Jackson v. Coxe

23 So. 2d 312 | La. | 1945

Lead Opinion

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The relator appealed from the judgment of the district court denying his application for a writ of mandamus and dismissing the suit in which he sought to have the court order the State Superintendent of Public Education to recognize him as the State Supervisor of Vocational Agriculture and to have his salary paid, alleging that the State Superintendent of Public Education was without authority to remove him from his employment. The case presents strictly a question of law.

After thoroughly considering the record and the authorities, we have concluded that the able district judge correctly interpreted and construed the law and properly applied it, as appears from his written opinion, which we adopt:

"The relator alleges that during the month of October, 1932, he was employed by the Louisiana State Board of Education as State Supervisor of Vocational Agriculture in the Division of Vocational Education, and that he has served in said capacity from that time to the present time.

"He further alleges that he has served without compensation as the State Director of Food Production War Training for the Division of Vocational Education of the State Department of Education in said division since 1942.

"He alleges that on February 17, 1945, John E. Coxe, State Superintendent of Public Education attempted to remove him from his aforesaid employment by addressing to him a letter purporting to dismiss and discharge him therefrom, effective March 1, 1945; that the said Coxe has caused your relator's desk to be removed from the office heretofore assigned to him, and is attempting to prevent him from entering the said offices and performing the duties of his said employment.

"Relator avers and alleges that the attempt of the said Coxe, State Superintendent of Public Education, to remove him from his said position is null, void and of no force and effect for the following reasons:

"`1. That the said action of John E. Coxe, State Superintendent of Public Education, did not have the prior approval of Louisiana State Board of Education.

"`2. That such approval was necessary for the reasons that:

"`(a) Section 6 of Article XII of the Constitution of Louisiana provides that "the State Board of Education shall have supervision and control of all free public schools";

"`(b) That Section 4 of Article XII of the Constitution of Louisiana provides that "the Legislature shall prescribe the duties of said [Louisiana State Board of Education] and define its powers";

"`(c) That Section 3 of Act No. 100 of 1922 authorizes and directs the State Board of Education to provide the necessary employees in the several divisions of the public school system, including that of Vocational Education, and that under said provision of said section, there is no authority for the State Superintendent of Public Education to discharge your petitioner from his said employment without the approval of the Louisiana State Board of Education.

"`(d) That Louisiana State Board of Education, at a meeting thereof held on the 3rd day of March, 1945, adopted its resolution retaining your petitioner in his said position, all as will more fully be shown upon the trial hereof.'

"In the alternative and only in the event that the Court should hold that by the provision of Section 3 of Act No. 100 of 1922, viz, `The State Superintendent of Public Education shall select the employees in the various divisions herein established,' the said Superintendent had the authority to discharge relator, the aforesaid provision of said Act violates Section 6 of Article XII of the Constitution, providing that the `State Board of Education shall have supervision and control of all free public schools,' vocational education in Louisiana being essentially a part and parcel of the system of free public schools; and for the further reason that if so interpreted it would be irreconcilable with the provision in the same section which is in strict accordance with the Constitution, that the State Board of Education `is authorized and directed to provide the necessary employees in' the three divisions of education enumerated by Section 3 of Act No. 100 of 1922, including the department of vocational education.

"Further, in the alternative, and only in the event that it should be held that Section 3 of Act No. 100 of 1922 providing that the State Superintendent shall select the employees of the several divisions of education provided in said Act, is constitutional and vests in the Superintendent the power to discharge relator, the only system of vocational education established in this State at the time of the passage of Act No. 100 of 1922, and since, is a system that is established pursuant to laws enacted by the Congress of the United States, which have been accepted by the State of Louisiana, viz.:

"`1. "`(a) Public Law No. 347 of the 64th Congress (U.S.C.A., Title 20, Secs. 11 to 29, inclusive, as amended — See Pocket Part, 20 U.S.C.A.), being "an act to provide for the promotion of vocational education; to provide for cooperation with the States in the promotion of such education in agriculture and the trades and industries; to provide for cooperation with the States in the preparation of teachers of vocational subjects; and to appropriate money and regulate its expenditure," approved February 23, 1917, known as the Smith-Hughes Act, providing for appropriations of Federal Funds for vocational education on a permanent, continuing basis, which said Act was accepted by the State of Louisiana by Act No. 52 of 1918.

"`(b) The George-Reed Act (Public No. 702, 70th Congress, 45 Stat. 1151, approved February 5, 1929), authorizing further appropriations for vocational education and extending the benefits of Federal Aid for vocational education to the territories.

"`(c) The George-Ellzey Act (Public No. 245, 73rd Congress, 48 Stat. 792, approved May 21, 1934), authorizing further appropriations for vocational education and providing for increased aid for trade and industrial education.

"`(d) The George-Deen Act (Public No. 673, 74th Congress) approved June 8th, 1936, authorizing on a permanent basis increased appropriations to the State and Territories for vocational education in the fields already aided and in addition authorizing appropriations for use in the field of the distributive occupations. (Title 20, Secs. 15h to 15p, inclusive, U.S.C.A.)

"`(e) Public Law No. 647 of the 77th Congress, Chapter 475, 2nd Session, 56 Stat. 562; Public Law No. 135, 78th Congress, 1st Session, 57 Stat. 494; and Public Law No. 373, 78th Congress, 2d Session, 58 Stat. 547, all relative to education and training of defense workers for National defense.

"`2. "`(a) That said Act No. 52 of 1918 includes all of the provisions required of the State of Louisiana by said Smith-Hughes Act, including Sections 4 and 5 of said Act No. 52 of 1918, viz:

"`Section 4. * * * That the State Board of Education, together with the representatives of the Federation of Labor shall have full power to represent the State in any and all matters in reference to the expenditure, distribution and disbursement of funds received from the United States Government in said State and to appropriate and use said moneys in whatever way will in its discretion best subserve the interests of the State and carry out the spirit and intent of said act of Congress in conformity with its provisions.

"`Section 5. * * * That such Board is hereby authorized to make such expenditures for the actual expenses of the Board for the salaries of assistants and for such office and other expenses as in the judgment of the Board are necessary to the proper administration of this Act.'

"`(b) That in connection with appropriations by the Congress in aid and support of such vocational education and for other educational purposes, Section 35 of Act No. 100 of 1922 provided that "The State Board of Education shall have authority to receive and use for public school purposes any Federal or other funds from out-of-state sources which in the judgment of the Board should be accepted and can be wisely used."

"`(c) That in connection with appropriations by the Congress in aid and support of such vocational education, Section 14 of Article XII of the Constitution of Louisiana, as amended by Act No. 76 of 1934, provides: "In addition to the state funds for the support of the public common schools, as above provided for, the following funds are recognized to be therefor and shall be distributed and paid out to the several parishes, under the authority and jurisdiction of the State Board of Education, and in accordance with the terms of the law governing such funds or the valid stipulations of the source thereof, to-wit: * * * 3. Appropriations made by the Federal Board of Vocational Education: * * * 5. All such other educational funds as the Legislature may provide or as may be otherwise received for educational purposes."

"`(d) So that the State Board of Education has been effectively designated as the Board to administer the vocational education for which the Smith-Hughes Act provides, and to that extent Sections 4 and 5 of Act No. 52 of 1918 have been amended.

"`(e) That Section 8 of the Smith-Hughes Act (Public Law No. 347, approved February 23, 1917, U.S.C.A., Title 20, Sec. 18), and all acts of Congress subsequently thereto appropriating money to the States for the Purposes of the Smith-Hughes Act, require the Louisiana State Board of Education, in order to secure the benefits of such appropriations, to submit to the Office of Education, Federal Security Agency, plans for vocational education, for approval if the said agency of the United States finds such plans to be in conformity with the provisions and purposes of the Act of Congress (the functions of the Federal Board for Vocational Education having been transferred by Executive Order No. 6166, Sec. 15, to the Department of the Interior, on June 10, 1933, by Reorganization Plan No. I, effective July 1, 1939 (4 Fed.Reg. 2728, 53 Stat. 1424), from the Department of the Interior to the Federal Security Agency — Note to Title 20, Sec. 11, Pocket Part to Title 20-21, U.S.C.A.).

"`(f) That in accordance with said requirement, the Louisiana State Board of Education has submitted its current plan for vocational education for the five-year period, 1942 to 1947, inclusive, which has been approved by the Office of Education, Federal Security Agency, and is now in force and effect, as will be fully shown on the trial hereof.

"`(g) That in Part I of said state plan for Vocational Education in Louisiana, entitled "State Administration and Supervision," it was provided by the Louisiana State Board of Education:

"`(A General Direction.

"`The general direction of vocational education in the State of Louisiana is vested in the State Board of Education.

"`Which said plan has been approved by the Federal Security Agency.

"`(h) That it is necessary that the Federal grants to the State of Louisiana under the said Acts of Congress be matched in the required proportions by State or local funds, or both, for each of the purposes of vocational education specified by Congress; and that the State of Louisiana, up to the date of the attempted dismissal of petitioner, had matched, in the amounts required by said Acts of Congress and the Office of Education of the Federal Security Agency acting in compliance therewith, all funds paid to the State of Louisiana or the Louisiana State Board of Education for vocational education pursuant to the said acts of Congress under the authority of which such federal funds were appropriated, and has appropriated money for the continued matching of such federal grants for vocational education by Item 5 of Schedule 97 of Act No. 44 of 1944, § 4, p. 107, Acts of 1944, and Act No. 307 of 1944; and that when the Federal funds have been granted and matched as required by the State, this combined fund constitutes the wherewithal for the maintenance of the only system of vocational education established in the State of Louisiana, which is under the cooperative supervision of the Office of Education of the Federal Security Agency and the Louisiana State Board of Education, and that your petitioner's salary is wholly paid from said combined fund.

"`(i) That the said federal authorities in charge of the administration of federal aid to vocational education in the State of Louisiana have exacted that the Louisiana State Board of Education retain full authority to employ the persons necessary to carry on vocational education in the State of Louisiana, and that the Louisiana State Board of Education is exclusively vested with such authority to employ and with the authority to discharge such employees.

"`(j) That, therefore, the attempted dismissal of petitioner by John E. Coxe, State Superintendent of Public Education, was and is null, void and of no force or effect for the reasons alleged in this Article XVI and for the further reason that only the Louisiana State Board of Education had the authority to dismiss your petitioner from his said employment, and that if effect be given to the said attempted dismissal of your petitioner, it would violate the said Acts of Congress, the Supreme law of the land and Article VI of the Constitution of the United States providing that Acts of the Congress shall be the supreme law of the land, and would deprive your petitioner of his property without due process of law in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States and Section 2 of Article I of the Constitution of the State of Louisiana.'

"Relator alleges that under the law, particularly Section 35 of Act No. 100 of 1922, Section 1 of Title II and Title VII of Act 111 of 1942 `it is the mandatory duty of John E. Coxe, as Superintendent of Public Education and as Executive Officer of the State plan for Vocational Education in Louisiana 1942-1947, to take whatever action may be necessary to place your petitioner's name upon the payrolls of the State Board of Education as of March 1, 1945, and to authorize Herman J. Hoorman, Controller of the Department of Finance, and James S. Reilly, Commissioner of Finance, to issue the necessary warrants for the continued payment thereof as long as petitioner is employed in his present capacity as State Supervisor of Vocational Agriculture.'

"The sum and substance of the complaint is that he was lawfully employed by the State Board of Education; that Coxe for the reasons above stated had no authority to discharge him; that he has not been paid that part of his salary of $5,000.00 earned since March 1, 1945, and that it should be decreed that he lawfully occupies the office of State Supervisor of Vocational Agriculture in the division of Vocational Education and that the proper officials, including Coxe, should be ordered to pay that part of his salary earned since March 1, 1945.

"The defendant Coxe before answering, filed the exception of no right of action and no cause of action; and, thereafter, reserving all rights under said exception, filed his answer.

"In his answer Coxe admits that relator has served as State Supervisor of Vocational Agriculture from October 1932 until February 17, 1945, and as State Director of Food Production, War Training in the Division of Vocational Education of the State Department of Education from August, 1942 until February 17, 1945, `under several appointments by the StateSuperintendent of Public Education.'

"He also admits relator's discharge, as alleged; he denies however, that he was without authority to discharge relator.

"He further denies that the system of Vocational Education referred to in paragraph XVI of relator's petition is the only system of Vocational Education established in the State and that said system is under the cooperative supervision of the Office of Education of the Federal Security Agency and the Louisiana State Board of Education.

"The defendants Hoorman, Assistant Controller, Reilly, Director of Finance and Tugwell, State Treasurer, each filed an answer to the petition of relator, submitting the question raised by relator and Coxe to the Court.

"Entering the case as amicus curiae is the well-known law firm of White, Holloman and White of Alexandria.

"Based upon the assumption and belief that it alone has the right to employ and discharge employees of the Department of Education, the State Board of Education, on Mar. 3, 1945, adopted a resolution, retaining relator in his position `pending investigation.' A certified copy of this resolution was offered in evidence. Relator's present status therefore is that he has been dismissed by Coxe and retained by the Board.

"Opinion "The fact of relator's employment as State Supervisor of Vocational Agriculture in the Division of Vocational Education by a former State Superintendent of Public Education is admitted. It is not admitted however, that relator was ever employed as such by the State Board of Education or that, after he was employed by the State Superintendent of Public Education his said employment was approved by the State Board of Education.

"In testimony of relator pertaining to his employment there is the following:

"`I was an Assistant Supervisor of Vocational Agriculture and Superintendent T. H. Harris, who was Executive Officer of the State Board for Vocational Education at that time, called me in and * * * told me that he was appointing me as State Supervisor of Vocational Agriculture, subject to the approval of the State Board.'

"Continuing he testified as follows:

"`My office was right beside the Board Room on the eleventh floor of the State Capitol, and at one of the meetings after that I walked over to the door and someone said, "they are mentioning your name; and I stuck my head in and heard Mr. Harris make mention of the fact that Mr. Guilbeau had resigned and he had employed me as supervisor and hoped it met with their approval."'"

"The record is barren of any other evidence relating to any participation in relator's employment by the State Board of Education. The fact that such employment was satisfactory to said Board will be presumed, in view of the many years relator has served in this capacity and in view of the resolution referred to.

"Relator's demand is that the defendant Coxe be directed `to take whatever action as may be necessary to place the name of Shelby M. Jackson as State Supervisor of Agriculture of the State Board of Education upon the payrolls of the State Board of Education.'

"The relief prayed for can be granted only in the event the conclusion is reached that under the law, the State Board of Education, and not the State Superintendent of Public Education has the power and authority to employ and discharge the employees of the State Department of Education, and particularly employees in the Division of Vocational Education.

"Section 1 of Article XII of the Constitution of 1921, as amended by Act No. 320 of 1944 reads in part as follows:

"`The educational system of the State shall consist of all public schools, and all institutions of learning, supported in whole or in part by appropriation of public funds.'

"Section 4 of the same Article reads as follows:

"`The Legislature shall prescribe the duties of said board and define its powers; provided, that said board shall not control the business affairs of parish school boards, nor the selection or removal of their officers and directors.'

"Section 5 of said Article as amended by Act No. 105 of 1922 reads as follows:

"`There shall be elected by the people at each succeeding general election a State Superintendent of Public Education, who shall be ex-officio Secretary of the Board, and whose salary shall be fixed by the State Board of Education at no less than Five Thousand ($5,000.00) Dollars, nor more than Seven Thousand Five Hundred ($7,500.00) Dollars, payable monthly on his own warrant.'

"Section 6 reads:

"`The State Board of Education shall have supervision and control of all free public schools.'

"Section 8 reads:

"`It shall not create or maintain any administrative department in which salaries or expenses are payable from State funds, unless authorized by the Legislature. The Legislature shall prescribe the terms under which funds offered for educational purposes shall be received and disbursed.'

"Pursuant to the provisions of Section 4 of Article XII, by which the Legislature is charged with the duty of defining thepowers of the State Board of Education, Act No. 100 of 1922 was passed. The title to said Act is as follows:

"`To provide a State Board of Education and Parish School Boards, defining their duties and powers, and providing for theadministration and supervision of the public school ofLouisiana.'

"Section 3 of said Act reads as follows:

"`The following divisions of the State Department of Education are recognized and the State Board of Education is authorized and directed to provide the necessary employees in them, the salaries and expenses of whom shall be paid out of appropriations made by the Legislature, and such other sources as may be available:

"`A. Division of Educational Supervision.

"`B. Division of Teacher Training and Certification.

"`C. Division of Vocational Education.

"`The State Superintendent of Public Education shall select theemployees in the various divisions herein established. It shall be the duty of the Legislature to provide at the seat of government the necessary offices having all needed equipment for the State Superintendent of Public Education, and to make provisions for postage, stationery, and other necessary expenses of the office, the cost of which must be within the limits of an appropriation for that purpose.'

"The basis of relator's demand is (1) that in Section 6 of Article XII of the Constitution, it is provided that:

"`The State Board of Education shall have supervision and control of all three public schools' * * *.

"And (2) that in the first part of Section 3 of Act No. 100 of 1922, it is provided:

"`The State Board of Education is authorized and directed toprovide the necessary employees in them,' referring to the three divisions of the State Department of Education named in said section.

"The defendant, State Superintendent of Public Education, on the other hand relies upon the first part of the last paragraph in said Section 3 which reads in part as follows:

"`The State Superintendent of Public Education shallselect the employees in the various divisions herein established.'

"Relator's counsel contend that the foregoing Section 3 of Act No. 100 of 1922 should be interpreted to mean that while the State Superintendent has the right to select employees of the Department of Education from a list of names submitted by the State Board of Education, the person actually selected should beapproved by the State Board which is clothed by the same Section3 to provide such employees, and which under Section 6 ofArticle XII of the Constitution has `supervision and control of all free public schools' of the State.

"If Section 3 of the Statute is interpreted to mean that the State Superintendent of Public Education has the sole power to hire and fire employees of the Department of Education, they contend that said Section 3 is violative of Section 6, Article XII of the Constitution.

"The first step to take in interpreting Section 3 of Act No. 100 of 1922 is to consider the accepted meaning of the word`provide' used in the first part of Section 3, and the word`select' appearing in the last part thereof.

"In Words and Phrases, Vol. 34, Permanent Edition, p. 666, we find:

"`In Webst.Dict., "to provide" is defined, "To make ready for future use; to furnish; to supply." Ware v. Gay, 28 Mass. [106-109] 11 Pick. 106-109.'

"Again, at page 668 of the same volume, we find:

"`The primary meaning of the word "provide" is "to look out for in advance, to procure before hand; to get, collect or make ready for future use; to prepare."'

"In Vol. 38 of Words and Phrases, Perm. Ed., page 532, we find the following definition of the word `select':

"`The word "select," when used by a city mayor in appointing a person to an office, is equivalent to the word "appoint". People v. Fitzsimmons, 68 N.Y. 514-519.'

"At page 529, same volume of Words and Phrases, we find:

"`To "select" is to pick out or choose. It signifies a choice of one out of more than one. Petersburg School District of Nelson County v. Peterson, 14 N.D. 344, 103 N.W. 756-758.'

"[See also: Commonwealth v. School Board of City of Norfolk,109 Va. 346, 63 S.E. 1081, 1082; Clarke v. Commonwealth, 159 Va. 908,166 S.E. 541; People v. Mosher, 45 App. Div. 68, 61 N.Y.S. 452, 454; City of Savanna v. Robinson, 81 Ill. App. 471; Booth v. State, 179 Ind. 405, 100 N.E. 563, 566, L.R.A. 1915B, 420, Ann.Cas. 1915D, 987.] (Brackets ours.)

"It will be conceded that Section 3 of the Act in question with respect to which of the two, the Board or the State Superintendent, has the authority to employ and discharge employees in the office of the State Superintendent, is confusing.

"Considering the two words involved, — that is the word`provide' and the word `select,' I am of the opinion that what the Legislature intended was that the State Board has the authority to create the various positions of employment in the Department of Education, and that after their creation, the Superintendent has the right to pick out or name the occupant of the position so created. To hold otherwise, in my opinion, would make the Superintendent a mere figurehead without control over the affairs of his own office. Such a situation, to say the least, would not be conducive to efficiency or discipline within the Department.

"In Section 34 of Act No. 100 of 1922, we find the following:

"`In the prosecution of this work of inspection andsupervision, the various employees of the State Department of Education shall be under the immediate direction andcontrol of the State Superintendent of Public Education, and they shall make such verbal and written reports to him as he may require.'

"Most assuredly the foregoing portion of Section 34 does not leave the Superintendent an impotent, helpless employee of the State Board, without authority to control the activities of his office help. On the contrary, it clothes him with the authority to control his employees. If he has the power to control, it follows, as night the day, that he can appoint these employees and discharge them at will. Any other construction, in my opinion, would be contrary to the letter and spirit of the Act.

"If the selection of employees by the Superintendent was intended to be subject to the approval of the State Board, it is strange that after the word `select' the Legislature did not add `subject to the approval of the State Board of Education.'

"We come now to the constitutional question raised, that is, that the interpretation I have given Section 3 of the Act brings it in conflict with Section 6 of Article XII of the Constitution.

"The rule of interpretation of an ambiguous statute is that, if one interpretation would make it valid legislation and another would violate the Constitution, the interpretation which makes it valid legislation should be adopted. Succession of Greenlaw, 148 La. 255, 86 So. 786; City of Shreveport v. Bayse,166 La. 689, 117 So. 775; State v. Malory, 168 La. 742,123 So. 310; Borden v. Louisiana State Board of Education, 168 La. 1005,123 So. 655, 67 A.L.R. 1183; State ex rel. Huggett v. Montgomery, La.App., 167 So. 147.

"There is another rule and it is this: Upon a doubtful construction of a provision of the Constitution, the doubt should be solved in favor of validity. Lobrano v. Police Jury,150 La. 14, 90 So. 423; State v. Coco, 152 La. 241, 92 So. 883; State ex rel. Porterie v. Smith, 184 La. 263, 166 So. 72.

"Section 6, Article XII, previously quoted is as follows:

"`The State Board of Education shall have supervision and control of all free public schools.'

"This article was not left by the framers of the Constitution unqualified. On the contrary, under Section 8 of Art. XII it is provided that the State Board of Education shall not create or maintain any administrative department in which salaries orexpenses are payable from State funds, unless authorized by theLegislature. Likewise, it is prohibited from interfering with the business affairs of parish school boards as well as with the officers and directors of such boards. See Sec. 4, Art. XII.

"The argument is made that, except for these and other express limitations, the control of the State Board is supreme and reaches so far as to clothe the Board with complete power of supervision of the affairs of the office of State Superintendent.

"I can not agree. In the first place Section 6, Art. XII is to be considered in connection with Section 4 of the same Article. Section 4 confers upon the Legislature the right to prescribe`the duties of said board and define its powers.'

"With respect to employees in the State Department of Education the Legislature has done that very thing, i. e., given the Board the power to `provide' the necessary employees in said Department, that is to say, the power to say what positions of employment shall exist in said Department with the right of the State Superintendent of Public Education to appoint the occupants of these positions.

"If the Legislature has the right under Section 4 of Article XII to prescribe the duties of the State Board, how can it be said that it is violative of the Constitution for it to deny the Board the right to control the appointment of employees of a constitutionally created official of the State, the Superintendent of Public Education?

"That portion of Act No. 100 of 1922 conferring upon the State Superintendent the right to `select' employees of the Department of Education, in my opinion, is in effect, a refusal of the Legislature, acting under Section 4 of Art. XII to include that prerogative among `the duties of said board'.

"I can see no similarity of this case to the case of State ex rel. Dodd v. Tison, 175 La. 235, 143 So. 59. There the authority of the State Board was recognized as final by virtue of Section 6 of Act No. 100 of 1922 expressly clothing the State Board with the power of administration over the Louisiana State Normal College and other educational institutions of the State; nor do I accept as applicable here, the argument that the control the State Board has under the Constitution of `all free public schools' and over the State Department of Education, is to be likened to the control and supervision the Supreme Court of the State has over the inferior courts.

"For the reasons assigned, I hold (1) that Section 3 of the Act confers upon the State Superintendent of Education the general power of appointment of employees in the State Department of Education, as well as the power to discharge such employees; and (2) that that part of Section 3 of Act No. 100 of 1922 conferring this authority upon the State Superintendent of Education is not violative of Section 6 of Art. XII of the Constitution, in view of Section 4 of the same article giving the Legislature the power and authority to prescribe the dutiesof the State Board of Education and define its powers.

"The authority to select or appoint the employees of the State Department of Education having been by Sec. 3 of Act No. 100 of 1922 vested in the State Superintendent of Public Education, in my opinion, no State Plan for Vocational Education adopted by the State Board of Education could legally divest him of such authority. To hold that the State plan adopted by the State Board and approved by the United States Office of Education governs notwithstanding Sec. 3 of Act No. 100 of 1922 would in effect be to hold that the adoption of this plan by the State Board of Education had the effect of repealing the provisions of an act of the Legislature.

"The Constitutional provision (Art. XII, Sec. 14, Const.) that all appropriations made by the Federal Government for Vocational Education `shall be distributed and paid out to the several parishes, under the authority and jurisdiction of the State Board of Education, and in accordance with the terms of the law governing such funds or the valid stipulations of the source thereof' will not necessarily be impaired or violated simply because the person chosen as Supervisor of Vocational Agriculture is appointed or selected by the State Superintendent of Education.

"In my opinion it is not necessary to decide the question of the constitutionality of that part of Sec. 35 of Act No. 100 of 1922 providing that all funds received for public school purposes from the Federal Government shall be deposited by the State Superintendent of Public Education in the bank paying the highest rate of interest on daily balances. Regardless of how this question should be decided it would have no bearing on the sole issue presented by the pleadings in this case which is,who has the authority under the law to appoint and discharge theemployees of the State Department of Public Education.

"It can be well conceded that under the provisions of both Act No. 52 of 1918 and Act No. 100 of 1922 the State Board of Education has the authority to receive for public school purposes all funds appropriated to the State by the Federal Government, and that regardless of where these funds are deposited, that is, with the State Treasurer or by the State Superintendent of Education in the bank paying the highest rate of interest, and that the said funds must be used by the State Board of Education for the purpose for which they are appropriated, yet it does not follow that the State Board has the right to hire and fire the Supervisor of Vocational Agriculture who without doubt is an employee in the State Department of Education in the Division of Vocational Education.

"As a matter of policy, it would doubtless be wise that the authority having the right to receive and expend such funds, should also have the statutory right to select the agents and employees of the State Department of Education charged with the duty of supervising and administering vocational education in the State. That however, is a matter which addresses itself to the Legislative and not the judicial branch of the Government.

"For the reasons assigned, the demand of petitioner for a writ of mandamus will be denied and this suit will be dismissed at plaintiff's cost."

Obviously, one of the practical considerations that influenced the Legislature to grant the power and authority to the State Superintendent of Public Education to employ and discharge those employed under him in the Department is because the members of the State Board of Education, who serve without receiving any salary, regularly meet three or four times a year only, unless a special meeting is called, whereas, the State Superintendent of Public Education is a full-time official. Therefore, where it is necessary to select or employ a person to fill a vacancy or to discharge an employee, the members of the Board from different parts of the State would not have to be called together for those purposes. The Superintendent being in constant daily touch with the administration of the free public school system or Department of Education could act promptly and without expense and inconvenience to the members of the Board in having them assembled.

It is contended that under the construction placed upon the law by the district court recognizing the Superintendent's authority to hire and discharge employees of the Department under him that the State Board has been divested of the exclusive control of the public school system of the State granted to it by the Constitution. It will be observed that the Constitution expressly denies the State Board the right to employ or discharge the great part of the personnel of the public school system and vests the authority to do so in the local Parish School Boards. Plainly, the overwhelming majority of those who serve under the supervision and control of the State Board of Education are those who are employed by the local Parish School Boards — consisting of teachers, Parish Superintendents of Education and their assistants, principals, etc. It is, therefore, incorrect to say that the Constitution granted exclusive control over all phases of the administration of the public school system and that the right to hire and fire is indispensable to the control granted by the Constitution to the State Board. The members of the Legislature were bound to take cognizance of the limitation placed in the Constitution itself upon the control granted the State Board and the provision granting the Legislature the right to define the powers and duties of the State Board. In acting under this constitutional grant of authority, the Legislature simply granted certain powers and duties to the State Board, which give it the type of control and supervision contemplated by the Constitution and granted authority to the State Superintendent for administrative functions which were considered necessary for the proper operation of the school system. A reading of the statute (Act No. 100 of 1922) clearly shows the tremendous amount of duties, responsibilities, and administrative functions entrusted to the State Superintendent and the necessary power and authority granted him to carry them out.

It is also argued that since the State Superintendent, under the law, was appointed by the State Board at the time that Act No. 100 of 1922 was passed by the Legislature, it was the intention of the framers of the law to grant the State Board the authority to hire and fire all of the subordinates of the State Superintendent, as the Board had that authority over him. The weakness in this logic is that it ignores the wording of the statute as well as the practical reasons why the members of the Legislature granted to the State Superintendent the authority of employing and discharging those who serve under him, because it was impracticable to have the members of the Board meet every time it was necessary to hire or fire some employee in the Department, as we have previously observed. The trial court interpreted the statute in the light of the status of matters at the time the Act of the Legislature was enacted and did not base its construction upon the constitutional amendment passed in 1922, making the State Superintendent elected and ex-officio Secretary of the Board, instead of being appointed by the State Board. Clearly, this constitutional amendment was to give the State Superintendent further independence of the Board and certainly did not take away from him any previous power that the Legislature had granted to him.

It appears that this is the first time since the Legislature passed Act No. 100 of 1922 that the State Superintendent of Public Education's authority to select, employ, or discharge those who serve under him, has been challenged. In short, for a period of twenty-three years, the administrative interpretation of the statute has been the same as asserted by the respondent during his tenure in office of nearly six years. Therefore, under the doctrine of contemporaneous construction, this interpretation should be followed. State v. Standard Oil Co. of Louisiana, 190 La. 338, 182 So. 531. The Court is powerless to change the wording of the law, that being a matter for legislative consideration.

For the reasons assigned, the judgment appealed from is affirmed at the relator's costs.

HAMITER, FOURNET, and HAWTHORNE, JJ., dissent.

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Dissenting Opinion

As is pointed out in the majority opinion, relator, Shelby M. Jackson, was discharged by the State Superintendent of Education from the position of State Supervisor of Vocational Agriculture, but subsequently he was retained in that capacity by the State Department of Education. Because of those conflicting acts, this litigation arose, presenting for determination the single issue of whether the ultimate or final authority to dismiss relator is with the State Superintendent or with the State Board. The case does not involve the question of where, as a matter of policy or principle, such authority should lie; a question of that nature unquestionably addresses itself to the consideration of the state's law making bodies, not the judiciary.

In determining the single issue presented here we must interpret, that is ascertain the will and intent of the Legislature in enacting, Section 3 of Act No. 100 of 1922, the pertinent part of which reads:

"Section 3. The following divisions of the State Department of Education are recognized and the State Board of Education is authorized and directed to provide the necessary employees in them, the salaries and expenses of whom shall be paid out of appropriations made by the Legislature, and such other sources as may be available.

"A. Division of Educational Supervision.

"B. Division of Teacher Training and Certification.

"C. Division of Vocational Education.

"The State Superintendent of Public Education shall select the employees in the various divisions herein established. * * *"

Relator directs attention to the provision in the first paragraph of the quoted section which recites that the "State Board of Education is authorized and directed to provide the necessary employees * * *"; and he contends that under that provision the State Board has authority to appoint, or to approve the Superintendent's selection of, all employees in the three recognized divisions, and, having the authority to thus provide, it also has the ultimate power to dismiss the employees.

The respondent Superintendent, on the other hand, emphasizes that portion of the section which announces that, "The State Superintendent of Public Education shall select the employees in the various divisions herein established"; and he insists that the Legislature intended by Section 3 of the Act that the State Board should provide or create the various positions of employment and, after their creation, the Superintendent should have the exclusive right of appointing, and also of dismissing, the occupant of each position so created. His contention, in other words, is that by the use of the word "select" the Legislature intended to give him the unqualified right of hiring and firing all employees.

According to Webster's New International Dictionary, Second Edition, the verb "provide" means: To supply for use; to afford; to contribute; to furnish; to stock; to equip in preparation. The verb "select" is defined by the same authority: To take by preference from among others; to pick out; to cull. With these definitions in mind it must be admitted that Section 3 of Act No. 100 of 1922, with reference to the matter of obtaining employees for the three named divisions and their dismissal, is not free from ambiguity; it is confusing to say the least. This being true, it becomes necessary, in order to ascertain the legislative will and intent in the enactment of Section 3, to enlist the aid of well recognized rules of statutory construction, some of those applicable here being:

"Where the words of a law are dubious, their meaning may be sought by examining the context with which the ambiguous words, phrases and sentences may be compared, in order to ascertain their true meaning." Civil Code Article 16.

"* * * However, in interpreting a part or section of an act, in dispute, the part or section should be interpreted in connection with the rest of the act, and in connection with all laws on the same subject-matter. Moreover, the object that the Legislature had in view should be ascertained, and the interpretation adopted which best harmonizes with the context and with that object. * * *" Thibaut v. Board of Commissioners of Lafourche Basin Levee District, 153 La. 501, 96 So. 47, 48. (Quoted with approval in Bradley v. Swift Co., 167 La. 249,119 So. 37.)

Before applying those rules of construction, however, it is appropriate to consider briefly the historical background of the legislation in question. The Constitution of 1913 contained only two articles dealing specifically with the State Superintendent of Education and the State Board of Education. Article 249 provided:

"There shall be elected by the qualified electors of the State a Superintendent of Public Education, who shall hold his office for the term of four years, and until his successor is qualified. His duties shall be prescribed by law, and he shall receive an annual salary of Five Thousand Dollars, payable monthly, on his warrant."

And Article 250, insofar as pertinent, recited:

"The General Assembly shall provide for the creation of a State Board, and Parish Boards of Public Education. * * *."

Pursuant to those articles (as well as others on the subject of public education) in the 1913 Constitution, the Legislature in 1916 enacted Act No. 120 of that year, being "An Act in relation to free public schools and to regulate public education in the State of Louisiana; * * *." The first section of that Act created the State Board, it reciting:

"* * * That there shall be a State Board of Education of six members, five appointed at large by the Governor and not subject to removal by the Governor. The Governor, in providing for the first State Board of Education under this Act, shall appoint one member for a term of five years, one for four years, one for three years, one for two years, and one for one year. The sixth member shall be the State Superintendent of Public Education. After the first Board all members of the State Board of Education shall be appointed for terms of five years. * * * The Governor shall fill by appointment all vacancies on the Board."

Section 20 of said Act No. 120 of 1916 made provision for the payment of the salary of the State Superintendent and of his office expenses, and then said:

`* * * He shall have authority to appoint clerks and porters as may be necessary and prescribe their duties, * * *."

Continuing, said Section 20 stated:

"* * * The State Board of Education shall have authority to appoint such assistant superintendents and supervisors and inspectors, or special lecturers and instructors, as may be needed for the proper prosecution of public education, and to fix the salaries and expense for such work, which shall be paid out of appropriations made by the General Assembly out of the school funds. * * *"

By the Constitution of 1921, it will be noticed, material and drastic changes were effected in the educational system that existed under the 1913 Constitution and under Act No. 120 of 1916. Showing some of those changes are the following provisions of Article 12 of the 1921 Constitution, quoted just as originally adopted:

"Section 1. The educational system of the State shall consist of all free public schools, and all institutions of learning, supported in whole or in part by appropriation of public funds. * * *"

"Section 4. There is hereby created a State Board of Education to be composed as follows: three members to be appointed by the Governor for terms of four years, one each from districts co-extensive with the present Railroad Commission districts, and eight to be elected for terms of eight years, except as herein provided, from districts corresponding to the present Congressional districts. The Legislature shall provide for the organization of said board so that two of the elected members shall be chosen at each Congressional election. The first board shall be elected in 1922 and begin office the second Monday in January, 1923, and the term of two of whom shall expire in two, four, six and eight years respectively.

"The members appointed by the Governor shall be persons experienced in aducational matters, and all members shall serve without pay, except such per diem and traveling expenses as shall be fixed by the Legislature.

"The Legislature shall prescribe the duties of said board and define its powers; provided, that said board shall not control the business affairs of parish school boards, nor the selection or removal of their officers and directors.

"Section 5. The board shall elect for terms of four (4) years a chairman and a State Superintendent of Public Education. The latter shall be ex-officio secretary, and his salary shall be fixed by the board at not less than five thousand ($5,000.00) dollars nor more than seven thousand five hundred dollars ($7,500.00) per annum, payable monthly on his own warrant, and he may be removed by the board.

"Section 6. The State Board of Education shall have supervision and control of all free public schools.

"Section 7. The Legislature shall create a governing body for the Louisiana State University and Agricultural and Mechanical College, composed of members appointed by the Governor by and with the advice and consent of the Senate, with overlapping terms; of which the Governor shall be a member and ex-officio president. The State Board of Education shall have visitorial powers over said institution.

"The State Board of Education shall have supervision of all other higher educational institutions, subject to such laws as the Legislature may enact. It shall appoint such governing bodies as may be provided. It shall submit to the Legislature, or other agency designated by the Legislature, a budget for said Board and for these institutions.

"It shall prescribe the qualifications, and provide for the certification of the teachers of elementary, secondary, trade, normal and collegiate schools; it shall have authority to approve private schools and colleges, whose sustained curriculum is of a grade equal of that prescribed for similar public schools and educational institutions of the State; and the certificates or degrees issued by such private schools or institutions so approved shall carry the same privileges as those issued by the State schools and institutions.

"Section 8. It shall not create or maintain any administrative department in which salaries or expenses are payable from State funds, unless authorized by the Legislature. The Legislature shall prescribe the terms under which funds offered for educational purposes shall be received and disbursed."

When the Legislature met in regular session in 1922 there was in force and effect the Constitution of 1921 in its original form, including all of the above quoted provisions. To make operative the system of public education as outlined in such Constitution, that body enacted Act No. 100 of 1922, including the disputed Section 3. The entire title of the Act reads:

"To provide a State Board of Education and Parish school boards, defining their duties and powers, and providing for the administration and supervision of the public schools of Louisiana."

Section 1 deals with the organization of the State Board as created by the Constitution. Section 2 reads in part:

"* * * The Board shall elect a State Superintendent of PublicEducation for a term of four years and fix his salary, the same not to be less than $5,000.00 a year nor more than $7,500.00 a year. The State Superintendent of Public Education shall be Secretary of theBoard. Any vacancy in the office of State Superintendent ofPublic Education by death, resignation or otherwise shall befilled by the Board. * * *" (Italics ours)

Next is the controversial Section 3, above quoted. Section 6 provides in part:

"The State Board of Education shall administer the affairs of the following State educational institutions:

"Louisiana State Normal College, Natchitoches.

"Louisiana Polytechnic Institution, Ruston.

"Southwestern Louisiana Institute of Liberal and Technical Learning, Lafayette.

"State School for the Deaf, Baton Rouge.

"State School for the Blind, Baton Rouge.

"Southern University, Scotlandville.

"State School for Blind Negroes, Scotlandville.

"State School for Deaf Negroes, (not yet located).

"In its management and control of these institutions, it shall have authority to appoint an executive committee of two in addition to the State Superintendent of Public Education who shall be ex-officio a member and chairman, for each institution, the members of which shall not be required to be members of the State Board of Education. The executive committees provided for in this section shall perform such duties as may be required of them by the State Board of Education. * * *"

And Section 34 of the 1922 Act states:

"It shall be the duty of the State Superintendent of Public Education to keep in close touch with all of the state educational institutions under the control of the State Board of Education, and of all the public schools of the various parishes of the State with the view of seeing that the physical plants of the schools are adequate and kept in the proper state of repair and sanitation; that the courses of study prescribed by the State Board of Education are faithfully followed; that teachers meet the standards prescribed by the State Board of Education; that classes are not overcrowded; that children are properly classified as to grades; that wise methods are used in the presentation of the subject matter; and in all other ways possible to assist the local authorities, superintendents, and teachers to secure the best possible results from their efforts. In the prosecution of this work of inspection and supervision, the various employees in the State Department of Education shall be under the immediate direction and control of the State Superintendent of Public Education, and they shall make such verbal and written reports to him as he may require. In the professional administration of the schools, as indicated in this section, it shall be the duty of the heads of the various state educational institutions and of the public school officials in the various parishes to be guided, as far as practicable, by the suggestions and directions of the State Superintendent of Public Education. The traveling and other necessary expenses of the State Superintendent of Public Education and other employees of the State Department of Education while engaged upon their official duties shall be paid out of the State Current School Fund not to exceed amounts appropriated by the Legislature for this purpose."

Several months after the effective date of Act No. 100 of 1922, specifically on November 7, 1922, there was adopted by the electorate of the state a proposed amendment to Section 5 of Article 12 of the 1921 Constitution, reading:

"There shall be elected by the people at each succeeding general election a State Superintendent of Public Education, who shall be ex-officio Secretary of the Board, and whose salary shall be fixed by the State Board of Education at no less than Five Thousand ($5,000.00) Dollars, nor more than Seven Thousand Five Hundred ($7,500.00) Dollars, payable monthly on his own warrant."

This amendment gave the State Superintendent no powers. It changed the Constitution, as well as Act No. 100 of 1922, only to the extent of providing that the Superintendent shall be elected by the people instead of by the State Board. In all other respects the mentioned constitutional provision and statute as originally adopted remained in effect.

Now to interpret the confusing and controversial Section 3 of Act No. 100 of 1922, with a view of determining the issue respecting relator's dismissal, the disputed portions of that section reading: "The State Board of Education is authorized and directed to provide the necessary employees * * *" and, "the State Superintendent of Public Education shall select the employees * * *." It will be remembered that, according to the well recognized rules of statutory construction, the section is to be construed in connection with the other provisions of the Act and with all laws on the same subject matter. Moreover, the object that the Legislature had in view is to be ascertained, and the interpretation to be adopted is that which best harmonizes with the context and with such object.

First to be noticed is the fact that the title to Act No. 100 of 1922 in no manner mentions the State Superintendent, his duties or his privileges. The reason for this is obvious. The Act was passed and became effective according to the provisions of Article 12, Section 5 of the 1921 Constitution as it was originally written, when the Superintendent was elected by the State Board and, hence, was merely an employee of it, holding his position at its pleasure. That he was nothing more than the Board's employee is made manifest by various provisions of that statute. For example Section 2, quoted supra, specifically provided for the Board's election of the Superintendent, just as the Constitution did, and further provided for its filling any vacancies in that position resulting from death, resignation or otherwise. Again, Section 34 of the Act speaks of the "State Superintendent of Public Education and other employees of the State Department of Education."

Of course, in the body of Act No. 100 of 1922 (but not in its title) the State Superintendent is required to perform various duties in the furtherance of the system of public education. But the statute clearly shows that he is to perform those duties in an executive or managerial capacity and under the supervision, direction and control of the State Board, all in keeping with the constitutional mandate (Sections 6 and 7, of Article 12) that the Board shall have supervision and control of all free public schools, and also supervision, subject to such laws as the Legislature may enact, of all higher educational institutions except Louisiana State University. For instance, Section 6 of the Act charges the State Board with the duty of administering the affairs of eight of the higher educational institutions, and then states "In its management and control ofthese institutions, it shall have authority to appoint an executive committee of two in addition to the State Superintendent of Public Education who shall be ex-officio a member and chairman, for each institution, the members of which shall not be required to be members of the State Board of Education." Section 6 further recites that each of those executive committees, of which the Superintendent is a member and chairman, shall perform such duties as may be required by the State Board.

With further reference to the Superintendent's executive and managerial duties under the Act of 1922, Section 34 thereof requires him to perform certain acts of inspection and supervision in connection with "all of the state educational institutions under the control of the State Board of Education, and of all the public schools of the various parishes * * *." (The public schools are placed under the Board's control by the Constitution.) Then Section 34 continues: "In the prosecution of this work of inspection and supervision, the various employees in the State Department of Education shall be under theimmediate direction and control of the State Superintendent * * *." The connotation of this last quoted provision is that the employees are under the immediate or first control and direction of the Superintendent in the prosecution of the named work, but they are under the ultimate or final control and direction of the Board.

Further evidence of the Legislature's intention, as well as of its respect for the constitutional mandate, that our public school system shall be under the complete control of the State Board of Education is found in the statutes which established the various trade schools of Louisiana. In each statute it is specifically provided that "The State Board of Education shall administer the affairs of said institution." See Act No. 215 of 1934 (Sullivan Memorial Trades School); Act No. 265 of 1936 (Shreveport Trades School); Act No. 14 of 1938 (Huey P. Long Memorial Trades School of Winnfield, Louisiana); Act No. 15 of 1938 (T. H. Harris Trades School of Opelousas, Louisiana); Act No. 25 of 1938 (Southwest Louisiana Trades School); Act No. 62 of 1938 (Southwest Louisiana Trades School of Lake Charles, Louisiana); Act No. 309 of 1938 (Thibodaux Trades School); Act No. 314 of 1938 (St. Bernard Parish Agricultural and Trades High School); Act No. 315 of 1938 (Alexandria Trades School and Lafayette Trades School); Act No. 53 of 1940 (New Iberia Trades School and Natchitoches Trades School); Act No. 109 of 1942 (Avoyelles Parish Trades School); Act No. 234 of 1942 (Florida Parishes Trades School of Hammond, Louisiana); Act No. 30 of 1944 (Ouachita Valley Vocational School); Act No. 263 of 1944 (Baton Rouge Trades School).

It is significant also that when the constitutional convention of 1921 gave specific control and supervision of public education to the State Board (such was not given by previous Constitutions), it failed to direct the Legislature to prescribe the duties of the State Superintendent as had been done by the constitutional convention of 1913.

Considering then that both the Constitution of 1921 and Act No. 100 of 1922, which was passed pursuant to that Constitution, made the Superintendent merely an employee of the State Board, removable at its pleasure, and gave to the latter control and supervision of the public school system, the conclusion is inescapable that the ultimate or final authority for obtaining and discharging employees in the Department of Education (other than those specifically excepted by the Constitution or protected by the Civil Service and Teachers Tenure Laws, to which categories this relator does not belong) rests with the State Board of Education. From this it follows that by Section 3 of Act No. 100 of 1922 the Legislature intended that the right of employing (providing) the employees of the three named divisions is with the State Board, although the Superintendent has the authority of selecting, choosing or picking out, from among those available or who might apply, the persons to be so employed. Having the right to employ (provide), the Board necessarily has the right also of disapproving the dismissal or discharge of an employee.

Appropriate to the matter of the coriect interpretation of Section 3 of Act No. 100 of 1922, and expressive of my view, is the following interesting comment found in the brief of the attorneys who are appearing herein as Amicus Curiae:

"The duty of the Superintendent to select does not carry the power to discharge.

"First, as has been pointed out, the providing by the Board is the essential act that brings into existence the hiring or employing. From which it follows that only the Board can discharge.

"Second, Section 3 requires two acts, one by the Superintendent and one by the Board, to make an employee in one of the divisions. The act of selecting by the Superintendent cannot carry the right to discharge.

"Where a statute in providing for the employees in certain parts of a system of public education provides that one authority shall provide the necessary employees therein and that another authority shall select the employees therein, neither authority has the full right to finally appoint such employees, without the required action of the other authority. In other words, it appears that the action of each authority when authorized complies with the law and makes the appointment complete. The selection of the selecting authority of an employee is not by itself a compliance with the law and is not the exclusive title of the employee to the office. It is necessary that the other authority provide the employees which implies the determination of what employees are needed and the determination of the standards and qualifications, and the fixing of a salary which the person will accept. The language of the statute is not `provide for' but `provide.' If a person selected fits the requirements and accepts the salary, i. e., if he is provided, then such person becomes the chosen and appointed employee. If, in the opinion of the providing authority, such person does not fit the requirements, it would appear that the obligation to provide is broader than the obligation of selecting, which means taking one out of a number or any number that might be available. Therefore, if the providing authority considered the person selected not one whom it should provide, it would have the veto power — particularly where that authority is vested with the constitutional power of supervision and control over the system of public education.

"It would appear that where the selecting power has selected an employee and the other power has provided that employee and that employee is performing his functions, the selecting power would not have the authority by himself to discharge such employee. Commonly the power that appoints an employee can also discharge him. Where the selecting power discharges an employee, he is not exercising the authority of selection given by the statute, the only one given him, and it would appear that he has exhausted that authority so far as that particular employee is concerned and that, therefore, such employee could only be discharged or removed either by the other authority or at least by the concurrence of the two authorities.

"Third, there is another reason. Suppose an employee becomes or proves to be incompetent or unfit or unsuitable or a mere political appendage, and the Superintendent won't consent to his removal, then the Board has the power and the duty to discharge him under its power of supervision and control and under its obligation to the people to manage and administer the public schools in the interest of the best possible results. This accords with the reason, spirit and object of the Constitution and the legislation.

"Furthermore, it is admitted that only the Board can fix the positions to be manned. It finds that one has become a fifth wheel, that one is no longer needed, that one group overlaps another, that inefficiency prevails, so the Board abolishes or consolidates. When it does so necessarily it discharges one or many, and the duty of the Superintendent to select has no bearing."

From a practical standpoint the State Superintendent, under the Constitution and the statute in question, manages the public school system of Louisiana subject to the supervision and control of the State Board of Education, just as the general manager of a large corporation manages the affairs of the corporation subject to the control and supervision of a Board of Directors. Since each of those boards meets only occasionally, of necessity it can not handle the multitudinous details of operations that arise nor select the numerous employees required. Consequently, the manager attends to those matters, and his acts with respect thereto are valid and binding when they are expressly approved or when no objection is registered by the board. But having control and supervision over the entity and its manager, the board has the power and authority to prevent, whenever it sees fit, the occurrence of any of the manager's acts.

Of no importance to this case is the fact that after the effective date of Act No. 100 of 1922 the State Superintendent was required to be chosen by the people, not by the State Board. As pointed out above, the amendment which provided that change affected the 1921 Constitution and the Act of 1922 in no other manner; it granted the Superintendent no power whatsoever.

It is a general rule that where a statute is susceptible of two constructions, one of which makes it unconstitutional and the other constitutional, the interpretation making it constitutional must be adopted. To interpret Section 3 of Act No. 100 of 1922 (conceded to be ambiguous) as giving the State Superintendent the unqualified or exclusive right to hire and fire is, in my opinion, to render that legislation unconstitutional. Hence, such an interpretation should not be adopted.

As before shown the constitutional convention of 1921 created the State Board of Education and then directed the Legislature to prescribe its duties and define its powers. Section 4 of Article 12. At the same time, however, that convention granted specific powers to the Board and withheld others from it, with reference to which, obviously, the Legislature is without right to effect any change or alteration. Among the powers denied the Board were (1) the right to control the business affairs of parish school boards or to select or remove their officers and directors (Section 4 of Article 12), and (2) the right to create or maintain any administrative department in which salaries or expenses are payable from state funds, unless authorized by the Legislature (Section 8, Article 12). Among the specific powers granted to the State Board (which can in no manner be lessened or otherwise altered by the Legislature) is the one that is set forth alone in Section 6, Article 12, quoted supra and as follows: "The State Board of Education shall have supervision and control of all free public schools."

The supervision and control of all free public schools thus conferred upon the Board is in no manner qualified, restricted or limited, except by the mentioned specific limitations. Had the convention intended to place some general limitation on that power it would have done so by adding thereto, as it did with other provisions, a clause such as "subject to such laws as the Legislature may enact."

Now what is meant by the words "supervision" and "control"? Webster's New International Dictionary, Second Edition, gives the following definitions: Supervise — to oversee for direction; to superintend; to inspect with authority. Supervision — act or occupation of supervising; inspection; oversight. Control (noun) — the act or fact of controlling; power or authority to control; directing or restraining domination. (Synonyms — regulation, direction, management). Control (verb) — to exercise restraining or directing influence over; to dominate; to regulate. (Synonyms) — restrain, rule, govern, guide, dilect, check, subdue). Thus "supervision" deals with authoritative inspection, oversight and direction; "control" is both directing and restraining domination, and deals with management and regulation.

The word "supervision" was under consideration in the case of State ex rel. Dodd v. Tison, 175 La. 235, 143 So. 59, 60. Therein an expelled student of the Louisiana State Normal College sought a writ of mandamus against its president to compel reinstatement. In sustaining exceptions of no cause of action and nul tiel corporation and rejecting relator's demands, this court referred to various provisions of Act No. 100 of 1922 (the statute involved in this case), as well as to Article 12, Section 7 of the Constitution of 1921, which provides that "The State Board of Education shall have supervision of all other higher educational institutions, subject to such laws as the Legislature may enact"; and it made the following observations, among others, viz.:

"From the above provisions it is clear that the administration of the affairs of the Louisiana State Normal College, is vested in the state board of education, which has full and complete power, including matters of discipline.

* * * * * "Since the normal college itself has no legal status, it follows that its president is likewise incapable of standing in judgment in matters pertaining to it. The governing body being the state board of education, suits involving its administration of other educational institutions must necessarily be brought against the state board.

"As the entire power of administration of the Louisiana State Normal College is vested in the state board of education a student who complains of the action of the agents or employees of the state board. in matters of discipline, must exhaust his recourse before the proper school authorities, as a condition precedent to a resort to the courts."

The court in the Dodd case recognized the paramount power of the State Board in the administration of the affairs of the higher educational institutions, the recognition being primarily because of the "supervision" granted it by the Constitution. The power granted the State Board with reference to public schools generally, and applicable to the instant case, is both "supervision and control."

With the supervision and control of public education, therefore, being constitutionally vested in the State Board, certainly Section 3 of Act No. 100 of 1922 should not and must not be construed as giving to the State Superintendent (to whom the Constitution grants no powers) the unqualified and uncontrolled right of appointing and discharging the employees of the three divisions named therein. Such an interpretation would make the provisions in question violative of the Constitution, null and void, a situation which clearly was not intended by the Legislature.

In the majority opinion it is said that to hold that the Superintendent does not have exclusive authority in naming and discharging all employees is to make him a mere figurehead. Considering the multitudinous duties assigned to him by the statute, clearly he is not a figurehead. He is the secretary of the Board and general manager of the Department of Education, responsible for the direction of operational details and for the carrying into effect of all formulated policies; subject, however, to the authority of the State Board. If the Superintendent is now a mere figurehead simply because he does not have the uncontrolled right to hire and fire all employees, he likewise enjoyed that appellation while serving under the provisions of Act No. 120 of 1916, at which time he was elected by the people of the state whereas the members of the State Board were appointed by the Governor. According to Section 20 of that statute, above quoted, the Superintendent had authority to appoint only clerks and porters; the State Board had authority to appoint "such assistant superintendents and supervisors and inspectors, or special lecturers and instructors, as may be needed for the proper prosecution of public education * * *."

The argument that Section 34 of the Act of 1922 clothes the Superintendent with authority to control the employees, and hence gives him the right to appoint and discharge them at will, overlooks entirely the word "immediate" which precedes the words "direction and control." As above shown, the phrase "immediate direction and control" presupposes an "ultimate direction and control," which in my opinion is with the State Board.

The majority opinion emphasizes that portion of Section 4, Article 12 of the Constitution which provides that, "The Legislature shall prescribe the duties of said board and define its powers," and treats the provision as a constitutional limitation of the Board's authority. I cannot agree to such an interpretation. As pointed out above, the only limitations to the provision of Section 6 of Article 12 of the Constitution that "The State Board of Education shall have supervision and control of all free public schools" are those specifically set forth in the Constitution, one of which limitations is that the Board shall not control the business affairs of parish school boards nor the selection or removal of their officers and directors. The mentioned emphasized provision only means that the Legislature is directed to enact legislation detailing the various duties and powers embraced in the "supervision and control," as specifically limited, granted to the State Board by the Constitution.

The fact that for a period of 23 years the right of the State Superintendent to select, employ, or discharge those who serve under him has not been challenged is unimportant and beside the point. It may well be assumed that no such challenge was made for the reason that no disagreement arose on the subject between the State Superintendent and the State Board, the former's actions having met with the complete approval of the latter, or because the Superintendent, when conflicts occurred, always recognized the paramount authority of the State Board, which is constitutionally vested with supervision and control of all free public schools and is composed of eleven members, eight of whom are elected by the people from the respective congressional districts and serve overlapping terms and three of whom are persons experienced in educational matters and are appointed by the Governor.

Therefore, in my opinion, the action of the State Board of Education in retaining relator, Shelby M. Jackson, had the effect of overruling or nullifying the dismissal order issued to him by the State Superintendent, and he is still the regularly employed State Supervisor of Vocational Agriculture in the Division of Vocational Education, entitled as such to be paid the salary sought herein.

For these reasons I respectfully dissent.