Opinion
No. 35341.
May 3, 1943.
1. PUBLIC LANDS.
The statute authorizing chancery court to confirm a lease of any sixteenth section school land did not give court jurisdiction to determine proper method of executing a proposed lease (Code 1930, sec. 6775).
2. MINES AND MINERALS.
Under statute giving chancery courts jurisdiction to determine what sixteenth section school lands and lieu lands are subject to lease, chancery court had jurisdiction of suit by school trustees of township to have court approve a proposed, but unexecuted, mineral lease of section 16 land (Code 1930, sec. 6773).
3. PUBLIC LANDS.
The statute authorizing chancery courts to determine what sixteenth section school lands or lieu lands are subject to lease did not authorize chancery court to make a lease, in view of constitutional provision directing legislature to enact laws on that subject and of laws enacted pursuant thereto (Code 1930, secs. 6762, 6773; Const. 1890, sec. 211).
4. OFFICERS.
Where legislature, pursuant to constitutional mandate, has conferred jurisdiction of particular subject matter upon a particular board or tribunal, it will not be presumed that framers of Constitution intended that such power should be exercised by some other body or tribunal.
5. PUBLIC LANDS.
In construing statute authorizing board of supervisors, with approval of county superintendent, to lease sixteenth section school lands, it was presumed that legislature did not intend to exclude from beneficent results of statute educable children in some sections of the state (Code 1930, sec. 6762, as amended by Laws 1942, chap. 150).
6. PUBLIC LANDS.
The words "Choctaw purchase," as used in constitutional provision authorizing enactment of legislation providing for lease of sixteenth section school lands or lieu lands in Choctaw purchase, and in statute providing for lease of such lands by board of supervisors with approval of county superintendent of education, referred to all lands in the state outside of the Chickasaw Cession (Acts Cong. July 4, 1836, 5 Stat. 116; June 13, 1842, 5 Stat. 490; Code 1930, sec. 6762, as amended by Laws 1942, chap. 150; Const. 1890, sec. 211).
7. STATUTES.
The statute authorizing board of supervisors, with approval of county superintendent of education, to lease sixteenth section school lands or lieu lands included in the Choctaw purchase, construed as applying to all lands in state except those in the Chickasaw Cession, is not violative of constitutional provision prohibiting "special laws" providing for support of any private or common school (Code 1930, sec. 6762, as amended by Laws 1942, chap. 150; Const. 1890, sec. 90(p)).
8. MINES AND MINERALS.
The school land in section 16 of township 3, range 17, in Pearl River County, was subject to lease for mineral purposes by board of supervisors upon approval of county superintendent of education (Code 1930, sec. 6762, as amended by Laws 1942, chap. 150).
APPEAL from Chancery court of Pearl River county, HON. BEN STEVENS, Chancellor.
J.B. Mayfield, of Poplarville, for appellants, Township School Trustees.
Section 6762 of the Code of 1930 before amendment authorized the boards of supervisors of all counties of the state with the approval of the Governor and the Attorney General to lease for minerals the sixteenth section and lieu lands belonging to all townships throughout the state. The legislature in 1942 amended Section 6762 by Chapter 150 of the Laws of 1942, confining the leasing by the boards of supervisors within the Choctaw purchase.
The sixteenth section in question and the entire area of Pearl River County is outside of the Choctaw purchase, therefore there is no statutory authority now for the board of supervisors or any other board or officer to execute a mineral lease on these lands. The Township Trustees, the appellants, filed their bill of complaint invoking the jurisdiction of the chancery court, asking the court to enforce the trust reposing in the state as to this school land and authorize the execution of the mineral lease for the benefit of the schools of the township, the provisions of which they had tentatively agreed on with the Sun Oil Company, and asking the court for permission to lease, or to approve the lease, or to designate someone to enter into the lease.
The lower court held that the chancery court is vested by the Constitution with powers to enforce the trust and authorize entering into the lease. As to this we heartily agree with the court and will not again refer to that question, but as to the court holding Chapter 150 of the Laws of 1942 unconstitutional, we, the appellants, the school trustees, of course disagree with the learned court below in his finding, and we say that Chapter 150 of the Laws of 1942 violates no constitutional provision.
The learned court below as appears in its written opinion made this observation: "It therefore appears that Chapter 150 of the Laws 1942 is in effect a local law without reason, necessity or merit, is arbitrary and grants privileges to schools within certain fixed lines, which privileges are denied to those outside."
The point we desire to stress is this; the chancery court having jurisdiction to make the lease or approve the lease for those sixteen sections outside of the Choctaw purchase, and the boards of supervisors under the act having authority to make leases for those sixteen sections inside of the Choctaw purchase, no one is deprived of any right or privilege and no special privilege is granted where the boards of supervisors make the lease under the act.
An unjust or unwise purpose will not be imputed to the legislature if reasonable construction will avoid such imputation.
Huber v. Freret, 138 Miss. 238, 103 So. 3.
It is not for the court to determine whether a statute is wise or unwise.
Mississippi Fire Ins. Co. v. Planters' Bank, 138 Miss. 275, 103 So. 84.
See also State v. Board of Sup'rs of Grenada County, 141 Miss. 701, 105 So. 541; Martin v. Dix, 52 Miss. 53; State ex rel. Forman v. Wheatley, 113 Miss. 555, 74 So. 427; Allbritton v. City of Winona, 181 Miss. 75, 178 So. 799, 115 A.L.R. 1436, 303 U.S. 627, 58 S.Ct. 766, 82 L.Ed. 1088.
We believe the legislature of the State of Mississippi, which holds the title of these school lands in trust for the benefit of the inhabitants of the many townships, can say within reasonable limitations how and where these lands shall be leased and by whom and what sections or territory may come within the act. In other words, the legislature may make the classification and delegate the power to lease within any given territory. Their motive or even their knowledge of oil bearing lands or the value of lands, or any other reason that motivated the passage of the act, cannot be inquired into by the courts.
The learned court below in his written opinion stated that Chapter 150 of the Laws of 1942 was in violation of Paragraph (p) of Section 90 of the State Constitution.
The framers of our constitution could not here have meant leasing of school land. Such act of leasing is no part of the management or support, but it meant the directing, operations, etc., of the school and providing for their support by appropriating funds, etc. As to the leasing of school lands, the framers of our Constitution were considering that subject when they adopted Section 211 of our Constitution. Section 211 authorizes the legislature to provide for the leasing of these lands and, strange as it may seem, only refer to the lands within the Choctaw purchase.
Chapter 150 is not an act of the legislature that in any way attempts to manage or to support certain schools; the management and support is by the general law of the state practically all covered by Chater 163 of the Code of 1930 and its amendments. The support of schools is by appropriations and taxation. The act in question deals with the leasing of lands belonging to the school, a matter entirely foreign, separate from those matters referred to in Paragraph (p), Section 90 of the Constitution.
Under Chapter 150, Laws of 1942, no special privilege is granted to one section of the state and denied to the others.
The present situation is that the boards of supervisors may lease the sixteenth sections inside of the Choctaw purchase, and the chancery courts may lease, or authorize the leasing of, those school lands outside of the Choctaw purchase. The legislature under Chapter 150 of the Laws of 1942 provided for the consideration, the terms and conditions for those lands within the Choctaw purchase, and left it to the chancery court to fix all of those things as to the lands outside of the Choctaw purchase. All townships interested have the right and the remedy, and no one is hurt by this legislation and no special advantages are obtained by any section of the state. We, therefore, submit that Chapter 150 of the Laws of 1942 in no way violates any provision of our State Constitution.
Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellants.
Paragraph (p) of Section 90 of the Constitution of 1890 is not violated by Chapter 150, Laws of 1942.
State ex rel. Collins v. Jackson, 119 Miss. 727, 81 So. 1; Haas et al. v. Hancock County, 183 Miss. 365, 184 So. 812; Bordeaux, Tax Collector, v. Meridian Land Industrial Co., 67 Miss. 304, 7 So. 286; Bufkin v. Mitchell, 106 Miss. 253, 63 So. 458, 50 L.R.A. (N.S.) 428; Miller v. State ex rel. Russell, 130 Miss. 564, 94 So. 706.
The equal protection clause of the fourteenth amendment, and due process clause of the same amendment, and the similar provision in Section 14 of the State Constitution is not violated by the enactment of Chapter 150 of the Laws of 1942.
Feemster v. Tupelo, 121 Miss. 733, 83 So. 804; Yow v. Tishomingo County School Board, 177 Miss. 821, 172 So. 303; Board of Sup'rs of Attala County v. Illinois Cent. R. Co., 186 Miss. 294, 190 So. 241; State ex rel. Jordan v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710; State v. Roell, 192 Miss. 873, 7 So.2d 867; State ex rel. Melton v. Rombach, 112 Miss. 737, 73 So. 731; Garbutt v. State, 116 Miss. 424, 77 So. 189; Board Tax Commissioners v. Jackson, 283 U.S. 527, 75 L.Ed. 1249; Louis K. Liggett v. Lee, 288 U.S. 517, 77 L.Ed. 929; Magnano v. Hamilton, 292 U.S. 40, 78 L.Ed. 1109; Rottschaefer on Constitution, p. 660, et seq.
We come now to a discussion of what was the principle in controversy before the chancellor and that is the right of the complainants, the inhabitants of the township through the township trustees, and the right of the attorney general to bring suit on behalf of the public interest. Section 259 of the Constitution grants to the chancery court full jurisdiction in all matters in equity, and the term "full jurisdiction" prior to 1890 had been defined by this court with reference to power of the courts to function where full jurisdiction to deal with the matter had been vested in the court. It was defined to be the power to deal with it fully and completely. The court having taken jurisdiction where jurisdiction was vested in it, it had full power to do everything necessary and appropriate to the granting of full and complete relief.
Farish v. State, 4 How. (5 Miss.) 170, 175; Bank of Mississippi v. Duncan, 52 Miss. 740, 745; State ex rel. Attorney General v. Marshall, 100 Miss. 626, 56 So. 792. See also Georgia Pac. Ry. Co. v. Brooks, 66 Miss. 583, 6 So. 467.
Among the equity jurisdiction so vested fully and completely in the chancery court is the jurisdiction of trusts with all of the powers and regulations pertaining to that subject. Furthermore, Section 6773 of the Mississippi Code of 1930 expressly vested in the chancery court the jurisdiction to determine on bill or petition what lands are, or may be, subject to lease under the provisions of this article, but all sixteenth sections or land taken in lieu thereof are presumed to be so subject unless the contrary be shown clearly. This jurisdiction of the chancery court was apparently invoked by the complainants, that is, the inhabitants of the township, acting through the heads of families and trustees of the township and joined in by the Attorney-General. The chancellor held that he did have jurisdiction but failed to exercise the full jurisdiction so vested in him by deciding the question as to whether the lease proposed was a reasonable and proper lease, and approving it and directing it to be executed by such agencies as the chancery court might deem proper, whether through the board of supervisors or their commissioners or master appointed by the chancery court. The chancery court is further given jurisdiction by Section 6775 of the Code of 1930 to confirm a lease executed or proposed to be executed on sixteenth section lands. This jurisdiction was clearly invoked in the present case and the chancellor should have approved the lease because the proof shows fully and completely that the proposed lease was beneficial to the inhabitants of the township and that it was reasonable in all respects. While the chancery court held that it did have jurisdiction, it is important to have this court pass upon that question and to give the relief that was prayed in the bill and supported by the proof. I desire to submit some observations upon this jurisdiction, although the chancellor held with me upon that proposition but did not go forward and give the relief appropriate to the proof and pleadings.
I submit that the chancery court is vested with full jurisdiction to make such leases under its powers conferred by the Constitution of the state and that the chancery court is not dependent upon the legislature for its power to make such leases and to control the jurisdiction which it has by the Constitution under Section 159, which vested the chancery court with all matters in equity and all matters of minors' business. Leases are held in trust for the benefit of the inhabitants of the township and the state has no beneficial interest in said leases or any pecuniary or proprietory interest therein. It holds title as selected trustee for the inhabitants of the township and the inhabitants of the township have the entire beneficial use in said lands and in the proceeds that may come from leasing them for any lawful purpose.
The Attorney General of the state has common-law powers and as such is vested with the right to bring any suit affecting the public interest and especially with reference to the public interest affected by the sixteenth section trust.
Pace v. State ex rel. Rice, Attorney General, 191 Miss. 780, 4 So.2d 270.
Full jurisdiction in equity means that the court has the power to hear and determine fully and settle all rights with reference to the subject matter in which the jurisdiction is exercised.
Gibbs v. Green, 54 Miss. 592; Woodruff v. State, 77 Miss. 68, 25 So. 483, 83 Miss. 111, 36 So. 79.
See also State ex rel. Attorney General v. Marshall, 100 Miss. 626, 56 So. 792.
Equity will never allow a trust to fail for want of a trustee.
State v. Fernandes, 106 Fla. 779, 143 So. 638, 86 A.L.R. 240; 26 R.C.L. 1273, Sec. 123; Note 14; 26 R.C.L. 1282, Sec. 133; 19 Am. Jur. 311, Sec. 451.
It seems quite well settled that where there is no person in office holding the legal title suit may be brought in equity.
Taylor v. Reese, 44 Miss. 89.
Where no relief is asked against the state then suit may be brought against officer to compel equity.
State Mineral Lease Commission v. Lawrence, 171 Miss. 442, 157 So. 897; Pinson and Harkins v. Ivey, 1 Yerger (Tenn.), 296.
Equity will not suffer a wrong to exist without a remedy for its redress.
Dogan v. Cooley, 184 Miss. 106, 185 So. 783; Neely v. Craig, 162 Miss. 712, 139 So. 835; Newsom v. Federal Land Bank of New Orleans, 184 Miss. 318, 185 So. 595; 30 C.J.S. 506, Sec. 105.
Equity considers that done which ought to be done.
U.S.F. G. Co. v. Marathon Lumber Co., 119 Miss. 802, 81 So. 492; 19 Am. Jur. 316, Sec. 457.
Equity imputes an intent to fulfill an obligation.
Deposit Guaranty Bank Trust Co. v. Williams, 193 Miss. 432, 9 So.2d 638; 30 C.J.S. 516, Sec. 108.
Wherever there is a trust for the benefit of the school children, equity has authority to administer that right, both by virtue of the general equity powers and the chancery court being parens patriae. It is therefore clear, it seems to me, that the chancery court has jurisdiction over this trust and such jurisdiction is not displaced by any statutory designation of officers who may be appointed as agents of the state or the administration of the sixteenth section lands. The chancery court by virtue of its equity powers over trusts can supervise and control the statutory officers and see that they perform the duties assigned to them as trustees of the state and may direct or control them in the exercise of their duties. Consequently, the failure of the state to maintain any officer who may exercise the power that the Constitution provides should be exercised for the benefit of the school children of the township in which the sixteenth section is situated or located is in no wise a limitation upon the jurisdiction of the chancery court. In accepting the trust the state agreed to carry out its provisions and to make sure that there could be no failure so far as trusts are concerned; the chancery court was given jurisdiction by the sovereign state through its highest law making body, the Constitutional Convention.
Parker Morse, of Poplarville, and R.L. Genin, of Bay St. Louis, for appellees.
Prior to 1942 and under Section 6762 of the Code of 1930, mineral leases on sixteenth sections and lieu lands were authorized to be made by the board of supervisors of all the counties of the state by and with the consent and approval of the Governor and Attorney General. Chapter 150 of the Laws of 1942 amends Section 6762 and gives the board of supervisors, with the consent of the county superintendent of education of those counties only within that part of the state known as the Choctaw purchase, the right to lease the sixteenth sections for mineral purposes. In other words, there is apparently no legislative authority to lease those sixteenth sections lying outside of the Choctaw purchase area and no legislative authority to the outside counties of township to lease their lieu lands.
During the taking of the testimony of Mr. Mayfield, a map of the state made by the late Dunbar Rowland, the then Director of the Department of Archives History, was introduced. This map clearly indicates the counties and parts of counties lying within and the counties and parts of counties lying outside of the Choctaw purchase. A map was also introduced made by authority of the legislature showing the partition of the lands granted in lieu of sixteenth sections, known as lieu land and located in Pearl River and Hancock Counties. These official maps show that the Choctaw purchase as defined by Chapter 150 of the Laws of 1942 is located in about the central part of the state, but that counties and parts of counties lying in the eastern, southern and western part of the state are clearly outside of the Choctaw purchase. The lieu land map shows that counties and townships which lie within the Choctaw purchase own lieu lands in counties or townships which lie outside of the Choctaw purchase.
The two main questions here are: First, is the chancery court vested with jurisdiction to make mineral leases under the powers conferred by the Constitution of the state, on those school lands where there is no legislative authority or power granted for that purpose to anyone? Second, the question arises as to whether Chapter 150 of the Laws of 1942 is in effect a local act or a general law, or whether it grants special privileges to some schools that are denied to others?
We believe the only question for this court's consideration is whether or not Chapter 150 of the Laws of 1942 is unconstitutional.
In the briefs for the appellant we find that they try to uphold the constitutionality of Chapter 150 and ask a reversal of the finding of the chancellor on five theories:
First: They say that the sixteenth sections in townships within the Choctaw purchase is a class with which the legislature had a right to deal.
Second: That no township or their inhabitants are deprived of the right to lease the sixteenth section under Chapter 150, as those sixteenth sections within the Choctaw purchase may be leased under the act and those sixteenth sections outside may resort to the chancery court.
Third: That the decision holding the act unconstitutional would work a hardship on those who have taken leases under Chapter 150.
Fourth: That all that part of the State of Mississippi lying south of thirty-first parallel of north latitude is within the Choctaw purchase.
Fifth: That the Choctaw purchase as expressed in the act and in Section 211 of the Constitution is all that part of the state not included in the Chickasaw Cession and, therefore, the act is a general law.
The act is arbitrary and selective and the lands they attempted to legislate for by Chapter 150 is in no sense a class, but the act is purely a local or special law and is unconstitutional. In the case we are considering, the lines are arbitrary and unreasonably fixed, some can and some cannot lease under the Act, and it is not a workable scheme.
City of Jackson v. Deposit Guaranty Bank Trust Co., 160 Miss. 752, 133 So. 195; Clark v. State, 169 Miss. 369, 152 So. 820; State ex rel. Knox v. Speakes, 144 Miss. 125, 109 So. 129; Myatt v. Harrison, etc., College, 177 Miss. 13, 170 So. 526; Scarbrough v. McAdams Consolidated School Dist., 124 Miss. 844, 87 So. 140; Hewes, Clerk of the Board of Supervisors, v. Langford, 105 Miss. 375, 62 So. 359; Morris v. Vandiver, 164 Miss. 476, 145 So. 228; Toombs, County Pros. Attorney, v. Sharkey et al., 140 Miss. 676, 106 So. 273; 25 R.C.L. 820, Ch. 68.
Chapter 150 is not a law dealing with a class, but is an arbitrary law defining a territory and is that character of special law prohibited by the Constitution.
This is not the character of trusts over which the chancery court has jurisdiction. The title to these lands are held in trust by the state, and the state cannot be sued in the chancery court without statutory authority, and counsel has cited none, and we know of none in this character of case or character of trust.
Suits against the state and its governmental agencies cannot be maintained unless authorized by an act of the legislature.
Mississippi Centennial Exposition Co. v. Luderbach, 123 Miss. 828, 86 So. 517.
Only the legislature can surrender the privilege of immunity from suit enjoyed by the state and its governmental subdivisions and agencies.
Ayres v. Board of Trustees of Leake County Agr. High School, 134 Miss. 363, 98 So. 847.
See also State Highway Commission v. Gulley, 167 Miss. 631, 145 So. 351.
To hold that the state could be made a party and required to do certain things by order of the chancery court, because the state is the trustee, would be tantamount to holding that the state could be sued; being a necessary party to this character of suit the state would of course be sued.
The third theory advanced by the appellants is that a decision holding the act unconstitutional would work a hardship on those who have taken leases under the act. If the court would affirm the decision of the lower court in holding Chapter 150 unconstitutional, Section 6762 would be in force, and those who have been deprived of the right to lease by Chapter 150 may do so under Section 6762, and those who have leases under Chapter 150 could get them approved by the Governor and Attorney General if they are fair to the school children.
The appellants' fourth theory is that all that part of the State of Mississippi lying south of the thirty-first parallel of north latitude is within the Choctaw purchase. The counsel in their brief cite the various treaties which were the Choctaw treaties and included within the Choctaw purchase, then by assumption say that portion of the state south of the thirty-first parallel of north latitude came within the United States as West Florida in a Choctaw treaty, being added to the United States in 1812. Counsel is in error in his Indian history. The fact is that all that section below the thirty-first parallel was claimed by the French and by the Spaniards, and we recognized their right, and by the purchase of the Louisiana territory from France the United States acquired the French claim to what was known as West Florida in the treaty with the French in 1803. By Act of Congress May 14, 1812, there was added to the Mississippi Territory all that land which now lies between the Alabama line and Pearl River and south of the thirty-first parallel. Title to this land was later confirmed by the purchase of said land from Spain in 1819 to satisfy a claim they asserted. Those of us who have examined titles along the southern section of the state, that is below the thirty-first parallel, know of the many Spanish and French grants of land that were recognized and confirmed by the Act of Congress in 1831 and 1832.
See Volumes 1 to 5 of the American State Papers on public lands published under authority of the United States Senate in 1934, particularly Volume 5, page 634, 636.
Of course, there may have been some Choctaw or other tribes of Indians below the thirty-first parallel, but in no sense can it be said or understood that that territory south of the thirty-first parallel was in any purchase, cession or treaty with the Indians or Choctaw Indians.
Counsel for the mineral lessees quote the proceedings of the Constitutional Convention of 1890 and quote a part of the brief of Judge Edward Mayes in the Dantzler Lumber Co. v. State case, 97 Miss. 355, 53 So. 1, to convince this court that the Choctaw purchase extended south of the thirty-first parallel to the Gulf, but Judge Mayes' brief proves just the reverse.
The quotation in Judge Mayes' brief referred to is as follows: "In a general way the history of the provision made, whether by the federal Congress or by the State of Georgia, is immaterial in this connection for the schooling of children in the respective townships by the reservaton of a sixteen section in each township, or some other section in lieu thereof, is familiar to the court. Special attention is called, however, to the fact that earlier leases made were for short terms, and it was not until the act of 1833 was passed, and passed at that precise time when two-thirds of the entire territory of the State, constituting the central portion of the State and the northern part of the State, was being vacated by the Indians and opened up to white occupancy — that ninety-nine year leases were provided for. Of course to all intents and purposes a ninety-nine year lease was equivalent, so far as the leases are concerned, almost to a fee simple title."
We call special attention to the words used, as follows: "At that time when two-thirds of the entire territory of the state, constituting the central portion of the state and the northern part of the state, was being vacated by the Indians and opened up by white occupancy."
That historical truth confirms our argument and shows that the Indians were not vacating that part of the state south of the thirty-first parallel, the southern part of the state. They were vacating the northern and central part of the state under the treaties of Dancing Rabbit, Doak's Stand and Mount Dexter. That is, the Choctaw Indians were from the central part of the state and the Chickasaw Indians were vacating from northern part of the state under their treaty, which we believe is referred to as the treaty of Pontotoc.
As to the southern part of the state, that is, below the thirty-first parallel, there was no treaty with the Indians to vacate, no purchase, no cession, because this was formerly French Territory and property of the United States since 1803 under a treaty agreement with the French.
The fifth theory of the appellant is that the Choctaw purchase, as expressed in the Act and in the Constitution, is all that part of the state not in the Chickasaw cession. Appellants refer to the proceedings of the Constitutional Convention. The proceedings there show that the Convention had under consideration the adoption of Section 211 to the Constitution and were debating and considering whether or not the provision as to ascertaining the trust condition of the title was to apply to the entire state or to only the Choctaw purchase, and Mr. Jamison, the farmer, prevailed in inserting the amendment "Choctaw purchase." The intenton of the Convention is plain that they considered whether or not that part of the section of the Constitution as to ascertaining the true condition of the title and clearing them would apply to the entire state or just to the Choctaw purchase area, then voted and decided it apply only to the Choctaw purchase. How counsel for appellant gets consolation out of that is beyond us. They contend that as there was a Chickasaw area, the framers of the Constitution could only have intended to eliminate the Chickasaw cession or purchase or area and by some kind of deduction, counsel say, the balance of the state is included in the Choctaw purchase. We have carefully read the proceedings of the Constitutional Convention referred to in their brief, and we are unable from any angle to see how counsel can get that thought. The Chickasaw area had no sixteenth section in 1890, all of their lands were sold and the money deposited in trust, or supposed to have been deposited for the benefit of the schools, known as the Chickasaw Fund. There being no sixteenth section lands for schools in that part of the state, the members of the Convention or the members of the legislature should not be charged with having considered something that never existed.
Counsel for appellants ask that the chancellor's findings be reversed and insist that the Act is a general law because the legislature intended to have the Act apply to the entire state, excepting only the Chickasaw area. Now let's see if that is a reasonable theory. When the legislature of 1942 was considering the bill then before it, that is, Chapter 150, there was in force, Section 6762 of the Code of 1930, which was a general law applicable to the entire state. The bill that finally became Chapter 150 of the Laws of 1942 as originally introduced applied to the entire state also, but when under final consideration the legislature adopted an amendment inserting "where such land was included in Choctaw purchase" thereby intending to eliminate the general provision that applied to the entire state and to specifically and intentionally make the act apply to only one area bounded by the Choctaw treaty lines and specifically and intentionally excluded from the act all other school lands that were formerly included in the state-wide act of 1926 or Section 6762 of the Code.
If Chapter 150 of the Laws of 1942 was the first attempt to legislate on the subject, then we could possibly entertain some doubt, but there was on the statute books a law written on the same subject which applies to the entire state and in no way violated any provisions of the Constitution. Section 6762 was a general law and applied to every county, every township, and every school having an interest in those lands and granted all townships the same right and the same privileges, but the legislature of 1942 was not satisfied with the laws as written, and wanted to amend it, and attempted to do so first by removing the check on the activities of the board of supervisors, had by the Governor and Attorney General, and second, by depriving those counties outside of the Choctaw purchase of the privilege of leasing for minerals. In other words, the legislature of 1942, Chapter 150, attempted to repeal a general law by an amendment which is definitely a local law, an evil which the framers of our Constitution foresaw and prohibited.
Counsel for the appellant cites many cases as authority for the legislature to pass laws applying only to a class. None of those cases are applicable here. The drawing of a boundary line does not create a class. It is purely arbitrary and without pretense of reason or necessity and has no substantial merit.
Toombs, County Prosecuting Attorney, v. Sharkey, 140 Miss. 676, 106 So. 273.
Counsel for appellants seem not to be able to advance a plausible reason, and of course there is none, why a legislature would attempt to amend a general law, Section 6762, with a local act, Chapter 150, and take as the boundary lines counties or townships within lines fixed by an Indian treaty or treaties made over one hundred years ago.
Green Green, of Jackson, and J.S. Atkinson, of Shreveport, La., as amici curiae.
The chancellor held Chapter 150, Laws of 1942, unconstitutional as violating Section 90 (p) of the Constitution of 1890.
This chapter became operative March 23, 1942, and since that date has been the sole law whereunder mineral leases, numerous and extended, have been executed. The acquisitions by the mineral lessees were in good faith, and the decision that their title was a nullity would, if carried into effect, be very disastrous and seriously impair many drilling blocks constructed upon the faith thereof.
Chapter 150, as originally introduced, did not contain the phrase "in the Choctaw purchase," but this was added on the floor to exclude a possibility of operation within the Chickasaw Cession.
The phrase "in the Choctaw purchase," copied into this act from Section 211 of the Constitution, imports all sixteenth section lands outside of the Chickasaw Cession.
The learned chancellor here fell into error by not construing "the Choctaw purchase" to include all sixteenth section lands within Mississippi outside of the Chickasaw Cession, wherefor, as hereinafter shown, there were no sixteenth sections or lieu lands. The phrase "the Choctaw purchase" requires judicial interpretation based upon Mississippi history. The phrase appears in Section 211 of the Constitution thus: "The legislature shall enact such laws as may be necessary to ascertain the true condition of the title to the sixteenth section lands in this state, or land granted in lieu thereof, in the Choctaw purchase, and shall provide that the sixteenth section lands reserved for the support of township schools shall not be sold nor shall they be leased for a longer term than ten years for a gross sum; . . ."
Wherein consider:
1. The Choctaw purchase.
Note the singular number, "The purchase." It is well known, as stated by Dr. Dunbar Rowland, Vol. I, "Mississippi, the Heart of the South," page 64: "Speaking in general terms of the Muskhogean, or Choctaw-Muskhogen family, it may be said to have occupied for many centuries prior to the coming of the white races all that vast area of country extending from the Savannah River and the Atlantic west to the Mississippi River, and from the Gulf of Mexico north to the Tennessee River, with the exception of certain small areas in the possession of the Yuchi, Natchez and some settlements of Shawni."
The Choctaw title to Mississippi Territory was extinguished not at one time, but at different times, in different manners, by exclusive and excluding several treaties:
(a) The treaty between the United States and the Choctaw Nation at Mount Dexter, November 16, 1805, Hutchinson's Code, 119;
(b) The treaty of Cession, October 24, 1816, ratified December 13th, Hutchinson's Code, 120;
(c) The treaty between the United States and the Choctaws at Doaks Stand, October 18, 1820, Hutchinson's Code, 120;
(d) The treaty between the United States and the Choctaw Nation at Dancing Rabbit Creek, September 1830, Hutchinson's Code, 121, whereunder the Choctaws were to abandon all lands east of the Mississippi, with immaterial exceptions, and move, as a tribe, to the Indian Territory. Thus, by implication, if not by direct grant, was extinguished the Choctaw title to: (1) The Natchez District, whereasto this court said in Montgomery v. Doe ex dem. Ives, 13 Smedes M. 161, 176: "In the war between the French and the Natchez tribe of Indians, which terminated about the year 1730, in the extinction of that tribe, the Choctaws were the allies of the French, and gave them very efficient aid. It is probable from the fact of the treaty made by the British with them at Mobile, in 1777, before mentioned, that they succeeded to and occupied the hunting grounds of the Natchez, in virtue of the conquest. They do not appear to have been ceded to anyone. 1 Martin's hist. Louisiana, 280-287; 1 Monette 274." At this late date this court cannot remove the obscurity as to events occurring more than two hundred years ago. (2) The territory below the thirty-first parallel of North Latitude. According to Dr. Rowland, this was initially Choctaw territory, but came within the United States as West Florida, being added to Mississippi in 1812. It would not be a matter of great difficulty to assume that the Choctaw territory extended to the sea, and that the Indian territory was invaded by force as early as 1699 (Biloxi), and the lands seized from the Indians, but the Indian title was not lawfully extinguished until their acceptance of a new home beyond the Mississippi.
Let the court note carefully that the Indian title by these separate treaties was extinguished but once to any particular parcel of land. The territory ceded by the Doaks Stand Treaty was not embraced within that of Dancing Rabbit Creek. These Cessions were, therefore, mutually exclusive, and so being, to include all of the territory thus acquired, a phrase utilizing substantially a collective noun was requisite, and this we find in "the purchase," for there was no reason why the lands within the Doaks Stand Treaty, wherein the conditions were precisely the same, should be embraced, and those within the Dancing Rabbit Creek Treaty excluded — both, with the other treaties as well, had to be included to rectify.
Therefore, there was not a single Choctaw purchase, but the extinguishment of the Indian title, the United States having acquired the sovereignty and title through the Georgia Cession and the Cession of West Florida and then extinguished the Indian title in this wise. Thus "the purchase" must be construed as embracing the entire acquisition through these several independent steps, no one of which could be "the Choctaw purchase."
2. The word "purchase" is synonymous with "acquisition," 54 C.J. 94; Words and Phrases, Per. Ed., 473.
"The word (purchase) may or may not be employed as implying an executed contract or completed transaction. . . . In its technical and larger sense, all lawful acquisition of real estate by any means whatever, except by descent." In the note is quoted, "The acquisition of real estate by any means whatever except descent." "A purchaser of land, technically speaking, is one who acquires real property in any other manner than by inheritance," 51 C.J. 98, citing therefor Black's Law Dictionary, which was approved by this court substantially on the same point in Hodge Ship Building Co. v. City of Moss Point, 144 Miss. 657, 110 So. 227.
The word "purchase" thus used is technically accurate for the acquisition by these treaties, and, if need be, by the conquest and acquiescence as well, so long as the title was not "by descent."
In Hutchinson's Code, Chapter 5, the bounds of the Choctaw Nation and the Chickasaw Nation are given, page 117. None of the minor tribes are considered in that authority in developing the sovereignty of Mississippi as against the Indians. There were none other than Choctaw and Chickasaw, and so, technically, the phrase "the Choctaw purchase" must be considered as connoting the acquisition from the Choctaws of their title, which would cover all of Mississippi save that ceded by the Chickasaws.
3. The Chickasaw Cession.
As said by Dr. Rowland, "Mississippi. The Heart of the South," Vol. I, page 579: "The total area embraced in the Chickasaw cession of 1832 was 6,283,804 acres. Since the United States agreed to turn over to the Indians the net proceeds of the sale, and no provision was made for the reservation of the 16th section in each township for use of the common schools, this whole region of country was deprived of the customary revenues derived from this source. To remedy this defect, several years afterward congress granted the state, in lieu of such reservation, one thirty-sixth part of the ceded lands. This grant formed the basis of what is known as the Chickasaw School fund."
Pursuant to Article 38, Act of February 28, 1848, Hutchinson's Code, 233, these lands so thus granted on September 4, 1841, were offered "at public auction, to the highest bidder, for lease for the term of ninety-nine years, and renewable to the lessee, his heirs or assigns, forever . . ."
The court will note the act mentioned is of September 4, 1841. This is, with deference, erroneous, and the acts referred to should be, as shown by the minutes of the Constitutional Convention, July 4, 1836, 4 U.S. Stat. at Large, Vol. 5, page 116, Chapter CCCLV, as amended by the statute of June 13, 1842, U.S. Stat. at Large, Vol. 5, p. 490, Chapter XL, for the act of September 4, 1841, U.S. Stat. at Large, Vol. 5, pages 453, 457, Chapter XVI, dealt not with the Chickasaw Cession lands, but with the proceeds of certain lands that were being sold by the United States and paid over to the several states. Note specifically Section 16, which is principally applicable to Mississippi, wherein the provisions are: "And be it further enacted, That the two per cent. of the net proceeds of the lands sold, or that may hereafter be sold, by the United States in the State of Mississippi, since the first day of December, eighteen hundred and seventeen, and by the act entitled 'An Act to enable the people of the western part of the Mississippi Territory to form a constitution and State government, and for the admission of such state into the Union on an equal footing with the original States,' and all acts supplemental thereto reserved for the making of a road or roads leading to said State, be, and the same is hereby relinquished to the State of Mississippi, payable in two equal instalments; the first to be paid on the first day of May, eighteen hundred and forty-two, and the other on the first of May, eighteen hundred and forty-three, so far as the same may then have accrued, and quarterly, as the same may accrue, after said period: Provided, That the Legislature of said State shall first pass an act, declaring their acceptance of said relinquishment in full of said fund, accrued and accruing, and also embracing a provision, to be unalterable without the consent of Congress, that the whole of said two per cent. fund shall be faithfully applied to the construction of a railroad, leading from Brandon, in the State of Mississippi, to the eastern boundary of said State, in the direction, as near as may be, of the towns of Selma, Cahaba, and Montgomery, in the State of Alabama."
The correct reference, notwithstanding, with deference, Hutchinson's Code, is that made in the minutes of the Constitutional Convention hereinafter quoted. See page 358 of said Journal, later quoted.
Not content therewith, under Chapter 217, Laws 1854, it was made "the duty of the treasurer, to give to the said purchaser or purchasers, a certificate . . . upon the production of said certificate of payment . . ., to the Governor of this State, it shall be his duty to issue a patent, in fee simple, to the purchaser or purchasers, which patent shall be signed by the Governor, and countersigned by the Secretary of State, and the great seal of the State shall be annexed."
While applicable to all lands thereafter disposed of, the act went further as to those which had been precedently leased "renewable forever" and provided "all lands heretofore leased . . . shall be renewable to the lessee, his heirs or assigns, forever, without the payment on the part of said lessee, his heirs or assigns, of any other sum or sums than may be necessary as charges by the proper officer of this State," thus substantially converting all lands within the Chickasaw Cession into the class of fee simple titles so far as the Townships were concerned. Compare Chapter 103, Laws 1856.
This legislature, therefore, eliminated all confusion in title as to lands within the Chickasaw Cession and left the Choctaw Cession of Mississippi that wherein confusion incident to ninety-nine year leases was.
4. Judge Edward Mayes and Section 211 of the Constitution.
Judge Edward Mayes, thoroughly familiar with this confusion, having been deeply interested in education and a most profound lawyer, sought complete rectification when he was in the Constitutional Convention of 1890. The writer was associated with this most outstanding lawyer in the case of Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1, and from his brief therein filed obtained that information which is herewith respectfully submitted. The reporter inadvertently did not abstract Judge Mayes' brief. Therein, Judge Mayes said:
"In a general way the history of the provision made, whether by the federal Congress or by the State of Georgia, is immaterial in this connection, for the schooling of children in the respective townships by the reservation of a sixteenth section in each township, or some other section in lieu thereof, is familiar to the Court. Special attention is called, however, to the fact that the earlier leases made were for short terms, and it was not until the act of 1833 was passed, and passed at that precise time when two-thirds of the entire territory of the State, constituting the central portion of the State and the northern part of the State, was being vacated by the Indians and opened up to white occupancy, that ninety-nine-year leases were provided for. Of course to all intents and purposes a ninety-nine-year lease was equivalent, so far as the lessees are concerned, almost to a fee simple title.
"The Court will observe that by the act of 1833 those leases were sold on credit and vendor's liens were reserved to secure the payment of the purchase money. Immense numbers of leases were made, embracing practically all of the lands in the State considered at that time desirable."
This court will observe that Judge Mayes referred to the Act of 1833, which was coextensive with Mississippi, but not operative in the Chickasaw Cession by reason of the treaty whereby the net proceeds were to be had and utilized. It is to be noted that in the Moss Point Lumber Company Case ( 89 Miss. 448, 42 So. 290, 873), the sixteenth section involved, as well as that involved in the Dantzler Case, were both below the thirty-first parallel, whereasto there was no specific Choctaw treaty, except to the extent above indicated, but nevertheless in a territory whereasto that sought to be done and done by Section 211 was equally requisite. Judge Mayes' brief then continues:
"But shortly afterwards, by some agency not now exactly known, a statute was procured to be passed which in practical effect authorized the surrender of all of those liens and the substitution for the lien notes of other notes with personal endorsers: Acts 1876, p. 17, Sec. 4.
"By this process these funds were quickly absorbed by the giving of endorsements which were worthless. Wherefore, it happened that long before the Constitutional Convention of 1890 convened there were but very few townships in the State which had any remains of the sixteenth section funds: Gov. Brown's Message of 1846; Goodspeed's Memoirs, Vol. 2, pp. 303-304.
"The foregoing history is set forth in the various statutes of the State and in the communications to the legislature of the Governors, and the appropriate heads of the departments in charge.
"Of course there still remained in many townships lands which had not been disposed of at all, not theretofore having been considered desirable to hold, by providing owners or lessees.
"The purpose of the Constitutional Convention, considering the foregoing history, and considering the formative processes through which Section 211 passed, and considering the phrasing of the section itself, make it manifest that it was not the intention of the Constitutional Convention, in and by Section 211, to deal with the matter of the timber, at all."
This court followed Judge Edward Mayes' analysis of the section, for he, having originated it, was its best and truest expositor and he properly held that it did not prohibit the sale of timber.
Judge Mayes then traced Section 211 through its development in the Constitutional Convention as it appears from the Public Journal thereof:
"Edward Mayes, delegate from the State at large, introduced amongst others, a provision on this subject; see Journal, page 98," which provisions as given in the Journal were: "Makes it the duty of the Attorney-General to prepare bill for next Legislature, to secure proper legislation looking to the recovery of squandered school lands, etc., commonly known as the 'Sixteenth Section,' etc."
It thus conclusively appears that what Judge Mayes was dealing with was all of Mississippi wherein there had been "squandered school lands . . . commonly known as the sixteenth sections." This embraced the entire Choctaw acquisition, and it is impossible to visualize from this statement that Judge Mayes was rectifying partially and leaving unrectified precisely the same evil in an adjoining territory wherein its rectification was equally requisite — in short, to conceive that he, imbued with the purpose of complete rectification, should, by permitting the phrase "the Choctaw purchase" to be integrated, sever and divide the state into two portions, one wherein the legislature was mandatorily to be required to rectify, the other wherein the wrong of precisely the same degree was to be continued to run rampant. In honor of him we protest against any such half-baked legislation.
The brief continued:
"What appears on page 98 is merely the Clerk's statement of the substance of the provision so introduced by Mr. Mayes. The provision itself was referred to the Committee on Education.
"The Committee on Education reported to the Convention a full provision on this topic; see Journal, pages 356-358.
"When the report of the Committee on Education was being considered, Mr. W.G. Yerger, Delegate from the State at large, offered a substitute therefor. See Journal, page 367. This substitute was accepted by the Committee immediately on its offering.
"Mr. Dillard thereupon submitted an amendment to Mr. Yerger's substitute which amendment was immediately accepted by Mr. Yerger.
"Mr. Richards, who was delegate at large from the County of Lowndes, and consequently intensely interested in this question because the whole city of Columbus is located on a sixteenth section, the leases to which were shortly to expire, moved to refer the whole matter to the Committee on Judiciary. His motion was tabled on motion of Mr. Dillard.
"After some more propositions, all of which will be found on pages 267-368, the section was adopted."
The Journal indicates at page 358, as pointed out by Judge Mayes:
"It shall be the duty of the Attorney-General to carefully prepare and present to the next Legislature a bill making provision for a thorough and exhaustive investigation of the legal situation and the agricultural condition of all the lands heretofore granted by Congress in this State, for educational purposes, and commonly known as the sixteenth section lands; Provided, That the lands reserved by the acts of Congress passed 4th July, 1836, and 13th June, 1842, are not included in this provision. The Legislature shall adopt said bill, with such amendments or modifications as it may deem advisable; and shall make such appropriations as shall be necessary to make the same effectual. Said Legislature, or that next following, shall provide for the bringing of such suits as may be necessary to recover such of said lands as may be recoverable; and shall pass such laws as may be necessary to preserve from further squandering, and to secure the application to the best advantage and for the purpose for which they were donated, of such of said lands as may yet be not disposed of, or may be recovered. No sales of sixteenth section lands in fee shall ever be made; and whenever the leases of such lands heretofore made shall expire no further leases shall be granted of the said lands so reverting except for terms not exceeding ten years, and subject to the approval of the Board of Education. And no leases shall be granted of those of such lands as have not yet been disposed of, or of such as may be recovered as aforesaid, except on the same terms and conditions."
Note "thorough and exhaustive investigation of the legal situation and the agricultural condition of all the lands heretofore granted by Congress in this State, for educational purposes, and commonly known as the sixteenth section lands."
This did not confine the investigation to any one portion of the state but was state-wide, excluding, of course, the Chickasaw Cession, whereasto naught could be done.
The court will note the exception of the statute passed July 4, 1836, which reads (U.S. Stat. at Large, Vol. 5, p. 116, Chapter CCCLV):
"An Act to carry into effect, in the States of Alabama and Mississippi, the existing compacts with those States in regard to the five per cent. fund, and the school reservations. . . .
"Section 2: And be it further enacted, That there shall be reserved from sale, in the State of Mississippi, a quantity of land, equal to one-thirty-sixth part of the lands ceded by said Chickasaws as aforesaid, within said State of Mississippi, which land shall be selected under the direction of the Secretary of the Treasury, in sections, or half sections, or quarter sections, out of any public lands remaining unsold, that shall have been offered at public sale within either of the land districts in said State of Mississippi, contiguous to said lands within said State, so ceded by the chickasaws as aforesaid; which lands, when so selected as aforesaid, the same shall vest in the State of Mississippi, for the use of schools within said territory in said State, so ceded as aforesaid by the Chickasaws; and said lands, thus selected, shall be holden by the same tenure, and upon the same terms and conditions, in all respects, as the said State now holds the lands heretofore reserved for use of schools in said State. Approved: July 4, 1836."
This was somewhat expanded by the statute passed June 13, 1842, U.S. Stat. at Large, Vol. 5, p. 490, Chapter XL, wherein broader selection might be had, and the Governor of Mississippi vested with power thereasto.
This shows the only lands to be excluded were those within the Chickasaw Cession and thus dealt with. This express mention of these two Federal statutes cannot be too strongly urged.
Note in the Journal of the Convention, page 366, where the interest rate on the Chickasaw School Fund was fixed. After thus doing, the Journal continues:
"The regular order viz: the consideration of the Second Section of the supplemental report of the Committee on Education, and being on the adoption of the amendment offered by Mr. Dillard, to said section, was resumed.
"Mr. Yerger submitted the following substitute for Second Section of said supplemental report, viz:
"Sec. ____. The Legislature shall adopt such laws as may be necessary to ascertain the true condition as to title of the 16th Sections in this State, or land granted in lieu thereof, and; Provided, That hereafter said lands shall never be sold so as to pass the fee simple title thereto, or be leased for a term not exceeding ten years.
"Which substitute was accepted by the Committee.
"Mr. Dillard submitted the following amendment to the substitute of Mr. Yerger: Strike out the proviso, and insert 'The Sixteenth Section lands reserved for the support of township schools shall not be sold, nor shall they be leased for a longer term than ten years for a gross sum; but the Legislature may provide for the lease of any of said lands for a term not exceeding twenty-five years for a ground rental payable annually, and, in case of uncleared lands, may lease them for such short term as may be deemed proper, in consideration of the improvement thereof, with right thereafter, to lease for a term, or to hold on payment of ground rent.'
"Which was accepted by Mr. Yerger.
"Mr. Richards moved to refer the section under consideration, together with all substitutes, and pending amendments, to the Committee on Judiciary, which was laid on the table on motion of Mr. Dillard.
"Mr. Jamison (Farmer, p. 706) moved to amend the substitute of Mr. Yerger as follows:
"After the words 'in lieu' insert the words 'in the Choctaw purchase.'
"Which was accepted by Mr. Yerger.
"Mr. McLaurin of Rankin, moved to amend the substitute of Mr. Yerger, by striking out all after the words 'Choctaw purchase.'
"Mr. Dillard called the previous question on the original question, and all pending amendments, which was sustained."
The court will thus see that on motion of Mr. Jamison, who was a farmer from Noxubee County, there was inserted that phrase which is the cause of this litigation.
Our point is that Judge Edward Mayes, Yerger and Dillard, who were apparently leading in this matter, should have, after pushing it through the Convention (having made express reference to Acts of Congress, July 4, 1836, and June 13, 1842), emasculated it by putting into it the phrase "in the Choctaw purchase," which would have been the case if the chancellor's interpretation of "in the Choctaw purchase" is correct.
But note Section 211, "The legislature shall enact such laws as may be necessary to ascertain the true condition of the title to the sixteenth section lands in this state, or land granted in lieu thereof."
So stood the provision when the farmer representative, Jamison, from Noxubee County, proposed "in the Choctaw purchase." Now this was accepted, but the question reverts, in view of that which precedes, whether when it was accepted thereby throughout Mississippi there was an intention to divide, as the chancellor assumes, or to make the provision of the law state-wide save as to the Chickasaw Cession, as covered by the two statutes of 1836 and 1842 above mentioned.
Note the mandate, "Shall pass such laws as may be necessary," and this court adverted thereto in Jones v. Madison County, 72 Miss. 777, 804, 18 So. 87: "The general investigation of the title to school lands now being made under the provisions of the code of 1892 . . ."
Quite coincidently with the passage of the Constitution, three outstanding members thereof, Geo. G. Dillard, delegate from Noxubee County, prominently mentioned as a participant in the framing of 211, Judge R.H. Thompson, delegate from Lincoln and Jefferson, and Hon. R.B. Campbell, delegate from Washington County, compiled that required by Section 211.
Code of 1892, Secs. 4144, 4145, 4146, 4147.
As phrased in Broome's Legal Maxims, 682: Contemporanea expositio est optima et fortissima in lege. Especially when this construction was by such outstanding lawyers as Judge R.H. Thompson, R.B. Campbell and Geo. G. Dillard, concurred in by the legislature of 1892, which contained so many members of the Constitutional Convention.
Compare Briscoe v. Buzbee, 163 Miss. 574, 143 So. 407, 143 So. 887; Plummer v. Plummer, 37 Miss. 185; Mississippi Digest, "Statutes," Key No. 218. And of these facts, this court may take judicial notice under the Briscoe case. Compare Mississippi-Gulfport Compress Warehouses v. Public Service Commission, 189 Miss. 166, 196 So. 793, 795.
This court in construing this section must be mindful of the conditions that existed at the time, the evil to be avoided and the remedy to be enacted.
Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466; Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703.
In Dillard Coffin Co. v. Woollard, 124 Miss. 677, 87 So. 148, this court held that in construing two statutes passed at the same time, force and effect must be given to each. So here, both Section 211 and Section 90 (p) must be construed and that construction adopted which is herein contended for. It would be a discrimination to direct the legislature to establish the title to sixteenth sections in a specific area — and exclude another area — when it was essential to establish the title throughout the state. The Choctaw purchase integrated into the Constitution meant all lands held by the state as trustee other than those disposed of in the Chickasaw Cession, and as thus construed, Section 211 is a consistent and perfect whole, first establishing the title to all reserved sixteenth sections throughout the state, and after having title thus established, prescribing the method of disposition as to sale of timber, oil and gas.
It is to be noted in this connection that while in the body of this Act the phrase "in the Choctaw purchase" is used, the title of the Act is: "An Act to amend section 6762 of the Mississippi Code of 1930, authorizing boards of supervisors of the various counties of Mississippi to execute oil, gas and mineral leases on sixteenth section school lands or lands held in lieu thereof in their respective counties." The title, under proper limitations, may be useful in construing the act.
37 A.L.R. 942-972; 2 L.R.A. 609; Fairport, etc., v. Meredith, 292 U.S. 539, 78 L.Ed. 1446; 57 C.J. 1004; Price v. Forrest, 173 U.S. 427, 43 L.Ed. 755.
But, with deference, the Choctaw purchase, as used in the Constitution, Section 211, meant and means all sixteenth sections within Mississippi outside of the Chickasaw Cession, and having this definite meaning, when used in this statute, its connotation is precisely the same.
Compare Millsaps College v. City of Jackson, 136 Miss. 795, 101 So. 574, 575; Bell v. Mississippi Orphans Home, 192 Miss. 205, 5 So.2d 214.
So in this statute, just as in Section 211 of the Constitution, the Choctaw purchase must be made coextensive with the bounds of Mississippi, exclusive of the Chickasaw Cession, to make effectual that which was to be rectified under Section 211, and hence, under Chapter 150.
5. Verba intentioni debent inservire.
This court said in Kennington v. Hemingway, 101 Miss. 259, 267, 57 So. 809: "Human language is not a perfect vehicle for conveying thought, and it frequently happens that words used have a broader or narrower meaning than that intended by the person using them. One of the maxims of the common law, therefore, is 'verba intentioni debent inservire.' (Words are to be governed by the intention.) As was said by this court in Board of Education v. Railroad Co., supra ( 72 Miss. 236, 16 So. 489): 'It is familiar learning that, in the construction of statute, courts chiefly desire to reach and know the real intention of the framers of the law, and, reaching and knowing it, then to adopt that interpretation which will meet the real meaning of the legislature, though such interpretation may be beyond or within, wider or narrower than, the mere letter of the enactment'"
In Mississippi Cottonseed Products Co. v. Stone, 184 Miss. 409, 184 So. 428, 431, this court said: "In construing a statute a court may ascertain its true meaning by studying it as a whole; and when ascertained, may enforce it, even to the extent of correcting errors in the language used; Gandy et al. v. Public Service Corp., etc., 163 Miss. 187, 140 So. 687."
Mississippi Digest, Title "Statutes," Key No. 200-205.
So that knowing the necessity for state-wide rectification and the intention of the Constitutional Convention, as manifested by its Journal, this court, with deference, would be recreant to the implied — and, we submit, expressed — intention of the Constitutional Convention, not to make this Choctaw purchase coextensive with Mississippi's boundaries. It, of course, would not be operative within the Chickasaw Cession for the reason that there is naught therein upon which it can operate.
Therefore, we, with confidence, submit that by integration of "in the Choctaw purchase" by the floor amendment, the territory covered by Chapter 150 was in no way altered, the title of this Act extended it to "oil, gas and mineral leases on sixteenth section school lands or lands held in lieu thereof in their respective counties," changing it only (a) as to who should approve, the county superintendent of education instead of the Attorney General and Governor, and (b) defining more definitely the royalty to be paid.
Section 71 of the Constitution requires a title which ought "to indicate clearly the subject matter . . . of the proposed legislation." We submit that it so did and that those who have thus purchased and paid have a valid lease in accordance with the provisions of Section 150. To destroy these leases would be to impair the public faith with those who have dealt with sixteenth sections, which, with deference, should not, if possible, be done, remembering Moss Point Lumber Co. v. Harrison County, 89 Miss. 448, 42 So. 290, 873, as to timber, and Gulf Refining Co. of Louisiana v. Terry, 163 Miss. 869, 142 So. 457, and Pace v. State ex rel. Rice, 191 Miss. 780, 4 So.2d 270, as to minerals.
We confidently submit that this legislation is constitutional and operative throughout Mississippi under its terms.
If the phrase "the Choctaw purchase" does not cover the entire state, but only a portion thereof, still Chapter 150 is a general law, applicable to a class created by Section 211 of the Constitution, mandatorily requiring the legislature as to this class to pass certain laws.
All statutes are to be construed, if possible, so as not to violate the Constitution, it being presumed that the legislature was cognizant of the provisions and did not intend to contravene them.
Mississippi Digest, Title "Constitution," Key No. 48.
Section 211 of the Constitution and Section 90 (p), being in pari materia, must be construed together.
Life Cas. Ins. Co. v. Walters, 180 Miss. 384, 177 So. 47.
See, also Board of Supervisors of Attala County v. Illinois Central R. Co., 186 Miss. 294, 190 So. 241; State ex rel. Attorney General v. School Board of Quitman County, 181 Miss. 818, 181 So. 313; First National Bank Trust Co. v. Landau, 183 Miss. 651, 184 So. 618; Simpson County v. Burkett, 178 Miss. 44, 172 So. 329; Virden v. State Tax Commission, 180 Miss. 467, 177 So. 784; Washington County v. Board of Mississippi Levee Com'rs, 171 Miss. 80, 156 So. 872; Toombs v. Sharkey, 140 Miss. 676, 106 So. 273; Cox v. Wallace, 100 Miss. 525, 56 So. 461.
Collation of authorities in which classifications sustained: Wyatt v. Harrison, etc., College, 177 Miss. 13, 170 So. 526; Otken v. Lamkin, 56 Miss. 758; Ellis v. Greaves, 82 Miss. 36, 34 So. 81; Chrisman v. Brookhaven, 70 Miss. 477, 12 So. 458; Turner v. Hattiesburg, 98 Miss. 337, 53 So. 681, State Teachers' College v. Morris, 165 Miss. 758, 144 So. 374; Scarbrough v. McAdams Consolidated School Dist., 124 Miss. 844, 87 So. 140; McLeod v. State, 154 Miss. 468, 122 So. 737, 63 A.L.R. 1161; and the authorities cited in Mississippi and Southern Digests, "Schools and School Districts," Key 33.
See Toombs v. Sharkey, supra; Cox v. Wallace, supra; Tiley v. Grenada Building Loan Ass'n, 143 Miss. 381, 109 So. 10; Halsell v. Merchants' Union Ins. Co., 105 Miss. 268, 62 So. 235, 645, Ann. Cas. 1916E, 229; State ex rel. Knox v. Speakes, 144 Miss. 125, 109 So. 129, 132; City of Jackson v. Deposit Guaranty Bank Trust Co., 160 Miss. 752, 133 So. 195; Memphis C.R. Co. v. Bullen, 154 Miss. 536, 121 So. 826, 829.
This act does not fall within the condemnation of Williamson v. Howell, 155 Miss. 220, 124 So. 319; Scarbrough v. McAdams Consolidated School Dist., supra; Hewes v. Langford, 105 Miss. 375, 62 So. 358; State Board of Education v. Pridgen, 106 Miss. 219, 63 So. 416.
See also Clark v. State, 169 Miss. 369, 152 So. 820; Miller v. State, 130 Miss. 564, 94 So. 706.
Compare Henry, Auditor, v. Carter, 88 Miss. 21, 40 So. 995; Slay v. Lowery, 152 Miss. 356, 119 So. 819, 820; Hart v. Backstrom, 148 Miss. 13, 113 So. 898; State v. Roell, 192 Miss. 873, 7 So.2d 867.
Chapter 150 does not deal with the support of any private or common school, incorporate the same, or grant such school any privileges.
Jones v. Madison County, 72 Miss. 777, 18 So. 87; Pace v. State ex rel. Rice, 191 Miss. 780, 4 So.2d 270, 274.
The complainants were entitled to have this trust executed by the chancery court, and the declaration, in passing, of the unconstitutionality of this Chapter 150, with deference, was improper, because the equitable right was perfectly adequate to vouchsafe complainants everything whereto they were entitled, and the fact that the legislature might have provided an alternative remedy did not divest the chancery court of its equitable jurisdiction and its obligation to preserve the rights of those parties.
Gibbs v. Green, 54 Miss. 592; State v. Woodruff, 83 Miss. 107, 35 So. 422; Edwards v. Edwards, 193 Miss. 889, 11 So.2d 450; Tileston v. Ullman, State's Attorney, 87 L.Ed. 443; Mandeville v. Canterbury, 87 L.Ed. 445; Hutchinson's Code, 205, Art. 1; 3 Peters Comp. 163.
Argued orally by Geo. H. Ethridge, for appellants, by Robert L. Genin, for appellees, and by Garner Green, as amici curiae.
The school trustees of Township 3, Range 17, in Pearl River County, and the Attorney General have taken this appeal from a final decree of the chancery court of said county dismissing the bill of complaint filed by such trustees, as well as the answer and cross-bill of the Attorney General wherein he joins in the prayer of the trustees for the relief prayed for, against the other defendants, to wit, the board of supervisors, the county superintendent of education, and certain other persons, including Guy McCullen, State Land Commissioner, who is a mere nominal defendant having no interest in the subject matter of the suit, and by which proceeding it is sought to have the chancery court render a decree approving a certain proposed, but unexecuted, mineral lease in favor of the Sun Oil Company for the exploration and possible production of oil, gas and other minerals on Section 16 of said township and to direct the execution of the same by said trustees, or, in the alternative, by such other person or persons as may be designated by the court on behalf of the inhabitants of the township and for the benefit of the educable children therein, upon the theory that under Chapter 150, Laws of 1942, amending Section 6762, Code of 1930, no one else is now vested with authority to lease a sixteenth section of land for mineral purposes in the territory lying south of the 31 degree of north latitude, embracing Pearl River, Hancock, Harrison, Jackson, George, Stone, and parts of Forrest and Perry Counties, and also in substantial portions of Lowndes, Clay, and Monroe Counties in the eastern part of the state, and the counties of Warren, Claiborne, Jefferson, Adams, Wilkinson, and the larger portions of Amite and Franklin Counties in the southwestern part of the state referred to in the record as the "Old Natchez District," and in all of which said three separate territories such lands are likewise held by the state as trustee and reserved for the support of the township schools, it being contended that said Chapter 150, Laws of 1942, has withdrawn from the boards of supervisors in the various counties throughout the state, including the above mentioned areas, which have control over any sixteenth sections of land reserved for such purposes, or lands held in lieu thereof, the authority which they formerly had under said Section 6762, Code of 1930, to make such a lease with the approval of the Governor and the Attorney General, and has apparently undertaken to vest authority in the boards of supervisors of those counties alone that are situated in a particular area of the state which is referred to in the said Act of 1942 as the "Choctaw purchase," to make such a lease with the approval of the county superintendent of education. And it is alleged that Pearl River County is outside of the Choctaw purchase within the meaning of the statute in question; that, therefore, there is now no statutory power and authority vested in any officer or officers to make such a lease, and that the chancery court in the exercise of its constitutional jurisdiction in all matters in equity under Section 159 of the State Constitution should authorize the proper persons to lease said land for oil and gas in order that the trust under which the state holds title to the same as trustee for the benefit of the township schools may be faithfully administered.
The board of supervisors and the county superintendent of education interposed demurrers and also filed answers to the bill of complaint, wherein they assert their lack of authority under Chapter 150, Laws of 1942, supra, to execute a lease on any sixteenth sections of land in their county, admit the fairness of the proposed lease to the Sun Oil Company and that it would be advantageous to the inhabitants of the township for the same to be executed, but deny the authority of the complainants to bring this suit, and challenge the jurisdiction of the chancery court to grant the relief prayed for, the substance for which last mentioned objection, as we understand it, being (1) that the duty of the state as trustee to provide for the leasing of these lands is not such a trust as is contemplated within the equity powers conferred upon said court by Section 159 of the Constitution, nor is the state such a trustee as may be required by its courts to perform its functions through any agency designated by decree in that behalf in the absence of its own consent given by legislative enactment; and (2) that an adequate, full and complete remedy is provided by law for the leaving of said lands for mineral purposes by the board of supervisors with the approval of the Governor and the Attorney General under Section 6762, Code of 1930, supra, on the assumption that the said Act of 1942, amendatory thereof, is unconstitutional, and therefore ineffective to modify or repeal the authority granted to said officials under the code section, supra, for the alleged reason that the amendatory act is a special or local law, in contravention of Section 90, subsection (p) of the State Constitution, in that it denies benefits to the educable children in various counties of the state which by its terms and provisions are vouchsafed to the educable children in other sections thereof, without any reasonable basis for such classification and discrimination.
The court below was of the opinion that in the exercise of its equity powers under Section 159 of the Constitution, it would have jurisdiction to grant the relief prayed for in the absence of any legislative authority vested in anyone else in that behalf, but held that said Chapter 150, Laws of 1942, is unconstitutional for the reason hereinbefore mentioned, and that therefore such lease could be made under the statute sought to be amended by said act. The court, therefore, sustained the demurrers to the bill of complaint and cross-bill after hearing proof both as to the fairness of the proposed lease and as to whether from a historical standpoint the use of the words "in the Choctaw purchase," as contained in the act, had the effect of limiting the application thereof to a particular area of the state such as would exclude the land here involved, and a decree was then rendered dismissing said pleadings when the complainants declined to plead further.
From the foregoing statement of the case it will be seen that there was presented to the court below the question of whether or not the sixteenth section of land here involved is subject to lease at all under the present state of our legislative enactments on the subject or under the authority of a decree of the chancery court. Section 6773, Code of 1930, provides that "The chancery courts have jurisdiction to determine, on bill or petition, what lands are, or may be, subject to lease under provisions of this article; but all sixteenth sections, or lands taken in lieu thereof, are presumed to be so subject, unless the contrary be shown clearly." Hence, it follows that said court was confronted with the necessity of deciding whether or not the right previously conferred upon board of supervisors to make such a lease with the approval of the Governor and the Attorney General under Section 6762 of said Code had been effectually withdrawn, and this question was to be determined (1) upon the construction and application given to the amendatory act, Chapter 150, Laws of 1942, supra, that is to say, whether the authority to make leases thereunder was limited to a particular area of the state which in a true historical sense might exclude the right to do so in Pearl River County, and (2), if so, whether said Act of 1942 is unconstitutional as a special or local law in alleged violation of Section 90, subsection (p) of the State Constitution, as contended by the board of supervisors. On the second proposition above stated, it is the contention of the appellants that said amendatory act should be so construed and applied as to exclude said county from its operation, and that the same should, nevertheless, be held constitutional, thereby leaving the chancery court vested with full authority under its equity powers to lease lands for mineral purposes in the excluded area, and with the result that we would have a situation where the sixteenth sections of land reserved for school purposes, and lands held in lieu thereof, would be leased for mineral purposes in a large area of the state by the boards of supervisors upon the approval of the county superintendent of education, that is to say, pursuant to legislative fiat as contemplated by Section 211 of the State Constitution that all of such lands should be, if leased at all, and the remainder of them leased by decree of court alone; and this condition of divided authority would likewise prevail to such an extent that even in the same county the board of supervisors and the county superintendent of education would lease a part of the lands and the chancery court the other, that is to say, in Lowndes, Clay, Monroe, Amite, Franklin, Forrest and Perry which are located partly within and partly without the so-called restricted area.
In further reference to the alleged jurisdiction of the chancery court in the premises, we have already noted that the proposed lease, made an exhibit to the bill of complaint, is unexecuted. Therefore, equity jurisdiction cannot be sustained under Section 6775, Code of 1930, conferring upon the chancery court the authority to confirm "a lease heretofore made by the board of supervisors or by their authority or direction"; that, hence, the only statutory power vested in such court to entertain the present suit is Section 6773, Code of 1930, hereinbefore quoted, giving it jurisdiction to determine whether the land here involved is subject to lease by the proper authorities under any existing law whether due to the claim of an existing lease thereon or other legal obstacle. For that purpose, we are of the opinion that the court had jurisdiction and that the chancellor was confronted with the necessity of passing upon the constitutionality of said amendatory act of 1942, to the end that he might adjudicate the question of whether the lands could be leased by the board of supervisors with the approval of the Governor and the Attorney General under Section 6762, Code of 1930, supra, upon the theory that the act amendatory thereof should be held unconstitutional as a special or local law creating an unwarranted classification as between counties having control over such lands reserved for school purposes, as contended by the board of supervisors, or were not subject to lease at all, either under the said code section or the said act of 1942, except by decree of the court upon the theory and contention of the appellants that said last enactment had validly withdrawn all statutory authority from any officer or officers so to do in the county where the land covered by the proposed lease is located. But we are of the further opinion that the statute granting authority to determine whether or not any sixteenth section of land, or land held in lieu thereof, is subject to lease does not vest the power in the chancery court to make the lease here involved, since Section 211 of the Constitution provides that the legislature shall enact such laws as may be necessary in the premises, and this law-making body in the exercise of its constitutional prerogative has enacted laws whereby the counties, through their respective boards of supervisors, etc., have been given jurisdiction and control in such matters by virtue of Article 27 on "Sixteenth Sections and Lieu Lands" of Chapter 163 on Schools, Code of 1930; and it is provided by Section 6762 of said Code, as well as by the act amendatory therof, that the board of supervisors, with the approval of the other officials therein named, are authorized and empowered, in their discretion, to make such leases upon such terms and for such consideration as the board of supervisors, in its discretion, shall deem advisable and proper, but within certain prescribed limitations so far as the amendatory act is concerned. In other words, under the conclusion reached by us in the case at bar as to the proper construction and application of the act in question, there has been no failure of the legislature to enact necessary laws to carry out the mandate of Section 211 of the Constitution, and even if it could be assumed that the chancery court in the exercise of its equity powers under Section 159 thereof would be entitled to grant the relief prayed for in the absence of authority on the part of anyone else to make such a lease for the benefit of the educable children of the township — a case not now before us — it could not direct or control by its decree the execution of the lease herein by those officials who are vested with a discretion and charged with the responsibility under the law of determining whether or not, and upon what terms and for what consideration, a lease should be executed in a given case.
Where under a constitutional mandate a thing is to be done pursuant to subsequent legislative enactment, and the legislature has thereafter enacted the necessary laws in that behalf, conferring jurisdiction and control of the subject matter upon a particular board or tribunal, it will not be presumed that the framers of the Constitution intended that the duty or power to do the thing required should be performed by some other body or tribunal under its granted or inherent powers which do not deal with such subject matter, either expressly or by necessary implication.
These views bring us to a consideration of the question of whether the court below had jurisdiction to determine and adjudicate the issue whether or not the sixteenth section of land here involved is subject to lease under the existing statutes, as well as the right of the Attorney General to invoke its jurisdiction in that behalf by means of his cross-bill in view of the public interest involved in the contention of the county superintendent of education that no one has authority to make such a lease, the contention of the board of supervisors that it has the right to do so with the approval of the Governor and the Attorney General under Section 6762, Code of 1930, and the contention of the said cross-complainant that the chancery court alone has jurisdiction to grant relief. And the jurisdiction to determine these questions is not dependent upon whether the township school trustees had the right to file the original bill of complaint under the facts of the particular case. In order to determine the court's jurisdiction for the purpose above mentioned under Section 6773, supra, and the extent to which it may grant relief, we necessarily reach the constitutional question presented by the respective parties as to the construction and application of said Chapter 150, Laws of 1942, even though we affirm the decree of the court below in holding that it was without jurisdiction to grant any of the relief prayed for in so far as approving the proposed lease and directing the execution thereof is concerned. We arrive at our decision under a different view to those urged by the several litigants, respectively, and of which we have already taken cognizance herein in regard to the effect of the amendatory act in question, as well as the view of the court below, and base our conclusion largely upon the considerations argued by counsel amicus curiae who has briefed the issues on behalf of others interested in the construction to be given to the statutes involved.
Section 6762, Code of 1930, supra, reads as follows: "The boards of supervisors upon approval of the governor and attorney-general are hereby authorized and empowered, in their discretion, to lease sixteenth section lands in their respective counties, or the lands held in lieu of same, reserved for the support of township schools, for oil, gas, and mineral exploration and development, upon such terms and conditions and for such consideration as the board of supervisors, in its discretion, shall deem proper and advisable."
Chapter 150, Laws of 1942, supra, provides that said Section 6762, Code of 1930, "be and the same is hereby amended to read as follows: . . . The boards of supervisors upon approval of the county superintendent of education of each county are hereby authorized and empowered, in their discretion, to lease sixteenth section lands in their respective counties, where such land was included in the Choctaw purchase, or the lands held in lieu of same whether located therein or elsewhere, reserved for the support of township schools, for oil, gas and mineral exploration and development upon such terms and conditions, and for such consideration as the boards of supervisors, in their discretion, shall deem proper and advisable . . ."
The title of the foregoing amendatory act indicates no purpose on the part of the legislature to limit the application of the law, as amended, to lands "in the Choctaw purchase," whatever that term is intended to imply. It purports to authorize the boards of supervisors of "the various counties of Mississippi" to execute mineral leases on sixteenth section school lands or lands held in lieu thereof "in their respective counties." The only limitation therein on the right to lease the lands of the description above stated is that they shall be "school lands" — a class that would include all sixteenth section lands or lands held in lieu thereof in any county of the state where such land is located outside of the Chickasaw Cession, the sixteenth sections and all other lands in that Cession having been sold by the United States and the proceeds of such sales paid over to the Chickasaw Indians under the terms of its treaty with them, October 20 and 22, 1832, ratified March 1, 1833. 7 Peters' Comp. 381, 388, set forth in Hutchinson's Mississippi Code, Chapter 5, pp. 128-135. This Chickasaw Cession is said to have embraced an area of 6,283,804 acres in the northern and northeastern parts of the state, and since the United States had agreed to turn over to these Indians the net proceeds of the sales, without any provisions having been made for the reservation of the sixteenth section in each township for the support of the common schools, as had been done elsewhere in this state, the condition of inequality was remedied later by Congress granting in lieu of such reservation, one thirty-sixth part of the ceded lands, and which lands so thus granted on July 4, 1836, U.S. Stat., vol. 5, p. 116, Chapter CCCLV, as amended by the statute of June 13, 1842, U.S. Stat., vol. 5, p. 490, Chapter XL, were later offered for sale, pursuant to Article 38, Act of February 23, 1848, Hutchinson's Mississippi Code, 233, "at public auction, to the highest bidder, for lease for the term of ninety-nine years, and renewable to the lessee, his heirs or assigns, forever . . ."
The said Chapter 150, Laws of 1942, was adopted as House Bill No. 688, and, as disclosed by the House Journal, the provisions of the act as reported to the House conformed to the purport of its title and authorized the boards of supervisors upon the approval of the county superintendent of education "to lease sixteenth section lands in their respective counties, or lands held in lieu of same whether (the lands held in lieu thereof were) located therein (in their respective counties) or elsewhere," the lands held in lieu being mostly located in about two counties in the extreme southern part of the state. It was amended on the floor of the House by inserting the words "where such land (in sixteenth sections) was included in the Choctaw purchase," the amendment having been offered by a representative from Itawamba County located in the Chickasaw Cession; and manifestly was offered and adopted for the purpose of distinguishing the lands proposed to be leased from the sixteenth section lands located in the Chickasaw Cession where the author of the amendment resided, the title to which lands had been virtually converted into a fee-simple ownership in those in possession by virtue of the right of perpetual renewal of the leases, and also under Chapter 217, Laws of 1854, making it the duty of the treasurer thereafter to give to the purchaser of such a lease a certificate of payment upon the production of which it became the duty of the governor to issue a patent, and which act also provided that "all lands heretofore leased . . . shall be renewable to the lessee, . . . forever, without the payment . . . of any other sum . . . than may be necessary as charges (in connection with the issuance of patents or other evidence of purchases of such perpetually renewable leases) by the proper officers of the State." The foregoing view as to the purpose of the amendment is further supported by the fact that it was adopted by a practically unanimous vote of the house and concurred in by the unanimous vote of the Senate, including the votes of the representatives and senators residing in those counties comprising the three separate areas, hereinbefore mentioned, in the southern, eastern, and southwestern portions of the state and now claimed to have been excluded from the operation of the act. Moreover, the only lands which had ever been reserved for the support of the township schools were those in the Chickasaw Cession, which had already been virtually sold outright as aforesaid, and the proceeds converted into the "Chickasaw School Fund," and which were not necessarily sixteenth sections, and those school lands located outside of said Chickasaw Cession; and the presumption is that the members of the legislature did not intend to exclude from the beneficent results of the act the educable children in those particular sections of the state hereinbefore mentioned as being outside of the Choctaw purchase and at the same time include within the operation of the said act only those counties now claimed to be within the Choctaw purchase, in a literal sense, when viewed from an historical standpoint. Then, too, Section 211 of the Mississippi Constitution of 1890 requires, in effect, that the legislature shall enact such laws as may be necessary to obtain revenues from the sixteenth section lands, or lands granted in lieu thereof, reserved for the support of the township schools, by leasing the same under certain limitations therein prescribed; and Section 6773 of the Code of 1930, which has not been amended, recognizes the jurisdiction of the chancery court to determine what lands are, or may be, subject to lease, and declares that "all sixteenth sections, or lands taken in lieu thereof [and reserved for school purposes] are presumed to be so subject, unless the contrary be shown clearly."
Section 211 of the Constitution, supra, provides as follows: "The legislature shall enact such laws as may be necessary to ascertain the true condition of the title to the sixteenth section lands in this state, or land granted in lieu thereof, in the Choctaw purchase, and shall provide that the sixteenth section lands reserved for the support of township schools shall not be sold, nor shall they be leased for a langer term than ten years for a gross sum; but the legislature may provide for the lease of any of said lands for a term not exceeding twenty-five years for a ground rental, payable annually; and, in case of uncleared lands, may lease them for such short term as may be deemed proper in consideration of the improvement thereof, with right thereafter to lease for a term or to hold on payment of ground rent."
Two views are suggested as to the proper construction to be given the words "in the Choctaw purchase" appearing in the foregoing constitutional provision: (1) That such provision had a twofold purpose, (a) to require that "the true condition of the title" of the sixteenth section lands, or land granted in lieu thereof, in the Choctaw purchase, should be ascertained, limiting the application of the words to the land acquired from the Choctaw Indians under the treaties hereinafter mentioned, and (b) that none of the sixteenth section lands reserved for the support of the township schools should be sold, but should be leased under the limitations therein set forth; but that neither of such requirements were intended to apply to the sixteenth sections in the Chickasaw Cession, since neither they, nor any other lands located therein, were being reserved for such purposes at the time of the adoption of said Constitution, and the one thirty-sixth part of the lands of said Cession, wherever they were located therein, had practically all been leased under such circumstances as to virtually amount to a fee-simple title, and any remaining acres therein were then subject to be so leased; and (2) that the use of the words "in the Choctaw purchase" was intended to qualify all of the provisions of this constitutional mandate, but that they were used merely to distinguish the lands to be leased, as well as those the "true condition of the title" to which was to be ascertained, from the lands in the Chickasaw Cession as to which all confusion as to title had been removed and the right of the state as trustee of the title surrendered so far as making the short-term leases contemplated by Section 211 was concerned by virtue of the Act of Congress of July 4, 1836, Article 38, Act of February 23, 1848, Hutchinson's Miss. Code, 233, etc., hereinbefore cited, and Chapter 217, Laws of 1854, heretofore quoted from; that the lands covered by said Section 211 of the Constitution included all sixteenth sections of land, and lands held in lieu thereof, reserved for the support of the township schools in the counties and parts of counties south of the 31 degree of north latitude as aforesaid, all those in Lowndes, Clay, and Monroe counties, and those in the old "Natchez District," the same as elsewhere outside of the Chickasaw Cession.
In support of the first theory of construction above stated, the appellants, the board of supervisors and the county superintendent of education, rely upon an historical map prepared by the late Director of the Department of Archives and History, Dr. Dunbar Rowland, and introduced in evidence, which purports to show that from an historical standpoint the Choctaw purchase is comprised of such lands only as were included in the treaties between the United States and the Choctaw nation, at Mount Dexter, November 16, 1805 — Laws U.S. Ed. 1815, I, 349; Land Laws 1828 . . . 127; 7 U.S. Stat. 98; at Doak's Stand, October 18, 1820 — ratified January 8, 1821 — Acts 1821 . . . 95; 7 U.S. Stat. 215, 216; and at Dancing Rabbit Creek, September 27, 28, 1830 — ratified February 24, 1831 — 7 U.S. Stat. 333, Hutchinson's Miss. Code, Chap. 5, pp. 119-128, and which said last above mentioned treaty ceded "the entire country they (the Choctaw nation of Indians) own and possess east of the Mississippi River," and which map excludes the lands below the said 31 degree of north latitude, parts of the counties of Lowndes, Clay, and Monroe and the territory in the old Natchez District, as aforesaid, as well as the Chickasaw Cession.
In support of the second theory of construction above stated, counsel amicus curiae refer to the proceedings of the Constitutional Convention, showing that Judge Edward Mayes, a delegate from the state at large, introduced a provision, or resolution, out of which said Section 211 was finally evolved, making it the duty of the Attorney General to prepare for the next legislature a bill "to secure proper legislation looking to the recovery of squandered school land, etc., commonly known as the 'Sixteenth Section', etc." Journal, p. 98. And it is contended that whatever practice had been engaged in by local authorities and lessees in connection with the ninety-nine year leases theretofore executed in the counties located in the Choctaw purchase, as delineated on the map hereinbefore referred to, had likewise prevailed in the area excluded therefrom on this map and not located in the Chickasaw Cession; that we cannot ascribe to the framers of this provision of the Constitution a purpose to rectify partially and leave unrectified precisely the same evil in adjoining territory wherein rectification was equally requisite; and that any confusion of title did not arise because of the source from which these lands had been originally acquired by the government, but rather due to the practices under which the leases had been obtained to such lands as the state was then still holding the title as trustee for the support of the schools, as distinguished from the Chickasaw lands already converted into the "Chickasaw School Fund."
The proceedings of this Convention disclose that the proposal of Judge Mayes was submitted to the Committee on Education, and was later reported so as to contain, among other recitals, a condition to the effect that "the lands reserved by the acts of Congress, passed 4th July, 1836 and 13th June, 1842, are not included in this provision." This refers definitely to the one thirty-sixth part of the lands set apart for school purposes out of the Chickasaw Cession as heretofore shown, U.S. Stat., vol. 5, p. 116, chapter CCCLV.
Thereafter, Mr. Yerger proposed that "the legislature shall enact such laws as may be necessary to ascertain the true condition of the title of the sixteenth section lands in this state or land granted in lieu thereof," etc. Since there were sixteenth sections of land in the Chickasaw Cession, Mr. Dillard offered to amend by inserting after the lands referred to the words "reserved for the support of the township schools." This amendment was accepted and would have clarified the provision except for the fact that one thirty-sixth part of the lands in the Chickasaw Cession had in fact been reserved originally for such purpose by the acts of Congress relating to the Chickasaw lands passed "4th July, 1836, and 13th June, 1842," but they had been thereafter leased under Chapter 217, Laws of 1854, in such manner as to virtually convert the leaseholds into fee-simple titles as hereinbefore stated; and thereupon it was evidently thought necessary by Mr. Jamison, a farmer from Noxubee County, residing outside of the Chickasaw Cession, that in order to make it clear that the lands in the Chickasaw Cession were not to be dealt with under the powers either granted or being denied by the proposed constitutional provision, providing for short-term leases, it should be further amended so as to insert after the words "sixteenth section lands in this state, or lands granted in lieu thereof," the words "in the Choctaw purchase." This amendment was accepted and inserted in the proposed Section 211, and it is contended that if the words "in the Choctaw purchase" be held not to apply to all such school lands as are outside of the Chickasaw Cession, then Judge Edward Mayes, Yerger, and Dillard, who were apparently steering this constitutional provision through the Convention, are placed in the attitude of having agreed, without protest, to its emasculation (after having made express reference to the Acts of Congress, July 4, 1836 and June 13, 1842, as aforesaid, in their original undertaking), and of having consented that the state, outside of the Chickasaw Cession, should be severed and divided into portions, one wherein the legislature was mandatorily required to rectify, the other wherein the wrong of precisely the same degree was to be continued to run rampant.
Pursuant to Section 211 of the Constitution, the legislature, in 1892, adopted the provisions of the code prepared by Messrs. Thompson, Dillard, and Campbell, who were outstanding members of the Constitutional Convention of 1890, and it was required by Sections 4144-4147 thereof, respectively, that "the board of supervisors of each county wherein is situated a sixteenth section of land, . . . or another section . . . taken in lieu of any sixteenth section . . . reserved for the support of township schools . . . shall take all such further action as shall be necessary to ascertain the true condition of the title to each parcel of such land in its county, and to establish and confirm the same, . . ."; that abstracts of title should be made therefor; that funds derived from the leases thereof should be discovered and properly applied; and that suits should be filed to establish the titles and settle disputes whenever necessary. These statutes were brought forward in the succeeding codes and have been generally understood to have reference to all lands reserved for the support of the township schools outside of the Chickasaw Cession, that is to say, all of the school lands over which the boards of supervisors were given control, wherever situated. Moreover, the words "in the Choctaw purchase" have not been used in any statute since the adoption of the Constitution of 1890 until the enactment of Chapter 150, Laws of 1942, supra, but all of the statutes in the chapters on "sixteenth Sections," contained in the Code of 1892, 1906, and 1930, have dealt with the sixteenth sections or lands held in lieu thereof, and reserved for school purposes, outside of the Chickasaw Cession, as being in one and the same class. It is therefore urged by counsel, amicus curiae, that the contemporaneous construction given Section 211 of the Constitution by the code commissioners and legislature of 1892, and the subsequent legislative history of dealing with all school lands outside of the Chickasaw Cession in the same manner, would justify a construction being given to both the constitutional provision and to the said act of 1942, such as would give the words "in the Choctaw purchase" a state-wide application outside of the Chickasaw Cession.
In further support of this view it will be noted from Section 211 of the Constitution that the words "sixteenth section lands in this state" and the words or "granted in lieu thereof" all appear immediately before the words "in the Choctaw purchase," and yet we find that two years thereafter the said code commissioners procured the adoption of Section 4160 of the Revised Code of 1892, which provides, among other things, that the 30,829.16 acres of land in Hancock County received in lieu of sixteenth sections "shall be dealt with in all respects as other sixteenth section lands notwithstanding their location outside of the counties interested." Practically all of the lands held in lieu of sixteenth section lands were located in Hancock County, outside of what is claimed to be the Choctaw purchase; and this fact would indicate that the makers of the Constitution were dealing with the land granted in lieu of sixteenth sections as being in the Choctaw purchase, although located for the most part below the 31st degree of north latitude.
Then, too, Dr. Dunbar Rowland, who prepared the map heretofore referred to and introduced in evidence, stated, in vol. 1, p. 64, of "Mississippi, the Heart of the South"; "Speaking in general terms of the Muskhogean, or Choctaw-Muskhogen family, it may be said to have occupied for many centuries prior to the coming of the white races all that vast area of country extending from the Savannah River and the Atlantic west to the Mississippi River, and from the Gulf of Mexico north to the Tennessee River, with the exception of certain small areas in the possession of the Yuchi, Natchez and some settlements of Shawni."
Also it will be found that this court, in the case of Montgomery et al. v. Doe ex dem. Ives et al., 13 Smedes M. 161, speaking through Judge Clayton, said: "By the treaty of peace concluded between Great Britain and the United States, in 1783, at the end of the war of the revolution, Great Britain acknowledged the southern boundary of the United States to be the thirty-first degree of north latitude. The boundaries were particularly described. By a treaty made between Great Britain and Spain, about the same time, the Floridas were ceded to Spain, without any description of boundary." The court further said: "After the war of 1756, by the treaty concluded in 1763, Spain ceded to Great Britain, Florida, Fort St. Augustin, the Bay of Pensacola, and all that she possessed on the continent of North America, to the east or southeast of the river Mississippi. At the same time, France also ceded to Great Britain the whole of New France, and all of that portion of the province of Louisiana, lying upon the east side of the Mississippi river, except the island of New Orleans. Great Britain, by these concessions, became the owner, subject to the Indian right of occupancy of all the land between the Mississippi river, and the Atlantic Ocean."
Therefore, the question arises as to what is meant by the words "subject to the Indian right of occupancy of all the land between the Mississippi river, and the Atlantic Ocean," since in the year 1763 the Natchez Indians had been exterminated thirty years previously and the land involved in that case was located in Jefferson County in the old Natchez district outside of what is claimed to be the Choctaw purchase, and in regard to which the court further said: "The Indian title to the country in which this tract of land lies, was not then extinguished [on the 7th of October, 1763]. In point of fact, it was not extinguished until May, 1777, when the Choctaws relinquished their title to it, by a treaty at Mobile with the British superintendent of Indian affairs. . . . The country embraced in the relinquishment extended from the mouth of the Yazoo, down the Mississippi, till it intersects the 31st degree of north latitude, and reached in the interior at the beginning, some fifteen, and at the lower end some sixty miles" This area would apparently coincide with the boundaries of the old Natchez district. Elsewhere in its opinion the court said that "In the war between the French and the Natchez tribe of Indians, which terminated about the year, 1730, in the extinction of that tribe, the Choctaws were the allies of the French, and gave them very efficient aid. It is probable from the fact of the treaty made by the British with them at Mobile, in 1777, before mentioned, that they succeeded to and occupied the hunting grounds of the Natchez, in virtue of the conquest. . . . 1 Martin's Hist. Louisiana, 280-287; 1 Monette, 274."
Thus, it would appear that if the Natchez tribe of Indians were extinguished in 1730, they were non-existent in 1763 when Spain and France made the concessions to Great Britain and when she "became the owner, subject to the Indian right of occupancy," as aforesaid, and that this tribe had been exterminated for a period of approximately seventy-five years before the treaty was made between the United States and the Choctaw nation of Indians, at Mount Dexter, November 16, 1805, and for approximately ninety years before the treaty at Doak's Stand, October 18, 1820, and for approximately one hundred years when the treaty was made at Dancing Rabbit Creek, September 27, and 28, 1830, and for a like period when the treaty was made with the Chickasaw Indians, at Pontotoc Creek, October 20 and 22, 1832, 7 U.S. Stat., pp. 381 and 388, hereinbefore mentioned. The Biloxi, Pascagoula and other minor tribes had then also become long since extinct; and hence at the time of these treaties the United States had need to extinguish only the Choctaw and Chickasaw titles, and that consequently the framers of the Constitution of 1890 were concerned only with the Choctaw and Chickasaw lands when adopting the said Section 211 of that Constitution. At any rate, there had never been any other school lands with which they were called upon to deal, and there was naught to be done in reference to the Chickasaw lands insofar as ascertaining the true condition of the title thereto or of leasing the same for a short period of years.
As against the foregoing alleged historical truths, it is contended by counsel for the appellee board of supervisors that "The fact is that all that section below the thirty-first parallel was claimed by the French and by the Spaniards, and we recognized their right by the purchase of the Louisiana territory from France. The United States acquired the French claim to what was known as West Florida in the treaty with the French in 1803 [8 Stat. 200]. By Act of Congress May 14, 1812 [2 Stat. 734], there was added to the Mississippi territory all that land which now lies between the Alabama line and Pearl River and south of the thirty-first parallel." It is also contended by some of the appellants that the Choctaws never, at any time, claimed or occupied any lands outside of those expressly covered by the treaties heretofore referred to, and delineated on the map as being in the Choctaw purchase, even though the "Dancing Rabbit Treaty" did purport to cede "The entire country they own and possess east of the Mississippi river."
However, it is unnecessary that we decide whether or not from a true historical standpoint the Choctaw Indians ever claimed or possessed any land in said extreme southern part of the state, or in Lowndes, Clay, and Monroe Counties, or in the old Natchez district, since the only question before us is that of determining in what sense the words "in the Choctaw purchase" were used in Section 211 of the Constitution and in the Act of 1942, here involved; and we have reached the conclusion that the use of such words was intended only to distinguish the lands referred to from those in the Chickasaw Cession.
We, therefore, affirm the decree of the court below in dismissing the bill of complaint and the cross-bill, but we hold, contrary to the view of the court below, that said Chapter 150, Laws of 1942, supra, is constitutional, and that the land involved in this suit is subject to lease for mineral purposes by the board of supervisors of the county upon the approval of the county superintendent of education under said act.
Affirmed.