author: ODRETON, O. J.

text:
    LOVE v. CITY OF DALLAS.
    No. 5633.
    Supreme Court of Texas.
    May 16, 1931.

      H. Bascom Thomas, Jr., and W. J. Rutledge, Jr., both of Dallas, for plaintiff in error.
    James J. Collins, City Atty., A. A. Long, W. H. Knight, and H. P. Kucera, Asst. City Attys., all of Dallas, and Black & Craves, of Austin, for defendant in error.
   ODRETON, O. J.

This suit was brought as a class bill on behalf of certain minor high school students who reside in Dallas county, but outside of the city of Dallas, as one class, and on behalf of other students who reside in the counties of Rockwall, Fannin, and Tarrant as another class. None of the complaining scholastics are located 'in districts which have high schools or maintain high school facilities, and the purpose of the suit was to require the Dallas school board to admit both classes of students into the Dallas city high schools. The relators predicate- the right asserted by7 them on what is known as the High School Tuition Law. The city of Dallas is a municipal corporation, chartered under the laws of the state, has assumed control of its public schools, and as such is to be regarded as an independent school district. We shall, there-» fore, in this opinion, as a matter of convenience, use the terms “district” and “school district” as embracing all classes of school districts, including cities, towns, and villages which have assumed control of their public schools or have been incorporated for school purposes.

The city of Dallas assumed control of its public schools many years ago, and now operates them under a special law which controls in minor respects, but in the main, in so far as here involved, the general laws are to be applied. A local school tax has been levied for the support of the public schools of the city, and many millions of dollars raised by bonds issued by the city have been invested in building sites, buildings, and equipment for the public schools, all based on local taxation, as provided by the Constitution and laws of this state. For a further statement of the case we refer to the opinion of the Court of Civil. Appeals, 23 S.W.(2d) 431.

We are required at the threshold of this Investigation to determine whether or not the High S.chool Tuition Law applies to both the classes named in the bill. We are of the opinion that it was not the intention of the Legislature to make this act applicable to scholas-tics nonresident of the county in which they seek to attend -a high school, except within the limitations of the transfer statute. Article 2697.’ We will not copy at length the High School Tuition Law, since it is available, but will state such of its terms as we think necessary. The act provides that the county board of school trustees at a regular meeting in May of each year shall classify the schools of the county “for the purpose of promoting the efficiency of the elementary schools and of establishing and promoting high schools at convenient and suitable places.” In making the classification the board is required to give due regard to the schools already located, the distribution of population, etc. In the event any school is so classified that a resident high school student “within the free school age” cannot receive instruction in his home district, his tuition for the number of months attended “in any other high school recognized by either county or state” shall be paid by his own district. The act then provides : “If the high school attended receives the transfer of state And county funds for said student, credit shall be given for the amount of same. The rate of tuition charged said pupil shall bo the actual cost of teaching service, based upon the average monthly enrollment in the high school attended, exclusive of ail other current or fixed charges, not to exceed $7.50 per month.” (Italics ours.) Acts 41st Leg. (1929), First Called Session, chap. 2, § 1 (Vernon’s Ann. Civ. St. art. 2678a).

The law contains provisions by virtue of -whieh, in case a district from which the high school pupil is transferred is not able to pay his tuition in the district to which he is transferred, the state shall pay the excess amount. The enactment contains some other matters which, in the main, are simply for the purpose of putting into effect- the plan which we have briefly outlined. The last sentence of the measure provides that a district to which a high school pupil has been transferred “shall not be required to accept such a high school transfer as provided in this Act” until the sending district levies a certain specified tax. (Italics ours.)

The High School Tuition Act was passed. by the 41st Legislature (1st Called Sess. c. 2), but is substantially the same as the Act of the 40th Legislature (chapter 181), which it repealed, except it raised the maximum tuition provided for from $5 to $7.50 per month. The effect of both acts was to substitute their provisions severally for article 2678, R. S. 1925, which was a section of chapter 86, General Laws of the 34th Legislature, codified in chapter 11, title 49, of the R. S. 1925. These-acts named treated the same subject matter as article -267S; in fact, copied, a portion of that article, and must be regarded as amendments only of that article and of the chapter of the Revised Statutes of which it was a part. Board of Education v. Haworth, 274 Ill. 538, 113 N. E. 939. The act of 1915, ■codified as chapter 11, title 49, R. S. Í925, was a comprehensive measure confiding county school affairs largely to a county board of trustees, and providing for a system of classified schools in each county. Section 3 of that measure became article 2678 of the Revised Statutes, which as amended is the act before us for review.

- Section 4 of the original act of 1915 (chapter 36), which as codified became article 2081 of the R. S. of 1925, also related to, and yet relates to, the powers and duties of the county trustees with respect .to subdividing counties into school districts and mating changes in ■ district lines, etc. The last sentence in' this article of the statute, as originally enacted in 1915, and as it now exists in the code, reads as follows: “In providing better schooling for the children and in carrying out the provisions of article 2678, the county superintendent shall, on the recommendation of the county school trustees, transfer children of scholastic áge from one school district to another, and the amount of funds to be transferred with each child of scholastic age shall be the amount to which the district from which th,e child is transferred is entitled to receive.”

When the act of 1915 was passed, and the amendments to article 2678 enacted, the state already had a complete educational code, and these measures became a part of that code. All laws in pari materia must be construed together. 25 Ruling Case Law, p. 1060, § 285, p. 1063, § 287, p. 1067, §§ 291. 292: Ex parte Lipscomb, 111 Tex. 409, 417, 239 S. W. 1101, and eases cited; Houston Nat. Exch. Bank v. School Dist. (Tex. Civ. App.) 185 S. W. 589; Hunt v. Whiteaker & Washington-(Tex. Civ. App.) 230 S. W. 1096. In view of this rule, which is one of universal acceptation, there is no escaping the conclusion that the sentence quoted from article 2681 is to govern and does apply to every scholastic affected by the terms of article 2678 as amended. It means that the benefits of article 2678 (a‘s amended [article 2678a]) are to be received by transfer, and if the scholastic is not one subject to transfer, the provisions of the article have no application. In fact, article 2678 as amended shows this on its face. This act, among other things, declares, “if the high school attended receives the transfer of state and county funds for said student, cred; it shall be given for the amount of same.” (Italics ours.) The last sentence in the amended act declares: “Provided that the receiving district maintaining such a high school shall not be required to accept such a high school transfer as provided in this Act.' * * ⅜ ” (Italics ours.) It is perfectly plain from this language that under article -2678 as amended it is contemplated that every one entitled to its benefits and subject to its provisions should be capable of receiving “such a high school transfer as provided in this Act.” In addition to the transfer provisions above referred to, the statute at the time of the enactment of the law of 1915 contained, and at all times since has embraced, provisions for the “transfer of scholastics from one district to another.” R. S. 1925, arts. 2695, 2696, 2697, 2698, 2699. These statutes as a part of the educational code of the state applied to article 2678 (R. S. 1925), and now apply to the statute here involved. We will not discuss all the terms of these transfer statutes. Article 2699 contains a general provision which declares: “Bwcept as herein provided, no part of the school fund apportioned to any district or county shall he transferred to any other district or county.” (Italics ours.)

Article 2699 provides for consolidation and transfer in the case of county line districts, while article 2697 permits the transfer of a scholastic from a district in one county to an adjoining district in another county, upon a showing that the school in the district in which the pupil resides, on account of distance or some uncontrollable and dangerous obstacle, is inaccessible.

It is clear, we think, from a consideration of the various transfer statutes cited above, including the quoted provision from article 26S1, that scholastics cannot be transferred, under any circumstances, from the district in which they reside to another district, except under the transfer statutes.

The construction placed by the department of education on article 2678, as amended, does not restrict the act to students only who are subject to transfer, and the insistence is here made that students from Tarrant, Fannin, and Rockwall counties may attend the high school in Dallas, although they cannot be transferred under the transfer statutes. The ruling of the department is that there are three classes of nontransfer pupils who may become beneficiaries under the High School Tuition Law. These classes are:

“(a) Pupils who are within the scholastic age and, therefore, subject to transfer, but for whom no practicable arrangement can be made to attend the high school of a district into which they are eligible to transfer, * * *
“(b) Pupils within the scholastic age who have moved into a district subsequent to the taking of the scholastic census and are ineligible for transfer; and
“(c) Pupils who are within the free school age, hut above the scholastic age and not subject to transfer.”

Texas School Laws 1029, p. 17.

With this ruling we cannot agree. The transfer statutes are a part of the law which governs the educational system, and article 2678 must be read in the light of these statutes. We have shown that by article 2699 no part of the school fund apportioned- to any district or county can be transferred to any other district or county, except as provided by the transfer statutes. This is plain, unambiguous language, and any doubtful provision in article 2678 must be construed and limited by the' language of the article, which has been previously quoted. The general phrases of article 2678, as amended, such as, “the high school he [the scholastic] desires to attend,” and shall have his tuition “paid,” etc., “in any other high school recognized by either county or state,” etc., must, like every other provision of this statute, be read and interpreted in the light of all statutes in pari ma-teria, including those statutes which direct and specify the schools to which such a student may be transferred in accordance with the transfer statutes.

The suggestion in the departmental ruling referred to above that article 2678, as amended, gives the rights therein defined to pupils who are within the free school age but above the scholastic age, and therefore not. subject to transfer, is erroneous. Under the Constitution of this staté (article 7), there cannot be a pupil “within the free school age but above the scholastic age.” The scholastic age in this state is over six and under eighteen at the beginning of the scholastic year. Article 2902, R. S. 1925, as amended by Acts 1929, c. 97, § 1 (Vernon’s Ann. Civ. St. art. 2902) the article which has given rise to this erroneous construction, reads as follows: “All children, without regard to color, over six years of age and under eighteen years of age at the beginning of any scholastic year, shall be included in the scholastic census and shall be entitled to the benefit of the public school fund 'for that year. The board of school trustees of any city or town or independent or common school district shall admit to the benefits of the public schools any person over six and not over twenty-one years old at the beginning of the scholastic year, if such person or his parents or legal guardian reside within said city, town or district.”

It will be noted that -the portion of this statute defining the scholastic age declares that those within the age “shall be entitled to the benefit of the public school fund for that year.” This provision is worded in language long in use in the statutes of this state, and entitled the scholastic not only to the benefits of the public schools, but to the benefit of the public school fund. R. S. 1879, art. 3707 ; R. S. 1895, art. 3947; R. S. 1911, art. 2900. The subsequent portion of this article, to the effect that any person over six and not over twenty-one, etc., shall bo admitted “to the benefits of the public schools,” is a provision which came into the statutes by the Acts of 1913, page 175, c. 91, amending R. S. 1911, art. 2894, which was also in previous revisions, and permitted cities and towns which had voted local taxes to extend (as to them) the scholastic age and prescribe studies additional to those provided by law generally for free schools. R. S. 1879, art. 3789; R. S. 1895, art. 4029; R. S. 1911, art. 2894.

The codifiers in T925 combined article 2900 of the R. S. of 1911 and article 2894 as amended in 1913, and made the two articles read as first quoted above. Had it been the purpose of the Legislature or the codifiers to admit pupils over eighteen and under twenty-one to the public schools free, they could have expressed that purpose by simply substituting the words “twenty-one” for “eighteen.” But neither the Legislature nor the codifiers have done this,-nor have they said that those between eighteen and twenty-one should have the benefit of the “public school fund for that year.” They have said merely that such students shall be admitted “to the benefits of the public schools." Since the Legislature has used different words to express its ¡meaning, we must conclude that the language employed was not intended to express the same meaning. The phrase “benefit of the public school fund,” as used in our codes for more than fifty years, gave the student not only the benefit of the public schools, but of the public school fund as well. The words “benefits of the public schools” should be given a more restrictive meaning, and apply to those who are permitted to attend the public schools upon payment of tuition.

The Constitution requires that the available school fund shall be distributed to the counties of the state “according to their scholastic population.” Constitution, art. 7, § 5. When this Constitution was written, and at all times subsequent to the act of 1913, the term “scholastic population,” as applied to the public, free schools of the state, was well understood, and meant those who under the statutes of the state had the right to attend the public schools and receive the benefits of the public free school fund. If we say that article 2902, quoted above, gives- those eighteen years of age and under twenty-one the same rights as free school scholastics, then manifestly the scholastic ages provided for by that statute would be all over six years of age and under twenty-one—-which is not only in direct conflict with the first sentence of the act as quoted, but is in conflict with the general census and apportionment statutes of the state. R. S. 1925, arts. 2816, 2817, 2822, 2663.

If the Legislature had the right to fix the scholastic age at over six years and under eighteen, .and at the same time decree that all not over twenty-one could attend the public schools free, then the Legislature would have the same right and power -to say that the scholastic age should be over sics and under eight, and require the taking of a census of children only of those ages, and yet declare that all over six and under twenty-one could attend the public schools free, a statute which no one could seriously contend was constitutional. If we say those over eighteen and under -twenty-one have the right to attend the public schools free, by virtue of this statute, although they have not been enumerated as scholastics entitled to the benefit of the free school fund, then it is obvious that the census statutes and apportionment statutes do not have the effect of apportioning the available school fund to the counties in accordance with the constitutional mandate that it shall be distributed to the several counties according to their scholastic population, and they would therefore he void.

We deem it unnecessary to pursue the question further. It is too plain for argument that we must either say that pupils under eighteen and not over twenty-one are not to be regarded as free school pupils as of right, or we must say that our census and apportionment statutes are unconstitutional and void. This dilemma is easy of solution. It is plain enough that it is our duty to say that those over eighteen years of age 'and under twenty-one are not free school students as of right. Under article 2904 they may be admitted to the benefits of the public schools “on such terms as they [the trustees! may deem proper and just,” etc., but not otherwise.

For the reasons stated, we are compelled to say that article 2678, as amended, the High School Tuition Law, has no application whatever to students, either in or out of a county, who are not within the scholastic age; that is, over six and under eighteen. This conclusion, of course, is one entirely consistent with all of the terms of article 2678 and -the various transfer statutes, which show clearly that no students except those subject to transfer are entitled to the benefits of the Higñ School Tuition Act

It is obvious from what we have said that the. student relators from Fannin, Tar-rant, and Rockwall counties cannot be admitted to the high schools of Dallas county) unless they come within the terms of article 2697, permitting transfers to adjoining districts in other counties under certain conditions.

Our next inquiry will be as to whether or not the students resident of Dallas county must be admitted to the Dallas -schools upon payment of the maximum tuition specified in article 2678 as amended and copied above. This inquiry at the outset involves the determination of the extent of the legislative power over the various school districts of the state and the property within those districts belonging to them for school purposes.

The school district has been the basis of the public school system of Texas from the days of the Republic to the present time, as evidenced by constitutional provisions, statutes, and judicial opinion. Hartley’-s Digest, p. 78; Const, of the Republic, art. 8, § 2; Hartley’s Digest art. 891; Const, of 1861, art. 10, § 2; 5 Gammel’s Laws, p. 24; Const, of 1869, art. 9, § 7, 7 Gammel’s Laws, p. 418; Const, of 1876, art. 7, § 3, as amended in 1883, and subsequent amendments; Harris’ Anno. Const', pp. 515, 518; Vernon’s Anno. Const., vol. 2, p. 460; Act of August 13, 1870, 6 Gam-mel’s Laws, p. 288; Act of April 22, 1871, 6 Gammel’s Laws, p. 949; R. S. 1879, art. 3746 et seq., art. 3781 et seq.; R. S. 1895, arts. 3938 to 3956; R. S. 1911, title 48, chaps. 15, 16, 17, and 18 (article. 2815 et seq.); R. S. 1925, title 49, chaps. 11 and 13 (article 2676 et seq., and article 2741 et seq.); Vernon’s Complete Texas Statutes (1928), title 49, chap. 19A (Vernon’s Ann. Civ. St. arts. 2922a-2922Q; Willis v. Owen, 43 Tex. 41, 49.

The lands and school buildings of the school districts of Texas and those of its cities have been derived from many sources. In part, they have come from gifts and donations of land, labor, and money from the inhabitants of the school communities, districts, and cities of the state, as required or permitted by statutes. R. S. 1879, arts. 3771 to 3777; R. S. 1895, art. 3984. Funds for the purposes named were sometimes derived from lands originally donated to its municipalities by the Crown of Spain. 5 Gammel’s Laws, p. 195. Sometimes lands came to counties for school purposes by will. Bell County v. Alexander, 22 Tex. 351, 73 Am. Dec. 268. Occasional donations have been made in memory of some outstanding citizen, as evidenced by the gift of the Ball High School, costing hundreds of thousands of dollars, to the city of Galveston. The statutes from time to time ■have also provided that a certain amount from the available school fund apportioned td a school district or community could be used for building purposes. R. S. 1879, arts. 3771 to 3777; R. S. 1895, art. 3984. Local taxes have been levied for site and building purposes. 2 Gammel’s Laws, p. 1336; 4 Gam-mers Laws, p. 256; Acts of 1870 and 1871, § 3, 6 Gammel’s Laws, p. 288, p. 949; R. S. 1879, arts. 3781, 3792; Constitution, art. 7, § 3, beginning with the amendment of 1883; Harris’ Anno. Const., pp. 515, 517; Vernon’s An-no. Const, art. 7, § 3; R. S. 1895, Title 86, chaps. 10, 15, 16; R. S. 1911, title 48, chaps. 16, 17, and articles 2874, 924, 925; R. S. 1925, arts. 2784, 2796, 2799, 1027, 1029, and art. 1175, subsecs. 15, 32. School districts and cities and towns for a long period of time have been authorized to issue bonds for the purchase of sites and erection of school buildings. Authorities supra; R. S. 1895, arts. 4034, 486; R. S. 1911, arts. 2837 to 2843, 2857, 2874, 924, 925; R. S. 1925, title 49, chap. 13, arts. 2784 to 2789, 2796, 2797, and art. 1175, subsees. 10, 15, 32. The statutes have-also provided that tuition fees of pupils not entitled to free tuition, and funds derived from “other local sources” could be used for building sites and erection of buildings. R. 8. 1911, art. 2772; R. S. 1925, art. 2827. The amount which has been derived from the sources named and invested in buildings, grounds, and equipment for the public schools we have no means of ascertaining. That it is very large all know. Official reports, however, show that from 1914 to 1930 the school districts and cities of the state issued bonds for the purchase of school sites and erection of'buildings in the aggregate sum of $137,-734,594, of ' which amount $30,361,445 was issued by cities, such as Dallas, for school purposes. Reports of the Attorney General for the years 1914-1916, pp. 54, 72; 1916-1918, pp. 59, 76; 1918-1920, pp. 70, 89; 1920-1922, pp. 51, 72; 1922-1924,-pp. 76, 97; 1924-1926, pp. 79, 99; 1926-1928, pp. 51, 77; 1928-1930, pp. 70, 95.

The record in this case discloses that the city of Dallas has outstanding school bonds in the amount of $7,104,650, the proceeds of which were expended ..in providing building site®, buildings, and equipment for the public schools of the city.

The constitutional and statutory provisions under which the funds referred to above and under which sites have been obtained and school buildings erected during the entire history of our public schools are capable of no other construction than that these grounds so purchased and buildings so erected, though purchased and erected in view of and as a part of the method provided by the Legislature in its effort to establish and make suitable provision for the support and 'maintenance of an efficient system of free schools, were nevertheless so purchased and so erected for the ’benefit of the immediate community, district, or city in which they were located.

Section 3, art. 7, of the Constitution since first amended in 1883 has provided that the local taxes may be “levied and collected witlu-in such school districts for the further maintenance of public free schools and the erection of school buildings therein.”

The statutes prior to and since the adoption of this constitutional provision have been replete with provisions similar in purpose to that quoted.

Under the Code of 1879 the title to the school properties .within such city or town was vested in the mayor “in trust for the sole use of public free schools established under this chapter.” R. S. 1879, arts. 3781 to 3792.

District taxes voted under R. S. 1895 were for “the further maintenance of public free schools and the erection within each school district of school buildings therein.” R. S. 1895, arts. 3938a, 3984.

Chapter 15, R. S. 1895 (article 3994 et seq.), relates to free schools in towns and villages: By article 3995 the trustees of towps and* villages theretofore incorporated for school purposes were authorized to levy taxes “for the purpose of purchasing or constructing public free school buildings and sites therefor, within the limits of such incorporated district."

The title to school properties in incorporated towns and cities which had assumed control of their schools, by the Code of 1S95 was to “be vested in the board of trustees and their successors in office in trust for the use and benefit of the public free schools in rsuch city'or town.” R( S. 1895, art. 4013.

In certain cities and towns the title was vested in the mayor in trust for the sole use of the public free schools established m such cities or towns. R. S. 1895, art. 4032.

Article 3909, R. S. 1895, provided that bequests and conveyances oí property for public schools should vest the title in certain named officers “as the trustees for those to be benefited thereby.”

Subsequent codifications were in effect similar to those we have mentioned above. Authorities supra; R. S. 1911, arts. 2827, 2843, 2849, 2857, 2874, 924; R. S. 1925, arts. 2772, 27S4, 2796, 2799, 1027, 1028, and art. 1175, subsecs. 15, 32.

Early statutes, like the latest codifiéation, provided that the school property of districts and cities should vest in certain trustees or officers “as the trustees for. those to be benefited thereby," or “for the use and benefit of the public free schools in such city or town." R. S. 1925, arts. 2750, 2772; 9 Gammel’s Laws, 572; 7 Gammel’s Laws, p. 543; R. S. 1879, art. 3792. The various constitutional and statutory provisions cited also show that taxes levied in school districts and cities -for school purposes were and are levied for the benefit of the district or city, or the inhabitants thereof, and not for the school system of the state generally. From the beginning that part of the available school fund apportioned to any district or community has remained its property, although not immediately used. Various statutes sustain this view. Paschal’s Digest, art. 3538; R. S. 1879, art. 3732; R. S. 1895, art. 3935, sub-sec. e; R. S. 1911, art. 2770; R. S. 1925, art. 2831.

The statutes from 1879 to the present have clearly made those portions of the available school fund allocated to school communities, districts, and cities “special funds.” R. S. 1879, art. 3720; R. S. 1895, arts. 3923, 3924, 3920, 3926a, 3926b, 3928, 3934, 3934a; R. S. 1911, arts. 2729,-2735, 2745; R. S. 1925, arts. 2835, 2837, '2665. Since, when the available school fund has been apportioned to the counties, districts, and cities entitled thereto, it becomes a special fund, it cannot be diverted to any other use. Constitution, art. 8, § 7; Cooley on Taxation (4th Ed.) vol. 4, § 1819; School District v. Smith, 97 Or. 1, 191 P. 506.

-In view of the history of the subject and the statutory and constitutional provisions referred to above, it is plain, we think, that the property and funds of the public schools are held in trust by the city, district, county, or other statutory agency, to be used for the benefit of the school children, of the community or district in which the properties exist, or to which the school funds have been allocated. We think these properties and funds are so plainly and clearly impressed with a trust in favor of the local public schools of the city or district that they are within the protective claims of both the state and federal Constitutions, and that the Legislature is without power to devote them to any other purpose or to the use of any other beneficiary or beneficiaries. 24 Ruling Case Law, p. 593, § 47; Smisson v. State, 71 Tex. 222, 231, 9 S. W. 112; Milam County v. Bateman, 54 Tex. 153; Parks v. West, 102 Tex. 11, 17, 111 S. W. 726; Sun Mutual Ins. Co. v. Board of Liquidation, 31 La. Ann. p. 175, and other authorities post.

The insistence is made, however, that because the legislative power may be exerted to change the boundaries of school districts and cities, or to abolish them, that their school properties and funds are not protected by the due process and other clauses of the Constitution, and that, therefore, the relators may be given the privilege of attending the schools of Dallas upon such terms as the statute may prescribe. We shall examine these questions in the light of the facts of this case. The city of Dallas has more than $7,009,000 invested in school properties, paid or to be paid for by local taxation, and it raises each year by. local school taxes more than $2,000,-000. The cost per high school student in the Dallas schools in 1928-1929 was $13 per month (without taking into consideration the value of its buildings, etc.), of which amount $10.39 was for instructional service alone.

School districts are local public corporations of the same general character as municipal corporations. Thompson v. Elmo Ind. School Dist. (Tex. Civ. App.) 269 S. W. S68, 870; Royse Ind. School Dist. v. Reinhardt (Tex. Civ. App.) 159 S. W. 1010 (writ refused). They are defined as quasi-municipal corporations, and derive their powers by delegation from the state. They are state agencies, erected and employed for the purpose of administering the state’s system of public schools. 24 Ruling Case Law, pp. 502 to 565, §§ 6 and 7. Generally it must be said that the Legislature may from time to time, at its discretion, abolish school districts or enlarge or diminish their boundaries, or increase or modify or abrogate their powers. 24 Ruling Case Law, p. 563, § 6, and cases cited in note 17; p. 566, § 9; Thompson v. Elmo Ind. School Dist., supra. Cities and towns and municipal corporations arte of the same general nature as quasi-municipal corporations, in so far as here involved, and the right of the Legislature to create, abolish, enlarge, or restrict them in their territory or powers is, unless restrained by special constitutional provisions, similar to the authority of the Legislature over quasi-municipal corporations. Both are agencies of the government — the one with a more linlited sphere than the other. Cooley’s Constitutional Limitations (7th Ed.) vol. 1, p. 393; Thompson v. Elmo Ind. School Dist., supra. This opinion necessarily deals with both types of public corporations, and it is , not believed that the rules of law as to school property rights are different. However plenary the powers of the Legislature may be over municipal and quasi-municipal corporations, there are well-recognized limitations. Cooley’s Constitutional Limitations (7th Ed.)_ vol. 1, p. 488. Among these limitations is that which denies the power of the Legislature to impose debts and obligations not within the ordinary functions of municipal government. Cooley’s Constitutional Limitations (7th Ed.) vol. 1, p. 405; Callam v. Saginaw, 50 Mich. 7, 14 N. W. 677; Hasbrouck v. Milwaukee, 13 Wis. 37, 80 Am. Dec. 718; People v. Batchellor, 53 N. Y. 128, 13 Am. Rep. 480; Asbury v. Albemarle, 162 N. C. 247, 78 S. E. 146, 44 L. E. A. (N. S.) 1189; People v. Mayor, etc., of City of Chicago, 51 Ill. 17, 2 Am. Rep. 278.

Since the Constitution, art. 7, § 3, contemplates that districts shall be organized and taxes levied for the education of scholas-tics within the districts, it is obvious that the education of nonresident scholastics is not within their ordinary functions as quasi-municipal corporations; and under the authorities cited the Legislature is without power to impose such an obligation on them, without just compensation. Aside from this rule, the necessary implication from the constitutional provision is that the Legislature cannot compel one district to construct buildings and levy taxes for the education of nonresident pupils. " The Legislature, by section 3, art. 7, is only authorized to permit school districts to impose taxes for these purposes for schools within the district, and to say that the Legislature can compel a district to admit nonresidents without just compensation would be permitting that department to do indirectly what it admittedly cannot do directly.

We pass now to a second limitation on the power of the Legislature — that relating to municipal and quasi-municipal corporation property. The rule is. that the ownership of such property is in the local district or municipality for the benefit of the public, within thé boundaries of the district or municipality. The Legislature may control or dispose .of the property without the consent of the local bodies, so long as it does not qpply it in contravention of the trust. 24 Euling Case Law, p. 581, § 30. The same rule applies to school_ funds as to other property. Such funds are trust funds for educational purposes. 24 Euling Case Law, p. 593, § 47. The text cited declares: “School funds are held to be trust funds for educational purposes. Such funds do not belong to the district or to the officers of the district, but are merely held by them in trust for the public. The courts will not permit school funds to be diverted to other even though closely kindred uses, no matter how meritorious the project may appear to be either in its practical or ethical or sentimental aspects. Even the legislature itself, the fountain head of matters educational, cannot divert school funds to other uses.” 24 Ruling Case Law, pp. 593, 594, § 47, p. 592, § 45.

In section 48 the same authority declares: “School funds are not only impressed with á general educational trust, but in many eases they are impressed with a special trust limiting their use to special educational spheres, and in such case, of course, they can be used for no other.” 24 Ruling Case Law, p. 594, § 48,

We think the Supreme Court of Arkansas, in the case of Pearson v. State, 56 Ark. 148,19 S. W. 499, 35 Am. St. Rep. 91, correctly stated the rule as to legislative power over school districts, and over school district properties or other municipal properties. The court in part said: “The statement that counties . and school districts are agencies of the state, and therefore subject to legislative control or annihilation, is a misleading generality. The corporate entity is a legislative creation, and its powers-may be restrained, its functions changed, or its existence destroyed at the will of the legislature; but, in so far as it has acquired and holds property, it is but a trustee for the local ..public; and, although its powers be withdrawn or its existence ended, the property which survives it belongs to the same public, and must be, in some way, applied to its use. It has no contract right to exist as a corporation, but the public that it represents has a vested right' in the municipal property acquired' for its benefit, and is entitled to demand that such property be applied to its uses. Cooley, Const. Lim. (6th Ed.) p. 291; Lucas v. Board of Com’rs, 44 Ind. 524; Skinkle v. Essex Road Board, 47 N. J. Law, 93; Town of Milwaukee v. City of Milwaukee, 12 Wis. 93; Essex Public Road Board v. Skinkle, 140 U. S. 334, 11 S. Ct. 790, 35 L. Ed. 446; New Orleans v. New Orleans Waterworks Co., 142 U. S. 79, 12 S. Ct. 142, 35 L. Ed. 943 Hasbrouck v. Milwaukee, 13 Wis. 50, 80 Am. Dec. 718; State v. Haben, 22 Wis. 660; People v. Hurlbut, 24 Mich. 95, 9 Am. Rep. 103; Board of Park Com’rs v. Common Council, 28 Mich. 228, 15 Am. Rep. 202; Spaulding v. Andover, 54 N. H. 38; Trustees of Aberdeen Female Academy v. Mayor, etc., 13 Smedes & M. [21 Miss.] 645; 1 Dill. Mun. Corp. § 68a; Town of Guilford v. Supervisors, etc., 13 N. Y. 149.” Pearson v. State, 56 Ark. 148, 19 S. W. 499, 500, 35 Am. St. Rep. 91, 93.

Not only is this a correct statement of the rule, but it is the one accepted by the best writers and courts of the country. It is stated by Judge Cooley as follows:

“The rule upon the subject we take to be this: when corporate powers are conferred, there is an implied compact between the State and the corporators that the property which they are given the capacity to acquire for corporate purposes, under their charter shall not fee taken from them and appropriated to other uses. If the State grants property to the corporation, the grant is an executed contract, which cannot be revoked. The rights acquired, either by such grants or by any other legitimate mode in which such a corporation can acquire property, are vested rights, and cannot be taken away. * * ⅜
“This restriction is not the less applicable where eorpoi'ate powers are abolished than it is in other cases; and whatever might be the nature of the public property which the corporation had acquired, and whatever the purpose of the acquisition, the legislature, when by taking away the corporate authority it became vested with the control of the property,' would be under obligation to dispose of it in such manner as to give the original corporators the benefit thereof by putting it to the use designed, if still practicable, or to some kindred or equally beneficial use having reference to the altered condition of things.”

Cooley’s. Constitutional Limitations (7th Ed.) vol. 1, pp. 502 to 507.

The quotation ,from Judge Cooley’s work is made by him applicable to all classes of municipal corporations, including those of a quasi character. When he writes directly on school districts and other quasi-municipal corporations, he declares the same rule as to property. Cooley’s Constitutional Limitations (7th Ed.) vol. 1, pp. 508, 509, 563,.565.

It was said by different Judges in their separate opinions in the Dartmouth College Case, 4 Wheat. 518, 694, 4 L. Ed. 629, that the power of the Legislature over the property of corporations purely public was not absolute or unlimited, and it is now established that though such property is subject to very broad legislative legislation, its confiscation or diversion is prohibited by both the federal and state Constitutions. Pearson v. State, 56 Ark. 148, 19 S. W. 499, 35 Am. St. Rep. 91, 92; Cooley’s Constitutional Limitations (7th Ed.) Yol. 1, pp. 499 to 502.

Judge Story, in his opinion in the Dartmouth College Case, supra, said in substance that while it may be admitted that corporations for mere public government, such as towns, cities, and counties, may in many respects be subject to legislative control, “it will hardly be contended, that even in respect to such corporations, the legislative power is so transcendent, that it may at its will take away the private property of the corporation, or change the uses of Us private funds acquired under the public faith.’’ In part he also said:

“If a municipal corporation be capable of holding devises and legacies to charitable uses (as many municipal corporations are), does the legislature, under our forms of limited government, possess the authority to seize upon those funds; and appropriate them to other uses, at its own arbitrary pleasure, .against the will of the donors and donees? Prom the very nature of our governments, the public faith is pledged the other way; and tliat pledge constitutes a valid compact; and that compact is subject only to judicial inquiry, construction, and abrogation. This Court have already had occasion, in other causes, to express their opinion on this subject; and there is not the slightest inclination to retract it. Terrett v. Taylor, 9 Cranch, 43 [3 L. Ed. 650]; Town of Pawlet v. Clark, 9 Cranch, 292 [3 L. Ed. 735]. * * *
“The truth is, that the government has -no power to revoke a grant, even of its own funds, when given to a prwate person, or a corporation for special uses. It cannot recall its own endowments granted to any hospital, or college, or city, or town, for the use of such corporations. The only authority remaining to the government is judicial, to ascertain the validity of the grant, to enforce its proper uses, to suppress frauds, and, if the uses are charitable, to secure their regular administration through the means of equitable tribunals, in cases where there would otherwise be a failure of justice.” 4 Wheat. 694, 698, 4 L. Ed. 629; Cooley’s Constitutional Limitations (7th Ed.) vol. 1, pp. 500, 501. (Italics ours.)

Judge Dillon, in his exhaustive work on municipal corporations, after adverting to the power of the Legislature over municipal corporations, states: “That property acquired and owned by a municipal corporation by legislative consent is not subject to an unlimited power of the legislature over it, is consonant with natural justice. The need of having property and of property fights is one of the main reasons why municipal corporations are created. This is strongly expressed by Savigny in respect of municipal corporations in ancient Rome. If a municipal corporation, as representing a distinct community, be regarded as a legal person, the legislature in effect says to it, ‘Yom may at your own expense acquire property’; and if it acts on such permission, the courts may, perhaps, fairly deduce a contract that the legislature, while it may regulate or change the uses of such property, will not deprive the corporation of it. Accordingly, the weight of opinion seems to be in favor of the doctrine that there may be, in such corporations, rights under contracts and grants which are beyond destruction by the legislature, though not beyond legitimate legislative authority and control.” Dillon on Municipal Corporations, (5th Ed.) vol. 1, p. 186, § 111, and cases cited in the notes.

After discussing the question quite at length, Judge Diilon states his own conclusion in a summary of the rule as follows: “It is believed by the author, for the reasons suggested in this chapter, that while the legislature has full power of legitimate regulation and control, it cannot deprive them (that is, in essence, the people of the locality at whose expense it has been acquired or for whose benefit it was granted) of such property. It is in effect fastened with a trust for the incorporated municipality as long as the legislature suffers it to live, and for the benefit of the people of the locality if the corporate entity which represents their rights shall be dissolved.” Dillon 'on Municipal Corporations (50¾ Ed.) vol. 1, p. 192, § 112.

What has been said is consistent with the decisions in this state. In the case of Milam County v. Bateman, 54 Tex. 153, this court held that the grant of four leagues of land to the counties of the state for sdhool purposes conferred a vested right, protected by the same constitutional guaranties which protect the property of the citizen. After adverting to the fact that political rights and privileges are not within the constitutional prohibitions against retroactive laws which impair vested rights, the court in part said:

“A different principle, however, obtains as regards the rights of counties to property which they may acquire. Such rights, as a general rule, are protected by the same constitutional guarantees which shield the property of individuals. Cooley’s Const. Lim., 237, 277; Grogan v. San Francisco, 18 Cal. 590.
“Even though the state itself may have donated the property, it thereby becomes such vested right as will be protected. Wade on Retroactive Laws, § 56; Grogan v. San Francisco, 18 Cal. 590.
“If given for a specific .object, the state may very properly, as in the instance under consideration of our school lands granted to counties, exercise such supervisioñ and control over the actions of the counties as to compel the proper execution of the trust, or prevent its being defeated; but it is believed that this control, unless 'by the consent of the county, should be subject to the restriction, that the purpose for which the property was originally acquired shall, as far as circumstances will admit, be kept in view; and that it shall not arbitrarily be diverted, as in the case before us, to private parties and to a wholly different purpose. Cooley’s Const. Lim., 238, and authorities in note 3. In relation to these school lands, the county, through agents for the state, may be compared to agencies coupled with an interest, which cannot be revoked at the pleasure of the principal. * * *
“Here the question in this connection is, that if the existing county of Milam had acquired the right to the lands in controversy, for public educational purposes, under a constitutional and statutory right common to all the counties of Texas, could the state, by the legislative act of July 21, 1870, arbitrarily take from the county this land and give it to private parties and for a private purpose?
“That the state could not do this because it would impair a vested right, we think beyond question.”

A similar holding was made by the Court of Civil Appeals in the ease of Simpson v. Pontotoc C. C. Line School Dist., 275 S. W. 449, 451 (writ' refused); Ellwood v. Stallcup, 57 Tex. Civ. App. 343, 122 S. W. 906 (writ refused) is to the same effect. That the rights of school districts as trustees for their inhabitants are vested rights is also shown by our statutes, which require an adjustment of property rights between districts where by change ,of boundaries the school properties of one district are placed within the limits of another. R. S. 1925, art. 2804; Washington Heights I. School Dist. v. City of Fort Worth (Tex. Civ. App.) 251 S. W. 341; Lyford Ind. School Dist. v. Willamar Ind. School Dist. (Tex. Com. App.) 34 S.W. (2d) 854. In such a case the funds raised by local taxation are to be apportioned. Porter v. State, 78 Tex. 591, 14 S. W. 794. Other authorities support the rule we have announced. Vincennes University v. State of Indiana, 14 How. 268, 14 L. Ed. 416; Board of Education v. Blodgett, 155 Ill. 441, 40 N. E. 1025, 31 L. R. A. 70, 73, 46 Am. St. Rep. 348; State of Indiana v. Township, 6 Ind. 83; Kent’s Commentaries (13th Ed.) vol. 2, § 306, p. 419, and notes p. 420; McQuillin on Municipal Corporations (2d Ed.) vol. 1, §§■ 189, 238, 243, 245, 257. We have carefully read and considered all authorities to which able counsel have directed our attention, but the length of this opinion prevents a review thereof.

On the whole, we believe there can be no doubt that the school districts and cities having charge of their schools, such as the city of Dallas, as trustees for their inhabitants, have a vested right in the lands, buildings, and ot¿er properties of their schools; that they have a similar vested right in their public school funds from every source, including those derived from local taxation, county school funds, and appor-tionments from the state available school fund. Public schools, however, are in a general sense State schools, and subject to reasonable regulation. 24 R. O. L. p. 558, §§ 2, 3; Webb County v. Board of School Trustees, 95 Tex. 131, 65 S. W. 878. For more than fifty years statutes have been in effect permitting transfers from one school district to another, and some consideration must be given to the construction of the Constitution which the 'enactment of these statutes implies. Since the Constitution does not permit the taxation of the people of a school district for the support of that district, except upon a vote of the people of the district, it is not debatable that the Legislature cannot compel one -district to use its funds and properties for the education of scholastics from another district, without just compensation. However, in view of the long operation- of the transfer statutes, we believe that where a school district has facilities and teachers in excess of those necessary,for its own scholastics, the state has the power to require it to accept transfers from another district, but only upon the payment of reasonable compensation therefor. Authorities supra; Irvin v. Gregory, 86 Ga. 605, 13 S. E. 120, and other cases cited in the opinion of the Court of Civil Appeals; Slocomb v. Cameron, etc., Dist., 116 Tex. 288, 288 S. W. 1064. The Legislature, however, is without power to compel any district to provide additional facilities, teachers, etc., for the education of scholastics from another district.

It is well settled .that the Legislature is without power to require counties, cities, and towns’ to pay an arbitrary price for labor or commodities; that the power thus to confiscate the property of citizens is not one of the powers of that body over municipal corporations, nor the legitimate use of such corporations as agencies 'of the state. Cooley’s Const. Lim. (7th Ed.) vol. 1, notes p. 506; Street v. Varney Elec. Supply Co., 160 Ind. 338, 66 N. E. 895, 61 L. R. A. 154, 98 Am. St. Rep. 325; People v. Coler, 166 N. Y. 1, 59 N. E. 716, 52 L. R. A. 814, 82 Am. St. Rep. 605. For the same reason a school district cannot be compelled to render a service to a nonresident scholastic for less than a reasonable tuition fee. Such an attempt on the part of the Legislature to thus confiscate the property of its taxpayers would not be a legitimate use of such a quasi-municipal corporation as an agency of the State. As to what would be reasonable compensation, must depend upon the facts of each particular case. We do not think that, as a matter of law, any element which 'enters into the cost of the school system, or the expense of its maintenance, can 'be excluded in determining what would be a reasonable compensation, although in special cases, where the admission of nonresident scholas-tics would be of compensating advantage to the district, a less amount than that found upon a consideration of all factors might be reasonable. The law before us excludes from view, in the determination of a proper charge for transferred scholastics, everything except the actual cost of teaching service, and then limits the tuition fee to $7.50 per month, even though the cost of that service might be in excess of this amount, as it is in excess of it in the case of the Hallas schools. If we should say that this statute is mandatory, and regardless of other factors which are necessary 'to be considered in determining what would be a reasonable tuition fee, the city of Balias must accept transferred pupils under it,, then we would be compelled to say that the statute is unconstitutional and void. We think, however, in view of the construction we have given the act, that is that it applies only to pupils subject to the transfer statutes, its validity may be sustained to the extent of permitting it to apply to those districts whose trustees have decided that the acceptance of nonresident scholastics at a rate not in excess of the statutory amount will not be a detriment and may be of advantage to their districts and compensatory for the facilities and services rendered. In other words, under our interpretation of the act, in connection with the transfer statutes, a sound discretion is left to the local school boards to determine whether or not, in view of all the circumstances surrounding their districts, the admission of nonresident scholastics will he prejudicial to the scholastics of their districts, and whether or not the statutory fee would be compensatory. The discretion to be exercised by the local boards is quite similar to that which the statute has always permitted them to exercise with reference to the admission of “pupils over and under scholastic age, either in or out of the, district” into their schools. The control of our public schools has always been vested in local boards, and at no time have they had the right to admit pupils who pay tuition, when such admission would be prejudicial to the free school pupils of -their districts. R. S. 1879, art. 3757 ;-R. S. 1895, art. 3980; R. S. 1911, art. 2902; R. S. 1925, art. 2904. The purpose of these statutes was not only to fix -a sound public policy, but to make certain that the free school funds and properties would be devoted solely to the education of scholastics entitled thereto within the district or city. This ■ reason, the basis of those statutes, makes it necessary for the local trustees to exercise a similar authority in the admission or rejection of nonresident scholastics who seek admission by transfer under the. act before us. This discretion to be exercised by the local 'boards will'not be disturbed by -the courts, except in cases of manifest abuse. Todd v. Board of Education, 54 N. D. 235, 209 N. W. 369, 371; 24 Ruling Case Law, p. 575, § 24.

We are therefore of the opinion:

First. That nonresident scholastics can attend the schools of Balias county only when they come within the transfer statutes' heretofore referred to. The relators from Tar-rant, Fannin, and Rockwall counties do not come within any of these statutes, and are not entitled to any relief.

Second. That only scholastics within the scholastic age are entitled to attend the pub-lie schools free, and can be transferred only in compliance with the terms of some one of the various transfer statutes we have heretofore named.

Third. Giving the statute involved (article 2678 as amended) the interpretation we have given it, that is, that its application is limited to scholastics of free school age subject to transfer, and that the admission of nonresident scholastics is subject to the exercise of the discretionary powers of local hoards, as heretofore stated, the act is not necessarily unconstitutional, but may apply under the rules hereinbefore stated.

Fourth. That the refusal of the Dallas school board to admit the Dallas county re-lators into its high schools was not, under the. record before us, an abuse of discretion, and will not be disturbed.

It' follows from what we have said that we are of the opinion that the Court of Civil Appeals made a correct disposition of this case, and the judgment of that court is accordingly affirmed.


source: Caselaw Access Project

author: CURETON, C. J.

license: Public Domain

text:
    MUMME et al. v. MARRS, Superintendent of Public Instruction, et al.
    No. 17401.
    Supreme Court of Texas.
    May 16, 1931.

      King & York, of Austin, for plaintiffs in error.
    Robert Lee Bobbitt, formerly Atty. Gen., and Rice M. Tilley, formerly Asst. Atty. Gen., for defendants in error.
   CURETON, C. J.

This case is pending before us on petition for writ of error. The action was originally brought in the district court by Lillie Mae Mumme, a minor within the scholastic age,, pupil of a rural school in Medina county having less than 20 scholastics,. and by Mrs. Louise Mumme, a taxpayer of that county. The cause was heard on an application for a temporary injunction, which was granted in favor of Mrs. Mumme, but denied as to the minor plaintiff. On appeal to the Court of Civil Appeals, the order granting the injunction was reversed, and the application therefor denied. 25 S.W.(2d) 215. The sole question involved is the constitutionality- of the Rural Aid Appropriation Act, effective for the biennium beginning September 1, 1929.

The law involved is chapter 14, General Laws of the Third Called Session of the Forty-First Legislature (1929). Section 1 thereof states its general object as follows: “For the purpose of promoting the public school interest of rural schools and equalizing the edu-eational opportunities afforded by tbe State to all children of scholastic age living in small and financially weak school districts.”

The act is a complete law governing the distribution of the $5,000,000 appropriated for the two-year period.

The constitutional provisions primarily invoked against the validity of the act are those which in effect prohibit discriminatory and class legislation, and section 5 of article 7, which defines the “available school fund,” and declares this fund “shall be distributed to the several counties according to their scholastic population.” The insistence is strongly made that appropriations from the general fund of the state for common school purposes can only be made in accordance with this provision. We have concluded, however, .that the limitation quoted has no application to the act before us, and that the objection urged against the validity of the act is without merit. Our reasons for this conclusion will now be stated.

The history of educational legislation in this state shows that the provisions of article 7, the educational article of the Constitution, have never been regarded as limitations by implication on the general power of the Legislature to pass laws upon the subject of education. This article discloses a well-considered purpose on the part of those who framed it to bring about the establishment and maintenance of a comprehensive system of public education, consisting of a general public free school system and a system of higher education. Three institutions of higher learning were expressly provided for. Constitution, article 7, §§ 10 to 15. These express requirements of the Constitution'have been met by the creation and maintenance of the University of Texas, the Agricultural and Mechanical College, and the Prairie View Normal. The Legislature, however, has gone far beyond the creation of the three institutions of higher learning specifically required by the organic law, and has created ten additional institutions of similar character without direct constitutional grant, beginning with the Sam Houston Normal at Huntsville in 1879. Marrs’ Texas School Laws (Ed. 1929). In founding these ten institutions, beginning more than fifty years ago, the Legislature has necessarily held that the specific grants of power contained in the Constitution to erect and maintain the University of Texas, the A. & M. College, and Prairie View Normal were not limitations on its power to create other schools of similar purpose, and to maintain them by appropriations from the general revenue. This interpretation has never been questioned, and is consistent with authorities from other jurisdictions. 24 R. C. L. p. 561, § 3; Briggs v. Johnson County, 4 Fed. Cas. 120, No. 1,872; Burr v. City of Carbondale, 76 Ill. 455; State Female Normal School v. Auditors, 79 Va. 233; Ransom v. Rutherford County, 123 Tenn. 1, 130 S. W. 1057, Ann. Cas. 1912B, page 1356, and annotations. See, also, In re Kindergarten Schools, 18 Colo. 234, 32 P. 422, 19 L. R. A. 469.

The Legislature, in obedience to the constitutional mandate, has created a public school system, and the act here in controversy is a part of the legislative effort to make it an efficient one. This system now has five general sources of support expressly provided for in the Constitution: (1) The income from the permanent school fund; (2) one-fourth of the revenue from occupation taxes and poll taxes; (3) local school taxes by districts; (4) an ad valorem state school tax; and (5) appropriations by the Legislature from the general funds of the state. '

The insistence is made that all appropriations from the general revenue must necessarily be made a part of the available school fund, and be apportioned to the counties in accordance with their scholastic population, as provided in article 7, § 5, of the Constitution. We cannot agree with this interpretation of the organic law. As just shown above, the Constitution has been liberally construed with reference to the creation of institutions of higher education, and the same liberal rules should apply in determining the power of the Legislature with reference to the public school system. We cannot readily suppose that those who framed the Constitution would have left the Legislature with plenary power to create and maintain a system of higher education, and at the same time have intentionally so drawn the instrument that the legislative hands would be tied when changed conditions rendered it desirable or necessary to give aid to the public school system in the manner outlined in the law before us.

That the enumeration in the Constitution of what the Legislature may or shall do in providing a system of education is not to be regarded as a limitation on the general power of the Legislature to pass laws on the subject is shown by the decision of the Court of Appeals in Ex parte Cooper, 3 Tex. App. page 489, 30 Am. Rep. 152, as well as by the, history of legislation touching the subject of education. In the case named, the court had before it a legislative act which levied a privilege tax. There was urged against its validity the provision thereof which declared that ‘this tax, when collected, should be “paid into the county treasury for the use and benefit of public free schools in the county.” It was pointed out that section 3 of article 7 of the Constitution, as it then existed, declared that not more than “one-fourth of the general revenue of the State, and a poll tax of one dollar on all male inhabitants,” etc., could be set' apart for the benefit of. the public free schools. It was argued that this provision was .a limitation on the power of the Legislature to set apart any tax other than one-fourth of the general revenue and the poll tax for school purposes. The court held that the insistence was erroneous, and that the tax and its assignment to free school purposes was valid, stating: “We do not think the position well taken; the section mentioned, as we conceive, only intended to.limit and restrict the Legislature in using and appropriating out of the general revenue for school purposes to the amount specified, and not as a limit to their right to replenish, or add to, the school fund from other sources.” (Italics ours.)

This case is clearly authority for the proposition that, in ascertaining the power, which the Legislature may constitutionally exercise with reference to the school system, we are not to limit or restrict that power, including the power to assign revenue derived from sources other than those specifically named, to the school fund, unless we find in the Constitution itself a specific limitation, or one which arises by necessary implication from the language used. This decision was made in 1878, only two years after the adoption of the Constitution. After this decision, in 1883, section 3 of article 7 of the Constitution was amended, and in that amendment, as in each subsequent amendment thereof, down to the present time, the limitation as to funds which could be appropriated from the general revenue was omitted, and there is now no express limitation in the section as to appropriations which may be made from the general revenue. Beginning in 1915, eight general laws making appropriations from the general revenue in aid of rural schools have been enacted. The acts of 1915 and 1917 were passed before the adoption of the amendment to section 3, article 7, which in express terms authorized the Legislature to make an appropriation out of the general revenue to supplement the available school fund otherwise provided for. General Laws, First Called Session, 34th Leg. (1915), p. 22, c. 10; General Laws 35th Leg. (1917), p. 151, c. 80; Harris’ Anno. Const, p. 51T. The act of 1915, in so far as we know, was unchallenged in the nourts, and its essential elements have been embraced in each succeeding enactment, including the one now before the court for review.

In 1917, however, the Legislature submitted, and in November, 1918, the people adopted, an amendment of section 3, article 7, which contained a special grant of power to the Legislature to make appropriations from the general revenue, which, in so far as here involved, then read, and now reads, as follows: “Provided, however, that should the limit of taxation herein named be insufficient the deficit may b.e made by appropriation from the general funds of the State.” ''See Gen. Laws 35th Leg. (1917) p. 503.

i Following the adoption of this amendment, the Legislature in 1919 passed a rural aid law with an appropriation of $4,000,000, the act being similar in principle and in purpose to the one before the court, and in another act appropriated $1,000,000 to become “a part of the available school fund.” Gen. Laws 36th Leg. (1919) pp. 105, 135, cc. 65, 84. The enactment of these two m'easures was a plain interpretation of the language just quoted from section 3, article 7, as it then existed, and as it now exists, as authorizing appropriations, not only subject to the limitation of section 5, article 7, but independent of and not subject to that limitation.

This Legislature, within five days after having thus construed the Oonstitution, submitted an amendment to section 3, article 7, cohtaining, in so far as here involved, the identical language in the then existing section as previously amended, which we have quoted above. See Gen. Laws 36th Leg. (1919) p. 356. This amendment was adopted by the people in November, 1920, after the above legislative and executive constructions of the language employed.

In each of the years 192Í, 1923, and 1925, the Legislature passed Rural Aid Acts similar to those previously enacted, and made appropriations therefor (Gen. Laws, First Called Session, 37th Leg. [1921] p. 141, c. 43; Gen. Laws 38th Leg. [1923] p. 39, e. 23: Gen. Laws 39th Leg. [1925] p. 292, c. 113 [Vernon’s Ann. Civ. St. . arts. 2922tn-2922zz]). While the last-named measure was before the Legislature, and on the very day it was finally enacted, the House voted to submit to the people an amendment to section 3, article 7, of the Constitution, which in so far as herein involved contained the same language as the previous amendment. House Journal, 39th Leg., p. 1702; Senate Journal, 39th Leg., p. 1163. The amendment was adopted by the people in November, 1926. Following the adoption of this amendment, the Legislature in June, 1927, once more passed a Rural Aid Act, similar in purpose and effect to those previously enacted, as well as to the existing law. The Fortieth Legislature passed an act appropriating $1,000,000 to become a part of “the available school fund.” Gen, Laws, First Called Session, 40th Leg. (1927) pp. 105, 173, cc. 36, 62. We thus find that the Legislature again construed the language of the Constitution to mean that it had the power to appropriate from the general funds of the state, and to make the appropriation free from or subject to the limitations of section 5 of article 7.

In July, 1929, the Third Called Session of the' Forty-First Legislature passed the Rural Aid Act under review, as well as an act to supplement in amount the appropriation made by the previous Legislature for the same purpose. Gen. Laws, Second and Third Called Sessions, 41st Leg. (1929) p. 252, c. 14; page 19, e. 13. Such in outline is the history of the subject.

The Legislature at eight biennial sessions has interpreted the Constitution as .it existed in 1915, and as subsequently amended, as containing no limitation on the right of the Legislature to appropriate money from the general revenue of the state for the support of the public free schools of the state. In the light of this legislative history, as well as that of the executive department of the government in executing the laws referred to, we would not be justified in saying that the constitutional power of the Legislature to pass the law before us did not exist unless we could find in the organic law some plain and unambiguous limitation on the right. . 9 Texas Jurisprudence, p. 439, § 27; 6 Ruling Case Law, p. 62, §§ 59, 63; Cooley’s Const. Lini. (8th Ed.) p. 144; Walker v. Meyers, 114 Tex. 225, 232, 266 S. W. 499. There is no such limitation in the Constitution, líhe limitation in section’ 5, article 7, declaring that the available school fund “must be appropriated to counties according to scholastic population,” has always applied, and now applies, only to the “available school fund,” which is clearly defined in that section. Constitutional provisions, like statutes, are/properly to be interpreted in the light of conditions existing at the time of their adoption, the general spirit of the times, and the prevailing sentiments of the people. 6 Ruling Case Law, p. 51, § 46; Koy v. Schneider, 110 Tex. 369, 378, 218 S. W. 479, 221 S. W. 880; Williams v. Carroll (Tex. Civ. App.) 182 S. W. 29; San Antonio Ind. School Dist. v. State (Tex. Civ. App.) 173 S. W. 525; 9 Texas Jurisprudence, p. 437, § 26, p. 434, § 23. The people were acquainted with the benefits of the Rural Aid Law, and thoroughly understood its purposes and operation in 1917, when the constitutional amendment expressly áuthoriz-ing appropriations from the general funds of the state was submitted and adopted; and a conclusion that by the constitutional amendment of 1917, and the subsequent amendments of section 3, article 7, heretofore referred to, they intended to prohibit the Legislature from continuing the rural aid appropriations in conformity with then existing laws, would not only be unreasonable but contrary, we believe, to the actual facts.

As has been shown, the Legislature since 1915 has consistently construed the Constitution as permitting the enactment of rural aid measures, and the executive department has approved and executed these laws. The universal rule of construction is that legislative and executive interpretations of the organic law, acquiesced in and long continued, as in the case before us, are of great weight in determining the .validity of any act, and in case of ambiguity or doubt mil be followed by the courts, 9 Texas Jurisprudence, p. 439, § 27; 6 Ruling Case Law, p. 62, §§ 59, 60, 61, 62; Cox v. Robison, 105 Tex. 426, 439, 150 S. W. 1149; Gulf, C. & S. F. Ry. Co. v. Dallas (Tex. Com. App.) 16 S.W. (2d) 292, 294; Greene v. Robison, 117 Tex. 516, 535, 8 S.W.(2d) 655; Theisen v. Robison, 117 Tex. 489, 8 S.W.(2d) 646; Walker v. Meyers, 114 Tex. 225, 266 S. W. 499; Kimbrough v. Barnett, 93 Tex. 301, 55 S. W. 120. In addition, and we think this completely forecloses the matter, the language used in the amendment to section 3, article 7, in 1917, after having been interpreted by the legislative and executive departments as not being subject to the limitation expressed in section 5, has been readopted by the people over and over again during the existence of rural aid statutes. Under a familiar rule of interpretation the readoption of the amendment with the same language formerly employed, without change or limitation, carries with it the meaning which the legislative department ha'd theretofore put upon it. 12 Corpus Juris, p. 717; 6 Ruling Case Law, p. 54; Cox v. Robi-son, 105 T.ex. 426, 439, 150 S. W. 1149.

We pass now to a consideration of the question as to whether or not the act before us vio* lates the due process and equal protection clauses of the Constitution (article 1, §§ 3, 19).

Under our Constitution, public education is a division or department of the government, the affairs of which are administered by public officers, and in the conduct of which the Legislature has all legislative power not denied it by the Constitution. State Const, art. 7; art. 3, § 42; Cooley’s Const. Lim. (8th Ed.) vol. 1, p. 176; 9 Texas Jurisprudence, p. 453, § 38; El Dorado Ind. School Dist. v. Tisdale (Tex. Com. App.) 3 S.W.(2d) 420; Ferguson v. Academy Consol. Ind. School Dist. (Tex. Civ. App.) 14 S.W.2d) 1051; 24 Ruling Case Law, p. 558, § 2.

Under the Constitution, our public schools are essentially state schools, and authority to control their operation, except as otherwise provided, is included among the powers conferred upon the Legislature. Webb County v. School Trustees, 95 Tex. 132, 135, 65 S. W. 878; Constitution, art. 7.

Section 1 of article 7 of the Constitution reads: “A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the legislature of the State 'to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.”

The purpose of -this section as written was not only to recognize the inherent power in the Legislature to establish an educational system for the state, but also to make it the mandatory duty of that department to do so. Associated Schools v. School District, 122 Minn. 254, 142 N. W. 325, 47 L. R. A. (N. S.) 200; Cooley’s Const. Lim. (8th Ed.) yol. 1, p. 159; 6 Ruling Case Law, p. 55, § 50. The Constitution, having made it the mandatory duty of the Legislature to “make suitable provision for the support and maintenance of an efficient system of public free schools,” necessarily conferred the power to make the mandate effective. 9 Texas Jurisprudence, p. 448, § 34; Cooley’s Const. Lim. (8th Ed.) vol. 1, pp. 138, 139; Story on the Constitution (4th Ed.) § 424; Imperial Irr. Co. v. Jayne, 104 Tex. 395, 138 S. W. 575, Ann. Cas. 1914B, 322; Dilly County Line Ind. School Dist. v. Burns (Tex. Civ. App.) 290 S. W. 279; Morton v. Gordon, Dallam, Dig. 396. Since the Legislature has the mandatory duty to make suitable provision for the support and maintenance of an efficient system of public free schools, and has the power to pass any law relative thereto, not prohibited by the Constitution, it necessarily follows that it has a choice in the selection of methods by which the object of the organic law may be effectuated. The Legislature alone is to judge what means are necessary and appropriate for a purpose which the Constitution makes legitimate. The legislative determination of the methods, restrictions, and regulations is final, except when so arbitrary as to be violative of the constitutional rights of the citizen. 6 Ruling Case Law, p. 155, § 154. The general and basic classification made by the act before us divides the schools of the state- into two classes; namely, small and financially weak school districts, and those which are not so small and weak financially as to need aid to bring their schools up to the average standard of education afforded by our system. This classification undoubtedly has a natural basis, one which actually exists. The inequality of educational opportunities in the main arises from natural conditions. Texas is a large state, with approximately 262,000 square miles of territory, much of it sparsely populated; its lands not equally productive, and the taxable wealth of its communities existing in great inequality. The type of school which any community can have must depend upon tire population of the community, the productivity of its soil, and generally its taxable wealth. The constitutional allocation of the available school fund according to the scholastic population of counties has heretofore resulted in the same inequality of opportunity or discrimination that the natural factors produce, and the general purpose of the Rural Aid Act was to relieve in some measure these natural inequalities by appropriations from a source other than the “available school fund” as defined in the Constitution.

Referring now to the basis of the Act, that the Legislature has the right to give aid from the general revenue to financially weak schools, we think the constitutional mandate that the Legislature shall make “suitable provision for the support and maintenance of an efficient system of public free schools,” ample authority.

The word “suitable,” used in connection with the word “provision” in this section of the Constitution, is an elastic term, depending upon the necessities of changing times or conditions, and clearly leaves to the Legislature the right to determine what is suitable, and its determination will not be reviewed by the courts if the act has a real relation to the subject and object of the Constitution. Marasso v. Van Pelt, 77 Fla. 432, 81 So. 529; Sawyer v. Gilmore, 109 Me. 169, 83 A. 673.

As to whether or not a law secures due process and equal protection as required by the Constitution depends upon the subject on which it operates and the character of rights which it affects. The constitutional guarantee does not forbid the state from adjusting its legislation to differences in situation. Equal protection of laws is secured if the statutes do not subject the individual to arbitrary exercise of the powers of government. It is well settled that legislation is not open to objection if all who are brought under its influence are treated alike in the same circumstances. 9 Texas Jurisprudence, p. 553, § 117. In the very nature of society, with its manifold occupations and contacts, the Legislature must have, and clearly does have, authority to classify subjects of legislation, and, when the classification is reasonable — that is, based upon some real difference existing in the subject of the enactment — and the law applies uniformly to those who are within the particular class, the act is not open to constitutional objection. 9 Texas Jurisprudence, p. 555, § 119, p. 558; § 120, p. 561, § 121.

In classifying'subjects so heterogeneous in population, wealth, and physical features as* the school districts and communities of Texas, for the purpose of equalizing the educational opportunities which these differences engender, great liberty of action must be accorded the legislative department. A careful reading of the law here involved plainly shows that the Legislature has endeavored with painstaking care to effectuate the avowed object of the act, and, in so far as our attention has been directed to the details of the legislation, the classifications made, in connection with a reasonable exercise of the power confided by the organic law to local authorities, are well calculated to achieve the purposes of the act. It is true that equality of educational opportunities for all may not be brought about by the law, but the inequalities which may continue will exist rather by reason of differences in population, wealth, and physical conditions of the school districts or communities, and a failure of local authorities to exercise their constitutional power of taxation, than from the law itself.

Tested by the principles stated, we do not think the act be'fore us is discriminatory, arbitrary, or unreasonable. ■

That rural aid appropriations have a real relationship to the subject of equalizing educational opportunities in the state, and tend to make our system more efficient, there can be no doubt. It is true that not all schools will be aided, since many, because of large scholastic population and local wealth against which taxes have been levied, may not need the aid, and are therefore not within the purposes of the act. On the other hand, there may be other schools of obviously so few scholastics that any sufficient aid granted would be out of proportion to the general good to be accomplished, and render it unreasonable to attempt it. Or it may be that there are many communities with a small number of scholastics and large taxable values, like the one in which the complainant Lillie Mae Mumme resides. Her district contains a scholastic population of six children, with taxable values of $188,000. If this district should vote the tax of 75 cents on the $100 valuation required by subdivision 4, § 2, of the act before us, before aid is granted to any school, and to the amount thus produced add the state apportionment from the available school fund, the school would have in hand approximately $252 per pupil each year, which plainly shows this school does not need state aid.

The results suggested illustrate possible legislative reasons for declining to aid small schools (with less than 20 scholastics), unless because of lack of wealth they were unable to maintain a suitable school; in which event they may receive aid under sections 3 and 6 of the act. The law clearly evinces the legislative purpose to aid every school, regardless of number of scholastics, where aid is necessary and practicable.

Nor do we think the details of the act, fixing the conditions and qualifications of districts within the general classification entitling them to aid, discriminatory, because these apply alike to all' within the classification. 9 Texas Jurisprudence, p. 555, § 119, and other authorities supra.

Nor are the requirements exacted .of those who apply for aid arbitrary or unreasonable. Those sections of the law regulating the type of schoolhouse required, the equipment necessary, the courses of study to be pursued, and which require obedience to the lawful rulings of the state superintendent and the board of education, are certainly reasonable requirements, and clearly within the legislative power. 24 Ruling Case Law, p. 559, § 3, p. 633, § 92, p. 635, § 93; Associated Schools v. School District, 122 Minn. 254, 142 N. W. 325, 47 L. R. A. (N. S.) 200, and notes; Pasadena City School District v. City of Pasadena, 166 Cal. 7, 134 P. 985, 47 L. R. A. (N. S.) 892, 895, Ann. Cas. 1915B, 1039.

The provisions of the act (sections 5, 7, and 11) with reference to the number of teachers to be employed in ratio to the number of scholastics have for their purpose both economy and efficiency in the maintenance of the school. The salary requirements (sections 4 and 11) have the same purpose, namely, that the salary shall be large enough to attract efficient teachers and justify teachers of this character to prepare for that profession, and yet not so large as to be extravagant or out of line with compensation generally received for services of this high character. These provisions are well calculated to promote uniformi-. ty in character of instruction, and therefore equality" of “opportunity for the students—one of the named purposes of the act. 'These provisions are plainly within the general power which the Legislature has over public schools. 24 Ruling Case Law, p. 559, § 3, p.'562, § 6, p. 612, § 69; Bopp v. Clark, 165 Iowa, 697, 147 N. W. 172, 52 L. R. A. (N. S.) page 493, Ann. Cas. 1916E, 417.

The provision of the law that a school shall not be eligible to receive rural aid until it votes a tax of 75 cents on the $100 valuation of the taxable property of the district is not an unreasonable requirement, because well below the maximum permitted by the Constitution and laws of the state. It may be voted or not, as determined by the taxpayers themselves. Nor is it discriminatory, since it applies to all districts alike which apply for aid.

Complaint is also made of the appropriation in section 10 of the act of $400,-000 to supplement the amount otherwise available to pay the tuition of high school students transferred from one district to another, as provided for- in chapter 181, Gen. Laws, Regular Session of the 40th Legislature (1927), which act has since been amended, Gen. Laws, First Called Session, 41st Leg. (1929) chap. 2 (Vernon’s Ann. Civ. St. art; 2678a). We do not think this section discriminatory, arbitrary, or unreasonable. Its object is to equalize educational opportunities, and to save the expense of maintaining additional high schools. The classification is reasonable, and applies alike to, all schools and students similarly situated. Certainly the state has the power to establish and maintain high schools as a part of its public free school system. 24 Ruling Case Law, p. 557; Richards v. Raymond, 92 Ill. 612, 34 Am. Rep. 151; People ex rel. Goodell v. Chicago & N. W. Ry. Co., 286 Ill. 384, 121 N. E. 731; Boggs v. School Tp. of Cass, 128 Iowa, 15, 102 N. W. 796. Having this major power, the minor power to permit the transfer of high school pupils into a district having such a school, with facilities in excess of its own requirements, and pay the additional tuition required therefor, follows as a matter of common sense. We know that not every community lias the wealth or population sufficient to justify the maintenance of a high school, and the law in this respect was enacted for the purpose of equalizing educational opportunities in an economical way. It is not unjust or unreasonable, and does not discriminate against any one of the class to which it applies. The act in this respect is clearly within the legislative power. 24 Ruling Case Raw, p. 626, § 84.

We have to-day, in an opinion in the caseof Thomas B. Rove, as Next Friend of Neota Camp, a Minor, et al v. City of Dallas, 40 S. W.(2d) 20, not yet reported [in State reports], construed the High School Tuition Raw, and, as interpreted by us, have sustained its validity. The opinion in the instant case on this subject is to be read and its meaning determined in connection with the opinion in the Rove Case.

We have given careful consideration to all questions presented in the application, and have concluded that the Court of Civil Appeals correctly disposed of the case. The application for writ of error is accordingly refused.