State Ex Rel. Normandy School District of St. Louis County v. Small

HYDE, Judge

(concurring).

I concur in the ruling of the opinion of DALTON, J., herein that Sec. 165.833, RSMo (1961 Cum.Supp.) V.A.M.S. is invalid and concur in the reasons therefor stated in the separate concurring opinion of EAGER, J. I would add the following comments. It certainly is true, as stated in School District of Oakland v. School District of Joplin, 340 Mo. 779, 102 S.W.2d 909, 915 , cited by relators: “In Missouri the property of school districts acquired from public funds is the property of the state, not the private property of the school district in which it may be located, and the school district is a statutory trustee for the discharge of a governmental function entrusted to the state by our Constitution.” Since school property is the public property of the State, the Legislature may authorize or require its transfer from one school district to another as it had done by statute in the Oakland case. (See also State on inf. of Dalton v. Metropolitan St. Louis Sewer District, 365 Mo. 1 , 275 S.W.2d 225, *874 231 .) Thus the Legislature could have authorized any school district to transfer property to a state institution of higher education without any lease or sale for the purpose of using it to operate a junior college. However, it has not done so by Sec. 14 of the 1961 act. (Sec. 165.833.)

Sec. 165.833 does not say that a school district may transfer school property to an institution of higher education which will assume the obligation of using it for operating a junior college; nor does it state any requirements for specifying or determining the use to be made of the property and fixing the obligation to do so. Instead it only authorizes a school district that has property not required for its use to sell or lease such property, as could be used for higher education, to such an institution. .“Sell” or “lease” would seem to mean a transaction based on reasonable value especially since the proceeds are required to be placed in the building fund of the district, the same as required for a sale to others by Sec. 165.370, RSMo. The principal difference is that Sec. 165.833 does not require an advertised sale for such a transaction with an institution of higher education.

This seems to me to get far away from “the formation of junior college districts and to establish the powers and duties of the state board of education with respect thereto.” Instead it has to do with the sale or lease of school district property to institutions of higher education with the use to be made of such property unrestricted. If the Legislature had by this bill specifically authorized transfers of property of school districts, with or without consideration, to state institutions of higher education for the purpose of operating junior colleges we would have a different question. Of course, it could authorize such a transfer for any purposes of higher education by a separate bill with a title clearly expressing such provision as its subject. This, in my view, would be a separate subject from formation of junior college districts.

I do not share the doubt expressed in the dissenting opinion of STORCKMAN, J., as to declaring this portion of the Act unconstitutional under Sec. 23, Art. Ill, and letting the remainder stand. The provisions clearly within the title are valid and only the part not covered by the title is invalid when it is severable. (State ex rel. Taylor v. Wade, 360 Mo. 895 , 231 S.W.2d 179, 184 , and cases cited; see also West’s Missouri Digest, Statutes <⅛:364(10).) I do not see how there can be any doubt that the Act provides a complete and workable plan for formation of junior college districts without Section 14.