consequent degradation. The rural district in which Mrs. Mumme and her little girl reside has no schoolhouse fit for the teaching of children, and it is used for school purposes for a time totally inadequate; and the inhabitants, content to levy a tax totally inadequate to improve their condition, are permitting themselves to be placed in the position of attempting to destroy a law passed to ameliorate their condition.1

The case was appealed from the Court of Civil Appeals to the Supreme Court, which upheld the decision of the lower court. The Supreme Court emphasized section 5 of article 7, above quoted, which defines the "available school fund" and declares that this fund shall be distributed to the several counties according to their scholastic population. The court took issue with those attacking the constitutionality of the act on the grounds that appropriations from the general fund of the State for common school purposes can only be made in accordance with this provision, as follows:

The insistence is made that all appropriations from the general revenue must necessarily be made a part of the available school fund, and be apportioned to the counties in accordance with their scholastic population, as provided in article 7, § 5, of the constitution. We cannot agree with this interpretation of the organic law. As just shown above, the constitution has been liberally construed with reference to the creation of institutions of higher education, and the same liberal rules should apply in determining the power of the legislature with reference to the public school system. We cannot readily suppose that those who framed the constitution would have left the legislature with plenary power to create and maintain a system of higher education, and at the same time have intentionally so drawn the instrument that the legislative hands would be tied when changed conditions render it desirable or necessary to give aid to the public school system in the manner outlined in the law before us.18

The reasoning of the Texas court is the same as that followed by the Alabama court, that all school funds from whatever source derived do not necessarily become a part of the constitutional school fund, and need not, therefore, be distributed in accordance with the constitutional plan of apportionment. It is obvious from the language of the constitution that the term "available school fund" could plau

12 Marrs v. Mumme, 25 S. W. (2d) 215, at 218 (1930). 18 Mumme v. Marrs, 40 S. W. (2d) 31, at 33 (1931).

sibly have been held to be broad enough to cover all moneys which may be appropriated by the legislature for educational purposes. In such case, of course, only aid distributed in proportion to scholastic population could have been given to the schools throughout the State.

It must be observed again that the act of appropriation in this case does not contain anything which may be construed as an effort to tamper with the fund which is expressly set up by the constitution. It is left to be distributed in accordance with the constitutional plan.

Constitutional Provisions in
Various Other States

Constitutional provisions relating to the support of public schools vary markedly, from the specific to the most general. The constitutional provisions in some of the States in which the question of the constitutionality of equalization statutes has not arisen or has not been tested in the courts furnish examples of the variation in such provisions.

The Constitution of Florida, article XII, section 7, directs the legislature to provide for the apportionment and distribution of the interest on the State school fund and of all other means provided for the support and maintenance of public free schools in proportion to average daily attendance. The fact that the phrase "all other means provided" is placed in the apportionment section makes the constitutionality of an equalization law doubtful in Florida.

The sections of the Florida Constitution pertinent to the equalization problem are as follows:

ARTICLE XII, SECTION 4. The State School Fund, the interest of which shall be exclusively applied to the support and maintenance of public free schools, shall be derived from following sources. The proceeds of all lands that have been or may hereafter be granted to the State by the United States for public school purposes. Donations to the State when the purpose is not specified. Appropriations by the State. The proceeds of escheated property or forfeitures. Twentyfive per cent of the sales of public lands which are now or may hereafter be owned by the State. . .

ARTICLE XII, SECTION 6. A special tax of one (1) mill on the dollar of all taxable properly in the State, in addition to the other means

provided, shall be levied and apportioned annually for the support and maintenance of public free schools.

ARTICLE XII, SECTION 7. Provision shall be made by law for the apportionment and distribution of the interest on the State School Fund, and all other means provided, including the special tax, for the support and maintenance of public free schools among the several counties of the State in proportion to the average attendance upon schools in the said counties respectively.

Despite this all-inclusive provision there is one construction through which an equalization law may be upheld in Florida. It may be argued that the article and section referred to apply only to State school funds. Then if the line of reasoning followed in the Colorado case is used, that moneys appropriated for the use of the office of the superintendent of public instruction, which is a part of the State executive department, are for general State purposes and cannot therefore be governed by constitutional provisions dealing with school funds in the technical sense, it follows that an equalization plan is constitutionally possible even in Florida.

The Kansas Constitution has an "other means" provision, which is not, however, placed in the apportionment section as it is in the Florida Constitution. The provisions of the Constitution of Kansas are as follows:

ARTICLE 6, § 3. State permanent school fund. The proceeds of all lands that have been or may be granted by the United States to the state for the support of schools, and the five hundred thousand acres of land granted to the new states, under an act of congress distributing the proceeds of public lands among the several states of the union, approved September 4, A. D. 1841, and all estates of persons dying without heir or will, and such percent as may be granted by congress, on the sale of lands in this state, shall be the common property of the state, and shall be a perpetual school fund, which shall not be diminished, but the interest of which, together with all the rents of lands, and such other means as the legislature may provide, by tax or otherwise, shall be inviolably appropriated to the support of common schools.

ARTICLE 6, § 4. Same: apportionment of income. The income of the state school funds shall be disbursed annually, by order of the state superintendent, to the several county treasurers, and thence to the treasurers of the several school districts, in equitable proportion to the number of children and youth resident therein, between the ages of five and twenty-one years:

Article 6, section 3, specifies what shall constitute the perpetual school fund and provides that the income from this fund and such other means as the legislature may provide, by tax or otherwise, shall be inviolably appropriated to the support of the common schools. Obviously the other means provided by the legislature form no part of the perpetual fund. Article 6, section 4, contains the apportionment plan for the income from the State school fund, which presumably is the same as the perpetual school fund. It follows that any other funds provided by the legislature may be apportioned as the legislature sees fit. It may not be plausibly contended that funds provided by the legislature constitute income of the State school fund so as to bring them under the apportionment provisions of article 6, section 4. There is no apparent constitutional barrier to an equalization law in Kansas.

North Dakota provides in its constitution for the apportionment of the interest and income from a perpetual fund and "all other sums which may be added thereto by law." The pertinent provisions are:

ARTICLE 9, § 153. All proceeds of the public lands which have heretofore been, or may hereafter be granted by the United States for the support of the common schools in this state; all such per centum as may be granted by the United States on the sale of public lands; the proceeds of property that shall fall to the state by escheat; the proceeds of all gifts and donations to the state for common schools, or not otherwise appropriated by the terms of the gift, and all other property otherwise acquired for common schools, shall be and remain a perpetual fund for the maintenance of the common schools of the state. . . .

ARTICLE 9, § 154. The interest and the income from this fund together with the net proceeds of all fines for violation of state laws, and all other sums which may be added thereto by law, shall be faithfully used and applied each year for the benefit of common schools of the state, and shall be for this purpose apportioned among and between all the several common school corporations of the state in the proportion to the number of children in each of school age, as may be fixed by law. . . .

The North Dakota Constitution is not entirely clear as to what funds shall be apportioned on a school census basis. It provides that the interest and income from the perpetual

fund and all sums which may be added thereto by law shall be apportioned on the basis of the census. It is possible to construe this provision to include all money appropriated for public school support by contending that any appropriation is an addition by law to the interest, income, etc. On the other hand, it may be construed to include only such funds as are expressly stated to be additions to this income. The first construction would require all appropriations, as well as the income from the perpetual fund, to be apportioned on the basis of census. The second construction would permit the legislature to appropriate and apportion money for educational support in any manner it may determine.

The Oregon situation with reference to equalization is simple. The constitutional provisions relative to school funds are as follows:

ARTICLE VIII, SECTION 2. Common school fund.-The proceeds of all the lands which have, or hereafter may be, granted to this state, for educational purposes (except the lands heretofore granted to and [aid] in the establishment of a University), all the moneys and clear proceeds of all property which may accrue to the state by escheat or forfeitures; all moneys which may be paid as exemptions from military duty; the proceeds of all gifts, devices, and bequests made by any person to the state for common school purposes; the proceeds of all property granted to the state, when the purposes of such grant shall not be stated; all the proceeds of the five hundred thousand acres of land to which the state is entitled by the provisions of an act of congress ... and also the five per centum of the net proceeds of the sales of the public lands, to which this state shall become entitled on her admission into the Union (if congress shall consent to such appropriation of the two grants last mentioned) shall be set apart as a separate and irreducible fund, to be called the common school fund, the interest of which, together with all other revenues derived from the school land mentioned in this section, shall be exclusively applied to the support and maintenance of common schools in each school district, and the purchase of suitable libraries and apparatus therefor.

ARTICLE VIII, SECTION 4. Distribution of school fund.-Provision shall be made by law for the distribution of the income of the common school fund among the several counties of this state, in proportion to the number of children resident therein, between the ages of four and twenty years.

Constitutionally, only the income from the common school fund must be apportioned according to school census in