dissenting.
Miller, J., dissenting:
The ultimate legal question presented in this case is whether or not certain enactments of the General Assembly of Virginia enumerated and summarized in the majority opinion, which authorize the making of tuition grants under specific circumstances therein stated, violate the State or the Federal Constitution. Under these enactments the occurrence of certain enumerated events over which the General Assembly can exercise no control but deemed by it to be wholly incompatible with the maintenance of an efficient system of *454public free schools, causes funds otherwise appropriated for the operation of public schools within the affected area to become available for tuition grants to pupils irrespective of race who elect to attend non-sectarian private schools.
I agree with that part of the majority opinion that recognizes the authority and constitutional right of the General Assembly under § 141 of the Constitution of Virginia, as amended in 1956, to provide by appropriate legislation for the expenditure of public funds for the payment of tuition grants for the education of Virginia pupils in non-sectarian private schools. In fact, the State’s power to appropriate funds for the payment of such grants per se is not in issue; both litigants agree that the General Assembly has that authority. I, however, disagree with that part of the opinion which holds that § 129 of the Virginia Constitution is still effective and operative and that the several challenged acts are violative of that section, and as a result denies to the Comptroller the right to make payment of such tuition grants. The validity of the acts that authorize tuition grants depends, in my judgment, upon whether the mandate of § 129 was suspended and rendered inoperative by the decision of the Supreme Court of the United States in Brown v. Board of Education, 347 U. S. 483, 74 S. Ct. 686, 98 L. ed. 873, which suspended the operative effect of § 140 of the Virginia Constitution.
My conclusion is that when the decision rendered § 140 inoperative, it necessarily rendered § 129 inoperative. I am convinced that § 129 was intended by the Constitutional Convention that adopted it to be dependent upon the effective operation of § 140. Thus my fundamental disagreement with the majority opinion is that it does not accord to § 129 the manifest intent and purpose of the Constitutional Convention which adopted it simultaneously with the plain mandate embodied in § 140. Holding § 129 to be operative gives to the decision of Brown v. Board of Education, supra, the effect of imposing an affirmative mandate upon the General Assembly of Virginia to operate a system of public free schools though that system be inefficient. The majority opinion makes of § 129, along with §§ 133, 135, and 136 of Article IX, an instrument by which the General Assembly is required to do what § 140, simultaneously adopted, forbade it to do in clear and positive language.
It is elementary that the right and authority to interpret and construe our constitutional provisions rests with us. Our construction is final and not subject to review. In order to arrive at the proper *455construction we should ascertain the purpose and object sought to be attained by the framers of the Constitution so as to make effective the intent of the people who adopted it.
Section 129 is the initial provision of Article IX relating to education and public instruction. It ordains that:
“The General Assembly shall establish and maintain an efficient system of public free schools throughout the State.”
The framers did not intend to impose upon the General Assembly the duty and obligation to maintain a system of public free schools without more. Section 129 specifically imposed the duty to maintain an efficient system. That is the only character of school system that the General Assembly was required to maintain. It was the only system it could thereafter lawfully maintain; that and none other. What constituted an efficient system of public free schools was left to the wisdom of that body except in the one particular that was then and there, with the same breath, embodied into the basic law of the Commonwealth. Section 140 of the same Constitution declared that:
“White and colored children shall not be taught in the same school.”
These two sections, one imposing a positive duty, the other prohibiting a power, were contemporaneous, adopted simultaneously. Section 140 was intended by the framers to prohibit a system that would be inefficient per se. All other sections of Article IX deal with the financial, operative and administrative means, functions and procedure by which an efficient system might be maintained. When read together, as they must be, §§ 129 and 140 have the following effect: (a) impose upon the General Assembly the obligation to maintain an efficient system of public free schools, and (b) deny to the General Assembly the right to maintain integrated schools.
Then what was the effect upon § 129 when § 140 was rendered inoperative by a superior power as distinguished from being repealed by the usual process to accomplish that result? The admonition of Justice Gregory, speaking in Board of Supervisors v. Cox, 155 Va. 687, 704, 156 S. E. 755, is illuminating.
“No single section of the Constitution should be construed alone, but consideration given to the instrument as a whole, and, so far as possible, all provisions harmonized.
*456“An elementary rule of construction is that all related provisions of a constitution or statutes must be considered and read together in construing one provision. # * *” (At page 707)
The answer to the question whether the Constitutional Convention intended that § 129 be operative though § 140 be rendered inoperative by a superior power may be found by resort to history, to prior legislative acts disclosing the public policy of Virginia and to the Debates in the Constitutional Convention that adopted these fundamental provisions. However, before that is done, it is well to recognize the underlying motivation for the adoption of a Constitution by a sovereign state, the office of such basic and fundamental law, and the accepted and recognized rules for its interpretation. Their recital will reveal their pertinency to the inquiry in hand. They have been recently stated by this court in Dean, et al. v. Paolicelli, et al., 194 Va. 219, 226, 72 S. E. 2d 506.
“The office and purpose of the constitution is to shape and fix the limits of governmental activity. It thus proclaims, safeguards and preserves in basic form the pre-existing laws, rights, mores, habits and modes of thought and life of the people as developed under the common law and as existing at the time of its adoption to the extent as therein stated. Commonwealth v. Newport News, 158 Va. 521, 164 S. E. 689; Virginia, etc., R. Co. v. Clower, 102 Va. 867, 47 S. E. 1003.
“Its interpretation and construction are to be made with recognition of the fact that it is based upon and announces the fundamental theory and principles of sovereignty and government as developed under the common law. 4 Michie’s Jurisprudence, Constitutional Law, sec. 7, p. 94; Commonwealth v. Newport News, supra.
“The constitution must be viewed and construed as a whole, and every section, phrase and word given effect and harmonized if possible. Barbour v. Grimsley, 107 Va. 814, 61 S. E. 1135; Portsmouth v. Weiss, 145 Va. 94, 133 S. E. 781; Funkhouser v. Spahr, 102 Va. 306, 46 S. E. 378; Board of Supers v. Cox, 155 Va. 687, 156 S. E. 755.
“Purpose, meaning and force must be accorded both of these sections of the constitution and to all of their provisions unless they be irreconcilably contradictory and repugnant. State v. Harden, 62 W. Va. 313, 58 S. E. 715, 60 S. E. 394; Board of Sup’rs v. Cox, supra.
“The purpose and object sought to be attained by the framers of the constitution is to be looked for, and the will and intent of the *457people who ratified it is to be made effective. May v. Topping, 65 W. Va. 656, 64 S. E. 848.”
Principles to be observed in constitutional construction are thus stated in 11 Am. Jur., Constitutional Law, §§ 61, 63:
“The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it. * * *
“It has been very appropriately stated that the polestar in the construction of Constitutions is the intention of the makers and adopters.
„ “Wherever the purpose of the framers of a Constitution is clearly expressed, it will be followed by the courts. Even where terms of a constitutional provision are not entirely free from doubt, they must be interpreted as nearly as possible in consonance with the objects and purposes in contemplation at the time of their adoption, because in construing a constitutional' provision, its general scope and object should be considered.
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“It is settled by very high authority that in placing a construction on a Constitution or any clause or part thereof, a court should look to the history of the times and examine the state of things existing when the Constitution was framed and adopted, in order to ascertain the prior law, the mischief, and the remedy. A constitutional provision must be presumed to have been framed and adopted in the light and understanding of prior and existing laws and with reference to them. Constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption, the general spirit of the times, and the prevailing sentiments among the people. * * *
“Construction based on custom, usage, or the conclusions of the courts must be properly subordinated to the time factor of the creation of the Constitution itself, and later usages cannot override a patent intention expressed at an earlier date. Thus, neither statutes enacted nor judicial opinions rendered since the adoption of a Constitution can impute a different meaning to it than that obviously intended at the time the Constituton was adopted.” (Emphasis added.) 16 C. J. S., Constitutional Law, § 30, p. 101; Almond v. Day, 197 Va. 782, 91 S. E. 2d 660.
*458Though § 140 has been rendered inoperative, it has not been repealed; it bespeaks the public policy of Virginia at the time of its adoption and it proclaims the basic ideas and desires of the people of this day.
“ ‘The Constitution is not to be construed in a technical manner, but in ascertaining its meaning we are to consider the circumstances attending its adoption, and what appears to have been the understanding of the people when they adopted it,’ and we then only announced a rule of interpretation which had been frequently adopted.” Bonsal v. Yellott, et al., 100 Md. 481, 60 A. 593. State v. Donald, 160 Wis. 21, 151 N. W. 331.
Section 140 was compatible with the Federal Constitution when adopted.1 This compatibility was confirmed many years later.2 For more than fifty years this compatibility was unquestioned. The Federal Constitution had been authoritatively construed to sanction the prohibition of this section. Now that § 140 has been rendered inoperative by a superior power, can § 129 operate as a mandate to the General Assembly to establish a school system forbidden by § 140?
The Constitution of 1869, commonly called the Underwood Constitution, required the State to maintain a system of public free schools, but was silent upon the subject whether the races should be separated. This is understandable. The public policy of the Commonwealth was in eclipse. The obvious reason is temperately, yet forcefully, stated in respondent’s brief.
“* * * It is well established that the convention of 1869 was largely composed of non-Virginians and of freedmen. # * *” The avoidance of the terms “scalawag” and “carpetbagger” is to be commended.
Yet the General Assembly under this mandate, in the exercise of wisdom, even in the shadows, immediately declared the public policy of Virginia on July 11, 1870, by legislation forbidding the mixing of the races in public schools. This provision, Acts 1869-1870, ch. 259, p. 413, is as follows:
“* * * [PJrovided, that white and colored persons shall not be taught in the same school, but in separate schools, under the same general regulations as to management, usefulness and efficiency; * * *”
It is common knowledge that the able and independent Consti*459tutional Convention of 1901-1902 was not of like mind with the Convention of 1869 when it undertook to provide for the establishment of an efficient public free school system in Virginia. The eclipse had passed. The native public policy had supplanted the alien. This accounts for the absence in one Constitution of the requirement of racial separation and its presence in the other.
I do not agree with the majority opinion in finding nothing in the Debates of the Constitutional Convention of 1901-1902 to indicate that the mandate of § 129 was to be dependent upon the effective operation of § 140. It should be borne in mind that § 129 required the maintenance of an efficient public school system while Article VIII, § 3, Constitution of 1869, imposed no such obligation. In the Debates of 1901-1902 it is obvious that the establishment of an efficient system was the Convention’s purpose. It is equally plain that separation of the races in the schools was deemed a necessary and indispensable condition for attaining that object.
In presenting to the Convention the report of the Committee on Education, Dr. Richard Mcllwaine, chairman of that committee, discussed Article IX before the individual sections were given consideration by the Convention sitting as a committee of the whole. With respect to the report the chairman declared:
“Its execution is finally committed to the General Assembly. It it an efficient system of public free schools that we are trying to obtain. Of course, the fundamental law on this subject lies at the basis of efficiency, but we must trust the efficient execution of an efficient law to those who have the carrying out of these principles and their enactment.” (Emphasis added.) 1 Debates of the Constitutional Convention of Virginia (1901-1902), p. 1051.
With respect to § 140 he observed:
“The next section is entirely new, and I suppose that there will be very few, if any, who will dissent from it:
“White and colored children shall not be taught in the same school.”
This prophetic announcement proved wholly true, for when the provision was called for independent consideration by the chairman of the Convention, it was adopted without discussion or dissent.
Despite the absence of discussion on § 140, which its ultimate unanimous adoption convincingly discloses was due to the unanimity of opinion as to its significance, value and necessity, discussion of § 129 reveals the critical view of the delegates toward the failure *460of the alien Convention of 1869 to adopt a similar provision. A forceful criticism, with an observation of the significance of such failure, was thus expressed by Carter Glass:
“Mr. Chairman, I wish to call the attention of the delegate from Montgomery to one point. Perhaps it is not a valuable occupation of time to do it, but he has been glorifying the Underwood Constitution and objecting to the first clause of our report here upon the ground that the Republican party established the free school .system in Virginia.
“I wish to call his attention to the fact that the first system proposed by the Republicans under the Underwood Constitution was one that would have absolutely made it impossible to have had any public schools in the State of Virginia, because it contemplated that there should be mixed schools; that negroes and white people should be taught together, and they refused to establish public schools at first because that was not done.” 1 Debates of the Constitutional Convention of Virginia, 1901-1902, p. 1086, et seq.
The majority opinion points out that the mandate of § 129 is not qualified by a statement in the Constitution that the operative effect of that section is conditioned upon the validity of § 140 and that provisions of Article IX could have been expressly conditioned upon the validity and operation of § 140.
Little comfort, if any, can be obtained from the fact that § 129 and other provisions of Article IX are not qualified by or expressly conditioned upon the validity and operation of § 140. First, the Constitutional Convention had the right to believe, and undoubtedly did believe, that § 140 was valid and operative, and would so remain. There was no need or object to be accomplished by malting such a statement. Second, though the mandate embodied in § 129 is not expressly conditioned upon the operative effect of § 140, yet when well recognized principles of constitutional interpretation and construction are observed and adhered to, it is plain that such operative effect was necessarily intended by the framers of these two sections.
“In ascertaining both the intent and general purpose, as well as the meaning, of a constitution or a part thereof, it should be construed as a whole. As far as possible, each provision should be construed so as to harmonize with all the others, with a view to giving effect to each and every provision in so far as it shall be consistent with a *461construction of the instrument as a whole.” 16 C. J. S., Constitutional Law, § 23.
“In view of the rule, discussed supra § 14, that the meaning of a constitution is fixed when it is adopted, the construction given it must be uniform, so that the operation of the instrument will be inflexible, operating at all times alike, and in the same manner with respect to the same subject; and this is true even though the circumstances may have so changed as to make a different rule seem desirable, since the will of the people as expressed in the organic law is subject to change only in the manner prescribed by them. # * *” (Emphasis added.) 16 C. J. S., Constitutional Law, § 37.
Correct principles of constitutional interpretation and construction avoid a result that (a) brings provisions of a constitution into conflict, or (b) make of the constitution a shifting and uncertain instrument. The majority opinion, by enforcing the mandate of § 129 without regard to the prohibition simultaneously embodied in § 140, ignores and neglects to apply these fundamental principles. It thus brings provisions of the Constitution into direct conflict and imposes upon § 129 a different operative effect from what it had or could have had when adopted.
The habits and customs, the sentiment and established public policy of Virginia, obtaining for ninety years or more, point to the inevitable conclusion that it was the intent of the framers of § 129 that its mandate upon the General Assembly to maintain an efficient system of public free schools was to be dependent upon the protective and indispensable prohibition of § 140.
In the majority opinion it is stated:
“We agree that the General Assembly may determine what is an ‘efficient system,’ but it cannot by definition impair or disregard constitutional requirements. It is elementary that unless the context suggests otherwise, words in the Constitution are to be given their usual plain or ordinary meaning. 4 Mich. Jur., Constitutional Law, § 9, p. 96. Applying this principle, it is clear that the word ‘efficient,’ as used in Section 129, embraces other factors beyond those in the statutory definition. Among such other factors are a sufficient number of schools with adequate buildings and equipment, a sufficient number of competent teachers, and other basic matters associated with the public school system. While the mixing of the races is a factor which may impair the efficiency of the system, the separation *462of the races alone will not, as the statutory definition implies, make it an ‘efficient system.’ ”
I am in accord with all of the foregoing paragraph except the last sentence. In fact, I heartily agree that a “sufficient number of schools with adequate buildings and equipment” and sufficient competent teachers are not only factors embraced within the concept of an efficient school system, but they are indispensable factors. Lacking either one or any other necessary factor, the system cannot be efficient. But be that as it may, the Constitutional Convention deemed separation of the races to be so indispensable to an efficient system that it embodied that provision into the organic law, and the General Assembly has also determined and declared that integrated schools, or schools patroled by and subject to the discipline of federal troops are not and cannot be efficient. Unless the judgment of the legislative branch in that respect is arbitrary, capricious, unreasonable and without foundation, the judicial branch is not authorized to substitute its judgment, whatever it may be, to supplant the finding and declaration of the General Assembly in that respect.
In view of the fact that § 129 no longer imposes any duty upon the General Assembly to maintain public free schools, the provisions of all other sections of the Constitution having to do with such schools, they being predicated upon the obligation imposed by § 129, now inoperative, to establish and maintain an efficient system or none at all, necessarily become inoperative. They become inoperative because the mandate of § 129 has become inoperative.
This leaves the General Assembly possessed of plenary and unfettered powers, drawn from its inherent reservoir of sovereignty, to do as it pleases with reference to public schools in this State.
“As the state legislature is the supreme law-making body within the state, it can enact any law not prohibited by state or federal constitution # * *
# # # # # # #
“The power of the state legislature is an attribute of sovereignty and its power would be absolute if there were no constitutional limitations. * * *” 4 M. J., Constitutional Law, § 31, pp. 114, 115.
“* * * The Constitution is not a grant of power, but only the restriction of powers otherwise practically unlimited and except so Sas restrained by the Constitution of this State and the Consti i of the United States, the legislature has plenary power. * * *”
*463Newport News v. Elizabeth City County, 189 Va. 825, 831, 55 S. E. 2d 56.
“It is an elementary principle of constitutional law that the General Assembly has plenary power except so far as restrained by the Constitution of this State and the Constitution of the United States. It is only where an act is plainly repugnant to some constitutional provision that the courts can declare it null and void. * * *” Almond v. Day, 199 Va. 1, 6, 97 S. E. 2d 824.
In the absence of operative provisions of the Virginia Constitution restricting the power of the General Assembly with respect to public schools, the General Assembly is now fully empowered to enact any legislation it may please with respect to such schools provided that legislation is general in nature. No such limiting provisions have been pointed out, and we have found none.
This unrestricted power enables the General Assembly to provide by general law for the closing of public free schools upon the happening of such events as the General Assembly may provide and for the payment of tuition grants,—provided always grants are available to pupils irrespective of their race. The grants for which the General Assembly has provided in the Acts of 1956 and 1958 are available alike and under identical circumstances to white and colored pupils.
The majority opinion refrained from determining whether the questioned acts violate the Fourteenth Amendment to the Federal Constitution, thus an expression of opinion on that question would be inappropriate in this dissent.
Snead, J., joins in this dissent.
Plessy v. Ferguson, 163 U. S. 537, 16 S. Ct. 1138, 41 L. ed 256 (1896).
Gong Lum v. Rice, 275 U. S. 78, 48 S. Ct. 91, 72 L. ed 172 (1927).