Hewes v. Langford

Cook, J., delivered the opinion of the court. This is an appeal from the circuit court of Harrison county, Miss. W. R. Langford, appellee here, filed a petition in the circuit court, praying for the issuance of a writ of mandamus by the circuit court, commanding* and compelling F. S. Hewes, clerk of the board of supervisors of Harrison county, appellant here, to issue a warrant on the county treasury for the amount of forty-four dollars, being the amount of a teacher’s pay certificate which said Langford claimed to be entitled to for his services rendered as teacher in said Mississippi City rural separate school district, and to issite other warrants on said fund on other pay certificates. To said petition for mandamus F. S. Hewes, appellant here, filed an answer in the court below, setting up that chapter 288 of the Laws of 1912, which authorized the school board of Harrison county, Miss., to establish a separate school district in said county containing certain described territory less than 16 square miles in area, was unconstitutional and void, being in conflict with section 90, par. “p,” of the Constitution of 1890, and section 4530 of the Code of 1906. To the answer a demurrer was interposed, the demurrer was sustained, and the writ of mandamus was ordered by the court. From this judgment the clerk of the board of supervisors prosecutes this appeal. Section 90 of the Constitution of 1890 is in the following words: “The legislature shall not pass local, private, or special laws in any of the following enumerated cases, but such matters shall be provided for only by gen [387] eral laws, viz.: . . . (p) Providing for the management or support of any private or common school, incorporating the same, or granting such school any privileges. ’ ’ The legislature of the state of Mississippi, in pursuance of said section 90 of the Constitution of Mississippi of 1890, enacted section 4530 of the Code of 1906, which is in the following words: “Any municipality, by an ordinance of the mayor and board of aldermen thereof, or any unincorporated district of not less than sixteen square miles, by the county school board, on a petition of a majority of the qualified electors therein, may be declared a separate school district, but shall not be entitled to the rights and privileges of a separate school district unless a free public school shall be maintained therein for a term of at least seven months in each scholastic year. ’ ’ Chapter 288 of the Laws of 1912 is entitled “An act to authorize the school board of Harrison county to establish a separate school district in Harrison county,” and reads as follows: ‘ ‘ Section 1. Be it enacted by the legislature of the state of Mississippi, that the school board of Harrison county, Miss., is hereby authorized to establish a separate school district in said county, containing the territory described and bounded as follows: . . . The south half of section 36, township 7, range 11 west, and the south half of section 31, township 7, range 10 west, and all of the fractional section 32, township 7, range 10 west, and all the fractional section 1, township 8, range 11 west, and all the fractional section 6, township 8, range 10 west, and bounded on the north by the town of Handsboro, and section 29, township 7, range 10 west, and on the east by section 33, township 7, range 10 west, and on the south by Mississippi Sound, or the Gulf of Mexico, and on the west by the city of Gulfport, Mississippi. ’ ’ [388] I.n obedience to tlie mandate of section 90 of the Constitution the legislature passed section 4530 of the Code, providing a method whereby separate school districts may be established. This section is the general law, and is applicable to the entire state. Chapter, 288 of the Laws of 1912, by its terms, is confined in its operation to Harrison county alone. Without disguise, it is a local law, and this, we understand, is admitted by counsel for ap-pellee; but they deny that it violates'paragraph “p” of section 90 of the Constitution. It is urged that section 87 of the Constitution authorizes the enactment of special or local laws where the same would be more applicable and more advantageous than a general law. Stated differently, the argument is that, where general laws are not applicable or advantageous, then the legislature may remedy the situation by a local or special statute. With this premise, it is urged that the territory in Harrison county described by chapter 288 of the Laws of 1912 stands in a class by itself, and that the general law in reference to the establishment of special school districts cannot be fitted to the territory, and that chapter 288 of the Laws of 1912 provides the only means by which this local situation can be taken care of. It is evident to our minds that the makers of the constitution, by section 90 thereof, anticipated and answered this argument. Experience had made the convention wise to the many evils lurking in special and local legislation, and so it is legislation concerning the several subjects mentioned in section 90 must be general, and.local or private laws touching any of the enumerated subjects “shall not pass,’.’ although it may be that the general law in force is not sufficiently elastic to cover the situation. It is hardly conceivable that a general law could not be so framed as to afford relief to the territory described in chapter 288 of the Laws of 1912; but, be that as it may, the language of section 90 of the Constitution is unambiguous, and expressly forbids the enactment of [389] special or local laws “providing for the management or support of any private or common school, incorporating the same, or granting such school any privileges.” It is urged that the act under review does not incorporate the special district, nor does it undertake to provide for the management or support of same, nor does it grant “such school any privileges.” The definition given to the word “incorporating” is, to our mind, entirely too technical and narrow. In a technical sense, common schools are not incorporated, this word being usually employed in speaking of the creation of private corporations ; but as used in the constitution it is made to apply to common schools and to private schools alike, and this we think is obvious from the context. The exact thing that chapter 288 seeks to and does accomplish is simply this: A certain people residing in a circumscribed area, by the action of the board of supervisors of Harrison county, are afforded the “privileges”’ of a special school district. The order of the board of supervisors incorporates the school, and the school thus incorporated is thereby granted privileges not enjoyed by any similar area within the borders of the state. The mandate of the Constitution must be obeyed, even when our neighbors and friends are discommoded, and while this statement may be trite the principle announced is not always recognized, and, if recognized, is not always accepted. Reversed, and case dismissed„