Turner v. City of Hattiesburg

53 So. 681 | Miss. | 1910

Lead Opinion

Smith, J.,

delivered the opinion of the court.

By chapter 119 of the Acts of 1910, the Mississippi Normal College was created. By section 9 of this act the board of trustees of this college were directed to “locate the same in the place offering the most advantageous conditions, all things considered.” By chapter-120 of the-Acts of 1910', municipalities of Mississippi were authorized to issue bonds for the purpose of procuring the location of this college in the municipality issuing same. The city of Hattiesburg, having become-the highest bidder therefor, obtained this location, and was preparing to issue bonds in order to obtain the money necessary to enable it to carry out its promise of aid to the college. The first order passed by the board of mayor and aldermen provided for the issuance of bonds to the- amount of fifty-seven thousand and five hundred dollars. It being ascertained that this amount would be insufficient, before any bonds were in fact issued, another order was entered by the board of mayor and aldermen, authorizing the issuance of additional bonds to the amount of ninety-two thousand and five hundred dollars, making the aggregate sum of one hundred and fifty thousand dollars. Thereupon appellants, filed their bill in the court below, praying that appellee be enjoined from issuing its bonds, on the ground that both the act creating the college and the act authorizing the issuance of bonds are unconstitutional, and, therefore void. From a decree overruling a demurrer .interposed by appellants to this bill, this appeal is taken.

It is alleged that chapter 120 failed to receive the-concurrence of two-thirds of each branch of the legislature, and therefore was not -passed in accordance with section 66 of the Constitution of 1890, which is as follows : “No law granting a donation, or gratuity, in favor of any person or object shall be enacted, except by the concurrence of two-thirds of each branch of the legislature, nor by any vote for sectarian purpose or use.” This act is not a grant by the legislature of a donation at all, but is simply an act authorizing municipalities to aid the state in establishing this college. Moreover, this objection to the act does not raise a judicial question. Ex parte Wren, 63 Miss. 512, 56 Am. Rep. 825; Hunt v. Wright, 70 Miss. 298, 11 South. 608.

The next three objections to these acts are as follows, and may be considered together:

“The act of the-legislature (Laws 1910, p. 109, c. 120) authorizing municipalities in the state of Mississippi to' issue bonds for the purpose of locating said Mississippi Normal College is unconstitutional, because it authorizes the taxation of the property of the people of said city of Hattiesburg, locally, for the establishment and maintenance of an institution to belong, not to the said city -of Hattiesburg, but to the state of Mississippi.

“Said act of the legislature authorizing municipalities -of the state of Mississippi to issue bonds for the establishment and maintenance of said Mississippi Normal College is unconstitutional and void, because such aid to said institution is not within the corporate purposes and powers of the said city of Hattiesburg.

“The said act of the legislature creating said Mississippi Normal College and the said act authorizing municipalities to'issue bonds therefor are violative of section 112 of the Mississippi Constitution, which provides that ‘taxation shall be uniform and equal throughout the state.’ ”

• That the establishment and maintenance of schools is a municipal purpose is too well established in our laws to be now denied. While this college is a state institution, and its property will be owned and controlled by the state, many local benefits will accrue to the city of Hattiesburg on account of its location there, and it is for the purpose of obtaining these local benefits, peculiar to the city of Hattiesburg, that the bonds are to be issued "and taxes levied for the payment thereof. These bonds, therefore, will be issued and taxes collected, not for a state or county purpose, but for a strictly municipal purpose. Ransom v. Rutherford County (Tenn.), 130 S. W. 1057; Lund v. Chippewa County, 93 Wis. 640, 67 N. W. 927, 34 L. R. A. 131; Cox v. Commissioners of Pitt County, 146 N. C. 584, 60 S. E. 516, 16 L. R. A. (N. S.) 253.

Again it is said: “The act (Laws 1910, p. 105, c. 119') creating the Mississippi Normal College, a corporation, is violative of section 178 of the Mississippi Constitution, providing that corporations shall be formed under general laws, only, and it therefore follows that said Mississippi Normal College has no lawful existence and cannot lawfully receive aid from said city and said city ■cannot lawfully grant it aid as contemplated by the issuance of the bonds complained of,” and that “the said act of the legislature authorizing municipalities to issue bonds for the purpose of procuring said college is violative of section 183 of the Constitution of 1890, which makes it unlawful for any ‘county, city, town or other municipal corporation’ to become a subscriber to the capital stock of any corporation or association or to ‘make appropriations or loan its credit in aid of such corporation or association.’ ” The Mississippi Normal College is not the character of corporation dealt with in sections 178 and 183 of the Constitution. It is simply an agency of the state, created by it for the purpose of enabling it to discharge its duty of providing a complete system of schools and colleges. Ransom v. Rutherford County, supra; State v. V. & N. R. R., 51 Miss. 361.

Another objection urged is that “the said act of the legislature creating said Mississippi Normal College and the said act of the legislature authorizing municipalities to make donations therefor are violative of subdivision ■‘p,’ section 90, of the Mississippi Constitution, which makes it unlawful for the legislature to pass any local, private, or special laws ‘providing for the management or support of any private or common school, incorporating the same or granting such school any privileges,’ ” and that “said act of the legislature creating said Mississippi Normal College is violative of article 8 of the Mississippi Constitution, which makes it the duty of the legislature to establish a uniform, system of free public schools in the state and to provide for the government of the same. ’ ’ . This college is neither a private-nor a common school. It is a college established for the purpose of enabling the state to equip its teachers for1 service in its common schools, and, consequently, neither of these objections are well taken. '

The most serious objection raised by appellants is that “the said act creating the Mississippi Normal College- and the said act authorizing municipalities in the state-of Mississippi to make donations to secure the location thereof, being local in their application and not general' laws, are violative of section 80 of the Mississippi Constitution, which requires that provision be made by general laws ‘to prevent the abuse by cities, towns, and other municipal corporations of their powers of assessment, taxation, borrowing money, and contracting-debts.’ ” The section of the Constitution brought under review by this objection is as follows: “Provision shall be made by general laws to prevent the abuse by cities, towns, and other.municipal corporations of their powers, of assessment, taxation, borrowing money, and contracting debts.” It is argued that, instead of limiting the-abuse by municipalities of their powers of assessment, taxation, etc., the legislature, by these two acts, has opened wide the door to extravagance; that it has thereby not only authorized municipalities to issue bonds and impose taxes for the purpose therein provided, without, limit, but that it has encouraged extravagance, by providing, in effect, that the location of the school shall be determined by public auction, the municipality obtaining same which bids the highest amount therefor. This may-all be true, but this court is powerless to remedy the matter. Section 80 is not self-executing. It requires-legislation to put it into effect. It is for the Legislature-to say what constitutes abuse of such powers of a municipality, and to provide checks .thereon. These checks are to be provided by general laws covering all cases, and not necessarily in each particular law giving such powers to municipalities.

There is no merit in any of the other objections.

The decree of the court below is therefore affirmed.

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Dissenting Opinion

Anuerson, J.,

delivered the following dissenting opinion.

I dissent from the majority opinion, so far as it upholds the constitutionality of chapter 120 of the Laws of 1910. In my judgment this statute is clearly repugnant to section 80 of the Constitution, by which the legislature is commanded-to enact “general laws to prevent the abuse, by cities, towns, or other municipal corporations, of their powers of assessment, taxation, borrowing money, and contracting debts; ’ ’ the evident purpose of which was to prevent abuses of the taxing power, either by municipal boards or electorates. Legislation is necessary to carry out the constitutional mandate, and this had been done by sections 3317, 3318, 3415', 3416, and 3430, Code 1906. But now the statute in question comes along, and abrogates the restrictions imposed by those statutes, and gives municipalities, for the purpose of aiding this normal college, unbridled license to issue bonds in any amount whatever, even to the point that taxation necessary to pay the same will amount to confiscation. It is true, this provision of the Constitution is not self-executing, in the sense that by its terms a limitation is fixed, beyond which municipalities may not go; but it is self-enforcing to the extent that it condemns ■ laws, like the one in question, which contain no limit, the effect of which is to encourage, rather than restrain, the abuse of the taxing power. It is left'to the legislative judgment to determine what restrictions shall be imposed; and, when exercised, the courts are powerless to set aside such judgment and substitute their own. But that is not the case here. There has been no exercise of the legislative judgment fixing a limit, but, on the contrary, a plain attempt to override the constitutional command.

The question involved is far-reaching and important. To illustrate: Section 84 of the Constitution enjoins upon the legislature to enact laws restricting or preventing non-resident aliens in the ownership of lands in this state, and limiting the amount which may be held by corporations. Would a law be constitutional, permitting non-resident aliens, and corporations to acquire and hold lands in unlimited quantities? Section 201 of the Constitution enjoins upon the legislature the duty of “establishing a uniform system of.free public schools, by taxation or otherwise.” Can the legislature disregard this command, and establish “a uniform system” of public pay schools?