State Teachers' College v. Morris , 165 Miss. 758 ( 1932 )

I am unable to agree with the majority opinion in this case. I think chapter 218, Laws of 1930 (Code 1930, secs. 7241-7246), violates both sections 201 and 208 of the State Constitution.

As held in Otken v. Lamkin, 56 Miss. 758, a uniform system of free public schools was provided for in section 201 of the Constitution, and similar sections in prior Constitutions, which required such schools to be under the supervision of the common school authorities; and chapter 218, Laws of 1930, establishes exactly the same grade and character of schools as is contemplated under section 201 of the Constitution which provides that the Legislature shall 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 higher grade," without being under such supervision. In 8 Words and Phrases, First Series, page 7178, under the title, "Uniform System of Common Schools," it is said that: "The word `uniform,' as used in Const. art. 6, sec. 2, providing that the Legislature shall establish a uniform system of common schools, requires uniform educational facilities. Such facilities may be maintained with great simplicity of organization in sparsely settled regions, while the most elaborate machinery is necessary to meet the requirements of dense populations in cities. The system of schools, however, is uniform. Divisions and classifications of children in various respects may be necessary in the city, and not in the country, in order to obtain the best results from the facilities afforded. The facilities themselves, however, remain uniform.

In construing a Constitution, attention must be given to every word used therein, and, in the construction of section 201 of the State Constitution, schools must be uniform, and must be free, and each of these words has a distinct and clear meaning; and it is not within the power of the Legislature to create schools of the same type, grades, etc., for favored children or favored localities. This is further indicated and made manifest by section 90, which section provides that the Legislature shall not pass any local, private, or special laws in a number of enumerated cases, which shall only be provided for by general laws, and clause P of that section reads as follows: "Providing for the management or support of any private or common school, incorporating the same, or granting such school any privileges."

If chapter 218, Laws 1930, sections 7241-7246, Code 1930, is given operation, the major state institutions of learning will be given power to conduct schools specially provided for in section 201 of the Constitution without having such school under the control of the educational authorities of the county and the state superintendent of education, and will give to the children attending such schools privileges that are not accorded to children attending the public schools generally. The act, chapter 218, Laws of 1930, gives to the college authorities the right to charge tuition for each grade in these practice schools, the amount of the tuition being fixed by statute, and to credit this tuition with the amount each child would be entitled to pro rata on the basis of the amount that would be otherwise paid by the superintendent out of the common school fund of the county. The fact that several higher institutions of learning are each given leave to create such schools does not prevent the schools so created from being schools of the same character and class as those provided for by the Constitution. They are clearly not a uniform system of schools, and are not free schools open to all students alike. This act makes a vital inroad into the principles of equality and uniformity which the Constitutional Convention established. It was the manifest intention of the Constitutional Convention to authorize the Legislature to make no distinction between the children of communities of the state. The State Teachers' College has been adjudicated not to be a part of the common school system of schools. Turner v. Hattiesburg, 98 Miss. 337, 53 So. 681. Therefore grammar grades, high schools, and junior high schools, etc., are each a part of the uniform system, and cannot be maintained in such institutions under the plan for such grades, free from the control of the county superintendent of education, and the school trustees provided for by law.

The major institutions of learning were not created for the purpose of conducting free public grammar and high schools, and, if the statute is valid as to teachers' practice schools in these higher institutions of learning, and if they must be furnished pupils to teach while being trained as teachers, the same principle could be applied, without limit, to any other course of training in the schools of higher learning. They might soon be found furnishing clients to lawyers, patients to physicians and dentists, and customers or pupils to various other schools, which would convert these institutions into mammoth institutions for dissipating public funds.

Chapter 218, Laws 1930, also clearly violates section 208 of the Constitution, which reads that "No religious or other sect or sects shall ever control any part of the school or other educational funds of this state; nor shall any funds be appropriated toward the support of any sectarian school, or toany school that at the time of receiving such appropriation isnot conducted as a free school." (Emphasis supplied.) It seems to me that the language of this section is so plain that no kind of resort to any rules of construction is required or can properly be resorted to. This section is in the chapter on education, and the words, "school or other educational funds of this state," are broad and comprehensive, and embrace any character of educational funds.

In the Constitution of 1869, art. 8, sec. 9, it was provided that, "No religious sect or sects shall ever control any part of the school or university funds of this State." In 1869, when the Constitution was adopted, the only state institution of higher learning supported by public funds was the State University. However, Congress had passed land grants in aid of public education, and the Legislature was enjoined by the Constitution of 1869 to provide schools of agriculture, etc., and appropriate the land donated by Congress to this state for that purpose. Section 8, Mississippi Constitution of 1869. In compliance with that injunction, the Legislature established the A. M. College at Starkville, the Alcorn A. M. College at Rodney (for colored students), and the I.I. C. at Columbus for women, all of which schools were in existence in 1890, when section 208 was adopted.

The amendments that were offered in the Constitutional Convention are set out in the major opinion; but the major opinion is in error in assuming and holding that the purpose of the amendments was merely to prevent state aid to private institutions of learning. That was, indeed, part of the purpose of the change in the constitutional provision, but it was not all of the purpose. The major opinion segregates section 208 into different parts, and attributes different meanings to the various parts, which is wholly unwarranted, in my judgment. It is held, in effect, that no religious sect or sects can ever control any of the public school funds, or other educational funds of the state, and that no part of any such funds shall ever be appropriated to the support of any sectarian school; and then the rest of the section is treated as a different part of the Constitution, governed and controlled by different principles.

The section is to be construed as reading, "No religious or other sect or sects shall ever control any part of the school or other educational funds of this state; nor shall any funds be appropriated toward the support of any sectarian school, or to any school that at the time of receiving such appropriation is not conducted as a free school." The section makes it plain that it does not limit or restrict the meaning to the common school fund, but that it is applied to all educational funds of this state. No such funds shall be appropriated toward the support of any sectarian school, and no part of the funds, either the common school or educational fund, shall ever be appropriated to any school that at the time of receiving such appropriation is not conducted as a free school. This section leaves out the word "public" as used in section 201, and also leaves out the word "uniform" as therein used. The omission of these words is significant; it indicates the manifest purpose of requiring any school that receives part of the educational funds of the state to be conducted as a free school at the time of receiving any state money. The words "free school" have a clear signification. They are to be used in the sense of being free of charge for tuition. It was said in Attorney General v. Bishop of Worcester, 68 English Reprint, page 531, that the "term `free school' is flexible in its meaning, and must be construed according to the context and usage. It has no reference to the instruction given, but to the terms on which it is given." Black's Law Dictionary (2 Ed.), page 523, defines the word "free" as "Available to all citizens alike without charge, as a free school." In the case of Le Couteulx v. City of Buffalo, 33 N.Y. 333, 337, it was held that, in defining "free school" as used in a deed conveying land to the city, a free school is one open for the children of all classes, and indicates a school free in a pecuniary sense, and in respect to the expenses or charges for tuition. It is not synonymous with common schools, although common schools are synonymous with public schools. In re Malone's Estate,21 S.C. 435, the term "free public school," as used in Const. art. 10, sec. 11, providing that the proceeds of all escheated property "shall be faithfully appropriated for the purpose of establishing and maintaining free public schools, and for no other purposes or uses whatever," means school supported by the public, for the use of the public generally, and hence does not include an orphan house under the control of a city, open only to poor orphan children, or the children of poor, distressed, or disabled parents.

In St. Joseph's Church v. Tax Assessors of Providence,12 R.I. 19, 34 Am. Rep. 597, it was held that an act exempting from taxation "free public schools" meant only schools established and regulated under the statute laws of the state.

In the case, In re City of Pawtucket, 24 R.I. 86, 52 A. 679, it was held that a chapel used in part for religious worship and in part for a teachers' residence, in a free parochial school on an adjoining lot was not exempt from taxation under the law.

In State v. Maryland Institute for the Promotion of Mechanic Arts, 87 Md. 643, 41 A. 126, it was held that the constitutional provisions requiring the establishment of schools meant that such schools must be open to all, without expense.

Section 208 of the Mississippi Constitution intends to limit public funds to the support of free schools, and to prevent charges of tuition in state-supported institutions whose teachers and officers are paid from the public funds. See, also, Bolick v. Cox, 145 Ga. 888, 90 S.E. 54; Segar v. Bd. of Education, City of Rockford, 317 Ill. 418, 148 N.E. 289; State v. Valley City Special School District, 42 N.D. 464, 173 N.W. 750. In this last case it was held that the state was entitled to recover from the school district the tuition authorized by law, as the State Normal School was a part of the free public school systems of North Dakota. This case is authority for the proposition that a school of higher learning is a school within the meaning of the constitutional provisions upon the subject.

A careful reading of the Constitution of 1890 shows that the State Constitutional Convention was dominated by a democratic spirit, and desired, as far as possible, to place all the people of the state upon a basis of equality — equal rights and privileges throughout the state. Prior to 1890 there was a great wave of agrarian democracy which swept over the state, whose dominant battle cry was, "Equal rights to all, and special privileges to none." The old caste system of ante bellum days was swept away in the tide of democracy.

It seems to me that there could be no doubt from the language used in section 208, construed in connection with the other provisions pertinent to the subject, that it means that schools receiving state aid must be conducted as free schools, although they may not be open to everybody, nor required to be uniform. In other words, the section recognizes that it was desirable to have the citizenship of the state educated in the higher branches of learning, and that such schools should be provided and maintained by the state; but, when the state did establish such schools supported by state funds, the tuition therein must be free. It was not contemplated that lodgings and board therein should be free, but that the tuition should be free, and that the instructors should deal with all on a basis of equality; and the purpose of the section was to encourage those of limited means to seek education in the higher branches of learning by furnishing free tuition.

The school authorities have no right to subvert the purpose of the Constitution.

In construing a Constitution, the cardinal rule is that the instrument must be construed so as to give effect to the intention of the people who adopted it. This intention is to be sought in the Constitution itself, and the apparent meaning of the words employed is to be taken as expressing it, except in cases where that assumption would lead to absurdity, ambiguity, or contradiction. Black's Const. Law, p. 76.

There are fifteen subsidiary rules of constitutional construction by which the meaning is to be determined when the instrument is ambiguous. The first rule states that the construction shall be uniform; the second, that in case of ambiguity the whole Constitution is to be examined; the third, that it should be construed with reference to, but not overruled by, the common law and previous legislation; the fourth, that it should not be construed retrospectively, unless that was the intention of the authors; the fifth, that its provisions are almost invariably mandatory, and only in plain cases, or under pressure of necessity, can they be construed as directory; the sixth, that whatever is necessary to render effective any provision must be deemed as implied; the seventh, that, when the Constitution grants a power in general terms, such grant includes all auxiliary powers necessary to make it effectual; the eighth, that the words employed in a Constitution are to be taken in their natural and popular sense, unless technical terms, in which event they are to be taken in their technical signification; the ninth, that the Constitution's preamble may furnish some evidence of its meaning, but arguments drawn therefrom have little weight; the tenth, that it is not permissible to disobey a constitutional provision because it may work a hardship; the eleventh, that in case of ambiguity resort may be had to extraneous facts, such as prior state of the law, evil to be remedied, circumstances of contemporary history and discussions of the Constitutional Convention; the twelfth, that contemporary construction and its practical construction are valuable aids in determining its meaning, but these aids must be resorted to with caution and reserve, and they can never be allowed to abrogate, contradict, enlarge, or restrict the plain and obvious meaning of the text; the thirteenth, that, where a clause which has received a settled judicial construction is adopted in the same words by the framers of another Constitution, it will be presumed that the construction thereof was likewise adopted; the fourteenth, that the schedule to a Constitution, being temporary, should not be allowed to abrogate or contradict the provision of the permanent part of the Constitution; and, fifteenth, that the principle of stare decisis applies with special force to constitutional construction.

It is possible for a person, or a court, in construing a section of the Constitution, to ignore some of these rules and enlarge others, to make the Constitution mean what the person construing it desires it to mean, rather than what the Convention which framed it intended it to mean.

I think the meaning of the provisions in section 208 of the Constitution is so clear that no rules of construction are properly brought into play. When section 208 is construed in connection with section 207, it will be apparent that the Convention meant the word "schools" to be used in a comprehensive sense, and to embrace all schools supported by the state. Section 207 provides that separate schools shall be maintained for children of the white and colored races. If the interpretation is placed upon this section 207 that is placed upon section 208 — and I think it is just as susceptible as section 208 — then there would be no requirement for separate schools of higher learning for the white and colored races.

The majority opinion in construing section 208 of the Constitution ignores entirely the meaning of the word "schools" used in section 207. The latter section provides that separate schools shall be maintained for children of the white and colored races. Unquestionably "schools" is used in that section in its comprehensive sense. It means all schools of every kind and character, including state colleges maintained at public expense. The first clause of section 208 is used in the same sense. The majority opinion seems to concede that. To hold that the same word in the last clause of section 208 applies only to the common free schools, and not to the state colleges (as the majority opinion does) violates the well-established rule in this country of constitutional and statutory construction that, where a word is used, in a Constitution or statute in an unmistakable sense, and is again therein used, the presumption is that they have the same meaning, unless a different meaning is clearly indicated. This rule is of especial force where the same word is used in treating a particular subject-matter in the same section. Green v. Weller, 32 Miss. 650; State v. Skeggs, 154 Ala. 249, 46 So. 268; Epping v. Columbus, 117 Ga. 263, 43 S.E. 803; Black's Constitutional Law, 77; Decennial Digests, Constitutional Law, sec. 14; Century Dig. Const. Law, sec. 11.

The whole system indicated in the chapter on education in the Constitution is that the schools supported by the state shall be free schools, and that they shall be kept separately for the members of the different races.

Instead of the majority opinion adopting the plain and obvious meaning of section 208, it has brought into play ingenious argument and minor subsidiary rules of constructions to sustain the practices of the school authorities, at the expense of the plain meaning of the constitutional provisions. There is no room for contemporaneous construction.

If what is assumed to be true is true, the school authorities have ignored the Constitution in charging tuition in some departments of the schools. It is said in Rule 12, above quoted from Black's Constitutional Law, in referring to contemporaneous construction, "but these aids must be resorted to with caution and reserve, and they can never be allowed to abrogate, enlarge, or contradict the plain and obvious meaning of the text."

The legislators should address their minds to what instructions shall be given in all institutions, and make appropriation for whatever it deems proper within constitutional limits; but it has no right to override policies established by the Constitutional Convention itself. It may provide for the support of any school, professional or otherwise, to be taught in any college or university it may desire; but school trustees may not lawfully charge tuition to any of them.