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

This is an appeal from a judgment of the court below sustaining a demurrer to the plaintiff's declaration and dismissing its suit. The allegations of the declaration are, in substance, as follows:

The State Teachers' College, the plaintiff and appellant here, is a state owned and supported college, situated within the boundaries of the city of Hattiesburg. A part of its activities include the operation of a teachers' demonstration and practice school established by it under the provisions of sections 7241-7246, Code 1930. In 1930, the Legislature appropriated, by chapter 167 of the Laws of that session, twenty thousand dollars out of any funds in the state treasury not otherwise appropriated, for the support of the State Teachers' College demonstration and practice school for 1930, and a like amount for 1931.

The defendant, Morris, appellee here, is the father of two children who attended the appellant's teachers' demonstration and practice school during the scholastic years 1930 and 1931, one being in the third, and the other in the fifth, grade thereof. The city of Hattiesburg refused to pay the appellant any tuition for students residing within its separate school district attending the appellant's teachers' demonstration and practice school, and, consequently, the defendant, Morris, is liable for the payment of the tuition of four dollars per month due plaintiff by his children, amounting, in the aggregate, to seventy-two dollars, for which sum a judgment was prayed.

The grounds of the appellee's demurrer as set forth therein are as follows:

"First. That said suit against the defendant is predicated upon section 3, c. 218, of the Laws of 1930, and that said section insofar as it undertakes to make the child or the parent liable for a tuition is in conflict with section 201 of the Constitution of the State of Mississippi.

"Second. That all of chapter 218, Laws of 1930, is a discrimination against a uniform system of free public schools, and is, therefore, in violation of section 201 of the Constitution of the State of Mississippi.

"Third. That the attempted effort on the part of the the Legislature to appropriate money for the support of the said school is in violation of section 208 of the Constitution of the State of Mississippi unless the provision of chapter 218 of the Laws of 1930, requiring the child or parent to pay tuition for the common school grades is within itself held unconstitutional."

The court below sustained the demurrer on the theory that the teachers' demonstration and practice schools provided for in sections 7241-7246 are a part of the "uniform system of free public schools" which section 201 of the Constitution requires the Legislature to establish, and therefore no tuition can be charged students in attendance thereon. That section is as follows: "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."

In so holding, the court below was in error. These teachers' demonstration and practice schools are not within the control of the common school authorities, but the power to establish them and regulate "the affairs" thereof is conferred on the "administrative authorities of the major state institutions of learning." In order for a school to be within the system of free public schools required by section 201 of the Constitution, the establishment and control thereof must be vested in the public officials charged with the duty of establishing and supervising that system of schools. Otken v. Lamkin, 56 Miss. 758, and the State Teachers' College, formerly known as the State Normal College, is no part of the state's uniform system of free public schools. Turner v. Hattiesburg, 98 Miss. 337, 53 So. 681.

It is clear from the declaration that the appellant's teachers' demonstration and practice school instructs its pupils, and, the statute permits it so to do, in those elementary branches of learning embraced within the common school curriculum.

A further question therefore arises under section 201 of the Constitution, and that is, the power, vel non, of the Legislature to establish and support schools outside the common school system which teach those branches of learning within the common school curriculum. The case of Chrisman v. Brookhaven, 70 Miss. 477, 12 So. 458, 459, seems to hold that the Legislature has the power so to do. The school which the court there had under consideration was a municipal school outside of the public school system, and the court there, among other things, said: "It [referring to the Constitution] enjoins upon the Legislature to establish and maintain a uniform system of free public schools, but does not prohibit the establishment of other schools outside of its system, and the Legislature may provide for schools at pleasure not invading the constitutional scheme." The question of what branches of learning such schools could be permitted to teach was not discussed by the court; but it is clear from the report of the case that the school there under consideration was very much of the same character as those embraced in the common school system, with a curriculum similar to theirs.

But, leaving that case out of view, the same result must be reached here. The authority given the major state institutions of learning is not simply to teach those branches of learning within the common school curriculum, but so to do within a limited scope, and for the purpose of enabling those institutions to qualify their students to become school teachers, by demonstrating to them, in a miniature school, in the teaching of which they themselves may participate, the modern and approved methods of school teaching, and thereby insure the equipment of the common school system with competent teachers. These demonstration and practice schools, therefore, are in aid of the common school system, and the number of students attending them will necessarily be so small as to be negligible when compared with the number in attendance on the schools composing that system.

It has been suggested that the Legislature's power to establish colleges and universities is conferred and measured by the provision of section 1, art. 8, Constitution 1869, now section 201 of the present Constitution, that the Legislature shall "as soon as practicable . . . establish schools of higher grade," and therefore all state owned and supported colleges and universities must be conducted as free schools. The Constitution of 1832 contained no such provision; its only reference to the subject of education being that "schools, and the means of education, shall forever be encouraged in this State." Article 7, section 14. While that Constitution was in force, the Legislature established several state owned and supported colleges, and in Otken v. Lamkin, 56 Miss. 758, it was held that the schools contemplated by the words "schools of a higher grade" in section 1, art. 8, of the Constitution of 1869, and section 201 of the present Constitution, are such as are a part of the uniform system of free public schools required by the section and are supported from the common school fund. The Legislature's power to establish colleges and universities does not rest on any grant thereof in the Constitution, but on the fact that it is not prohibited by the Constitution from so doing; not being so prohibited, it has full power to establish schools outside of the common school system. Chrisman v. Brookhaven, 70 Miss. 477, 12 So. 458, 460, including colleges and universities. Turner v. Hattiesburg, 98 Miss. 337, 53 So. 681.

This brings us to the appellee's contention set forth in his third ground of demurrer. The argument in support thereof is broader than that outlined in the demurrer, and, in substance, is that the second clause of section 208 of the Constitution prohibits a school from charging its students with tuition after it has received an appropriation of public funds, and it is to this argument that we will respond. That section of the Constitution is as follows: "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."

Two among other probable questions here arise: (1) Are schools of the character of the appellee included in the word "school" as used in the second clause of the section; and (2) should that question be answered in the affirmative, does the appropriation of forbidden funds to a sectarian or pay school, when accepted by the school, operate as a prohibition of its right, after "receiving such appropriation," to charge its students with tuition?

A casual examination of the second clause of the section discloses that the broad scope of the word "funds" must be limited by construction, for, unless so limited, all funds, of every character, both public and private, are included therein; but, of course, the words were intended to apply only to public funds of some character. It being clear that some of its language is broader than the section's purpose, a careful scrutiny of the section becomes necessary in order to ascertain whether other of its language is not also, particularly the word "School" in the second clause thereof.

The word "school" is a generic term, and may include any or all of a number of specific schools, according to the intent with which it is used. That is to say, it may include, according to the intent, elementary, grammar, and high schools; academies, colleges, and universities; publicly owned and privately owned schools.

General words in a statute must be understood as used with reference to the subject-matter in the minds of the Legislature, and strictly limited to it. 59 C.J. 980; Love v. Taylor, 26 Miss. 567; State Board of Education v. M. O.R.R. Co., 72 Miss. 236, 16 So. 489; Kennington v. Hemingway, 101 Miss. 259, 57 So. 809, 39 L.R.A. (N.S.) 541, Ann. Cas. 1914B, 392; Dollman v. Moore,70 Miss. 267, 12 So. 23, 19 L.R.A. 222; McIntyre v. Ingraham,35 Miss. 25. This rule applies with equal force to the construction of words used in a Constitution. 12 C.J. 702. The subject-matter in the mind of the Convention which adopted the Constitution must be ascertained from the words used in the Constitution, their context, the purpose sought to be accomplished, and the circumstances surrounding the Convention at the time the Constitution was framed and adopted, proven within the rules of evidence so permitting, or of which the court can take judicial notice.

The appellant is a state owned and supported college, and we will assume that the word "school" as here used includes colleges. The narrow question then is, Does the word "school," as used in the second clause of section 208 of the Constitution, include public schools, or as here, state owned and supported schools?

The word "school" is used twice in the second clause of the section. As first used, it is limited by the language of the clause to sectarian schools, whether conducted as free schools or not; and, as next used, it includes schools not conducted as free schools, whether sectarian or not. When the present Constitution was adopted in 1890, there were not, could not have been, and cannot be now, any state owned and supported sectarian school; the establishment thereof being prohibited by the provision of section 18, Constitution of 1890, that "no preference shall be given by law to any religious sect."

It is hardly probable, therefore, that the members of the Convention which framed and adopted the Constitution, many of whom were among the state's most eminent lawyers of that day, thought there could be any sectarian state owned and supported schools. Consequently, it is also hardly probable that they had such schools in mind when framing and adopting the Constitution, and therefore did not intend in that connection, to include them within the word "school."

One of the rules for construing a Constitution or statute is "that the same meaning attaches to a given word or phrase wherever it occurs" therein, unless it clearly appears that in some instances it was used with a different meaning. 12 C.J. 706. Under this rule which, of course, is not of prime importance, and should not be permitted to vary the clear meaning of words in a Constitution or statute, the presumption is that the word "school" in the second half of the second clause of the section was not intended to include state owned and supported schools. The use of the word "any" or a word of like meaning, preceding the word "school" in that part of the section, was necessary in order to clearly indicate that the prohibition applied to schools not conducted as free schools, whether sectarian or not.

This presumption is not only not overcome, but is strongly reinforced, when the history of the adoption of the section, as disclosed by public records, including the Journal of the Convention which adopted it, are considered, together with the contemporary and long-continued construction placed on the section by the Legislature and the state's executive officers charged with the duty of administering the affairs of the colleges, which "construction should not now be departed from unless manifestly incorrect." Illinois Cent. R. Co. v. Middleton, 109 Miss. 199, 68 So. 146, 147.

Section 1, art. 8, of the Constitution of 1869 required the Legislature, as does section 201 of the present Constitution, to establish a uniform system of free public schools, and, as soon as practicable, to establish schools of a higher grade. In 1878 the then common school system did not include schools of a higher grade, such, for instance, as are commonly known as high schools, and, at that year's session of the Legislature, it attempted to supply this defect by utilizing certain private schools for that purpose, supporting them, in part, out of the common school fund, chapter 20, Laws of 1878; the reason therefor being set forth in a preamble to the statute. That statute was held to violate section 1, art. 8, of the Constitution of 1869, in Otken v. Lamkin, 56 Miss. 758. Nevertheless, privately owned and controlled schools, some of them of a sectarian character, continued to affiliate with the state's common schools, and to be supported, in part, from the common school fund. In his message to the 1890 session of the Legislature, which called the Convention that adopted the present Constitution, Governor Lowry, among other things, said: "There are one hundred and fifty proprietary high schools in the state, most of them free schools during the winter term, and pay schools the remainder of the session. They receive a generous support, and are doing valuable service, which is an additional indication of the prosperity of our people and their zeal in the cause of education." Miss. Dept. Rep. 1888-89, page 10 of the Governor's message.

This statement, as the message indicates, was based on the report made to the Legislature by the Hon. J.R. Preston, state superintendent of education, wherein he said: "In addition to the graded schools in our towns and cities, the superintendents have reported one hundred and fifty high schools the names and principals of which are given in a separate list in this report. The list contains denominational colleges, normal schools and proprietary high schools, which maintain ten months sessions. Many of them are supported, in part, by the public fund, and give free tuition during the free school term. The list, if complete, would contain at least one hundred and sixty schools. The establishment and support of such schools in all parts of the state are gratifying indications of the interest people are taking in the education of their children. These schools supply to our youth that grade of instruction usually given in the regular high schools engrafted upon the systems of public school education in other states. Their number and patronage have rapidly increased for the past few years, and their progress conclusively shows an advance in the substantial prosperity of our people, as well as a realization that they must give their children more extended educational opportunities than can be had in the free schools of the state. Many of these schools enrolled from two hundred and fifty to four hundred students last session." Miss. Dept. Rep. 1888-89.

When the Legislature of 1890 convened, to which Governor Lowry's message, and the report of the state superintendent of education were addressed, there seems to have been no statute authorizing the use of the private schools referred to in the state superintendent's report, some of which appears therefrom to have been denominational or "sectarian" schools, as a supplement to the state's common school system. In order to legalize that custom, and assuming that it had the power so to do, in which connection see Otken v. Lamkin, supra, the Legislature adopted a statute entitled "An Act to amend the school law," appearing as chapter 71, Laws of 1890, section 12 of which provides: "That educable children may attend any chartered high school in their county, and shall be entitled to be enrolled, reported and paid for as other pupils in said school, provided said chartered school shall have been established and located as a free school."

The Convention which adopted the Constitution met in August, 1890, and its committee on education reported an article for the new Constitution covering the subject of education, section 10 of which brought forward, with a slight change, section 9, article 8, Constitution of 1869, with an addition thereto, reading in full as follows: "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."

The proposed new section, it will be observed, did not contain the words, "or to any school that, at the time of receiving such appropriation, is not conducted as a free school."

A minority of the committee made a separate report in which it was said, "We refer approvingly to the report of the State Superintendent of Education for the years 1887-8 and 1888-9," which demonstrates that the Committee on Education and the Convention had before them the report of the state superintendent of education, hereinbefore quoted. Both of these committee reports were afterwards withdrawn, and a compromise report was submitted; section 10 thereof being the same as section 10 of the original report. Convention Journal, pp. 120, 133, and 255. After the submission of this compromise report, Mr. Jamison, of the committee, offered a substitute therefor, section 9 of which was identical with section 10 of the committee's report. This substitute, after being amended, was adopted and became article 8 of the present Constitution. Convention Journal, p. 370.

While the Jamison substitute for the committee's report was under consideration by the Convention, "Mr. Burkett moved to amend Section Nine (9) by inserting after the word ``Sectarian' in Line Three, ``or private schools not under the control of the free school authorities during the free term.' Mr. Sexton moved to amend as follows, ``But this section shall not prevent teachers of private schools from receiving of the school funds the pro rata share of the children of the county who may attend such school when it shall be established and located as a free school.'" This proposed amendment is similar in purpose to, and in part identical with, the language of section 12, chapter 71, of the laws enacted by the Legislature at its 1890 session, as to suggest that it was inspired thereby. "Mr. Henry moved to amend Section Nine (9) by adding thereto the following, ``Nor shall any sectarian books be used, or sectarian instruction be given in any public schools.'" All of these amendments were laid on the table, and thereupon "Mr. Yerger submitted the following amendment to said Section. Add to section, ``or to any school that at the time of receiving such appropriation from the state treasury is not conducted as a free school,' which amendment was adopted, and, on a further vote, Section Nine (9) was adopted as amended." Convention Journal, p. 356. The Convention's Committee on Revision reported the final draft of the proposed Constitution with the words "From the State Treasury" eliminated from section 9 of the Jamison substitute for the report of the Committee on Education, as amended by the Convention, and the section as revised was adopted, and became section 208 of the Constitution. Convention Journal, pp. 580, 581, 612, 638, and 669.

These excerpts from the Convention Journal, from Governor Lowry's message, the state superintendent of education's report, and chapter 71, Laws 1890, demonstrate that what the Convention had in mind when considering section 9 of the Jamison report was the prohibiting of the custom referred to in the report of the state superintendent of education of appropriating public funds to support of sectarian schools and to a private school, whether sectarian or not, "that at the time of receiving such appropriation is not conducted as a free school." One of the proposed, but rejected, amendments to section 9 of the Jamison substitute was intended to apply to public schools, but its author, Mr. Henry, took the precaution to indicate that by inserting the word "public" before the word "schools."

In 1890, when the present Constitution was framed and adopted, several state owned and supported colleges, and one state owned and supported University, were in existence. Some of them were then, and had been for a long time, charging their students with matriculation fees and for instruction given them in particular branches; for instance, the University's Law School, and the Industrial Institute and College's (now Mississippi State College for Women) School of Music and the Fine Arts. Every Legislature that has met since the adoption of that Constitution forty-two years ago, and the state officers charged with the duty of administering the affairs of the State's University and colleges, have uniformly construed the second clause of section 208 of the Constitution as not prohibiting these institutions from charging their students with such fees and tuition, and they (these institutions) have continuously so charged their students until now; and, when the second clause of that section is construed in the light of its history as disclosed by the public records, including the Journal of the Convention which framed and adopted it, it seems clear that the Convention did not have state owned and supported schools, including the State's University and colleges, in mind, and that it was no part of its purpose to interfere with the Legislature's power over them. Had the Convention intended to increase the expense to the state of maintaining its University and colleges, by prohibiting them from charging their students with matriculation fees, and with tuition in their schools of a special character, thereby probably abolishing the latter, it could have easily and clearly, and in all probability would have, indicated that intention by the use of words specifically setting it forth. Moreover, the Convention's meetings were open to the public; nothing was done by it "in a corner;" and, had it intended to reverse a long-settled public policy with reference to the State's University and colleges, it is hardly probable that this fact would not have attracted public attention, particularly the attention of the Legislature and of the State University and college authorities. It could not have remained a secret until now.

It follows from the foregoing views that the first of the two questions hereinbefore set forth must be answered in the negative, and therefore it becomes unnecessary for us to answer the second.

The appellant has the right to charge students attending its teachers' demonstration and practice school with tuition, and this record disclosed nothing that would relieve the appellee from paying the tuition which the appellant seeks to collect from him.

The demurrer should have been overruled.

Reversed and remanded.