USA > Mississippi > Official and statistical register of the state of Mississippi, 1908 v. 3 > Part 34
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The section having modified the fellow-servant rule in part, and authorized the legislature to further modify it, thereby recognized so much of it as has not been abrogated by it or subsequent legislation. Farquhar v. Alabama, etc., Ry. Co., .
78 Miss., 193 (28 So., 850).
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The engineer of a switch engine is not a superior agent or officer of the railway company to a yardmaster of the same company within the section. Ib.
Statutes cannot be enacted under this section authorizing employes of a corporation to recover when employes of indi- viduals, etc., similarly situated, cannot. Such statutes must be based on some difference inherent in the nature of the busi- ness, which difference serves as a basis for and warrants the classification. Ballard v. Oil Co., 81 Miss., 507 (34 So., 533).
Such statutes cannot be saved where the language applies to employes of all corporations, by construing it to apply only to corporations engaged in a hazardous business; this is not sever- ance between constitutional and unconstitutional provisions, but judicial legislation. Ib.
Where a statute contains on its face the boundaries by which severance can be made between non-interdependent clauses, the court may sever; but the court cannot make such severance by construing the act, according to the evidence in each case, as falling within or without. Ib.
Under this section and § 3559 of the Code of 1892 (Code 1906, Sec. 4056, a declaration in a suit by a fireman charging that he was injured by the negligence of the engineer, being a superior having the right to control plaintiff's services, the declaration being in the language of the statute, is not demurrable. Cheaves v. Southern Ry. Co., 82 Miss., 48 (34 So., 385).
Whether one servant is under the direction of another servant within the meaning of this section, is not to be determined by the rules of the railroad company ; it should be determined always by the facts in the case and the nature of the act performed. By looking to the facts surrounding the act itself and the actual relation of the two servants to the act, the rules of the company in such case are competent evidence, but are simply evidence at last, and where the rules and the actual facts conflict as to whether the servant has the right to control and direct, the facts, and not the rules, govern. Ib.
This section provides not only that a "superior agent" is not a fellow servant of those over whom he is such superior agent, but it also expressly declares "that any person having the right to control or direct the services of the party injured" is not a fellow servant of such person. In such a case the question is not whether the duties are "routine duties born of the occa- "sion," as said in the Evans case, but the question was merely whether the person suing has been injured by the negligence of another servant having the right to control or direct his services. (Evans case, 70 Miss., 529, disapproved.) Ib.
This section has no application to an action based on the negli- gence of the railroad company itself, that is to say, the master,
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in failing to provide a safe roadbed. Gulf R. Co. v. Bussey, 82 Miss., 616 (35 So., 166).
The employe's right to recover is not limited to cases where he is injured whilst executing at the very time of his injury some special command given by his superior officer, but he is entitled to recover if injured by the negligence of a superior officer whether he is at the time obeying any special command or engaged merely in the discharge of his ordinary duties. South- ern Ry. Co. v. Cheaves, 82 Miss., 48 (36 So., 691).
Liability of a railroad company for injuries caused by defec- tive machinery or appliances exists independently of this sec- tion and rests on its common law duty to furnish employes safe machinery and appliances. Failure in this regard is the negligence of the company and not of its employes. White v. Railroad, 72 Miss., 12 (16 So., 248).
It is only where an employe is killed through the negligence of a fellow servant that under this section an action therefor must be brought by the personal representative. Ib.
This section created the rights and causes of action it pro- vides for. Causes of action were created that had never before existed. Bussey v. Railroad Co., 79 Miss., 608 (31 So., 212).
It was competent for the Legislature to extend the remedies as to who could sue for the assertion of the rights provided in this section. Ib.
See Railroad Company v. Schraag, 84 Miss., 125 (36 So., 193).
A cause of action arising from the negligence of a fellow servant, based on this section, cannot be joined in the same count with a cause of action predicated of the master's negli- gence in failing to furnish his servant a safe place in which to work. Railroad v. Abrams, 84 Miss., 456 (36 So., 542).
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A railroad employe injured by the negligence of a superior officer or agent having the right to direct his services can recover, although his injuries were not received when executing some special command or order, but while engaged in the discharge of his ordinary duties, and when such officer or agent was engaged in discharging only the ordinary duties of his station. Railroad v. Cheaves, 84 Miss., 565 (36 So., 691).
NOTE: See also in connection with the annotations under this section those made under Sec. 4056 of the Code.
SEC. 194. The Legislature shall provide, by law, that in all elections for directors or managers of incorporated companies every stockholder shall have the right to vote, in person or by proxy, the number of shares of stock owned by him for as many persons as there are directors or managers to be elected, or to cumulate said shares so as to give one candidate as many votes as the number of directors multiplied by the number of his shares of stock shall equal, or to distribute them on the same principle among as many candidates as he shall see fit; and such
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directors or managers shall not be elected in any other manner; but no person who is engaged or interested in a competing business, either individually or as employe or stockholder, shall serve on any board of directors of any corporation without the consent of a majority in interest of the stockholders thereof.
SEC. 195. Express, telegraph, telephone, and sleeping-car companies are declared common carriers in their respective lines of business, and subject to liability as such.
-A telegraph company, engaged in domestic as well as interstate business, is subject to such reasonable police regulations as the State. may impose. Western, etc., Co. v. Mississippi Railroad Commission, 74 Miss., 85 (21 So., 15).
The section does not relieve a sleeping car company from liabil- ity to a privilege tax even if its local business be done at a loss and the tax has to be paid from its interstate business. . Pullman Co. v. Adams, 78 Miss., 814 (30 So., 757).
The stipulation on the back of a telegraph message that the company will not be liable beyond the charge paid for trans- mission for mistake in unrepeated messages or errors in trans- mitting cipher messages is unavailing as a defense, since this section makes telegraph companies common carriers and liable as such. Postal Co. v. Wells, 82 Miss., 733 (35 So., 190).
This section making telegraph companies common carriers, and the holding of our Supreme Court that they cannot contract against their own negligences, does not affect the validity or invalidity of contracts made by them in Massachusetts. Shaw v. Cable Co., 79 Miss., 683 (31 So., 222).
Under this section it is the duty of sleeping-car companies to notify passengers when they have reached their destination, and to afford them reasonable opportunity to alight. Pullman Co. v. Kelley, 86 Miss., 87 (38 So., 317).
SEC. 196. No transportation corporation shall issue stocks or bonds except for money, labor done (or in good faith agreed to be done), or money or property actually received; and all fictitious increase of stock or indebtedness shall be void.
SEC. 197. The Legislature shall not grant to any foreign corporation or association a license to build, operate, or lease any railroad in this State; but in all cases where a railroad is to be built or operated, and the same shall be partly in this State and partly in another State or in other States, the owners or projectors thereof shall first become incorporated under the laws of this State; nor shall any foreign corporation or associa- tion lease or operate any railroad in this State, or purchase the same or any interest therein. Consolidation of any railroad lines and corpora- tions in this State with others shall be allowed only where the consoli- dated company shall become a domestic corporation of this State. No general or special law shall ever be passed for the benefit of any foreign
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corporation operating a railroad under an existing license from this State, or under an existing lease; and no grant of any right or privilege, and no exemption from any burden, shall be made to any such foreign corpora- tion except upon the condition that the owners or stockholders thereof shall first organize a corporation in this State under the laws thereof; and shall thereafter operate and manage the same, and the business thereof, under said domestic charter.
SEC. 198. The Legislature shall enact laws to prevent all trusts, combinations, contracts, and agreements inimical to the public welfare.
A public contract for an article for less than cost is not within this section. Johnson Pub. Co. v. Mills, 79 Miss., 543 (31 So., 101).
Under this section only such trusts, combinations, contracts and agreements were to -be prevented by the Legislature as would be "inimical to the public welfare." Railroad v. Searles, 85 Miss., 529 (37 So., 939).
SEC. 199. The term "corporation" used in this article shall include all associations and all joint-stock companies for pecuniary gain having privileges not possessed by individuals or partnerships.
SEC. 200. The Legislature shall enforce the provisions of this article by appropriate legislation.
ARTICLE VIII.
EDUCATION.
SEC. 201. It shall be the duty of the Legislature to encourage, by all suitable means, the promotion of intellectual, scientific, moral, and agri- cultural improvement, by establishing a uniform system of free public schools, by taxation or otherwise, for all children between the ages of five and twenty-one years, and, as soon as practicable, to establish schools of higher grade.
(1817, Art. VI, Sec. 16; 1832, Art. VII, Sec. 14; 1869, Art. VIII, Sec. I.)
The school fund can only be applied to such schools as are with- in the uniform system devised. Otken v. Lamkin, 56 Miss., 758.
It is not required that the manner of selecting county super- intendents shall be uniform. Wynn v. State, 67 . Miss., 312 (7 So., 353).
The Legislature may not authorize a diversion of the common school fund, but may (decided under Sec. 1, Art. VIII, Consti- tution 1869) empower local authorities to provide schools out- side the established system and pay therefor by taxation. Otken v. Lamkin, 56 Miss., 758, distinguished; Chrisman v. Brookhaven, 70 Miss., 477 (12 So., 458).
The Constitution of 1869, Art. VIII, Sec. I, and also § 201 of the Constitution of 1890, providing for the establishment of a
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uniform system of public schools, prohibited the appointment by legislative act of designated persons as trustees of a public school for a term of twenty years, the act granting the trustees power to fill vacancies, exclusive control and various other powers not conferred on trustees of public schools generally. Ellis v. Greaves, 82 Miss., 36 (34 So., 81).
While § 4008 of the Code of 1892 did not supersede § 148 of the Laws of 1888 relative to the trustees of the Hazlehurst public school, nevertheless said act of 1888 is unconstitutional in that it violates § 201 of the Constitution of 1890. Ib.
·SEC. 202. There shall be a Superintendent of Public Education elected at the same time and in the same manner as the Governor, who shall have the qualifications required of the Secretary of State, and hold his office for four years, and until his successor shall be elected and qualified, who shall have the general supervision of the common schools and of the educational interests of the State, and who shall perform such other duties and receive such compensation as shall be prescribed by law.
(1869, Art. VIII, Sec. 2.)
SEC. 203. There shall be a Board of Education, consisting of the Secretary of State, the Attorney-General, and the Superintendent of . Public Education, for the management and investment of the school- funds according to law, and for the performance of such other duties as may be prescribed. The Superintendent and one other of said Board shall constitute a quorum.
(1869, Art. VIII, Sec. 3.)
SEC. 204. There shall be a Superintendent of Public Education in each county, who shall be appointed by the Board of Education by and with the advice and consent of the Senate, whose term of office shall be four years, and whose qualifications, compensation, and duties, shall be prescribed by law; Provided, That the Legislature shall have power to make the office of County School Superintendent of the several counties elective, or may otherwise provide for the discharge of the duties of County Superintendent, or abolish said office.
(1869, Art. VIII, Sec. 4).
The term of office cannot be extended by the Legislature. Burnham v. Summer, 50 Miss., 517.
SEC. 205. A public school shall be maintained in each school-district in the county at least four months during each scholastic year. A school- district neglecting to maintain its school four months, shall be entitled to only such part of the free school fund as may be required to pay the teacher for the time actually taught.
(1869, Art. VIII, Sec. 5.)
SEC. 206. There shall be a county common school fund, which shall consist of the poll-tax, to be retained in the counties where the same is collected, and a State common school fund, to be taken from the general
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fund in the State treasury, which together shall be sufficient to maintain the common schools for the term of four months in each scholastic year. But any county or separate school district may levy an additional tax to maintain its schools for a longer time than the term of four months. The State common school fund shall be distributed among the several counties and separate school districts in proportion to the number of educable children in each, to be determined from data collected through the office of the State Superintendent of Education in the manner to be prescribed by law. (Laws 1904, ch. 173).
(1869, Art .. VIII, Sec. 6.) (See amendment No. 2).
The section abrogated Sec. 6, Art. VIII, Constitution of 1869, by which fines were devoted to the common school fund. State Board of Education v. Mobile, etc., R. R. Co., 71 Miss., 500 (14 So., 445).
SEC. 207. Separate schools shall be maintained for children of the white and colored races.
SEC. 208. No religious or other sect or sects shall ever control any part of the school or other educational funds of this State; nor shall any funds be appropriated towards the support of any sectarian school, or to any school that at the time of receiving such appropriation is not con- ducted as a free school. -
(1869, Art. VIII, Sec. 9.)
SEC. 209. It shall be the duty of the Legislature to provide by law for the support of institutions for the education of the deaf, dumb, and blind.
(1869, Art. XII, Sec. 27.)
SEC. 210. No public officer of this State, or any district, county, city, or town thereof, nor any teacher or trustee of any public school, shall be interested in the sale, proceeds, or profits of any books, apparatus, or furniture to be used in any public school in this State. Penalties shall be provided by law for the violation of this section.
SEC. 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, 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; 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 consid- eration of the improvement thereof, with right thereafter to lease for a term or to hold on payment of ground rent.
(1817, Art. VI, Sec. 20.)
SEC. 212. The rate of interest on the fund known as the "Chickasaw School Fund," and other trust funds for educational purposes for which the State is responsible, shall be fixed, and remain as long as said funds
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are held by the State, at six per centum per annum from and after the close of the fiscal year A. D. 1891; and the distribution of said interest shall be made semi-annually, on the first of May and November of each year.
This section is not self-executing; there must be a legislative appropriation. State ex rel v. Cole, Auditor, 81 Miss., 174 (32 So., 314).
SEC. 213. The State having received and appropriated the land donated to it for the support of agricultural and mechanical colleges by the United States, and having, in furtherance of the beneficent design of Congress in granting said land, established the Agricultural and Mechani- cal College of Mississippi and the Alcorn Agricultural and Mechanical College, it is the duty of the State to sacredly carry out the conditions of the Act of Congress upon the subject, approved July 2, A. D. 1862, and the Legislature shall preserve intact the endowments to and support said colleges.
ARTICLE IX. MILITIA.
SEC. 214. All able-bodied male citizens of the State between the ages of eighteen and forty-five years shall be liable to military duty in the militia of this State, in such manner as the Legislature may provide.
(1869, Art. IX, Sec. I.)
SEC. 215. The Legislature shall provide for the organizing, arming, equipping, and discipline of the militia, and for paying the same when called into active service.
(1817, Art. "Militia," Sec. 1; 1832, Ib .; 1869, Art. I.X, Sec. 2.)
SEC. 216. All officers of militia, except non-commissioned officers, shall be appointed by the Governor, by and with consent of the Senate, or elected, as the Legislature may determine; and no commissioned officer shall be removed from office except by the Senate on suggestion of the Governor, stating the ground on which such removal is recom- mended, or by the decision of a court-marshal pursuant to law, or at his own request.
(1817, Art. "Militia," Sec. 3; 1832, Ib .; 1869, Art. IX, Sec. 4.)
SEC. 217. The Governor shall be Commander-in-Chief of the militia, except when it is called into the service of the United States, and shall have power to call forth the militia to execute the laws, repel invasion, and to suppress riots and insurrections.
(1817, Art. "Militia," Sec. 4; 1832, Ib .; 1869, Art. I.X, Sec. 5.)
SEC. 218. The Governor shall nominate, and, by and with the consent of the Senate, commission one Major-General for the State, who shall be a citizen thereof, and also one Brigadier-General for each Congressional District, who shall be a resident of the district for which he shall be appointed, and each district shall constitute a militia division.
(1869, Art. IX, Sec. 6.)
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SEC. 219. The Adjutant-General, and other staff officers to the Com- mander-in-Chief, shall be appointed by the Governor, and their appoint- ment shall expire with the Governor's term of office, and the Legislature shall provide by law a salary for the Adjutant-General commensurate with the duties of said office.
(1869, Art. IX, Sec. 7.)
SEC. 220. The militia shall be exempt from arrest during their attend- ance on musters, and in going to and returning from the same, except in case of treason, felony, or breach of the peace.
(1869, Art. IX, Sec. 8.)
SEC. 221. The Legislature is hereby required to make an annual appropriation for the efficient support and maintenance of the Mississippi National Guard, which shall consist of not less than one hundred men for each Senator and Representative to which this State may be entitled in the Congress of the United States; but no part of such funds shall be used in the payment of said guard except when in actual service.
SEC. 222. The Legislature shall empower the board of supervisors of each county in the State to aid in supporting a military company or companies of the Mississippi National Guard within its borders, under such regulations, limitations, and restrictions as may be prescribed by law.
ARTICLE X.
THE PENITENTIARY AND PRISONS.
SEC. 223. No penitentiary convict shall ever be leased or hired to any person or persons, or corporation, private or public or quasi public, or board, after December the thirty-first, A. D. 1894, save as authorized in the next section, nor shall any previous lease or hiring of convicts extend beyond that date; and the Legislature shall abandon the system of such leasing or hiring as much sooner than the date mentioned as may be consistent with the economic safety of the State.
SEC. 224. The Legislature may authorize the employment under State supervision and the proper officers and employes of the State, of convicts on public roads or other public works, or by any levee board on any public levees, under such provisions and restrictions as it may from time to time see proper to impose; but said convicts shall not be let or hired to any contractors under said board, nor shall the working of the convicts on public roads, or public works, or by any levee board ever interfere with the preparation for or the cultivation of any crop which it may be intended shall be cultivated by the said convicts, nor interfere with the good management of the State farm, nor put the State to any expense.
SEC. 225. The Legislature may place the convicts on a State farm or · farms and have them worked thereon under State supervision exclusively, in tilling the soil or manufacturing, or both, and may buy farms for that
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purpose. It may establish a reformatory school or schools, and provide for keeping of juvenile offenders from association with hardened criminals. It may provide for the commutation of the sentence of convicts for good behavior, and for the constant separation of the sexes, and for the sepa- ration of the white and black convicts as far as practicable, and for religious worship for the convicts.
(1869, Art. XII, Sec. 28.)
SEC. 226. Convicts sentenced to the county jail shall not be hired or leased to any person or corporation outside of the county of their con- viction after the first day of January, A. D. 1893, nor for a term that shall extend beyond that date.
ARTICLE XI.
LEVEES.
SEC. 227. A levee system shall be maintained in the State as provided in this article.
SEC. 228. The division heretofore made by the Legislature of the alluvial land of the State into two levee districts-viz., the Yazoo-Mis- sissippi Delta Levee District and the Mississippi Levee District, as shown by the laws creating the same, and the amendments thereto-is hereby recognized, and said districts shall so remain until changed by law; but the Legislature may hereafter add to either of said districts any other alluvial land in the State.
Lands within the Mississippi Levee District, as recognized by the section, and not between the levee and the river (exempted by Sec. 238) are liable to levee taxes, although they be damaged rather than benefited by the construction of the levees. Smith v. Willis, 78 Miss., 243 (28 So., 878).
SEC. 229. There shall be a board of levee commissioners for the Yazoo-Mississippi Delta Levee District which shall consist of two members from each of the counties of Coahoma and Tunica, and one member from each of the remaining counties or parts of counties now or hereafter embraced within the limits of said district, and the Governor may appoint a stockholder in the Louisville, New Orleans and Texas Railway Company as an additional commissioner; and there shall also be a Board of Levee Commissioners for the Mississippi Levee District, which shall consist of two members from each of the counties of Bolivar and Washington, and one from each of the counties of Issaquena and Sharkey. In the event of the formation of a new county or counties out of the territory embraced in either or both of said levee districts, such new counties shall each be entitled to representation and membership in the proper board or boards.
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