American Book Co. v. Vandiver

• Decision Date: 07 February 1938
• Docket Number: 33020
• Court: Mississippi Supreme Court
• Parties: AMERICAN BOOK CO. v. VANDIVER

178 So. 598

181 Miss. 518

AMERICAN BOOK CO. v. VANDIVER

No. 33020

Supreme Court of Mississippi

February 7, 1938

Division B

Suggestion Of Error Overruled March 21, 1938.

APPEAL from the circuit court of Sunflower county HON. S. F. DAVIS Judge.

Action in mandamus by the American Book Company against J. S Vandiver, superintendent of education, to compel the superintendent to send out statutory notices of the adoption of certain books by the Text Book Commission. The trial court refused the writ and dismissed the action, and the company appeals. Affirmed.

Affirmed.

Creekmore, Creekmore & Capers, of Jackson, for appellant.

The Circuit Court of Sunflower County had jurisdiction. Section 495, Code of 1930; Pate v. Taylor, 66 Miss. 97; Woolly v. Bowie, 41 Miss. 553; McCleod v. Shelton, 42 Miss. 517; Campbell v. Triplett, 74 Miss. 365; Cook v. Pitts, 114 Miss. 39; Perry v. Nolan, 159 Miss. 384; State ex rel. Fontaine v. Anderson, 133 Miss. 533; Section 3054, Code of 1930; Tucker v. Gurley, 176 Miss. 708; Trolio v. Nichols, 160 Miss. 611; Sections 2349 and 2909, Code of 1930.

The books of the plaintiff were legally adopted and it is entitled to a writ of mandamus.

Sections 6791 to 6818, inclusive, and sections 6829 and 6830, Code of 1930; Lewis' Sutherland Statutory Construction (2 Ed.), sec. 611; Roseberry v. Norsworthy, 135 Miss, 845, 100 So, 514.

It is a fundamental rule of statutory construction of universal application that the controlling purpose is to ascertain and give effect to the intention and purpose of the legislature. This intention and purpose is to be deduced from the whole and every part of the Statute taken together--from the words and context--and such a construction adopted as will best effectuate the intention of the lawgiver.

Green v. WelIer, 32 Miss. 650; Lewis' Sutherland, Statutory Construction (2 Ed.), sections 410, 411; Earhart v. State, 67 Miss. 325, 7 So. 347; Adams v. Railroad Co., 75 Miss. 275, 22 So. 824; Ott v. Lowrey, 78 Miss. 487, 29 So. 520; Rock Island County v. United States, 4 Wallace 435, 18 L.Ed. 419; U. S. Sugar Equalization Board v. P. DeRonde & Co., 7 F.2d 981.

In determining the intent of the law, we must look to the whole act, including its purpose, and thereby ascertain, if we may, the legislative will. It is not reasonable that the legislature, after carefully providing how books should be adopted, would permit the careful work of educators to be vetoed or nullified by the mere failure of an official to carry out the ministerial act of signing a contract.

Sections 6793, 6803, 6804, 6806, 6807, 6808, 6818, 6829, Code of 1930; U. S. v. Purcell Envelope Co., 63 L.Ed. 620.

The Mississippi act is similar in import with the uniform textbook act of Tennessee and Alabama. In Dickinson v. Wilmington, 37 So. 345, the court held that the purpose of such act was not to create a contract between the state and the book company, but that the adoption conferred on the successful bidder the exclusive right to supply the adopted text to the schools of the state.

The commission and the commission alone is vested with any discretion with respect to the adoption. It has fully and finally exercised every discretion necessary and delegated to it by the Legislature for such purpose. The contract to be formally executed therewith constitutes only a memorial of the adoption already effected by the order of the board.

Restatement of Law of Contracts, sec. 26; McLendon v. Hot Springs, 129 Ark. 286, 195 S.W. 686; Williams v. Stockton, 195 Cal. 743, 235 P. 986; California Highway Commission v. Riley, 218 P. 584; Charles Scribner Sons v. Marrs, Superintendent of Education, 262 S.W. 723; Collins v. Janey, 249 S.W. 801; Mentzer v. Kansas, 46 P.2d 969; Charles Scribner & Sons v. Board of Education, 278 F. 366; Laidlaw Bros. v. Marrs, State Superintendent of Public Instruction, 273 S.W. 789; State v. Shawkey, 93 S.E. 759; State v. Toole, 55 L.R.A. 644; Vaughan, State Superintendent, v. Winston, 83 F.2d 370; State Highway v. Duckworth, 170 So. 148; Trotter v. Gates, 139 So. 843, 162 Miss. 569; Stokes v. Newell, 174 Miss. 629, 165 So. 542; Ex parte Jackson, 171 So. 545.

Harold Cox, of Jackson, for appellant.

Our statutory scheme for the uniform adoption of text books for the public schools does not contemplate a formal contract as a prerequisite to the validity of any adoption, but it is the adoption and awarding of the contract by the commission that gives rise to appellant's rights.

Section 6791, Code of 1930, as amended by Section 1, Chapter 253, Laws of 1934; Sections 6792, 6793, 6794, 6795, 6797, Code of 1930; Section 6799, Code of 1930, as amended by Section 2, Chapter 253, Laws of 1934; SectiGriS 6801, 6802, 6803, 6808, 6828, 6806, Code of 1930; Section 6809, Code of 1930, as amended by Section 3, Chapter 253, Laws of 1934; Sections 6810, 6816, 6818, 6813, 6812, 6803, Code of 1930; White v. Porter, 78 S.W.2d 287; City of Newton v. Board of Supervisors, 112 N.W. 167; People v. Board, 39 N.Y. 81; French v. Edwards, 80 U.S. 506; Mentzer Bush & Co. v. School Book Commission, 49 P.2d 969; Charles Scribner's Sons v. Board of Education, 278. Fed. 366; Collins v. Janey, 249 S.W. 801; Stokes v. Newell, 165 So. 542; U. S. v. Purcell Envelope Co., 249 U.S. 313; Laidlaw Bros. v. Marrs, 273 S.W. 789.

The State Text Book Commission is vested under the law with the exclusive authority to select and adopt text books, and award contracts therefor; and it is the directory duty of the Governor to affix his signature to the contract and bond, on a form prepared and approved by the Attorney-General; failing in which, the Commission is vested with authority to order the execution of said instruments on behalf of the state; if the execution thereof on behalf of the state is necessary at all.

Section 6803, Code of 1930; 57 C. J., sec. 5, pages 548551; Miller v. White, 126 So. 833; Watkins v. Miss. State Board of Pharmacy, 154 So. 277; Butterworth, Commr. v. U.S. 112 U.S. 50; Vaughan v. John C. Winston Co., 83 F.2d 371; Charles Scribners Sons v. Marrs, Supt. of Education, 262 S.W. 722; Trotter v. Frank P. Gates & Co., 139 So. 843; Masonite Corp. v. Hill, 154 So. 295.

W. W. Pierce, Assistant Attorney-General, Johnson & Allen, of Indianola, and Lotterhos & Travis, of Jackson, for appellee.

Appellant is not in a position to enforce any duty imposed by Mississippi Code Section 6813.

Appellant, American Book Company, is a foreign corporation domiciled in the State of New York, and interested, not in the public welfare of this state, but, only in the large profits to be derived from the sale of its books. In no sense of the word is the American Book Company a citizen or even a taxpayer of this state, nor is it a patron of our schools.

Section 6813, Code of 1930; 22 R. C. L. 651, sec. 55; Colorado Paving Co. v. Murphy, 78 F. 28, 49 U. S. App. 177, 23 C. C. A. 631, 37 L.R.A. 630; Donelly on the Law of Public Contracts (1922 Ed.), page 234, sec. 149; Effingham v. Hamilton, 68 Miss. 523, 10 So. 39.

The public interest and necessity required the denial of appellant's application for a writ of mandamus.

Selig v. Price, 167 Miss. 612, 142 So. 594; Ross v. Tidence Lane, 3 S. & M. 695; Hendricks v. Johnson, 45 Miss. 644; Effingham v. Hamilton, 68 Miss. 523, 10 So. 39; Wood v. State, 142 So. 747, 169 Miss. 790; Overstreet v. Lord, 134 So. 169, 160 Miss. 444; Bogan v. Holder, 24 So. 695, 76 Miss. 597; 38 C. J. 548, sec. 17.

Appellant has no binding contract with the State of Mississippi.

Section 6803, Code of 1930; Words and Phrases (3rd Series), "Execute," and "Approve;" Words and Phrases (2nd Series), "Execute," and "Approve;" Western Hosp. Assn. v. Industrial Acc. Bd., 6 P.2d 845; McLean v. White, 102 N.E. 929; Ellison v. Oliver, 227 S.W. 586.

Words used in the statute must be given their usual and commonly accepted meaning. Indeed, this rule is so elemental that we refrain from doing more than citing cases from this court without quotations therefrom.

Koch & Dreyfus v. Bridges, 45 Miss. 247; State v. Lbr. Co., 103 Miss. 263, 60 So. 215, 45 L.R.A. (N.S.) 851; Union v. Ziller, 151 Miss. 467, 118 So. 293, 60 A.L.R. 1155; Warburton-Beacham Supply Co. v. City, 151 Miss. 503, 118 So. 606; Chattanooga Sewer Pipe Works v. Dumlet, 153 Miss. 276, 120 So. 450, 62 A.L.R. 999.

The generally accepted and widely quoted definition of a ministerial act which is subject to control by mandamus as distinguished from a discretionary act or duty is found in 18 R. C. L. 116, par. 28: "It is a frequently asserted and universally recognized rule that mandamus only lies to enforce a ministerial act or duty; in this sense a ministerial duty may be briefly defined to be some duty imposed expressly by law, not by contract or arising necessarily as an incident to the office, involving no discretion in its exercise, but mandatory and imperative. The distinction between merely ministerial and judicial and other official acts is that where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to exercise of discretion or judgment, the act is ministerial; but where the act to be done involves the exercise of discretion or judgment, it is not to be deemed merely ministerial."

The statute here involved is clear and unambiguous. It requires certain acts to be done before a binding contract can arise between the state and appellant, which is the method, and the only method, whereby the state has consented to be bound. We respectfully submit that it is not for the court to change the obvious provisions of the statute, or to hold that the Legislature meant something different from what is plainly expressed in the law. Where, as here, authority is given to do a particular thing...