Charles Scribner's Sons v. Marrs

• Decision Date: 07 May 1924
• Docket Number: (No. 4023.)
• Parties: CHARLES SCRIBNER'S SONS v. MARRS, State Superintendent of Public Instruction.
• Court: Texas Supreme Court

Page 722

262 S.W. 722

CHARLES SCRIBNER'S SONS v. MARRS, State Superintendent of Public Instruction.

(No. 4023.)

Supreme Court of Texas.

May 7, 1924.

On Rehearing June 12, 1924.

Mandamus by the State, on the relation of Charles Scribner's Sons, against S. M. N.

Marrs, State Superintendent of Public Instruction. Writ granted.

Brooks, Hart & Woodward, and J. H. Hart, all of Austin, for relator.

W. A. Keeling, Atty. Gen., and Jno. C. Wall and Frank M. Kemp, Asst. Attys. Gen., Etheridge, McCormick & Bromberg, of Dallas, T. N. Jones, of Tyler, A. M. Frazier, of Hillsboro, and Chas. L. Black, of Austin (F. M. Etheridge, of Dallas, of counsel), for respondent.

PIERSON, J.

Relator, Charles Scribner's Sons, a corporation, seeks a writ of mandamus against respondent to compel him to do the ministerial acts required of him under R. S. arts. 2904¼i and 2909ii of the text-book law looking to the performance of its alleged contract 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 text-books known as Fundamentals of Farming and Farm Life, by Kyle & Ellis, and the state of Texas had obligated itself to use said text-books in its public schools. By its terms the contract is to be in force and effect for a period of five years.

Relator alleged that the state board of education, composed of the Governor of Texas, the secretary of state, and the comptroller of public accounts, is invested by article 7, § 8, of the Constitution of Texas and by the statutes of the state with the administration of the public school funds and with the duty to determine who have contracts with the state for the supplying of textbooks for use in the schools, and, under the management of the superintendent of public instruction, is charged with the duty of purchasing and distributing free text-books to the schools. In this regard relator alleged that the said state board of education in formal session had found that relator was a contractor with the state for the text-books mentioned herein under a regular and valid contract made with the state text-book commission and had entered its order directing respondent to send out requisition blanks to the proper school authorities, containing the names of relator's books, and had otherwise directed the observance and performance of the contract under the law; but that respondent has refused and refuses to comply with said order and to discharge his ministerial duty looking to the performance of its contract, to its injury, and that it is entitled to the writ of mandamus.

In general, respondent admits the correctness of the facts alleged by relator and the acts leading up to the making of the contract on the part of relator and the state text-book commission under bid and award as provided by the law, to the effect that the contract in all things is correct and in accord with the bid and award; that it was put into proper form by the Attorney General of the state; that the text-book commission, by resolution, expressly authorized and directed the Governor as its chairman to approve and sign the contract; that, after being marked "O. K." by respondent Marrs, as secretary of the text-book commission, the Governor, under the authority and in compliance with said resolution, had approved said contract, and had signed it on behalf of the state in his capacity as chairman of the commission as provided by said article 2909h; that the bond as required by law was prepared by the Attorney General of Texas in amount as directed by the Commission; that it had been submitted to and marked "O. K." by respondent Marrs, as secretary of the state text-book commission, and accepted in lieu of a preliminary bond on file with the state treasurer as required by law, which said preliminary bond was, by instruction of respondent Marrs, released and returned to relator by the state treasurer; and that the said bond required to be filed with this contract was accepted by the Governor and filed with the secretary of state. But he says that after the agreement had been made between the text-book commission and relator, and after the terms of the contract had been reduced to writing by the Attorney General of the state in accord with the terms of agreement between relator and the text-book commission, said contract so put into written form had not been submitted to and approved by the text-book commission in session, in compliance with the provisions of article 2909h of the statute, but instead was submitted to and approved by the Governor of the state, as chairman of the state text-book commission; and also that the bond required of relator had never been submitted to nor approved by the text-book commission. Respondent's position is that the provisions of article 2909h are mandatory wherein it is provided:

"Each contract shall be duly signed by the publishing house or its authorized officers and agents; and if it is found to be in accordance with the award and all the provisions of this act, and if the bond herein required is presented and duly approved the commission shall approve said contract and order it to be signed on behalf of the state by the Governor in his capacity as chairman."

That this provision was not complied with, and therefore no contract was perfected and actually entered into between relator and the state text-book commission.

As to the defense of respondent that the contract and bond were not "submitted to and approved by the commission," relator's position is that these acts were done in substantial compliance with the statute; that the state board of education has acted in the matter of its contract, directing respondent to observe it; that respondent has no discretion in the matter; that his duties are wholly ministerial; and that he has no authority to contest the validity of its contract.

Thus having stated the case, we will proceed to its consideration.

The question of first importance and first to be determined is the constitutionality of that provision of the statute which authorizes contracts for a period of six years, and the validity of this contract for five years under its authority.

Article 2909b, R. S., authorizes the state text-book commission to make contracts for text-books to be used in the public schools for a period of time "not less than one year and not more than six years, as may be determined by the commission."

The provisions of the contract between relator Charles Scribner's Sons and the state, pertinent to this inquiry, are:

"Said contractor covenants and agrees, for a period of time beginning September 1, 1923, and ending with the close of the scholastic year which begins September 1, 1928, to supply and sell to the state of Texas, for use in the public schools of the state of Texas the following named text-books on the following conditions, and at retail and exchange prices indicated, as follows: Kyle & Ellis' Farming and Farm Life."

"It is understood and agreed that the state of Texas shall not be, or become, liable to the contractor herein for any sum, whatsoever, but said contractor shall receive compensation solely and exclusively from the proceeds of the sale of the school book hereinbefore mentioned."

"Said commission, by virtue of the authority vested in it by the act of the Legislature of the state of Texas, hereinbefore mentioned, and on the behalf of the state of Texas, agrees and covenants that the text-book above mentioned shall be introduced into and used in the public free schools of this state to the exclusion of all others for the period of time aforesaid, covering scholastic year beginning September 1, 1923."

"This contract is made and executed in pursuance of the directions contained in said chapter 44 of the General Laws * * * and is to be construed in reference thereto. * * * All requirements, stipulations and obligations imposed by the act aforesaid are made a part of this contract."

"This contract is, by order of the commission, signed on behalf of the state by the Governor, Pat M. Neff, in his capacity as chairman of the commission.

"In witness whereof, the parties hereto have on this the 9th day of December, A. D. 1922, set their hands and seals in duplicate. [Signed] Pat. M. Neff, Governor, State of Texas, and Chairman of the Texas State Text-Book Commission. [Signed] Charles Scribner's Sons, by D. S. Furman, Attorney in Fact.

"O. K. S. M. N. Marrs, Sec'y."

Article 3, § 49, of the Constitution, provides:

"No debt shall be created by or on behalf of the state, except. * * *" (The exceptions are not important here.)

Article 8, § 6, provides:

"No money shall be drawn from the treasury but in pursuance of specific appropriation made by law; nor shall any appropriation of money be made for a longer term than two years."

Article 7, § 5, provides:

"And the available school fund shall be applied annually to the support of the public free schools."

Article 1, § 26, prohibits monopolies.

Such questions as are here involved, on account of their intricate nature and great importance, have always entailed great labor and far research upon the part of the courts, and usually have required lengthy and exhaustive discussions. We have met the burden of a lengthy and exhaustive research, but, as far as possible, will endeavor to avoid a lengthy discussion.

The state Legislature may exercise all the legislative power of the people, subject only to the limitations expressed in the Constitution of the state or of the United States. Brown v. Galveston, 97 Tex. 1, 75 S. W. 488; Conley v. Daughters of the Republic, 106 Tex. 90, 156 S. W. 197, 157 S. W. 937; Encyclopedic Digest (Michie) vol. 4, pp. 406, 407, 408.

A statute will not be held unconstitutional unless it is clearly so, and a contract will not be held invalid unless there is a legal reason for doing so. See State v. Humble Pipe Line Co., 112 Tex....