fourteen thousand five hundred thirty-five dollars ($2,114,535) be, and the same is hereby appropriated,” etc.

The second section provides: “That the additional sum of one million two hundred sixty-eight thousand seven hundred twenty-one dollars ($1,268,721) be, and the same is hereby appropriated,” etc.

And the mere designation of an appropriation for the support of the schools as an “additional sum” therefore cannot change the nature thereof, for by Avhatever name designated it is for the support of the common schools. Here, as in the Pridgen case, “it seems,” as was there said by Cook, J., “to be the theory that the legislature, by labeling the common school fund ‘supplemental,’ thereby changed the nature of the appropriation, and in so doing they provided a remedy for a condition entirely outside of the scheme marked out by the organic law.”

The statute in so far as its Amlidity and effect is concerned is the same as if it consisted of but one section appropriating three million three hundred eighty-three thousand two hundred fifty-six dollars “out of any money in the state treasury not otherwise appropriated for the maintenance of the public schools of the state of Mississippi for each of the calendar years 1922 and 1923,” and then providing that one million two hundred sixty-eight thousand seven hundred and twenty-one dollars thereof be disbursed in the manner provided by section 2 of the statute as it now appears.

The public policy of a state must be determined from its Constitution and statutes, both past and present, and, if its public policy can be resorted to, as the majority of my Associates say it can, as an aid in construing a state’s *595Constitution, that policy must, of course, be determined as of the date when the Constitution being construed was adopted, and an examination of the Constitution of 1869 and of the statutes enacted thereafter and prior to the adoption of the present Constitution will disclose that the policy of this state then was to maintain its schools principally by means of local, with a minimum of state-wide, taxation, and to divide the money raised by state-wide taxation “pro rata among the children of school ages.” Const. 1869, art. 8, section 10; Code 1871, sections 2051 and 2053; Code 1880, section 731, and sections 724, 730, as amended by chapter 42, Laws 1882, p. 77; Report of State Supt. of Education to Legislature, December 1, 1889, p. 27. Consequently the construction which the majority of my Associates have here placed on section 206 runs counter also to the state’s public policy in the light of which that section was adopted.

It was said in Ratliff v. Beale, 74 Miss. 247, 20 So. 865, 34 L. R. A. 472, that:

“To find the true meaning of the language of the Constitution, we are to look to the existing body of the law, whether common or statutory, ... to former Constitutions, ... to existing evils, to the objects and purposes to be accomplished, and to the limits intended to be provided,” for “it must-be remembered that our Constitution ■ was never submitted to the people. It was put in operation by the body which framed it, and therefore the question is what that body meant by the language used.”

Article 8 of the Constitution of 1869, which deals with ■“school fund, education and science,” provides by sections 1 and 5 thereof for a uniform system of* free public schools to be maintained for at least four months in each year for the benefit of children between the ages of five and twenty-one years. Section 6 thereof provides for a common school fund to be made up of revenues derived from several sources, three of which were licenses for the sale of intoxicating liquor, fines, and forfeitures.

*596Section 10 thereof provides that: “The legislature shall from time to time, as may be necessary, provide for the levy and collection of such other taxes as may be required to properly support the system of free schools herein adopted. And all school funds shall be divided pro rata among the children of school age.”

Section 724 of the Code of 1880, as amended by-chapter 42, p. 77, Laws 1882, provides that- — “Whenever the amount of school fund in the state treasury in any fiscal year, does not, in the aggregate, amount to three hundred thousand dollars, . . . the state treasurer shall transfer from the general fund to the common school fund a sufficient amount to malee the sum of said school fund three hundred thousand dollar’s,” etc.

By section 730 thereof, as amended by chapter 42, p. 77, Laws 1882,- the boards of supervisors of each county were empowered to levy an annual tax of three mills “to make up any deficiency in the aggregate amount of common school funds arising from other sources, necessary to maintain the public free schools of said, county during the time required by law.”

And by section 731 a similar power was granted to the board of mayor and aldermen of any town, constituting a separate school district. Under that Constitution and these statutes the revenue from which the public schools were supported was derived from four sources: First, licenses for the sale of intoxicating liquors and fines and forfeitures amounting annually to about two hundred thousand dollars (page 28 of the Report of the State Superintendent of Education, December 1, 1889) ; second, an annual appropriation from the state treasury of about one hundred thousand dollars (page 28 of the report of the State Superintendent of Education, December 1, 1889) ; third, an annual tax in each county of three mills for the support of the schools in the county; and, fourth, an annual tax from each separate school district for the support of the schools in the district.

*597In December, 1889, J. E. Preston, state superintendent of education, and to whose constructive work our present school system is largely due, in a report for the use of the legislature which convened in January, 1890, in which he went fully into the status and needs of the state’s then system of public schools, and which report appears from its journal to have been before the constitutional convention when adopting the article of the present Constitution on education, said, among other things:

“The Constitution establishes a common school fund, and confers on the legislature power to provide additional revenues to maintain the schools four months. During the first years of our free schools a levy of four mills was made upon the whole property of the state, and distributed with the common school fund to the counties, in proportion to the educable children in each. This was found to impose excessive burdens of taxation upon the wealthier counties and towns, and the law was amended so as to allow them to retain their four-mill ],evy, which was subsequently reduced to two mills, provided therewith the schools could be maintained four months.

“The state at present distributes three hundred thousand dollars pro rata to the counties. About two-thirds of this arises from liquor licenses and fines and forfeitures, the constitutional sources of the common school fund; the remaining one hundred thousand dollars is transferred from the general state fund and is derived from direct taxation. Of this three hundred thousand dollars it is evident that the wealthier counties pay far more than is returned to them.

“The state distribution will not maintain the schools more than thirty days, or one-third of the term. The counties are therefore required to levy a tax sufficient to pay for the other two-tliirds of the time, this levy being retained by each county for the support of its own schools. Thus, in a measure, the state seeks to equalize the burden of taxation for free schools, while at the same time she encourages and fosters a more liberal support of them by *598taking advantage of the willingness of the people to build up home enterprises.

“If this county levy were collected by the state and distributed pro rata,, the wealthier counties would be overburdened, and would make every effort to keep the levy as low as possible. It would, of course, inure to the benefit of the less wealthy counties, but would be unjust and inequitable towards those counties that now contribute most largely to the support of the state government.. The very principles that justify the retention of the three-mill levy in the counties led to the establishment of separate school districts, and apply a fortiori to them.”

The report then proceeds to further demonstrate that the support of the schools by state-wide taxation results in an inequality of burdens and benefits to the various sections of the state, to the great dissatisfaction of the sections bearing the greater burden thereof.

When the constitutional convention met its members proposed in writing such changes as they thought should be made in the old Constitution and the form in which the sections dealing therewith in the new should be couched, all of which were referred to appropriate committees. A number of such proposals with reference to the article of the new Constitution on education were made and submitted to the committee on education, of which Gen. Stephen D. Lee was chairman, which committee-on the fifteenth day of the convention’s session reported an article on education as “a substitute for the proposed changes in the Constitution received to date.” Convention Journal, p. 118. Sections 1 and 5 thereof brought forward sections 1 and 5 of article 8 of the Constitution of 1869 in practically the same form as they appear in the present Constitution. Section 6 thereof radically changed the then method of supporting the schools, and was as follow’s:

“There shall be a common-school fund, w’hich shall consist of a poll tax of twro dollars per capita on all males between the ages of twenty-one (21) and fifty-five (55) years; and of not less than four hundred thousand dollars per *599annum from the general fund in the treasury. Said funds shall be divided among the several counties and separate school districts of the state in proportion to the number of educable children in the same; and shall in each county be supplemented by such additional sums raised by county taxation on the property of the county, including separate school districts therein, as shall suffice, together with the distributive share of such county or district, to give each child in the county or district, four (4) months instruction in each year; the said supplemental fund being distributed as above among all the children of the county, including those of the separate school districts; provided, that any town, city, county or school district may levy additional taxes for school purposes; and provided that no such county levy shall be extended into any town, city or separate school district within the county making similar levies.”

Section 11 reproduced section 10 of the Constitution of 1869, which authorized the legislature to supplement the school fund by taxation, but omitted the provision thereof requiring the school fund to be divided pro rata among the children of school ages, that requirement having been embodied in section 6 of the Report. There was both a majority and a minority report by this committee. The signatures to the minority report, which appears on page 131 of the journal of the convention, among Avhich appear some of Mississippi’s historic names, are those of W. T. Martin, R. G. Hudson, EdAvard Mayes, E. 0. Sykes, Wm. D. Wither-spoon, and W. C. Richards. The principal objections raised by this minority to the proposed article were: First, that the amount of money sought to be distributed from the state treasury is too great, amounting, including the state tax, to about two-thirds of the then entire revenue of the state; second, there is much opposition to the free school system, and to burden “the people with oppressive taxation therefor would work its destruction; third, the best interest of the schools and of the people, as appears from the report of the state superintendent of public ed*600ucation, supra, demands that the schools should he supported principally hy local taxation; fourth, the plan proposed by the majority is not a new one in this state it haying been tried, proven to be a failure,'and abandoned. This minority submitted also a substitute for the article proposed by the committee which was not spread at large on the convention’s journal.

On the thirty-ninth day of the session (Convention Journal, p. 265) the committee reported that it had compromised its differences, and reported a substitute for its former proposed article on education, by which section 6 thereof was amended so as to provide that the common school fund shall consist of the poll tax, “and of not more nor less than four hundred thousand dollars per annum from the general fund in the treasury.” Mr. Jamison, of the committee, dissented from this report, and offered as a substitute therefor the article on education originally proposed by the majority of the committee, section 6 of which was as hereinbefore set out.

On the forty-seventh day the convention took up the report of the committee on education, and considered it for several days, during which numerous amendments thereto and substitutes therefor were offered, which, in so far as they affected section 6 thereof; may be classified as follows: First, to confer upon the legislature unlimited power in providing for the support of public schools both as to the amount of money it could appropriate therefor and the manner in which it should be distributed; second, to limit this power by providing either the maximum amount of money that could be appropriated from the state treasury for the support of the schools or the length of the term of the schools to the support of which money could be appropriated from the state treasury; third, to prescribe the method for the distribution of the money appropriated for the support of the schools from the state treasury; fourth, to provide for prorating the money appropriated from the state treasury among the children of the *601black and white races, or that each race should support its own schools by taxes levied on its own property.

During the progress of the debate:

“Mr. Robinson, of Rankin, was permitted to introduce the following substitute in lieu of substitute heretofore offered by him for section 6 of the substitute of Mr. Jami-son:

“There shall be a common school fund, which shall consist of the poll tax (to be retained in the counties where same is collected) and an additional sum from the general fund in the state treasury, sufficient to maintain the common schools for the term of four months in each scholastic year. Said sum shall be distributed among the several counties in the state, in proportion to the educable children in each. But any county or separate school district may levy further tax to maintain its schools for a longer time than the term of four months.”

Which was amended on the motion of Mr. Dillard by adding thereto the following:

“The common school fund shall be distributed among the several counties and separate school districts in proportion to the number of educable children and youth in each, from data to be collected through the office of the state superintendent of education in the manner to be prescribed by law.”

The Robinson substitute, with the Dillard amendment thereto, “was then adopted in lieu of section 6 of the substitute of Mr. Jamison for the committee’s report.” Convention Journal, p. 355.

Section 10 of the Jamison substitute, which read as follows : “The legislature shall, from time to time as may be necessary, provide for the levy and collection of such other taxes as may be required to properly support the system of free schools herein adopted,” was then stricken out, and, after voting down a few other amendments thereto, among which was one conferring unlimited power on the legis*602lature to appropriate money from the state treasury for the support of the public schools, the convention adopted the Jamison substitute as amended as the article on education for the new Constitution. In due course the article was submitted to the committee on revision, which changed the verbiage of section 6 to the form in which it appears in the final draft of the Constitution, and it so remained until amended in 1904, so that the counties should not be charged with the poll tax collected therein in the distribution to them of the school fund.

But it is said that, when section 206 is construed in connection with sections 201 and 205, it will appear that section 206 does not limit the power of the legislature to appropriate money for the support of the public schools. Such was not the opinion of the members either of the convention which adopted the Constitution of 1869 or of the convention which adopted the present Constitution. As hereinbefore pointed out, sections 201 and 205 of the present Constitution are in substance the same as sections 1 and 5 of article 8 of the Constitution of 1869; nevertheless section 10 of article 8 of the Constitution of 1869 and section 11 of the report made by the committee on education to the convention which adopted the present Constitution authorized the legislature to support the public schools without limit either as to the amount of money to be expended therefor or the length of the school terms. But, when the Convention adopted section 206 of the present Constitution, making it obligatory on the legislature to support the schools for four months, it struck out the section in the committee’s report which would have given the legislature the power to support them for longer terms, thereby indicating that it did not intend to invest the legislature with that power. This construction of its powers to appropriate money for the support of the public schools has been uniformly acted on by the legislature since 1892, a period of more than thirty years, save only when it enacted chapter 5, Laws of 1912. Its journals will disclose that numerous attempts were made to submit to the *603people an amendment to section 206 of the Constitution which would relieve the legislature of the limitations on its power therein contained, particularly the limitation on the length of the term for the support of which it could appropriate money from the treasury, hut always without success.

The department of education has also construed section 206 to be the measure of the legislature’s power to appropriate money out of the state treasury for the support of the public schools. In his report to the legislature of 1914 the then state superintendent of public education recommended that a constitutional convention be called “to provide for a just and equitable distribution of the common school funds . . . which can only be brought about by amendments to the Constitution or through the holding of a constitutional convention.” And the present state superintendent of public education, in his report to the legislature of 1918, stated that “the Constitution should be so changed as to allow the state department of education to divert state school funds not needed in some counties into those counties where there is always a deficit,” and, in order that the Constitutiofi might be so amended, he, on August 4, 1919, filed with the secretary of state, as will appear from the records of his office, the petitions for the submission to the people of the amendment to section 206, under which the statute here in question was enacted.

Judge Anderson requests me to say that he concurs in the construction I have herein placed on section 206 of the Constitution and in the reasons given therefor.