(117 Miss. 234) CLARK et al. v. BOARD OF TRUSTEES other defendants herein, the said county superintendent and the said principal of the faculty of said school, without authority or warrant in law for so doing, and in violation of their duty under the law as such officers, and of the rights (Supreme Court of Mississippi, Division A. of your petitioners and of their said children, March 25, 1918.) MANDAMUS 4(5)-EXCLUSION OF CHILDREN Parents of children wrongfully excluded from a school by the trustees of the consolidated school district were entitled to remedy by mandamus against the trustees, though they could pursue the remedy of appealing to the school authorities as provided in the statutes, not being limited to such procedure, nor forced to pursue it first. Appeal from Circuit Court, Perry County; Paul B. Johnson, Judge. Petition for writ of mandamus by Davis and Zoola Clark against the Board of Trustees of the Loper Line Consolidated School District. From a judgment dismissing the petition, plaintiffs appeal. Reversed and re manded. Currie & Currie, of Hattiesburg, for appellants. R. S. Hall, of Hattiesburg, for appellee. HOLDEN, J. This is an appeal from a judgment sustaining a demurrer and dismissing a petition for a writ of mandamus. Here is the controversy: Appellants set up in the petition for the writ: "That they are freeholders in and patrons of said Loper Line consolidated school district and of the said Loper Line consolidated school, and that they have and are the parents of children of the free school educable age, who by law and as a matter of right are entitled to attend said free school; that your petitioners are the owners of property in said consolidated school district, upon which they pay taxes, and that they contribute and have contributed to the establishment, equipment, and maintenance of said school; and that your petitioners, as parents of said children, and as resident freeholders and taxpayers in said consolidated school district, and as patrons of said school, have the right to send their children to said school, and to have them taught by the teacher therein. "Your petitioners allege that it is the duty of said trustees, said county superintendent, and said principal of the faculty of said school to receive the children of your petitioners in said school in the same manner and on equal footings with other children, and to teach and instruct the children of your petitioners in the same manner and on equal footings with those of the other patrons of said school, and that this duty the law enjoins upon said defendants by virtue of their said offices. "Your petitioners allege that they heretofore, at the opening of said school, started their said children in attendance thereupon, as in law they had a right to, by virtue of the premises herein alleged, and that the said children of your said petitioners, as they were entitled to do in law and of right, entered said school for the purpose and with the intention of being therein taught and trained in the same manner and on equal footings with the children of the other patrons of said school, when on the 25th day of September, 1916, the said trustees of said school, acting as such and in concert with the wrongfully and oppressively refused and denied to your petitioners and their said children the right to attend said public school, and served official notice of their action upon your petiwhich is hereto appended as 'Exhibit A,' is in tioners in writing, which said notice, a copy of the words and figures as follows, to wit: "Rhodes, Miss., September 25, 1916. "Mr. Davis Clark-Dear Sir: You are hereby notified that you must take your children out of our public school. We have looked the matter up, and are acting on the suggestion of the county superintendent and other county officers, and therefore we feel that we are acting right in writing this notice. "W. S. Caynon, "'S. M. Loper, "O. E. Bellew, 66 ""Trustees Loper Line Consolidated School." "Your petitioners allege, by reason and by virtue of the aforesaid notice and of the aforesaid wrongful action of the said officers, they have been wrongfully and oppressively deprived by the Constitution of the United States and of the constitutional right guaranteed to them of the state of Mississippi and the laws thereof to send their children to the free school of their county when of free school educable age, and that their said children by said same notice have been deprived of the constitutional rights guaranteed to them by the Constitution of the United States and the state of Mississippi to attend the public school of their said county, and that their children have by said wrongful acts aforesaid been wrongfully and oppressively and without warrant of authority in law by said officers, defendants herein, deprived of their right to obtain and acquire an education in the free school or public school of the land provided for that purpose and maintained in part by your petitioners." The question raised by the demurrer is whether the writ of mandamus will lie. The contention made upon the demurrer in the lower court was that the writ would not lie, because the court had no jurisdiction over the subject-matter of the petition, and that the petition presented matters that lay exclusively within the jurisdiction of the school authorities and boards of education in the state of Mississippi, and could be determined only by the school authorities and school boards, relying on sections 4487, 4503, and 4524, Code of 1906 (sections 7322, 7580, and 7344, respectively, Hemingway's Code), to sustain the contention presented by the demurrer. The question presented now for our decision was expressly passed upon by this court in Moreau v. Grandich, 114 Miss. 560, 75 South. 434, which case clearly holds that an appeal to the school authorities to secure a right to the benefits of our public schools is not an exclusive remedy, but that mandamus will lie to enforce such rights through the courts of the state. We here quote from the opinion in that case: "It is next to be determined as to whether an appeal under the school law from the trustees to the superintendent was an exclusive remedy. In our opinion it is not an exclusive For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes remedy. The right to admission to the public | stance, and there submit the matter for adjuschools of the state is a valuable right, upon dication. This is a right proceeding from which litigants have a right to a judicial deter shot their mark before the formidable walls cause remanded. mination. In our view, the trustees of schools constitutional guaranties, and all efforts that are not judicial officers, and do not exercise have ever been unwisely put forth to impair judicial functions. They are administrative or curtail those guaranties have unfailingly bodies, and while appeals lie from the decision of the trustees to the county superintendent, and from the county superintendent to the state board of education, these appeals deal with administrative matters and do not constitute res adjudicata. Hobbs v. Germany, 94 Miss. 469, 49 So. 515, 22 L. R. A. (N. S.) 983. Under sections 1 and 2 of our Constitution, separating the powers of government into legislative, executive, and judicial departments, persons in one department of government cannot exercise the powers of any other department of the government, and there is no provision in reference to school trustees that modifies these provisions. There are many cases where proceedings before administrative bodies are analogous to proceedings in courts. They frequently hear and determine facts, but their findings and judgments have no conclusive effect, and do not constitute res adjudicata." Reversed and remanded. STATE V. DUTTON. (117 Miss. 391) (No. 20026.) (Supreme Court of Mississippi, Division A. March 25, 1918.) EXEMPTIONS TAXATION 197 MONEY ber, 1911, while it should have been assessed to Where respondent loaned money in Septemhim in 1912 under Code 1906, § 4257 (Hemingway's Code, § 6888), fixing liability for taxable property on February 1st, and section 4264 (section 6898), requiring statement of property owned on February 1st, he was entitled to exemption upon the effective date of Laws 1912, c. 251, which became effective February 24, 1912, and which exempted from taxation money loaned at not over 6 per cent., since the taxes were not due and collectable when the 1912 act went into effect. A citizen who has a lawful right to enter his children in a public school, and who has been wrongfully denied this right, may, if he so elects, pursue the remedy of appealing to the school authorities, as provided in the statutes, for relief against such wrong, and probably should do so in most cases; but he is not limited to such procedure, nor is he compelled to first pursue the remedy provided by the statutes above, but may bring his complaint into the courts, without resorting to an appeal to the school authorities. The privilege of being heard in open court should not be denied the humblest citizen, who is wrongfully deprived of a substantial right. As the church is built and dedicated as the temple of religion, so the courthouse is set up in the midst of men and dedicated the temple of justice. The door of this temple is barred to no man with a just complaint. There are no keys, of which the few have duplicates and the many have none. Vicksburg, for appellee. The halls of this temple are free to all; the rich and the poor, the proud and the meek, the heathen and the priest. It is the seat of the institution that is founded upon the unchanging granite of the law, and safeguarded by the tenets of our Constitutions. The courts are not closed to any one aggrieved because there may perchance be other tribunals, or other constituted authority, legislative or executive, to which or to whom recourse may first be had. If a man be wronged, if he be deprived of any right conferred by law, however slight the wrong or deprivation may seem, he has his right of action in the courts. Whether he has been the prey of unscrupulous private individuals, or the victim of misguided public officials, there is no distinction or difference. He may seek redress in a court of justice in either event. In the latter case he is not compelled to exhaust his remedies by appeal to administrative authority before bringing his cause into court. He may bring it in the first in Appeal from Circuit Court, Warren County; E. L. Brien, Judge. Proceedings by the State for the assessment of the property of J. M. Dutton. From a judgment sustaining finding of the board of supervisors rejecting the assessment, the State appeals. Affirmed. Reed, Brandon & Bowman, of Natchez, for the State. Brunini, Hirsch & Griffith, of SYKES, J. The appellant prosecutes this appeal from a judgment of the circuit court, which judgment sustained and approved the finding of the board of supervisors of Warren county, rejecting an attempted assessment for taxation against the appellee upon the following state of facts: Appellee, on September 11, 1911, loaned to E. W. Jones $6,100, for which he took Jones' notes which bore interest at the rate of 5 per cent. per annum. On the 24th day of February, 1912, chapter 241, Laws of 1912, became effective. Among other things, this law, in brief, exempted from taxation money loaned at not over six per cent. per annum. Section 2 of this act expressly provides "that this act shall take effect and be in force from and after its passage." In December, 1916, the sheriff of Warren county, by order of the state revenue agent, made, by way of an additional assessment for back taxes upon solvent credits, money loaned, etc., which had escaped taxation by reason of not having | been previously assessed, an assessment against appellee for the year 1912 for the loan above mentioned. The appellee contested before the board of supervisors this assessment, basing his contention upon the fact that under chapter 241, Laws of 1912, this loan was exempt from taxation for that year. The board of supervisors sustained the contention of appellee, and ordered the assessment against him, based on this loan, to be stricken from the rolls. It is the contention of appellant that, under section 4257, Code of 1906 (section 6888, Hemingway's Code), since these notes were held by appellee on and before the 1st day of February, 1912, they were to be assessable to him and that taxes thereon should be paid for that year. It is further contended that, under section 4264, Code of 1906 (section 6898, Hemingway's Code), which provides for the listing of all personal property possessed on February 1st of each year, these notes became assessable and liable for taxes for that year; that this liability had arisen before the above statute became effective, and that this law is not retroactive, and, consequently, did not apply to loans of that character. Appellant relies upon the cases of Adams v. Lamb-Fish Lumber Co., 114 Miss. 534, 75 South. 379, and McHenry Baptist Church v. McNeal, 86 Miss. 22, 38 South. 195. It is true that this loan should have been assessed to the appellee by the assessor under the above sections of the Code. When this act was passed by the Legislature it knew of these sections of the Code. It also knew that at the time of the passage of the act the taxes were not due or collectable. It also knew that the assessment roll of the assessor was not then due to be returned to the board of supervisors. The meaning of the act, in our judgment, is plain. The act expressly provides that "all money loaned at a rate of interest not exceeding six per cent. per annum shall be exempt from taxes of any character whatever"; and, further, it is provided that the act "take effect and be in force from and after February 24, 1912." The intention of the act was to exempt from taxes money loaned at this rate of interest from and after its passage. If the assessor had assessed this loan, then the appellee could have been relieved of this assessment before the taxes were collected, at any time after the passage of the act. It therefore became unnecessary for the board of supervisors to assess this property when, under the express provisions of the act, no taxes could be collected upon the assessment. The case is altogether different from the two cases above mentioned, relied upon by the appellant. The judgment of the lower court is affirmed. Affirmed. (117 Miss. 532' THOMAS v. STATE. (No. 20083.) (Supreme Court of Mississippi. March 25, 1918.) 1. CONSTITUTIONAL LAW 268 CRIMINAL LAW 636(1) — TRIAL PRESENCE OF ACCUSED STATUTES-VALIDITY. Code 1906, § 1495 (Hemingway's Code, § 1253), authorizing accused to waive right to be present at any stage of trial at the discretion of the court, if he is in custody and consents, accused a right to be heard, and is valid. does not violate Const. 1890, § 26, giving the 2. CRIMINAL LAW 636(1) TRIAL-PRESENCE OF ACCUSED-STATUTES-VALIDITY. Such statute merely gives the accused an additional privilege of waiving presence. 3. CRIMINAL LAW 918(9)-NEW TRIALPRESENCE OF ACCUSED-WAIVER. Since such statute provides that waiver shall be at the discretion of the court, if it appears that the accused did not receive a fair and imthough failure to secure a fair and impartial partial trial, a new trial would be granted, altrial was on account of accused's waiver of presence. 4. CRIMINAL LAW 636(2)-TRIAL-WAIVER OF PRESENCE-DISCRETION OF COURT. Under such statute, where one accused of murder went from the courtroom without the knowledge of the judge or the attorneys, but in custody of an officer, for a few minutes, and made no objection at any time to the progress of the trial in his absence, he waived his presence. 5. CRIMINAL LAW 636(1)—TRIAL-WAIVER OF PRESENCE-DISCRETION OF COUrt. Under such statute, the accused may waive presence, even in a capital case. 6. CRIMINAL LAW 636(1)-TRIAL-WAIVER OF PRESENCE. There is no difference in value or sacredness of accused's right to be present on the trial, or common law, and it may be waived in any whether it is granted by Constitution, statute, event. 7. CRIMINAL LAW 1035(3)-TRIAL-PRESENCE OF ACCUSED-DUTY OF COUNSEL. If defendant in a criminal case voluntarily absents himself from the courtroom during the trial, it is the duty of accused or his counsel to inform the court of his absence, so that the court may then correct the situation. 8. CRIMINAL LAW 1186(4) HARMLESS ERROR. APPEAL Where accused had a fair and impartial himself from the courtroom during examination trial, notwithstanding he voluntarily absented of two jurors, one of whom was afterwards accepted and one successfully challenged, error, if any, in proceeding with the trial was harmless, and under court rule 11 (72 South. vii) could not work reversal. APPEAL 9. CRIMINAL LAW 1186(4) HARMLESS ERROR. Only those errors which deprive the accused of some substantial right should be held reversible error, and a conviction should be permitted to stand, unless the error complained of has caused a substantial injury. Sykes and Cook, JJ., dissenting. In Banc. Appeal from Circuit Court, Holmes County; W. L. Dyer, Special Judge. George Thomas was convicted of murder, and he appeals. Affirmed, P. P. Lindholm, of Lexington, for appellant. Frank Roberson, Asst. Atty. Gen., for the State. HOLDEN, J. George Thomas was convicted on a charge of murder and sentenced to imprisonment for life, from which judgment he appeals. During the stage of the trial when the jury was being impaneled to try Thomas, he voluntarily left the courtroom and went to the toilet with a deputy, remaining there about ten minutes in response to a call of nature. While he was absent two jurors were examined, one of whom was excused by the state, and the other was accepted by both the state and defendant. Thomas absented himself from the trial without the knowledge or consent of the court or his counsel. His counsel was informed of the nizance or bail, or have been arrested and escaped, or have been notified by the proper officer and resisted or fled, or refused to be taken, or of the pendency of the indictment against him, be in any way in default for non-appearance, the trial may progress, at the discretion of the court, and judgment final and sentence be awarded as though such defendant were personally present in court." caped the notice and consideration of this This important statute seems to have escourt for more than a quarter of a century. Why so, we are unable to say, but the fact that it has been overlooked or else ignored this statute mean and intend? Is it a valid during this period is certain. What does expression of the will of the Legislature? [1, 2] We think the meaning, purpose, and intent of the statute are plainly expressed by its language, and that it is valid and constitutional. criminal cases the accused may waive his It simply means that in all presence at any stage of the trial, if in custody, and the trial will proceed in his absence, provided he consents thereto; and provided, further, that such proceeding in the absence of the accused meets with the discretion fact about 30 minutes thereafter and before the jury was finally accepted to try the case, but neither counsel nor the accused made any objection to or protest against the progress of the trial. The court and district attorney knew nothing of Thomas' leaving the courtroom until the fact appeared in the motion for a new trial, and the fact of his absence was not disputed by the state. The motion for a new trial was overruled by the court, and this action of the court is assign-ary approval of the court. We think the stated here as fatal and reversible error, and is the only serious question presented by the appeal. Counsel for the appellant ably urges that the proceedings in the absence of the accused for ten minutes, during that part of the trial when the jury to try him was being impaneled, was a denial of his right to be heard, to be present, at his trial; a right given by the common law, and guaranteed by our Constitution, § 26, which provides: "In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed; and he shall not be compelled to give evidence against himself," etc. Counsel for appellant cites and relies upon several cases decided by this court to sustain his contention, which cases are apparently decisive of the question in his favor. The leading cases cited which seem to fortify him in his position are the Sherrod Case, 93 Miss. 774, 47 South. 554, 20 L. R. A. (N. S.) 509, Warfield Case, 96 Miss. 170, 50 South. 561, and Watkins Case, 110 Miss. 438, 70 South. 457. From a careful reading of all the cases cited by counsel we observe that in no case did this court especially consider and expressly pass upon the question of whether the accused may waive his presence during his trial, as provided in section 1495, Code 1906 (section 1253, Hemingway's Code,) which is as follows: ute announces a reasonable rule of procedure in criminal cases; it is promotive of a fair and impartial administration of justice, and deprives the accused of no right or privilege that he had heretofore enjoyed, but merely permits him to waive a guaranteed personal privilege, if he so desires. In passing this wholesome statute, the Legislature very probably had in mind that section 26 of our Constitution, which provides that "the accused shall have a right to be heard," means, that the accused shall have an opportunity to be heard; that he shall not be denied the opportunity to be heard if he so desires; and if he voluntarily and deliberately refuses to exercise this privilege and thus by his own act deprives himself of the right, then, in that event, he has waived the right. Without the statute, he might be denied the privilege to waive the right. Therefore the statute is not unfavorable to the accused in allowing him the right to waive his presence. There are other legal rights guaranteed the accused in this same section 26 which are frequently waived by him without question. For instance, the accused has a right to be heard by himself and counsel, but often the accused remains silent throughout the trial, thus waiving a right to be heard by himself; he has the right to refuse to testify in his case, yet this personal privilege is frequently waived by him; he may even waive his right to a trial and plead guilty to the charge. Then why should the accused be prohibited from waiving his presence for a short period during some stage of his trial, especially when such absence appears to have done him no substantial injury? "In criminal cases the presence of the prisoner may be waived, and the trial progress, at the discretion of the court, in his absence, if he be in custody and consenting thereto. If the de- [3] It will be observed that section 1495, fendant, in cases less than felony, be on recog-| Code 1906 (section 1253, Hemingway's Code). v. Commonwealth, 118 Ky. 8, 80 S. W. 211, 81 S. W. 704, affirmed U. S. Supreme Court, 200 U. S. 173, 26 Sup. Ct. 189, 50 L. Ed. 421; State v. Gonce, 87 Mo. 627; Leo Frank v. State, 142 Ga. 741, 83 S. E. 645, L. R. A. 1915D, 817. In Sahlinger v. People, 102 Ill. 241, the court said: "The constitutional right of a prisoner to appear and defend in person and by counsel, to to meet the witnesses face to face, was conferdemand the nature and cause of the accusation, red for the protection and the benefit of one accused of a crime, but, like many other rights, no reason is perceived why it may not be waived by the prisoner." provides that such waiver of his presence by Commonwealth (Ky.) 37 S. W. 153; Howard the accused shall be "at the discretion of the court." This is a sound provision, and is a safeguard against the accused being denied any substantial right at his trial, and its purpose is to protect him, at all events, in securing a fair and impartial trial, in a court presided over by a just and impartial judge. The discretion is given the court to see that the accused obtains a just trial, even though he has waived his right to be present at some stage of it. If it appeared in the lower court, or here on appeal, that the accused did not receive a fair and impartial trial by an impartial jury, a new trial would be granted, even though the failure to secure a fair and impartial trial in the lower court had been on account of waiver of presence by the accused. This safe-13 S. W, 490, 8 L. R. A. 608, State v. Smith, guard is rightfully reserved in the statute, so that, in the last analysis, the court will see to it that suicide by process of law is prevented, and that no injustice is done the accused on account of his own act of waiver or on account of any wrongful procedure by the trial court. In Gore v. State, 52 Ark. 285, 12 S. W. 564, 5 L. R. A. 832, State v. Hope, 100 Mo. 347, 90 Mo. 37 1 S. W. 753, 59 Am. Rep. 4, it is held that the constitutional right of a person charged with a felony to be present at every stage of his trial is not infringed by a statute which permits the trial to proceed in his absence if he absents himself voluntarily. The statutes in these states, upon which these cases rest, are similar in princi 1253, Hemingway's Code), and have been held to be constitutional. [4] In view of the statute and the conclusions reached above, we hold that the appel-ple to our section 1495, Code 1906 (section lant was in custody and waived his right to be present in this case when he voluntarily left the courtroom and remained away from his trial for a few minutes, and made no objection, at any time, either by himself or his counsel to the trial progressing in his absence. The lower court committed no er ror. The following cases hold that the defendant's voluntary absence from a courtroom during the examination of a juror who was challeged by defendant's counsel and did not sit in the case is no ground for reversal: Van Houten v. People, 22 Colo. 53, 43 Pac. 137; Maxwell v. State, 89 Ala. 150, 7 South. 824. Mere absence of defendant from the courtroom for an inappreciable length of time during the trial will not warrant a reversal, is the rule announced in People v. Bush, 68 Cal. 623, 10 Pac. 169; State v. Ricks, 32 La. Ann. 1098. It was held in State v. Gonce, 87 Mo. 627, that the voluntary absence of accused in a criminal case from the courtroom, without and without the knowledge of his own counthe knowledge or permission of the court, sel, is not sufficient ground for a new trial. The courts of many different states have held that the accused may waive his presence at the trial, and that it is not error to proceed in his absence. We cite here a few of the cases so holding in other states: Hair v. State, 16 Neb. 601, 21 N. W. 464; State v. Peacock, 50 N. J. Law, 34, 11 Atl. 270; Boyd v. State, 153 Ala. 41, 45 South. 591; Hill v. State, 17 Wis. 675, 86 Am. Dec. 736; Stoddard v. State, 132 Wis 520, 112 N. W. 453, 13 Ann. Cas. 1211; State v. Way, 76 Kan. 928, 93 Pac. 159, 14 L. R. A. (N. S.) 603; Peo[5, 6] But it is urged by counsel for appelple v. Bragle, 26 Hun, 378; Id., 88 N. Y. lant that if an accused may waive his pres585, 42 Am. Rep. 269; State v. McGraw, 35 ence in a felony case, yet certainly in no S. C. 283, 14 S. E. 630; State v. Gorman, 113 event can he waive his presence in a capital Minn. 401, 129 N. W. 589, 32 L. R. A. (N. S.) case. This court so holds in the Sherrod 306; Van Houton v People, 22 Colo. 53, 43 Case, supra. But this holding is directly in Pac. 137; McCorkle v. State, 14 Ind. 39; the face of section 1495, Code 1906 (section Frey v. Calhoun, 107 Mich. 130, 67 N. W. 1253, Hemingway's Code), which statute 1047; State v. Ricks, 32 La. Ann. 1098; Com- seems to have been entirely overlooked, or else monwealth v. McCarthy, 163 Mass. 458, 40 ignored, in passing upon that question in N. E. 766; Jenkins v. State, 22 Wyo. 34, 134 the Sherrod Case. The statute here make's Pac. 260, 135 Pac. 749; Fight v. State, 7 no exception or distinction between felonies Ohio 181, pt. 1, 28 Am. Dec. 626; Starr v. and capital cases. In fact, all capital cases State, 5 Okl. Cr. 440, 115 Pac. 356; State v. are classed as felonies. It is said by the Buzzell, 59 N. H. 65; O'Toole v. State, 40 court in the Sherrod Case that the right to Tex. Cr. R. 578, 51 S. W. 244; Cason v. State, be present is not a constitutional right, but 52 Tex. Cr. R. 220, 106 S. W. 337; Davidson is a common-law right. We see no difference v. State, 108 Ark 191, 158 S. W. 1103, Ann. in the value or sacredness of the right, Cas. 1915B, 436; Hite v. Commonwealth, 20 whether it be granted by the Constitution, |