American Book Co. v. Marrs

• Decision Date: 30 June 1923
• Docket Number: (No. 4001.)
• Citation: 253 S.W. 817
• Parties: AMERICAN BOOK CO. v. MARRS, State Superintendent of Public Instruction.
• Court: Texas Supreme Court

Page 817

253 S.W. 817

AMERICAN BOOK CO. v. MARRS, State Superintendent of Public Instruction.

(No. 4001.)

Supreme Court of Texas.

June 30, 1923.

Application for mandamus by the American Book Company against S. M. N. Marrs, State Superintendent of Public Instruction. Application denied.

H. M. Garwood, C. R. Wharton, and E. F. Smith, all of Houston, for relator.

W. A. Keeling, Atty. Gen., Jno. C. Wall, Frank M. Kemp, and Bruce Bryant, Asst. Attys. Gen., and Etheridge, McCormick & Bromberg, of Dallas, A. M. Frazier, of Hillsboro, T. N. Jones, of Tyler, and Chas. L. Black, of Austin, opposed.

PIERSON, J.

Relator, American Book Company, filed its petition in this court for writ of mandamus against respondent, S. M. N. Marrs, state superintendent of public instruction, in which it alleges that it has two certain valid contracts with the state of Texas, entered into between it and the Texas state text-book commission, by the terms of which it had contracted and obligated itself to furnish and sell to the state of Texas, for a stated period of time, certain text-books, and that the state of Texas had obligated itself to use said text-books in its public schools. It further alleged that it is the duty of respondent, as state superintendent of public instruction, to furnish to all boards of school trustees of the state of Texas blank forms for reports for requisition of such text-books, and that after such requisitions have been made, to order the appropriate number of books from the relator's state depository, such order to be made not later than June 1st of each year. Relator further alleged that respondent had failed and refused to perform his ministerial duties in relation to its said two contracts, but had sent out blank forms for requisition of text-books to the school superintendents of the state, which contained the names of geographies other than the ones which relator had contracted to furnish, and which it had the exclusive right under its contracts to furnish, and had thus deprived relator of all opportunity to furnish and sell to the state the text-books it had contracted to furnish, and prevents relator from carrying out the terms of its said contracts. It prayed for a mandamus, commanding respondent: (a) To cancel and hold for naught any and all requisitions made by the school superintendents of the state on the blank forms theretofore sent out by respondent, which did not contain the names of the books which relator had contracted to furnish to the state; (b) to immediately send out, or cause to be sent out, blank forms for reports for requisition of text-books which will contain the names of the books which relator has contracted to furnish to the state of Texas for use in its public schools; (c) that, as soon as requisitions are received by respondent on the blank forms to be sent out, respondent be required to furnish to relator's state depository an order for all of the text-books so requisitioned on said forms; and (d) to do anything and everything that is necessary and proper to carry out the contracts made by relator with the state of Texas.

After demurring generally and specially to relator's petition, in which he alleges that relator's petition on its face is insufficient to entitle it to the relief sought, respondent answers and alleges that relator has no contracts with the state of Texas as alleged by it, and that the contracts alleged by relator are void and were never in fact legally made, for the reasons and on account of the facts thereinafter alleged. He then alleges that in various and sundry ways, not necessary here to set out, the contracts alleged by relator had not been executed in the manner and in the particulars required by the statutes relating to the awarding, making, and executing of contracts, bonds, etc., by and between the Texas state text-book commission and publishers of books. For and on behalf of the state, he alleges facts that he contends avoid the contracts.

In view of the disposition we are making of the case, it is not necessary to detail the allegations of fact set up in respondent's answer.

A writ of mandamus will not be granted unless the petition shows every fact necessary to entitle the relator to the relief sought. Munson v. Terrell, 101 Tex. 220, 105 S. W. 1114; Ewing v. Commissioners' Court, 83 Tex. 667, 19 S. W. 280; Arberry v. Beavers, 6 Tex. 457, 55 Am. Dec. 791; Burrell v. Blanchard (Tex. Civ. App.) 51 S. W. 46.

Also, the petition must show that the relator has a clear right to the writ, and that it is plainly the duty of the officer against whom the writ is sought to perform the things demanded. H. T. & B. Ry. Co. v. Randolph, 24 Tex. 317; Bank v. March (Tex. Civ. App.) 51 S. W. 266; Tex. Mex. R. Co. v. Locke, 63 Tex. 623.

Article 7, § 8, of the state Constitution reads as follows:

"The Governor, comptroller and secretary of state shall constitute a board of education, who shall distribute said funds to the several counties and perform such other duties concerning public schools as may be prescribed by law."

"Said funds," as used in this section of the Constitution, refers to the various state school funds, including the annual available funds, in which is embraced that appropriated by the Legislature under section 3 of article 7, as well as from other sources. Webb County v. School Trustees, 95 Tex. 137, 65 S. W. 878. The Constitution having placed the distribution of this fund in the hands of the state board of education, the grant is exclusive, and the power must be exercised by them alone or under their direction. State v. Moore, 57 Tex. 307; Gillam v. Null, 58 Tex. 298; Parks v. West, 102 Tex. 11, 111 S. W. 726.

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