Turner v. City of Hattiesburg

Constitutional Law. Constitution 1890, §§ 66, 80, 90, par., p., 112, 178, 183, 201-213. Statutes. Passage. Legislative question. Schools. Municipal purpose. Corporations. General laws. Municipal aid or credit. Uniform system of schools. The statutes, Laws 1910, ch. 119, § 9, p. 107, and ch. 120, p. 109. authorizing municipalities to compete for the -location of a state college and to aid in its establishment by issuing bonds, etc., are constitutional and not violative of: (a) Constitution of 1890, § 112, provides that taxation shall be uniform and equal, since taxes to pay the bonds are paid for the location of the college, a municipal purpose; nor (b) Constitution of 1890, § 178, providing that corporations shall be formed under general laws only, since the college is merely an agency of the state; nor (c) Constitution of 1890, § 183, prohibiting corporations from lending their aid or credit to corporations; nor (d) Constitution of 1890, § 90, snbd. p., prohibiting the passage of local law for the management or support of any private school; nor (e) Constitution of 1890, §§ 201-213, requiring the legislature to ' establish a uniform system of free public schools; nor (f) Constitution of 1890, § 80, a non self-executing provision, requiring the enactment of general laws to prevent the abuse by municipal corporations of the power of taxation and contracting debts; nor '(g) Do they not constitute a donation by the legislature, within Constitution of 1890, § 66, providing that a bill granting a donation shall not pass unless concurred in by two-thirds of each branch' of the legislature, and if a donation, the question of their passage by the legislature is not a judicial one.

From the chancery court of Forrest county. Hon. Thaddeus A. Wood, Chancellor. Turner and others, resident citizens and tax payers-of the municipality, appellants, were complainants in the court below; the city of Hattiesburg, appellee, was defendant there. The objéct of the suit was to enjoin the issuance of municipal bonds. From a decree sustaining a demurrer to the bill of complaint and dismissing the suit complainants appealed to the supreme court. Municipalities are creatures of the statute, and can exercise no powers not expressly granted or necessarily implied to carry the granted powers into effect. It was :said by this court in the case of Clinton v. Turner, 9'5 Miss. 594, 52 South. 261: “Municipalities act under limited powers; and must find their authority clearly given •in the law, and when so found they must follow the law. ’ ’ This, so far as we have observed, is the universal rule of construction. Easlehurst v. Mayes, 96 Miss. 656, 51 South. 890. Hattiesburg, operating under chapter 99, Code 1906, as amended, had power under said Code of 1906, § 3346, “to issue bonds as hereinafter provided;” and under ■Code 1906, § 3415, as amended by laws 1910, chapter 142, p. 133, to issue bonds in certain cases therein enumerated; and, under section 4534 of Code of 1906, to issue bonds in certain other cases therein enumerated. These sections name every case in which it had the right to issue bonds for any purpose. But none of the provisions referred to authorize the issuance of bonds for the location ■and maintenance of the Mississippi Normal College, or any other state institution. There is no general statute anywhere that gave municipalities power to issue bonds for any other than strictly municipal purposes. The act creating the said Mississippi Normal College was passed in violation of section 178 of the Constitution, providing that corporations shall be formed under general laws, only; and therefore, has no legal existence. It will perhaps be urged here, as in the court below, that the Mississippi Normal College is a public corporation or subdivision of the state government, and, therefore, not a “corporation” in the same sense the term is employed in the Constitution. Now, to refute our contention, it must be established that the Mississippi Normal College is not a “corporation” in the sense the term is employed in the Constitution. By reference to the act, it will be seen that it is created a body politic and corporate, with practically the same rights, powers and privileges as are conferred upon-corporations generally by the Code chapter on the subject. The construction of section 178 of the Constitution, here contended for, is emphasized by reference, to section 88 thereof, which makes it the duty of the legislature to pass general laws under which corporations may be created, organized, etc. Here the word “corporations” is used without any limitation whatever. Yazoo City v. Lightcap, 82 Miss. 178; School District v. St. Joseph Ins. Go., 103¡ U. S. 26, L. Ed. 601; Adams v. Railway Go., 78 Miss. 887; Railway Go. v. Adams, 79 Miss. 408. The act creating the Mississippi Normal College and the act authorizing the issuance of bonds therefor, being local in their application are violative of section 80 of the Constitution, which requires that provisions be made by general laws “to prevent the abuse- by cities, towns and other municipal corporations of their powers of assessment, taxation, borrowing money and contracting debts. ’ ’ It has been suggested that the said act authorizing the issuance of bonds is a general and not a local law. The wording of the act implies that it was intended to apply only to the municipality receiving the college. Section 9 of the act attempting to create the college says: “The board of trustees shall, as soon as practicable after their appointment, arrange to receive from the localities desiring to receive the locations of said school, proposals for donations,” etc. And, while the other act authorizes the municipalities of the state to issue bonds, etc., it was never contemplated that each and all of them should issue bonds, and if that theory is pursued, then no bonds could be valid unless each and every municipality joined in the issue. The act creating the college and the act authorizing the issuance of bonds, therefore,- are violative of section 112 of the Mississippi Constitution, which requires that taxation shall be “uniform and equal throughout the state. ’ ’ The legislature here proposes to establish a great institution, to belong exclusively to the state, and at the same time to entail the cost of procuring a site and erecting buildings therefor upon the city or county or both, that might put up the funds necessary for such purposes. If the city of Hattiesburg furnish this money, the taxpayers of these communities will have to pay for it. The “uniformity” of the Constitution, simply means that all the taxable property in the state be taxed alike for state objects, where such objects only are involved, so as to make the burden uniform as to all taxpayers throughout the state, as to state objects. Local taxation is controlled by the same principles. Adams v. Bank, 75 Miss. 701; Adams v. Lumber Go., 84 Miss, 23; Adams v. Kuykendall, 83 Miss. 571. The act creating the college and the act authorizing municipalities to issue bonds to secure the same are violative of subdivision “p” of section 90 of the Constitution, which makes it unlawful for the legislature to pass any local, private or special law “providing for the management or support of any private or common school, incorporating the same or granting such school any privileges.” i It may be urged that the Mississippi Normal College is not a school of the class here meant; yet, it will be seen by section 2 of the act creating the college that its •object is “to qualify teachers for the public schools of the state, by imparting instruction in the art and practice of teaching in all branches of study which pertain to a common school education,” etc. The act creating Mississippi Normal College is violative of article 8 of the Constitution, on the subject of •education, and requiring that the legislature shall establish a uniform system of public schools and provide for the government of the same. It will doubtless be urged that the Mississippi Normal College is to be no part of the public school system, yet it will be seen from the language of the act that its main feature is to qualify teachers for those schools. And the act further provides, “No one shall be eligible to admission to such schools, who shall not have completed the studies of course prescribed by law for the common public schools of the state and the course shall always be confined or restricted to a strictly normal or professional course for training teachers to teach in the public ■schools of the state.” Section 14 of the act provides “Tuition shall be free to all students of Mississippi Normal College who give •a written pledge to teach for a period of not less than three years in the public schools of the state,” etc. It cannot be maintained, in the face of these provisions, that this school is not to be auxiliary to, and in aid •of, the public school system of the state. It will be further noticed, that said act takes the management and control of said Mississippi Normal College from the officers and agencies in charge of the public schools of the state generally and creates an independent hoard of trustees, to manage and control the college. It follows that, under authority of Ellis v. Greaves, '82 Miss. 36, this act is in conflict with said constitutional provisions and, therefore, void. The act creating Mississippi Normal College is violative of section 66 of the Constitution, as amended, because passed by less than two-thirds majority of the legislature. We are aware of the decisions of this court, Ex parte Wren, 63 Miss. 512, and Hunt v. Wright, 70 Miss. 208,. holding that the courts cannot look back to the journal.. We desire to be classed among the most reluctant to take-issue with this or any other court, of last resort. The-point is raised here, primarily because this objection has been urged by contemplated buyers of the bonds in-issue. It will be noted that the court was required to overrule Brady v. West, 50 Miss. 68, to reach the above conclusion. This last ease quotes from Cooley’s Constitutional Limitations: “Each house keeps a journal of its proceedings, which is a public record, and of which-the courts are at liberty to take judicial notice,” and' there are many authorities in perfect accord with the Brady case, supra. “The journals of the two houses of the legislature, in connection with other competent evidence on the subject, may be examined as means of information to aid' in arriving at a correct conclusion as to what was the action of the legislature on any particular bill before it. ’y Berry v. B. do D. P. B. B. Co., 20 Am. Rep. 69; Hunt v. State, 22 Texas App. 396; People v. Mahaney, 13 Mich. 481; Attorney-General v. Jay, 55 Mich. —; Bode v. Phelps, 80 Mich. 59-8; People v. Burch, 84 Mich. 408; Detroit v. Detroit Board of Assessors, 91 Mich. 78; Fordyce v. Goodman, 20 Ohio St. 1; County v. P. B. Co.,. 13 Fed. 722; Smythee v. Garth, 33 Ark. 17; Worthen v. Badgett, 3-2 Ark. 496; Fowler v. Pierce, 2 Cal. 165; MeCullough v. State, 11 Ind. 424. It is well established that the legislature may authorize-a municipality to issue and sell its bonds, in the aid of public enterprise, if there are no constitutional limitations or restrictions. It cannot be doubted that the sale of bonds for tbe purpose of procuring the location of the Mississippi Normal College in the corporate limits, of the city is for a public purpose and for a public benefit. The bill shows on its face, that there was sharp rivalry for the location of said college; three cities have' offered large sums of money and valuable lands for a. site to procure the location of the institution. The bill shows that the city of Hattiesburg offered two hundred and fifty thousand dollars and a valuable site to procure the location of the college within its corporate limits, and another city offered two hundred and twenty-five thousand dollars and valuable lands for the site, and another offered two hundred and fifty thousand dollars and valuable lands for a site. These facts show that, the college is expected to be of great benefit to any locality where it shall be located, and that the benefit is a public one, and taxpayers and property owner's in such locality are the beneficiaries; therefore, money expended or taxes levied by a municipality or a county to procure the location of this institution ¿re expended or levied for a public purpose and a public benefit. The court’s attention is directed to the decisions in several other states where' laws similar to chapter 120, Laws of 1910, have been sustained. See the case of Lund v. Chippewa County, 34 L. E. A. 131.' Also the case of Livingston v. Darlington, 101 U. S. 407, L. Ed! 1015, is a leading case on this point. In this case, a law of the state of Illinois establishing a state reform school and authorizing municipal corporations to donate money to secure its location within their limits was sustained. Hensley v. People, 84 111. 254; Cox v. Commissioners of Pitt County, 16' L. E. A. (N. S.) 253. I understand that the supreme court of Tennessee has recently held valid and constitutional a law somewhat similar to chapter 120, Laws of 1910, which authorizes cities and counties to issue and sell bonds for the purpose óf procuring the location of Normal Schools. The style of the case is Murfreesboro Normal School v. Ban■som, and the decision was rendered probably during the year 1909, but I have not been able to find it reported. The foregoing authorities show that the legislature is •authorized to empower municipalities to sell bonds for the purpose of procuring the location of the college, unless there is something in the state Constitution which prohibits the enactment of such law. Section 183 of the Constitution is the only provision which seems to have ■any bearing on the point at all; this section prohibits counties and municipalities from making appropriations to or lending credit on any railroad, or any other corporation or association. This section has reference to private corporations which are organized and operated for gain or profit; it has no reference whatever to a public institution of learning belonging to or controlled by the state. Such an institution as the Mississippi Normal College, if a corporation at all, is a public corporation, or a public quasi corporation. The supreme court of this state in the case of State v. Vicksburg, etc. B. Co., 51 Miss. 361, held that the University of Mississippi and the Alcorn A. &• M. College are not in the legal sense private corporations. Section 183 of the Constitution was never intended to prohibit municipalities and counties from rendering aid to public institutions of learning. The same argument applies to the objection that the law creating the Mississippi Normal School is in violation of section 178 of the Constitution, which requires that corporations shall be formed under general laws only. Section 66 of the Constitution has no application here. Ex parte Wren, 63 Miss. 512; Hunt v. Wright, 70 Miss. 298.