State Ex Rel. Cowan v. Morgan

112 So. 865 | Miss. | 1927

^* Corpus Juris-Cyc References: Mandamus, 38CJ, p. 731, n. 8; Statutes, 36Cyc, p. 1160, n. 28, 29. As to when word "may" in statute is to be deemed mandatory, see annotation in 5 L.R.A. (N.S.) 340; 25 R.C.L. 771; 3 R.C.L. Supp. 1428; 5 R.C.L. Supp. 1344; 6 R.C.L. Supp. 1483. The district attorney filed a petition for a writ of mandamus to be issued against the county superintendent of education and the members of the county school board of Jackson county, Miss., alleging that on the 20th day of May, 1926, there was presented to the Jackson county school board a petition of the majority of the qualified electors of the territory in said county, described as that part of township 6 south, range 5 west, lying west of the Escatawpa river, and that part of township 6 south, range 6 west, lying west of the Pascagoula river, and comprising more than sixteen square miles of territory, requesting said county school board to create said territory a rural separate school district; that it was to the best interest of the inhabitants therein for the said territory to be created a rural separate school district and, in utter disregard of the said petition, the county school board refused to create said territory into a rural separate school district and denied the said petition, as shown by the minutes of the county school board, a copy of which was attached to the petition; that, on account of the said county board not having performed its duty in creating a separate school district, the greater portion of the inhabitants of the territory were without public school facilities.

The minutes of the Jackson county school board recited:

"Mr. F.S. McInnis presented a petition signed by patrons of the following territory: All that part of Tp. 6 S., between Dog and Pascagoula rivers. Said petition sought to have created a rural separate district embracing said territory. After discussing the matter thoroughly and asking questions, and hearing opposition raised by various citizens of the territory, the school board passed the following order in due form: Inasmuch as no one is able to show the valuation of said territory, the number of children, or any general plan of organization of the proposed district, and since it appears that a separate district would not be the proper type of organization for such a vast and sparsely settled territory, it is hereby duly ordered by the board that the petition presented by Mr. McInnis be denied."

By section 118, chapter 283, of the Laws of 1924, known as the School Code, it is provided:

"Separate School Districts. — Any municipality, by an ordinance of the mayor and board of aldermen thereof, or any unincorporated district with an assessed taxable valuation of not less than two hundred thousand dollars ($200,000), or any unincorporated district of not less than sixteen square miles, by the county school board or county school boards, on a petition of a majority of the qualified electors therein, may be declared a separate school district, but shall not be entitled to the rights and privileges of a separate school district unless a free public school shall be maintained therein for a term of at least seven months in each scholastic year; provided that there is an average attendance of twenty-five pupils."

By other sections of the School Code, contained in said chapter 283, Laws of 1924, the county school board is given the power and charged with the duty of dividing the whole territory of a county, outside of municipalities, into school districts for the white and colored races. This embraces the power to locate an ordinary school district for each race separately, and also the power to create and consolidate school districts under the conditions named in the statute. It will thus be seen that the county school board has jurisdiction and power to deal with school districts of all kind, outside of municipalities. Taking all of the statutes and construing them together, we think that the word "may," in the statute above quoted, is used in a permissive, and not a mandatory, sense. The school board has and had discretion in fixing the districts so as to accommodate all the school children of the county and to make districts where each child can attend accessible schools. On account of streams and other natural barriers, the board may, in certain cases, create common school districts having a smaller number of pupils than is required to be embraced in a school district; but this power to create such districts is limited. If the residents of a district consisting of more than sixteen square miles of territory may select their territory for the establishment of a separate rural school district and bind the board thereby, such selection might result disastrously to the interest of those not living in the territory embraced in the separate school district, and who were prevented by streams or other natural barriers from attending schools within a convenient distance from their homes; and consequently those children might be denied, in practice, the privilege of securing an education in the common schools.

The word "may," when used in a statute concerning the rights of the public and the duties of public officers will usually be given a mandatory effect (Carrollton v. Town of Carrollton,109 Miss. 494, 69 So. 179), but the word "may" is not always so used, and, in determining the meaning of words in a statute, we will take all statutes pari materia considering the whole scheme of statutes in determining their meaning. So, in construing the above statute, we think the county school board has discretion to be exercised for the good of the whole county as well as of the particular district; and the board, in its order, having found conditions to exist which make the establishment of a separate school district in its judgment improper and unnecessary, mandamus will not lie to control such discretion.

The judgment of the court will therefore be affirmed.

Affirmed.