District Township of Dubuque v. City of Dubuque

Wright, C. J.

By the 24th section of chapter 210, of the laws of 1857, p 343, the city of Dubuque was constituted *271 one permanent school district, subject to the council of said city, whose duty it was to provide for the adequate support and maintenance of common schools in said district. By the same act, the city council was required to provide for the appointment of a board of education, to whom should be given the management of the common schools of the district.

Chapter 52, of the laws of 185S, p 57, constitutes each civil township in the several counties of the states a school district for all the purposes of said act:

“Provided, That each incorporated city or town, including the territory annexed thereto for school purposes, and which contains not less than one thousand inhabitants, shall be, and is hereby created, a separate school district, which shall elect its officers in the same manner that officers are elected in other school districts; and the electors of said district shall possess and exercise the same powers, and perform the same duties, as are, by this act, required of like officers in other school districts; and said district shall be, in all respects, subject to the provisions of this act, so far as the same are applicable; and the remaining part of such township or townships shall each be considered as a sepa- . rate township, as provided in this act.”

Under this law, the electors of the district composed of Dubuque city organized and elected a president, and the other officers designated in section 8. These officers, acting for, and in the name and behalf of the district so organized, claimed of the city of Dubnque the school money, (“school house and teachers’ fund”) in the hands of its officers, and also the possession and control of the property, real and personal, belonging to the district. The right of the new organization to this money and property was denied, and these suits were brought to recover the same, the one for the money, and the other to test the title to, and obtain possession of, the real property.

The ground upon which the plaintiff’s right to recover is resisted, is that tlie act of 1858, entitled “ an act for the *272 public instruction of the state of Iowa,” was not passed or enacted by the body or power entrusted with such legislation under the constitution. And thus we have presented the question, whether the general assembly had the power to pass the act, or whether, under the constitution, this power is conferred exclusively upon the board of education. Our conclusion is, that the constitution designed primarily to confer the power to legislate upon this subject upon the board of education, and not upon the general assembly. Our reasons for this conclusion, we shall, as briefly as possible, proceed to state.

Article 9, of the constitution, provides :

Seo. 1. The educational interest of the state, including common schools and other educational institutions, shall be under the management of a board of education, which shall consist of the lieutenant governor, who shall be the presiding officer of the board, and have the casting vote in case of a tie, and one member to be elected from each judicial district in the state*

Sec. 6. * * ^ They shall keep a journal of their proceedings, which shall be published and distributed in the same manner as the journals of the general assembly.

Sec. 7. All rules and regulations made by the board shall be published and distributed to the several counties, townships, and school districts, as may be provided for by the board, and when so made, published, and distributed, they shall have the force and effect of law.

Sec. 8. The board of education shall have full power and authority to legislate and make all needful rules and regulations in relation to common schools, and other educational institutions, that are instituted to receive aid from the school or university fund of this state; hut all acts, rules, and regulations, of said board, may be altered, amended, or repealed, by the general assembly ; and when so altered, amended, or repealed, they shall not be re-enacted by the board of education. •

Sec. 10. The board shall have no power to levy taxes, *273 or make appropriations of money. Their contingent expenses shall be provided for by the general assembly.

Seo. 12. The board of education shall provide for the education of all the youths >of the state, through a system of common schools; and such schools shall be organized and kept in each school district at least three months in each year.

Sec. 11. A majority of the board, shall constitute a quorum for the transaction of business; but no rule, regulation, or law, for the regulation and government of common schools, or other educational institutions, shall pass without the concurrence of a majority of all the members of the board, which shall be expressed by the yeas and nays on the final passage. The style of all acts of the board shall be, “Be it enacted by the board of education of the State of Iowa.”

Sec. 15. At any time, after the year 1863, the genera* assembly shall have power to abolish or reorganize said board of education, and provide for the educational interests of the state, in any other manner that to them shall seem j ust and proper.

The constitution further provides that the educational and school funds and lands shall be under the control and management of the general assembly of the state. Section .1, of second subdivision of article 9.

Sec. 3. The general assembly shall encourage, by all suitable means, the promotion of intellectual, scientific, moral, and agricultural improvement.

Sec. 7. The money subject to the support and maintenance of common schools, shall be distributed to the districts in proportion to the number of youths between the ages of five and twenty-one years, in such manner as may be provided by the general assembly.

The act of 1858, as its title imports, is for the “ public instruction of the state.” It contains ninety-six sections, and, with great particularity and minuteness, points out and defines the duties of the several officers provided for therein. It was the evident design of the legislature to *274 cover the whole ground upon this subject. It commences by declaring each civil township to be a district — provides for sub-districts therein — for the officers in each, the time and manner of their election and qualification — for their respective duties — for the election of county superintendents and their duties — for a state superintendent and his duties — for a high school in each county — for the manner of selecting text books in schools — for the government of the state university, and for a normal department therein —for teachers’ institutes — for a meeting of the several county superintendents in each year — for a meeting of the presidents of each school district, with the county superintendent, constituting a county board — for the establishment of scholarships in the high schools and university — for the raising of taxes to build and repair school houses — for the levying of a tax by the county judge for the support of schools — for reports from various officers to others, and from these to the general assembly and the board of education — and, in a word, for everything which, in the opinion of the legislature, was necessary to give to the state a complete and full system of public instruction. And then by section 95, it is enacted that “ all acts and parts of acts which have heretofore constituted the school laws of the state of Iowa, except those relating to the school lands and the school fund, and all acts and parts of acts heretofore in force relative to the state university, are hereby repealed.” By chapter 158 of the laws of 1858, 391, complete provision is made for the management of the school fund, and the sale of the school lands. In this act, duties are imposed upon various officers in the management of this fund, and the sale of these lands — and directions are given for the expenditure and distribution of the moneys arising from time to time. The act covers the five per cent, fund, the five hundred thousand grant, the university lands, the proceeds of fines and lost goods — and, in a word, the entire fund set apart by the constitution for the support of common schools and the university.

*275 We have thus given somewhat at length, the several provisions of the constitution, as also a synopsis of the act under consideration, and that relative to the school fund _ and lands, that the question made might be the more readily and fully appreciated and understood.

The novelty of a question, not unfrequently invests it with seeming, if not actual, difficulty. And hence in this case, the peculiar department introduced and provided for in the board of education — the introduction of what is termed a fourth power in the government, leads the mind to hesitate in defining its powers and prescribing its duties. •The fact that legislative power upon all subjects is uniformly committed to a body known as the general assembly, or by some similar name, naturally leads us to doubt whether the constitution intended to divide or separate this power, by conferring a portion of it upon another and distinct body. And yet there is certainly no reason why the same rules of construction are not applicable to this as to every other question of legal or constitutional interpretation. If the result of the application of these rules, shall be to recognize a portion of legislative power in a new and unusual body, it is none the less our duty to so declare, than if the result left the power in the usual and accustomed channel.

What are some of these rules? We remark first, that the great object and office of all rules or maxims of interpretation is to discover the true intention of the law or constitution. This once certainly and clearly ascertained, courts are bound to obey it, however much they may doubt its -wisdom or policy. [This last remark has reference to a constitutional provision; for, as applied to law, there must be the further requisite, that it does not violate the constitution.] In arriving at this - intention, the whole and every part of the instrument or enactment, must be taken and compared together. The real intention, -when once accurately and indubitably ascertained, will prevail over the literal sense of the terms. When *276 the words used are explicit, they are to govern, of course. If not, then recourse is had to the context, the occasion and necessity of the provision, the mischief felt, and the remedy in view. Affirmative words may, and often do, imply a negative of what is not affirmed, as strongly as if expressed. So, also, if by the language used, a thing is limited to be done in a particular form or manner, it includes a négative that it shall not be done otherwise. Affirmative expressions that introduce a new rule, imply a negative of all that is not within the purview. 1 Kent, 461, marg., et seq., note d, 467.

We therefore take the whole, and every part of the constitution, bearing upon this question, into consideration and ascertain the intention of the convention. JBy this constitution, what powers are conferred upon the board of education ? We answer generally, legislative powers upon the subject of the educational interests of the state. This is plainly indicated and shown by such language as this : “ The educational interests shall be under the management of aboard of education.” “They shall keep a journal of their proceedings, which shall b.e published.” “ All rules and regirlations made by the board, shall be published and distributed, and when thus distributed, they shall have the force and effect of law.” “ The board shall have full power and authority to legislate, and make all needful rules and regulations in relation to common schools,” &c. “ The board shall provide for the education of all the youths of the state, through a system of common schools.” “No rule, regulation, or law, for the regulation and government of common schools, or other educational institutions, shall pass without the concurrence of a majority of all the members.” “ The style of all acts of the board shall be, £ Be it enacted by the board of education of the state of Iowa.’ ”

It seems to us that language could not much more clearly express the intention of the convention. First. This great and absorbing interest is placed, by the use of' express words, under the management of a board, com *277 posed of but few persons, selected from all parts of the state. In managing it, they are told what they may do, and how to do it. They may legislate— provide for a system of common schools — mate rules and regulations which, when published and distributed, shall have the force and effect of law. What force, or effect, could these provisions have, if the board has no power to enact what is commonly denominated a school law ? If they have not this power, what was the object of the organization ?

But, again, let us look at the object had in view in creating this board — the mischief that was supposed to exist, and the remedy contemplated. No higher obligation rests upon the statesman, or legislator, than to provide some certain and adequate means for the education of the people. This duty, as shown by the debates of the convention which formed the constitution, was regarded as having been much neglected. Our former school law was admitted to be defective. In the haste of general legislation — while legislators were so much influenced by political considerations — and so many other matters absorbed their attention —it was deemed advisable to entrust to another tribunal the educational interests of the state — a tribunal selected because of its fitness to legislate upon this important subject ■ — -a tribunal that it was supposed would come to the discharge of the duties, fully impressed with their magnitude and delicacy. ' If, however, full, or equal power still exists in the general assembly to legislate upon the general subject, as before, or under the old constitution, then this board was created for no practical purpose. What mischief would be remedied under such a construction ? This board could not act after the legislature had. They have no power to amend, alter, or repeal anything that the legislature may do. On the contrary, when the legislature has amended, altered, or repealed any act of the board, they are expressly prohibited from re-enacting the same. If the act under consideration, is constitutional, or if the general assembly may originate and pass such laws, then there would be nothing left for the board to do. And the *278 consequence would be, that the legislative power upon the subject, being left where it always had been, the object had in view in creating this board would be defeated, and the remedy designed would fail.

But further, it is not improper that we refer to the debates of the convention which formed the constitution, to ascertain the views entertained by its framers in providing for this board. And from these, we are left in but little doubt as to the intention. Two extracts must suffice — • one in favor, and the other opposed to the measure.

Says Mr. Hall, (the admitted author of the system):

“ I am, therefore, in view of these considerations, in favor of taking this matter entirely out the power of the legislature, and putting it into the hands of another body, who will better represent the interests of the people. 1 am for putting it into the hands of a body that shall have no control over the funds, and which cannot possibly be influenced by party considerations. Such a body as I propose, will bo uninfluenced by partisan feelings and considerations, and their whole and undivided attention will be given to the benefit and improvement of the educational interests of the state.”

“ This system compels the legislature to divide the state into sixteen, (afterwards made eleven), educational districts, among which the money is to be distributed, in proportion to the number of unmarried youths, between the ages of five and twenty-one years. This is to be an equal distribution, and is made the duty of the legislature. The board of education provide the schools; they furnish the consideration for the money; they decide when the money shall bo paid, and paid because it has been earned; and they superintend the establishment of the schools. This is made their duty.” Debates, 751.

Mr. Wilson, in opposition to the system, said:

“ I can see no possible good to grow out of this system, for it confers upon the board of education, legislative authority in every respect, except that, in connection with *279 the school funds, and, at the same time, it retains in the hands of the legislature the power to repeal, alter, or amend, the acts passed by the board.”

“ The legislature cannot take upon themselves the power of enacting laws, and enforcing regulations, in relation to schools. They have to wait until this hoard has acted, and after they have acted, they can only change, or repeal, the rules and regulations which they have made.”

“ They, (the board), may pass a code of laws, distribute those laws-throughout the state, and the general-assembly, at its next session, may repeal one-half, or two-thirds of all these lawTs, or they may repeal them all, before the people have had an opportunity of testing them, and determining whether there is anything good in them. Once repealed, altered or amended, despite whatever good may have been discovered in them, this board of education will have no power to re-enact those laws, neither will the legislature, because you confer upon the hoard the power to make all the rules and regulations for the government of our schools. This power is taken away from the legislature, and given to this board.” Debates, 941.

These extracts, it seems to us, sufficiently show the intention in creating this board, and that this intention w7as to confer legislative power over the general subject of schools and education. Other citations might be made, all tending to establish the same proposition, but these are sufficient.

It is urged, however, that in relation to the educational interests of the state, there are two branches — the one abstract, or educational, and the other financial — that under the abstract, or educational branch, is included the power to prescribe text books — adopt rules for the examination of teachers, and the like ; and that these things, or this power, was intended to be conferred upon the board. In other words, that this board was designed to take the place of the superintendent of public instruction, under the former constitution, and to perform the same class of duties de *280 volving upon liim. But that, upon the other hand, it was reserved to the legislature to prepare the machinery — originate the system, and attend to the financial department.

To a certain extent this is true. That is to say, that the educational and school funds and lands were to be under the control and management of the general assembly. And under this power it was, that chapter 158 of the laws of 1858, was enacted. But what warrant is there for assuming that the powers and duties of this board were to be similar to those of the former superintendent of public instruction, or that they were to extend merely to the promulgation of rules, the recommendation of text books, and the like ? It is not probable, to say the least of it, that the convention would have, at such an increased expense, transferred these duties from one to thirteen persons. If sucli was the design, it is not probable that the very act under consideration would have continued the office of superintendent. So far from this construction being favored, it is clearly and expressly negatived, by the general, as well as the specific, terms and language of the constitution. Thus, when by section 6, article 9, the board are required to appoint a secretary, who is to be the executive officer of the board, and to perform such duties as may be imposed upon him by them and the laws of the state, we infer that this secretary was designed to be substituted for the superintendent — -that primarily his duties were to be defined by the board — that through him they would enunciate many of their rules and regulations for the more efficient working of the general system which they might bring into existence by law or their legislation. Not “only so, but this board is to “provide for the education of all the youths of the state, through a system of common schools.” What does this mean? How could this be done — how could they thus provide, without the power to bring into existence the system, the means to accomplish the end? To thus provide, something more is necessary than to merely prescribe rules for the government of the officers, teachers, *281 and pupils, after the system had been devised by another power. To make it the duty of this body to accomplish so great a work, and, at the same time, deny them the ability— the power to devise the system — the efficient means to bring about the end — would be unreasonable and absurd.

Further: every rule, regulation, and law, for the regulation and government of common schools, or other education al institutions, must receive the concurrence of a majority of all the members, and full power and authority is conferred to legislate, and make all needful rules and regulations, in relation to common schools and other educational institutions. What do these terms, “law” and “legislate,” mean'í The first is, an established, or permanent rule, established, of course, by the supreme power, or the power having the legislative control of the particular subject. Thus, the general power to prescribe rules for the government of the actions of the subjects or citizens of a state, is confided to the legislative department. What this legislature may prescribe, we call law. What this board may do upon the subject entrusted to their care and supervision, is also called law. So, also, to “ legislate ” is to give, pass, or enact a law or laws. Thus, section 1, article 2, of the constitution, provides that “the legislative authority of this state shall be vested, &c.” And we ask, therefore, why give to this board the power to make laws and to legislate, if their duties were merely to carry into effect a law, or system, enacted, passed for, or given to them, by some other power ? If such was the design, language could not have been selected to express more clearly the opposite intention.

Once more upon this subject. The educational interest of the state is to be under the management of the board— their rules and regulations are to have the force and effect of law — and “ the style of all acts of the board shall be, ‘Be it enacted by the board of education of the state of Iowa.’ ” How similar this last to the concluding part of section 1, article 2: “Be it enacted by the general assembly of the State of Iowa.” Why, we ask, this similarity *282 —why are the laws, rules, and regulations, to go from this board with this authoritative and formal commencement, if the system was not to be created by a law emanating from the board — if their duties were not legislative ? Why are their proceedings or enactments spoken of as acts— and thus the analogy kept up between their action and the general assembly ? And why, if they were to make rules and regulations in contradistinction to laws and acts, were the latter words used ? The use of the latter would clearly seem to indicate, that more power was intended to be given than merely to make regulations and rules, in the sense ordinarily attached to those terms, or in the sense that such power was, by previous laws, conferred upon the superintendent of public instruction.

It is further claimed, that until the board of education was elected and organized, the power to legislate upon this subject remained with the general assembly. This part of the argument may be stated thus : the first session of the board is, by the constitution, fixed on the first Monday in December, 1858. After the adoption of the constitution, and before their meeting, a session of the legislature was provided for, and it was not intended that all legislation upon the subject of schools, and the educational interests of the state should be suspended — that the act under consideration was passed before the organization of the board, and is therefore valid.

So much of this argument as is drawn from an assumed necessity for legislation, loses its force, when it is remembered that we had a school law, which, by the constitution, (article 12, section 2), was to remain in force until repealed. Not only so, but if the general assembly could pass this law, it must still continue in force, and remain the law, now that the board is organized, without any power on their part to amend or repeal. The necessary effect of this would be, that the legislature, and not the board, would “ provide for the education of the youths of the state through a system of common schools.” If the legislature could do this — the board having no power to alter or re *283 peal — nothing would be left for them to do. The act imposes every duty upon an appropriate officer, which would seem to'be necessary to the efficiency and due operation of the system. ¥e have seen that it gives to the superintendent of public instruction, power to recommend to the several county superintendants, a uniform series of text books —that it provides a method for their discharge, for the expulsion of pupils from the schools — -and in a word, all needful rules and regulations are either prescribed therein, or the power to prescribe them is conferred upon some officer. What, then, are the board to do ? They cannot amend this law. If they make a new law, and this one is valid, we would have two acts upon the same subject, for as has been seen, the board may now legislate, or make a law. If they prescribe rules and regulations for the examination of teachers— if they recommend a uniform series of text books — these duties are, by the law, devolved upon other persons, and in case of conflict, which must prevail.

We cannot believe that such possible conflict and confusion was ever designed, or that the constitution intended that the legislature should act or legislate upon this subject any more at the first, than at any subsequent session of that body. If it was so intended, then, as already suggested, there is nothing to prevent this law still continuing in force. No provision of the constitution can certainly be said to thus limit its operation, nor is such a conclusion favored by implication. The power, if in the legislature, cannot be said to depend upon the time of its exercise. If lodged there, it still continues, and may be exercised at any time hereafter. It is not there, however, because its exercise would be inconsistent and incompatible with the jDowers conferred upon the board, and repugnant to the obvious spirit and intention of the constitution. And this remark brings us to the last, and perhaps strongest position of appellee, and that is, that the legislative authority of the state is vested in the general assembly — that this means, and has reference to, all subjects — that this power is not taken away by express provision, as to the educa *284 tional interests of the state, nor by such necessary implication as to confer it exclusively upon the board.

Much that has been said is applicable to this part of the ease. It is true, that by the constitution the legislative power is vested in the general assembly. It is true that this power is conferred without express exception or qualification. It is true, also, that, as the law-making power, it may legislate upon all subjects not prohibited either expressly or by necessary implication. But we have already determined that the board of education may legislate upon this subject. The only question, then is, whether the legislature has concurrent or equal power, or whether the power is exclusively in the board.

The expression of one thing, is frequently the exclusion of another; and if by a law or constitution, a thing is to be done in a particular manner or form, this, as we have seen, includes a negative, that it shall not be done otherwise. Where, also, the constitution enjoins a duty, it gives by implication, every particular power necessary for its performance — the implication being, of course, a necessary, and not a conjectural or argumentative one. This rule, it is also said, is further modified by another, that where the means for the exercise of a granted power are given, no other, or different means can be implied, as being more effectual or convenient. Field v. The People, 2 Scam., 79 . Such a construction should also be given, if possible, as that all parts shalj. stand, and have meaning and force, according to the intention of its framers.

The duty imposed by the constitution upon the board of .education, is to provide for the education of the youths of the state. ■ The power to perform this duty follows impli.eclly, if not given expressly. If expressly given, then it is not for the legislature or the courts, to say that some other means or method would be more effectual or convenient. It is thus given, and with the wisdom or policy of the provision, we have nothing to do.

But if we say that the legislature has concurrent or equal power over this subject, in what condition would we *285 be placed % Our legislation upon this most important and vital interest, would present the anomaly of coming from two distinct, and, to a great extent, independent bodies. The legislature could pass a law. The board cannot in any manner change it. The board has to provide for a system of common schools, and however unwise or impolitic they may deem the means devised by the legislature, to accomplish that purpose, they must submit. So that, in fact, instead of having the power to perform the duties imposed upon them, the board might in advance be stripped of all their efficiency, and rendered unable to do that which, by the constitution, they are required to do.

Butin case of conflict, which is paramount — which shall prevail — the legislation of the general assembly, or the board % Both cannot stand. The board can act, and we will not suppose that equal power was given to another body over the same subject. Power to legislate upon the subject of education, is conferred upon the board. The constitution has thus, in express words, imposed a duty and conferred a power. If we say that the legislature has the same power, it results from the general language of section 1, article 3. But to recognize this power in the legislature, is substantially to leave the first part of article 9 without meaning. To recognise the power as exclusively in the board, in the first instance, harmonizes the whole instrument, and renders reasonable and operative its several provisions. To give the board concurrent or equal power, would conflict with article 3, section 1, as much as to give them exclusive power. They have equal power, certainly, and hence it seems to us that the argument of apjaellees is stripped of all force.

We have said that the legislature had no power to pass the law undeV consideration. By this we do not mean, that every part of the act is necessarily void or inoperative. ‘ Without pointing out the particular parts which are valid or invalid, we propose to state our views of the division of power contemplated and intended by the constitution, in relation to this subject.

*286 Laws for the levying of taxes — those making appropriations of money — and those for the control and management cf the educational and school funds and lands — are to be passed by the- general assembly. Those which provide a system of education, sometimes known by the name of “ school laws” — those which create and designate the officers by and through whom the system is to be administered — are to originate with the board. After the board has acted, the legislature can alter, amend, or repeal, and therefore the action of the legislature in that respect con-' eludes the board. This power of the legislature is much like the veto power given to the governor, over ,the acts passed by the general assembly. The governor is made a member of the board, but the acts of that body do not have to be approved by him, as do those of the legislature. The laws, rules and regulations of the board, when passed, do not need the concurrence of the legislature to become operative. When the legislature does act, such action is final upon the board. And thus, while the people have delegated to the board the power, and imposed upon them the delicate and responsible duty, of legislating for the well being of the children of the state, they have also given to another body, the absolute power to veto their action, and to pass all laws which provide for the raising of means to render effective any system devised.

The board, however, may enact a system looking to adequate laws on the subject from the legislature, or legislate with reference to funds provided for in existing laws.

This division, or arrangement, may not be politic. It may possibly result in confusion, and to the injury of the cause of education. If so, the remedy is not with this court. The people, through their constituted delegates, have made their constitution. It is our duty to declare what this constitution is, whatever the consequences, and not to alter or change it.

'Id the determination oí this question, we may say, in conclusion, we have had much doubt and difficulty. No *287 view of it is entirely clear, or free from perplexity. After, however, giving full weight to the presumption that obtains in favor of the constitutional and legitimate action of the general assembly in passing the law, we have felt constrained to bold it void in its essential features. The board now in session can apply an immediate remedy, and obviate, as we suppose, to a great extent, any confusion or injury resulting from this conclusion. Thus impressed, we have had less regret, (if regret should ever be indulged in the discharge of duty), in thus construing the constitution.

J udgment reversed.