*1 RICHMOND Attоrney Albertis Harrison, S. Jr., Sidney Virginia. Comptroller Day, C. Jr., 19, 1959. January Record No. 4929.
Present, All the Justices. *2 the case. states
The opinion A. S. R. General D. Harrison, Jr., McIlwaine, III, Attorney Assistant C. Assistant (Kenneth Ratty, Attorney Attorney General on brief), petitioner. H.
Samuel Williams, for the respondent. C. delivered the court. J., Eggleston, opinion filed this court This is for a of mandamus writ petition Code, to General against Comptroller, pursuant Attorney 8-714, determine the number of related acts validity affecting operation was instituted when Commonwealth. throughout proceeding General, doubt in a letter the Attorney expressed Comptroller, and the as to of certain acts regulations validity of the State the issuance of warrants Board of Education authorizing local boards for the State’s reimburse Comptroller share of made tuition disbursements for the grants, payment *3 education furtherance of the and secondary expended elementary The matter is of students in nonsectarian schools. Virginia private therewith, on and the before us the the filed and exhibits pleadings is issue whether the involved violate certain statutes the Constitution of and the fourteenth amendment Virginia Federal Constitution. involved are summarized
The several acts margin.1 if.). 1 (Code, (1) Sess., 68, 22-188.3 ch. Cum. Supp., Act of Ex. 69 1958 p. of the if and when the school authorities 1 of declares that the Act Section to enroll white are ordered the Commonwealth subdivisions various political of the such enforced same integration colored children the public and tend the school and “would to disturb the efficiency “could races destroy” Code, school is located.” in which such of the community and tranquility peace § 22-188.3. Cum. Supp., 1958 Commonwealth, of all the citizens of “the declares that welfare Section and continuance universal school public of her system public preservation be of action education, there uniformity throughout make it necessary or under school authorities acting voluntarily, compul- where in all instances State sion,” Code, in the same school. and colored children public enroll white § 22-188.4. Cum. Supp., 29, 1956, the Commonwealth and after that from September Section 3 provides or for the control of any school,.elementary secondary,” “аssumes direct responsibility and enrolled school authorities by both races are any which children of assigned It order. further under court provides voluntarily compulsion any acting the enrollment of such child or children and of such making assignment that the the school authorities making assignment divest and “shall automatically It will be observed that the stated embodied in purpose plan these acts is to the enrollment and instruction of white and prevent colored children in the same end, schools. all To ele- public and schools in which both white and mentary secondary public are, colored children are enrolled of that event, happening closed, removed from the school automatically public system, under the control Governor. All State placed appropriations for the and maintenance of such schools are cut off and support withheld from them. withheld, Such State funds so and certain other funds levies, raised local are to be used for the by payment of tuition for the education in nonsectarian schools grants private enrollment оf all further school, and control over such authority, power public its teachers and other principal, and all then enrolled or ordered employees, pupils therein; to be enrolled and such school is closed and removed from the public * * * school system, such and control authority, shall and is power hereby * * vested in the Commonwealth of to be exercised Governor Code, 1958Cum. 22-188.5. Supp., Sections 4 and 5 certain duties of the Governor with specify to a respect school which be closed possible reorganization removed from any school public system by Section operation foregoing provisions. the Governor the children in such empowers reassign closed school to any available schools where such an Code, assignment 1958 Cum. practicable. §§ 22-188.6,22-188.7,22-188.8. Supp., Section 7 authorizes Governor and the local school authorities to make tuition in limited amounts to those grants children who cannot be reassigned other schools out of funds which would otherwise have been available for of such closed school. Such operation grants for the edu- expended cation Code, of such children in nonsectarian Cum. private Supp., § 22-188.9. (as 939) 9 and Section 10 amended Acts of ch. p. prescribe the conditions under which control of an affected school restored to may be and its system control and maintenance operation, returned to §§ Code, the local 22-188.11, school board. Cum. Supp., 22-188.12. (2) Sess., (Code, ch. Act of Ex. 1958 Cum. p. ff.). 22-188.30 Supp., Sess., Act to the Act of This is a Ex. ch. corollary supra, and establishment the State of an efficient requires elementary school division in which secondary such a is not *4 under local “the local operated resolution authority, provided governing body” adopts State, such condition and stating for declaring need such operated Code, 1958Cum. 22-188.30. system. Supp., Section 2 of the Act declares that “an efficient of system” and elementary secondary “means and shall schools be that public only within each system or county, town city in which” no or school secondary “consists of a elementary student in which body Code, white and colored children are Cum. taught.” 22-188.31. Supp., Under and Sections 5 such “State established school shall system be administered the Governor for the by under Assembly” the supervision Code, §§ of State Board of Education. 22-188.34, 1958 Cum. Supp., 22-188.35. to Section 4 such State According shall use and be system housed in the “unused schools, who cannot children such who have been attending schools, or custodians be to other and whose assigned parents in both white and desire that not attend schools which do they and which be colored children are enrolled Schools taught. are, federal such under or disturbed policed authority, by policing, closed, and, event, of that likewise automatically happening statutes, under related are made available for tuition grants pupils have who such schools. attending
The immediate is whether the meets the question plan presented of of the Constitution Virginia. requirements the local and owned and maintained school by school related facilities” buildings 22-188.33.) (Code, Section 11 such schools boards. 1958 Cum. Under Supp., localities, are to in out to made into the be financed of levies paid part of locаlities. State Code, and State Board Education in such treasury, by the expended 1958Cum. Supp., 22-188.40. codified). (not inclusive, (3) both Items 130 Act of ch. Act, this, for funds school but of appropriate purposes, Appropriation embodied of un- eight conditions thereon in a preamble limitations and certain 989-990). In of there is a the first these numbered paragraphs paragraphs (pages of and colored of fact “the white mixing declaration and that finding legislative or within elementary any county, city children in any secondary public and constitutes a clear and danger affecting or town of the Commonwealth present and of the children and citizens in such residing the health welfare endangering town, of and or and no efficient county, elementary secondary city or schools can maintained in town in which white any county, city public and colored children are in such school located therein.” taught any of define an “efficient The and third system” preamble second paragraphs schools, and within of elementary secondary public respectively, “only or no of in еach town in which” school “consists student city body county, which white and children are taught.” colored for General Assembly, of provides fourth preamble paragraph and the health welfare and order to people protecting purpose schools, and scondary elementary maintain an efficient system and preserve no or Commonwealth “that public elementary it to be the policy declares white colored children are mixed and shall taught in which and schools
secondary funds from the State for their Treasury or shall receive any operation, be entitled to and, end, and of the funds forbids to that prohibits expenditure part 138, 141, of this section for the establish- Items appropriated ment and schools, maintenance of any elementary secondary system public efficient.” which is not stated purposes: These items maintenance local instruc- supervision the establishment For Item 137: teachers, to including visiting elementary secondary efficient tion in Board of State Education. such among be apportioned for salaries teachers only employed For basic 138: appropriation Item secondary schools. elementary efficient of teachers efficient salary employed elementary For only Item 141: equalization and secondary *5 444
In his brief the took the opening Attorney position of Section 129 of the Constitution that mandatory requirement “The General shall establish and maintain an efficient State,” schools is no throughout longer because, effective and said, he Section 129 is binding, predicated upon of Section 140 which that “White and colored validity provides shall children not be school,” in the same and that when taught Section 140 was invalidated the decision of the Court Supreme of the United in Brown v. States Board Education, 483, 347 U.S. 686, 74 873, S. Ct. 98 L. ed. this entailed the simultaneous “necessarily emasculation of Section 129 and its from the extirpation organic law the Commonwealth.” Item 142: For a minimum educational providing in efficient program elementary and schools secondary only. Item For 147: to and from efficient and pupil transportation elementary secondary schools only. and final eighth all State funds paragraph preamble withheld permits (1) under these to be used for provisions salaries and payment wages teachers in State aid “unemployed and other teaching positions, (2) contract;” are under employees, who and “for educational which purposes be may expended furtherance of education of Vir- secondary elementary students in ginia schools, nonsectarian law.” private provided by (4) 1956, Sess., Act of (Code, Ex. 22-115.19, ch. 1958 Cum. p. Supp., note), makes available to localities funds to be for the expended payment tuition Under grants. its terms such grants out of the funds payable ap- to the propriated localities but withheld from them under the of the» provisions (Acts 1096). Act of Appropriation .1074, ch. pp. Section 3 of the later Act authorizes the Board of State Education to promulgate rules and regulations for the of such payment grants. (5) Sess., (Code, The Act of Ex. ch. 1958 Cum. 22-115.1 p. Supp., ff.), authorizes wherein no any locality or levy is made for the appropriation opera- tion of for a limited provide collectiоn of taxes to levy expended school board in of tuition for the furtherance payment grants or elementary education of children of such secondary in non- locality
sectarian schools. private Such educational funds are to be the local expended by school boards in of such payment grants. (6) Sess., (Code, The Act of Ex. ch. 1958 Cum. 22-115.10 Supp., if.), establishes the by which various localities are procedure under required conditions to make tuition specified grants non- qualified attending pupils sectarian the local private authorities to include in requires their school or levy sufficient amounts to appropriation provide payment Code, tuition 1958Cum. grants. 22-115.11. Supp., Under funds shall be Section 3 such the local school board expended pay- ment of for the furtherance of the or education of the grants secondary elementary children of such or town in nonsectarian schools county, city private parents to, at, custodians children who have been or are in attendance assigned wherein both white and colored children аre enrolled. In order secure such or custodians make grants must affidavit that parents they object When it was in the brief of the argued respondent also violates the of Sections 130, 133, statutory plan provisions Article IX, Constitution, Attorney amended his his contended in brief and in his position reply oral us, before that all of the other in Article argument *6 IX with Instruction,” “Education and Public like Section dealing 129, are Commonwealth, the of the em- predicated upon right bodied in Section operate segregated public and that when Section 140 fell Brown case, under the axe of the all of the in Article IX He became thus sum- provisions inoperative. marized his position: to, of
assignment such Code, children or their attendance such mixed schools. upon, § 1958Cum. Supp., 22-115.12. Under Section 4 the total amount of each such annual with grant, together any State, tuition received from grant shall not exceed the total cost of operation in per pupil average daily attendance of the schools locality making such as determined for the grant school year of preceding by Superintendent Code, § Supp., Public Instruction. 1958Cum. 22-115.13. Under school boards Section local rules and not may 7 promulgate regulations, Education, of inconsistent with those the State Board of out the carry purpose § Code, of the Act. 1958Cum. 22-115.16. Supp., Section 10 that whenever a fails and refuses to make provides such locality State Board of Education shall authorize grants of Public Instruction to and direct the Superintendent for the of provide such from funds grants payment ap- Code, the State for distribution to that propriated by 1958 Cum. locality. Supp., § 22-115.19. (7) § Sess., (Code, 22-115.20), 62 of Ex. ch. Cum. The Act p. Supp., for authorizes local school boards to tuition school funds expend grants designated without therefor from the first’obtaining authority purposes local tax bodies. levying if.). (8) (Code, Act of ch. 1958 Cum. 22-188.41 p. Supp., whenever, Section of the Act of the provides except upon application Governor, or or the forces other federal Assembly, military any personnel school, thereof, enter shall or in the for the vicinity upon premises any public violence, its or to acts of or acts рurpose of alleged policing operation, prevent violence, “the be closed and school shall its thereupon operation automatically Code, Cum. 22-188.42. Supp., suspended.” of Sections 3 and 4 the Governor is directed to “assume all control the terms By school, with to such its all authority” respect personnel exercise operating of the and duties local authorities are automatically and the suspended. powers pupils, for the tuition the local authorities to the grants by payment Provision made school who cannot be to other children in such closed Code, reassigned §§ 22-188.43,22-188.44. Cum. Supp., the conditions which such school may reopened 5 specifies Code, control returned to local authorities. 1958 Cum. 22-188.45. its Supp., ff.), (9) (Code, ch. Act of 1958 Cum. 22-188.46 The Supp., school division wherein authorizes the Governer close additional schools any has been closed under the 41 of the Acts of a school Chapter provisions said,
“In it is manifest that inte- what has light racially schools an inefficient and schools grated public comprising IX Article Constitution аnd beyond scope Virginia are not of that Article. comprehended by any provisions so, This is not this were unknown because schools of character Constitution, no consideration the framers given by Virginia were framers, but were because such considered schools found and were to be consequently fundamentally objectionable, that no excluded from Article IX It follows the ambit of entirely. schools and no comprising integrated public racially find can deemed to be inefficient the General Assembly whatever under warrant for existence or standing any possess any Constitution.” has now short, In the General says, Attorney free school to deal system any plenary power of, or limita- fit, manner it deem unfettered requirements in, tions Constitution Virginia. to be the matter do not permit first there no word of. In the
so disposed place, summarily *7 IX, in the Con- Article or elsewhere suggestion stitution, any provision in the Con- which were that these incorporated provisions 140 are the with Section conditioned stitution validity upon along a to have been matter have It would of section. qualified simple establish Section 129 thаt the to the mandate of stating obligation by an of free was and maintain efficient public expressly system races, of of the or the children two conditioned upon segregation have defined “efficient so Similarly, appropriate system.” by ex- other in Article IX could have language, of 140. Section conditioned upon validity operation pressly done. This was not
In the there is in the Debates of Con- next nothing place, indicate that intended stitutional Convention to framers § 3, VIII, was to effect. Article the Con- Section 140 have this of supra, local and to full control thereof. It divests the authorities their assume (Acts As in the Act and duties with such school. preceding powers respect 41, supra), ch. made for the of tuition by grants provision payment have been local authorities for children who the closed school attending §§ 22-188.46, Code, Cum. cannot other reassigned Supp., public 22-188.47,22-188.48. Act conditions which such upon closing paragraph specifies closed school and its restored the local authorities. reopened operation Code, 1958 Cum. 22-188.49. Supp., a stitution of 1869 had for free the establishment provided school in this “The shall assembly system language: general provide law, constitution, first session uniform at its under this schools, free and for its and full introduction gradual, equal state, all into the counties much earlier or as year In Convention of 1901-02 there was considerable practicable.” debate in this of Section 129 reframing language Likewise, Constitution. there was considerable dis- present cussion what now Section with function of dealing Education, State Board of and Sections 135 and 136 dealing schools, with the local administration the State appropriations and the local school taxes. purposes, levying expending There is in the debates on these sections to indicate that nothing their was to be conditioned validity operation validity of Section 140.
It is true that the of 1902 framers intended that white and colored children should not be in the same taught schools. That is the and intent of 140. plain purpose had been assured U. S. Plessy 16 S. Ferguson, They Ct. 41 L. ed. decided in five before the just years members of the Convention assembled, that this was permissible undеr the Fourteenth Amendment. The of the Convention Debates also show that Section 140 was without It discussion.2 adopted that this would have been had the extremely unlikely accomplished intended, framers as the that all of the Attorney argues, pro visions in the Constitution matters educational were dealing of Section 140. predicated upon validity
In other to educational matters considering provisions relating there was discussion as to whether some of the members of the out the mandate of the Constitution Assembly, carrying of 1869 for the establishment of
favored this, mixed schools.3 But of mixed or beyond subject *8 schools was not discussed. segregated
Moreover, “manifest,” if it be contends, as the General Attorney all that in IX with Article educa- to provisions respect tion became when the in Brown decision case struck inoperative Constitution, down Section 140 of view would have surely to this court when had we under consideration in presented (1902), 2Debates of Constitutional Convention 1237. p. (1902), Debates of Constitutional Convention p. ff. Almond, in 1955 (decided v. E. 2d 851 197 Va. S. Day, Brown case), after the decision in the power read, funds then to under Section аs it appropriate for the education of war orphans private a constitutional Furthermore, then was it why necessary as authorize be held in amend Section 141 so to convention 1956 to students of funds for the education of Virginia appropriation General be correct nonsectarian schools? If the Attorney private time, at that had his the General power position, Assembly, plenary constitutional deal with the school as saw fit and no to 141 was amendment to Section necessary. authority by that the It is contended by Attorney earnestly should and of Section 129 of the Constitution intent meaning, purpose evidence, with extrinsic be ascertained resort to regard especially by its This is to the circumstances contrary surrounding adoption. construction of a constitutional provision general principle mean obscure in is when the ambiguous language required only Mich, Law, Constitutional jur., ing. ff. in its terms of Section 129 is clear positive language and intent are found in the Its language meaning provisions. no re- itself; so as section require language positive simple sort to extrinsic evidence. of that framers
We
not
on what
are
permitted
speculate
are,
controlled
meant
but
section
have
by
necessity,
might
say,
words
did
There
no doubtful or
what
ambiguous
they
say.
being
itself
used,
of the section
or terms
we are limited
language
intent or
are
at
to search for
not
beyond
purpose
liberty
meaning,
in clear
where,
here,
intent
And
the instrument.
expressed
whether
we
be influenced
and unmistakable
cannot
language,
Almond
wise,
or desirable.
deem the
to be
we
expedient,
1, 29,49
E. 2d
188 Va.
S.
446.
Gilmer,
in Article
We hold that Section 140 and the other sections
education,
in
IX,
with
including
dealing
of Section
and that the destruction
and separable,
dependent
down the other
the Brown case did not strike
decision in
IX. If it be desirable that all of
in Article
provisions
the Con
be stricken from
dealing
amendments to the Constitu
stitution,
done
it should be
by proper
done
It should not
the manner therein
tion in
provided.
construction, and also its
The aim of
construction.
judicial
judicial
*9
written,
limitation, is to
the
of
has
determine
what
been
meaning
not to delete
the
sections from the Constitution on
that if
theory
had
conditions
been different
would not have
written.
they
Our
the
view that Sections
and 140 of
Constitution
Virginia
are
the recent
separable
independent
holding
supported by
v. Anson
Court-of North
in Constantian
Carolina
Supreme
case
244 N. C.
viding public second, ratified in and the for the providing segregation races, was added an amendment the Constitutional by adopted by Convention of 1875. It concluded that the in Brown decision case had affected these constitutional to this extent: provisions # # of the 1875 amendment which Only portion purports to make mandatory races in the separation enforced schools is now held violative of the clause equal protection Fourteenth Amendment to the Constitution of the United States. IX, mandates of Article Otherwise, 2 and sections remain full thereof, force and effect. The absent mandatory of enforced in themselves and requirement separation, complete of enforcement. Their status is capable separable independnt manifest. antedate the 1875 amendment. survive They They invalidation of enforced mandatory requirement separation (93 2d, contained in the 1875 amendment.” 168.) S. E. at page While 129 of Section requiring to “establish and maintain an efficient Assembly free schools the State” is still law throughout organic with, and must be that section should be read in connection complied as Section 141 amended the Convention of 1956. The amended, material as reads: portion shall “No funds made school or appropriation institution not owned or. controlled learning exclusively thereof; State or some first, subdivision political provided, the several and the bodies of governing may, counties, to such limitations cities towns may, subject may for edu- the General funds Assembly, imposed appropriate of ele- in furtherance cational which be expended purposes education of Virginia mentary, secondary, collegiate graduate institutions students and nonsectarian private *10 controlled of in addition to those owned or learning, exclusively * * the town; State or such *.” county, city any 141, amended, the Gen- It will be under Section as observed that eral has to funds for permissive appropriate Assembly authority the of education students nonsectarian Virginia private it funds is that for purpose. language “may” appropriate hand, on the On the Section 129 a other duty imposes mandatory an of to establish and maintain efficient system Assembly free of the State. The Section schools throughout language public “shall”, is the latter is, must, 129 that it funds for appropriate 707, S. v. 156 E. Cox, 687, Board 155 Va. Supervisors purpose. of 412, E. 419. 755; 405, School Board 168 S. Va. Shockley, 141, amended, of Section Clearly,- contemplates language that if State funds are devoted the educatiоn of to be to the General students in nonsectarian private therefor. of should make the The purposes necessary appropriation not be some Section 141 at the of public may expense accomplished free schools from their State funds by withholding support, such funds to the of tuition as is attempted devoting grants, payment (Acts under the of Act of 1958. provisions Appropriation 642, 989.) ch. p. funds
This from which the device leaves such schools supporting State are withheld and without the diverted required support entirely the State Section That section 129 of Constitution. requires throughout “maintain an efficient free schools to must State.” That means that State added.) sup- (Emphasis such ef- in the State as schools port necessary races are ficient of both those which system, including pupils unfortunate be enrolled and however compelled taught together, that situation be. may Sess., Ex. follows, then, Act
It that the provisions ch. 22-188.3 (Code, ff.), 1958 Cum. pro- p. Supp., 98'9, violate ch. visions Act p. Appropriation in that remove from the 129 of the Constitution they schools in which of the two races are pupils mixed, make no for their and maintenance as provision support part system.
It is that the of schools under these argued closing provisions But the acts do not so fact merely temporary. provide, to be made education in attempted private schools of children who have been these schools attending interrupted , Indeed, indicates that condition it is matter prolonged. of common that under the of these acts a knowledge provisions number of several localities in the State have been closed for months.
As an alternative his main contention that Section 129 is no on the General longer binding Assembly, Attorney that the of the Act Sess., Ex. ch. argues provisions p. (Code, 1958 Cum. 22-188.3 and the ff.), Supp., Act (Acts 1958, 989), ch. dis Appropriation just cussed, do not violate Here, Section 129. his runs thus: argument While Section 129 the maintenance of an “efficient requires system” schools it term, does not define the but leaves that *11 determination of the General that has said that such Assembly; body a means that within each or town” system “only county, city in which no or school “cоnsists of a student secondary elementary in which white and colored are children and hence body taught.”4 the the satisfies constitutional plan requirement.
We determine what is an agree Assembly may “efficient but it cannot definition or system,” impair disregard constitutional It is the con- unless requirements. elementary otherwise, text in the words be are to suggests given their usual 4 Mich. Jur., Constitutional plain ordinary meaning. § Law, 9, 96. this it is clear that the word p. Applying principle, “efficient,” 129, used in Section embraces other factors beyond those in are definition. other factors a such Among statutory sufficient number of with and schools buildings adequate equipment, teachers, and sufficient number of other basic matters competent associated While the of the school mixing system. races is a factor which impair may efficiency system, not, im- of the races alone will as the definition separation statutory constitute an “efficient plies, system.” 4 § 989; 1956, Sess., 69, 2, 73; 1958, 642, ch. at Acts of Ex. ch. at Acts of page page §
Code, 22-188.31. 1958 Cum. Supp.,
452 (Code, ch. 69 Sess., Act of Ex. 1958
Again, p. § Cum. 22-188.3 for the of schools ff.), closing Supp., providing all because local authorities of and of integration, divesting power them, Governor, control over and such vesting authority violates Section 133 the Constitution which vests supervision School Board v. Shockley, local in local boards. schools Va., at 409. supra, page Sess., (Code, ch. Ex. Act of p.
Similarly, Cum. 22-188.30 establishment ff.), Supp., providing of a State school be administered the Gover operation Education, nor under the State Board supervision violates Section 133. (Code, 22-188.40) 11 of Act 1958 Cum. this Supp., into the
directs that local levies authorized under the Act be paid State the State Board of Education treasury expended by such localities. This runs counter to Section 136 Constitu- taxes be the “local tion which that local school requires expended school authorities.” (Code, ch. 1958 Cum.
The Act of p. Supp;, (Code, ch. and the Act of 22-188.41 ff.), for the of schools ff.), Cum. 22-188.46 closing Supp., provide in, and because communities which disturbed presence of, Under the such federal schools by troops personnel. policing such closed. of these chapters automatically provisions all over school is under these When a closed authority and vested the Gover from the local school authorities is taken 22-188.44, §§ 22-188.43, 22-288.47, nor. Cum. (Code, Supp., State, under its 22-188.48.) While we police power, agree direct the under these conditions to has the temporary closing right school, the local of their authorities divesting in the Governor runs counter such control vesting authority 133 of to Section the Constitution. find constitutional
We no prescribed objection pro *12 out funds available tuition cedure for grants properly making Constitution, amended, au 141 of the for the purpose.5 for this no and local State places purpose appropriations thorizing 1956, 5 1, supra: acts, footnote Acts of Ex. summarized following See the Id., note; 57, 22-115.19, (Code, 56, p. ch. 57 Sess., 1958 Cum. Supp., ch. p. (Code, ff.); Id., ch. 58, 1958 Cum. (Code, 22-115.1 p. Supp., Cum. Supp., 22-115.20). Supp., Id., 62, p. (Code, ff.); Cum. ch. 22-115.10 done, restriction on manner in which this to be thus leaving it to the discretion of the General Assembly. reached conclusion that certain
Having provisions acts we with which are violate concerned provisions stated, Constitution of in the several is not neces Virginia respects that we consider the whether these likewise violatе acts sary question of the fourteenth amendment to the Federal Constitu provisions tion as the recent decisions of the Court of interpreted by Supreme the United in Brown v. Board Education, States U. S. supra, 347 74 S. 98 L. Ct. ed. 358 U. Cooper Aaron, S. 78 S.Ct. 3 L. ed. 2d 5.
There no for us occasion to discuss these decisions other than we lack of restraint evinced say deplore judicial court in on the of this Commonwealth sovereign rights trespassing reserved to it in the Constitution of the United States. It was an understandable effort to diminish evils from the de- expected cision Brown in the case that enactment of statutes prompted under now review.
Since the warrants drawn proposed Comptroller out of State funds which have been withheld payable improperly State, from certain free schools in the under the Act (Acts 1958, 967) of 1958 p. ch. Appropriation Sess., Ex. Act ch. (Code, 1958 Cum. Supp., § 22-188.3 and since there are no other State funds ff.), available for the the writ for is denied. purpose, prayed
Writ denied. Miller Snead, JJ., dissenting.
Miller, J., dissenting: The ultimate in this case is whether or presented legal question not certain enactments of enume- Assеmbly rated and summarized which authorize the majority opinion, stated, of tuition under circumstances therein grants specific making Federal State violate Constitution. Under these enact- occurrence of certain ments the enumerated events over which the can exercise no control but deemed it to be maintenance with the wholly incompatible efficient *13 free causes otherwise for funds public appropriated of schools within the affected area to become operation for available tuition race to of who elect grants irrespective pupils to attend non-sectarian schools. private
I with that that agree opinion part majority recognizes and constitutional of the General under right authority Assembly § 141 of Constitution of as amended in to Virginia, pro vide of funds by appropriate legislation expenditure for the of tuition education of for the payment grants Virginia fact, in non-sectarian In the State’s pupils private power to of such se is funds for the not per appropriate payment grаnts has issue; both that that Assembly litigants agree I, however, that with which disagree authority. part opinion § holds that 129 of the Constitution is still effective and Virginia acts violative of that and that the several challenged operative section, to make and as result denies right Comptroller of such tuition the acts that authorize of grants. validity payment the mandate tuition whether depends, judgment, upon grants my § and rendered decision of 129 was suspended inoperative by in Brown v. Board Court of the United States of Supreme L. ed. U. 74 S. Ct. which Education, 347 S. suspend § ed the effect 140 of Constitution. Virginia operative § 140 rendered is that when the decision conclusion inopera- My § that tive, I am convinced it rendered necessarily inoperative. § Convention intended Constitutional was adopted Thus 140. it to be my dependent upon operation effective it is that does with the fundamental opinion disagreement majority of the Con- intent and not to 129 the manifest accord purpose with the stitutional Convention which simultaneously plain adopted 129 to be 140. mandate embodied gives Holding operative the effeсt Education, supra, Brown Board to decision mandate Assembly imposing affirmative though operate § makes inefficient. The along opinion majority which the IX, an §§ instrument Article and 136 of § 140, do what simultaneously General Assembly required in clear it to do forbade language. positive adopted, and con- It authority interpret right elementary construction us. Our rests with our constitutional strue at the to arrive In order to review. proper and not is final subject construction we should ascertain the purpose sought object be attained the framers of the Constitution so as to make effective the intent of the who it. adopted people
Section 129 is the initial of Article IX to educa- relating tion and instruction. It ordains that:
“The General shall establish and maintain an efficient *14 free schools State.” the system public throughout The framers did not to the intend impose upon Assembly and to maintain a free schools duty obligation system public without more. Section 129 to maintain specifically imposed duty That system. is the character of that only system efficient the General was maintain. to It was Assembly required only maintain; could thereafter that and none other. lawfully What constituted an efficient free schools was left system public to the wisdom of that one that was body except particular and there, breath, then with same embodied into the basic law of the Commonwealth. Section 140 of the same Constitution declared that:
“White and colored children shall not be in the same taught school.” sections,
These two a one other imposing positive duty, pro- a were hibiting power, contemporaneous, adopted simultaneously. Section 140 intended was the framers to a by prohibit be would inefficient se. All other sections Article IX deal per financial, means, and administrative functions and operative which an efficient maintained. When procedure by system might §§ be, read as must and have together, they following (a) effect: the General to impose obligation upon Assembly (b) maintain an efficient and system public deny to maintain to the General the right integrated § 140 rendered what the effect 129 when was Then was re- a as from distinguished being superior inoperative by power result? The admoni- the usual by process accomplish pealed v. Cox, in Board Supervisors tion Gregory, speaking Justice 687, 704, Va. 156 S. E. is illuminating. alone, be construed should “No section single and, far whole, a so as instrument as but consideration given harmonized. all provisions possible,
“An rule of construction all related elementary read of a constitution or statutes be considered and must together *” # * 707) one (At construing page provision. The answer to whether the Constitutional Convention question intended that 129 be 140 be rendered though operative inopera tive found resort superior power by history, prior acts and to the legislative disclosing policy Debates in the Constitutional funda Convention that these adopted However, done, mental before that well to it is provisions. recog nize the motivation for the aof Constitution underlying adoption law, state, office such basic and fundamental sovereign rules for Their re its accepted recognized interpretation. have cital will reveal their in hand. inquiry They pertinency et al. et al., stated this Dean, Paolicelli, court recently 219, 226, 2d 194 Va. 72 S. E. 506. fix
“The of the constitution is to office and shape purpose the limits of It thus safeguards governmental activity. proclaims, laws, mores, in basic habits form pre-existing rights, preserves under the and modes of and life of the thought developed people *15 law as at the time its to the extent common and existing adoption 521, News, as Commonwealth v. 158 Va. Newport therein stated. 867, E. R. v. 102 Va. 47 689; Clower, 164 S. Co. Virginia, etc., S. E. 1003. be made with and are to
“Its
construction
recogni-
interpretation
based
announces the fundamental
of the fact that
and
tion
as
and
and
developed
sovereignty
government
theory
principles
Constitutional
under
law. 4 Michie’s
the common
Jurisprudence,
News,
v.
Law,
94;
supra.
Commonwealth Newport
sec.
whole,
a
and
be viewed and construed
constitution must
as
“The
if
effect and harmonized
section,
and word
pos-
given
every
phrase
Portsmouth
1135;
S.
Barbour v.
Va.
61
E.
Grimsley,
sible.
Funkhouser v.
102 Va.
781;
Spahr,
E.
Weiss,
v.
145 Va.
133 S.
Va.
Principles §§ stated in 11 Am. Constitutional Jur., Law, 61, 63: “The fundamental of constitutional construction is to principle effect intent to the of the framers of the law and of give organic * * * it. people adopting “It has been stated in very appropriately polestar construction of Constitutions is the intention of the makers and adopters.
„ “Wherever the a framers of Constitution is purpose clearly it will be followed courts. Even where terms of expressed, a doubt, constitutional are not from entirely they must be as in consonance with the interpreted nearly possible in at the time of their objects purposes contemplation adoption, because its constitutional' construing general scope provision, should be considered. object ####### that in
“It is settled construction high аuthority placing by very thereof, a court should on a Constitution or clause or look part examine the state of of the times and things existing history to ascertain framed and order when Constitution was adopted, A law, mischief, and the constitutional remedy. pro- prior have been framed and must be vision adopted presumed laws and with reference existing understanding prior light to be expounded like Constitutions, statutes, properly them. the time their adoption, conditions at existing light sentiments and the times, among prevailing spirit general * * * people. custom, the conclusions based on “Construction usage, time factor of the subordinated to must be courts properly *16 a cannot override itself, and later usages creation of the Constitution Thus, statutes neither at earlier date. intention expressed patent aof Con- since the rendered enacted nor adoption opinions judicial than to it a different obviously stitution can meaning impute was the Constituton at the time (Emphasis intended adopted.” v. Almond 101; § 30, Law, S., Constitutional added.) 16 C. p. J. 782, E. 2d 660. 91 S. 197 Va. Day, 458 been 140 has rendered it has not beеn
Though
inoperative,
at the time of its
Virginia
repealed;
bespeaks
policy
and it
ideas and desires
basic
adoption
proclaims
people
this day.
“
manner,
‘The
not
Constitution is
to be construed
a technical
but in
its
we are to consider the circumstances
ascertaining meaning
and what
the under
its
have been
attending
adoption,
appears
it,’
when
then
and we
standing
people
they adopted
only
announced a rule of
had
which
been
interpretation
frequently
Bonsal v.
et
v.
481,
State
Yellott,
al., 100 Md.
adopted.1 more than compatibility many years this was The years fifty compatibility unquestioned. Federal Constitution had been to sanction construed authoritatively section. rendered of this Now that 140 has prohibition 129 can as a mandate inoperative by superior power, operate establish a school forbidden § 140? 1869,
The called the Underwood Con- commonly stitution, maintain State to required schools, but races should was silent whether the subject This is understandable. separated. public policy was in The obvious reason is Commonwealth temperately, eclipse. stated in brief. respondent’s yet forcefully, “* * * the convention 1869 was It is well established # * *” The and of composed of freedmen. largely non-Virginians is to be com the terms avoidance of “scalawag” “carpetbagger” mended. mandate, in the exercise under this
Yet General Assembly wisdom, shadows, declared even immediately 1870, on forbidding July by legislation policy This Acts 1869- of the races provision, mixing ch. * * is as follows: “* not be and colored shall [PJrovided, that white persons school, the same but in under same taught separate * * *” usefulness and toas management, efficiency; regulations general Consti- the able It is common knowledge independent 1Plessy Gong Lum v. Ferguson, Rice, U. S. U. S. S. S. Ct. Ct. L. ed 172 L. ed 256 (1896). (1927). *17 tutional Convention of 1901-1902 was not of like mind with Convention of 1869 when it undertook to for the establish- provide ment of an efficient free school The Virginia. system had had native eclipse passed. public policy supplanted alien. This accounts absence in one of the re- of raсial and its in the other. quirement separation presence I do not with the agree majority finding nothing opinion Debates of the Constitutional indicate Convention of 1901-1902 to § that the mandate of 129 was to be the effective dependent upon § 140. It should be borne in mind that operation required the maintenance of an while Article efficient VIII, Constitution of no such In imposed obligation. the Debates of 1901-1902 it is obvious that the establishment of an was the Convention’s It is purpose. equally plain efficient that a races in the schools was deemed separation necessary condition for indispensable attaining object.
In to the Convention of the Committee on presenting report Education, Mcllwaine, committee, Dr. Richard chairman dis- cussed Article IX before the individual sections were considera- given tion the Convention as a committee of the whole. With sitting the chairman declared: respect report
“Its execution is committed to the General It finally Assembly. it an efficient free schools that we system public trying course, obtain. Of law on this lies at subject fundamentаl basis but we must the efficient execution of an efficiency, trust efficient law to those who have the out these carrying principles added.) and their enactment.” Debates of Constitu- (Emphasis (1901-1902), tional 1051. Convention Virginia With 140 he observed: respect new, and I
“The next section is there will entirely suppose few, who will dissent from it: if very any, “White and colored children shall not be the same taught school.” true, for when announcement
This proved wholly prophetic the chair- consideration was called for independent discussion or dissent. Convention, it without man of the was adopted § 140, which its ultimate discussion on the absence of Despite discloses was due to unanimous unanimity convincingly adoption discussion of value as to its necessity, significance, opinion the failure toward critical view of 129 reveals delegates similar the alien Convention of 1869 to A adopt provision. forceful with an observation of the of such criticism, significance failure, Glass: was thus Carter expressed by Chairman,
“Mr. I call wish to the attention of the from delegate to one is not valuable point. Perhaрs Montgomery of time to do occupation it, but he has Underwood Con- glorifying *18 stitution and to the first clause of our here objecting report upon that established the free school ground Republican party .system Virginia.
“I wish to call his attention to the that the first fact system pro- under the Underwood Constitution was by posed Republicans that it one would have made have had to impossible absolutely schools in the State of because that it Virginia, contemplated be mixed schools; there should that and white should negroes people be and refused to establish schools at taught together, they first because that was not done.” Debates of the Constitutional 1901-1902, et Convention seq. Virginia, § out that the mandate majority opinion points a not statement in the Constitution qualified by operative § effect of that section is conditioned 140 and upon validity of Article IX could have been conditioned provisions expressly §of and 140. validity upon operation § comfort, if can be Little obtained from the fact that any, IX are other of Article not and qualified by expressly § First, and conditioned 140. validity operation upon believe, Convention had and Constitutional right undoubtedly § was valid and believe, that and would so re- did operative, no need or to be There was main. object accomplished malting § Second, such statement. mandate embodied in though § conditioned effect is not upon operative expressly yet of constitutional well when recognized principles interpretation adhered to, are observed and it is construction such plain opera- intended effect was framers of these tive two necessarily sections. the intent and both as as the
“In well general ascertaining purpose, thereof, a constitution or a it should construed meaning, part far as each should be a whole. As construed as possible, provision others, all the with a harmonize with view to effect as to so giving in so far as it shall be consistent each with a every construction the instrument S., a whole.” 16 as C. Constitu- J. § Law, tional 23. “In rule, view of the discussed that the of a supra meaning constitution is fixed when it is the construction adopted, given uniform, must be so that the instrument will oрeration inflexible, all times and in the same manner alike, at operating to the respect same is true even circum and this subject; though stances have so to make a rule seem desirable, as changed different since the will law is people expressed subject organic *” # * in the manner them. change only prescribed by (Emphasis added.) S., Law, 16 C. Constitutional 37. J.
Correct of constitutional and construction principles interpretation avoid a result that (a) of a constitution into con- brings provisions flict, or (b) make of the uncertain in- constitution shifting strument. The the mandate of opinion, enforcing majority without embodied in regard prohibition simultaneously It thus these fundamental ignores neglects apply principles. into direct conflict and brings provisions imposes § 129 a different effect from it had or could what operative have had when adopted.
The habits customs, and established the sentiment more, to or the policy Virginia, obtaining ninety point years inevitable conclusion that it the intent of the framers of was that its mandate the General to maintain an efficient upоn Assembly free schools was to system public pro- dependent upon tective and 140. indispensable prohibition In the it stated: is majority opinion
“We an that the General determine what is agree Assembly may ‘efficient but it cannot definition or disregard system,’ impair unless the context constitutional It is requirements. elementary otherwise, are to be their words the Constitution suggests given Law, usual or 4 Mich. Constitutional Jur., meaning. plain ordinary ‘efficient,’ 96. this it is clear that the word Applying principle, factors those in the as used in Section embraces other beyond num- definition. such other factors are a sufficient Among statutory sufficient ber of schools with buildings adequate equipment, teachers, basic matters and other associated number of competent races is While the of the with mixing system. of the which factor system, separation efficiency may impair of the races alone will not, as the definition make implies, statutory ” it an ‘efficient system.’
I am in accord with all last foregoing paragraph except fact, sentence. In I that a “sufficient number of agree heartily schools with com- and sufficient adequate buildings equipment” teachers are not factors embraced within petent concept only an efficient school but are factors. indispensable system, they Lacking factor, either one or cannot ef- other necessary any system ficient. But be deemed the Constitutional Convention may, efficient an races to be so separation indispensable law, that it embodied that and the General into the organic schools, determined has and declared also that integrated Assembly or of federal patroled by troops discipline subject not and cannot be Unless the efficient. legislative judgment and with- branch in that unreasonable respect capricious, arbitrary, foundation, out not to substitute branch is authorized judicial be, and declara- its whatever it judgment, supplant finding tion the General in that respect. Assembly
In of the fact 129 no view duty longer any imposes schools, the the General to maintain pro- do visions of all other with sections of the having such imposed they being obligation predicated upon § 129, now to establish and maintain inoperative, efficient all, become at become none They necessarily inoperative. § 129 because the mandate of has become inoperative. inoperative and un- This leaves Assembly possessed plenary its inherent fettered drawn from reservoir sovereignty, powers, this State. as it schools in to do reference pleases within “As the state body law-making legislature supreme or federal state, not state it can enact law prohibited by * # * constitution # # # # # # # is an attribute of “The state sovereignty legislature power *20 constitutional would be absolute if there were no its power * * *” 114, 115. Law, 4 M. Constitutional J., limitations. pp. “* * * but is not a The Constitution only grant power, unlimited otherwise restriction except powers practically of this State and Con- the Constitution restrained so Sas * * *” States, has United i of the sti power. legislature plenary News v. Elizabeth Newport 189 Va. 55 S. E. City County, 2d 56. is
“It of constitutional law that the Gen- elementary principle eral has so far as restrained Assembly plenary except power Constitution of this State and the Constitution of the United States. It is where an act to some constitutional only plainly repugnant * * *” Almond the courts can declare it null and void. provision v. 199 Va.
Day,
In the absence of operative provisions the General with restricting pub- power Assembly respect lic enact General is now fully Assembly empowered to such schools legislation provided may please respect have in nature. No such limiting legislation general out, and we have found none. pointed
This unrestricted enables the provide power Assembly law for the free schools hap- by general closing for of such events as the Assembly may provide pening are available tuition grants,—provided always grants payment The which the General of their race. grants pupils irrespective are available in the Acts 1956 and 1958 has provided colored white and alike and under identical circumstances to pupils. whether refrained from opinion determining majority Federal Amendment acts violate the Fourteenth questioned on that would Constitution, thus an expression question opinion in this dissent. be inappropriate this dissent. J., joins
Snead,