Dickinson v. Cunningham

• Decision Date: 21 July 1904
• Citation: 37 So. 345,140 Ala. 527
• Parties: DICKINSON v. CUNNINGHAM.
• Court: Alabama Supreme Court

37 So. 345

140 Ala. 527

DICKINSON v. CUNNINGHAM.

Supreme Court of Alabama

July 21, 1904

Appeal from City Court of Birmingham; Chas. A. Senn, Judge.

Mandamus proceedings by A. J. Dickinson against J. B. Cunningham. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

The appellant filed a petition for mandamus to compel the appellee to admit his son as a pupil in one of the public schools of Birmingham, and to accept the use of certain books. The object of the application is to test the validity of the act known as the "Uniform Text-Book Law," approved March 4, 1903 (Acts 1903, p. 167). The title to the act is in the following language, to wit: "An act to create a text-book commission, and to procure for the use in the public free schools in this state a uniform series of text books; to define the duties and powers of said commission and other officers; to make appropriation for the carying into effect this act, and to provide punishment and penalties for the violation of the same."

Section 1 creates a school board commission of the state, and empowers and directs it to select and adopt a uniform series or system of text-books for use in the public schools in this state. The commission is to consist of the Governor, State Superintendent of Education, and three eminent teachers of the state, to be appointed by the Governor. The text-books selected and adopted by the commission are to be used for five years in all the public schools of this state, and it is made unlawful for any school officer, director, or teacher to use any other text-books on the same branches. The series of books to be selected cover all the branches of study usually taught in the public schools.

Section 2 provides for a subcommission of five, to include a president or member of the faculty of one of the normal schools of the state, a superintendent of one of the city schools, and two teachers of the common schools, all to be appointed by the Governor.

Section 3 requires the subcommission to examine all books submitted for examination, and report to the commission at such time as the commission shall direct the books which they adopt arranging each book in its class, etc.

Section 4 provides that the text-book commission shall consider the report of the subcommission in its selection and adoption of the uniform series of text-books, and shall also themselves consider the merits of each book, taking into consideration their subject-matter, the printing, binding, material, and mechanical qualities, price, etc. When the report of the commission is completed, it is required that the report of the subcommission shall be filed in the office of the Superintendent of Education, subject to inspection by the public.

Section 5 makes the Governor president of the commission, requires the commission to meet and organize immediately ofter the passage of the act, and provides that the Superintendent of Education shall be the secretary and executive officer of said commission. This section further provides that as soon as practicable, not later than 30 days after its organization, the commission shall advertise in such manner and for such length of time and at such places as may be deemed advisable for sealed bids or proposals from publishers of school text-books for furnishing books to the public schools in the state of Alabama, through agencies established by said publishers in the several counties and places in counties in the state as may be provided for in such regulations as said commission may adopt and prescribe. Each bid shall state specifically and definitely the price at which the books will be furnished, and shall be accompanied by one or more specimen copies of each and every book proposed to be furnished. Each bidder is required to deposit with the treasurer of the state a sum of money such as the commission may require, not less than $500, nor more than $2,500, according to the number of books each bidder may propose to supply. This deposit is to be forfeited to the state if the bidder, in the event his bid is accepted, shall fail or refuse to make the contract and bond required by the act.

Section 6 provides that the commission shall meet at the time and place designated in the notice or advertisement, and examine specimen copies of books submitted, upon which the bids are based, and refer and submit these to the subcommission, with instructions to the subcommission to report back to them at a time specified, with the report, classification, and recommendation. When the subcommittee's report is submitted the commission shall then meet in executive session, and open and examine all sealed proposals submitted. It shall then be the duty of the commission to examine and consider the bids, together with the report and recommendation of the subcommittee, and determine upon the books to be selected for adoption. The successful bidder is then to be notified and the contract executed. Each contractor is to give bond in a sum not less than $10,000 nor more than $30,000, payable to the state of Alabama, for the faithful, honest, and exact performance of his contract.

Section 7 provides that the books furnished under the contract shall at all times during the existence of the contract be equal to the specimens furnished with the bids. It is further provided by this section that all contractors shall print plainly on the back of each book the contract price as well as the exchange price, at which it is agreed to be furnished. It is then provided that the text-book commission shall not in any case contract with the person or publisher for the use of any books which are to be sold to patrons for use in any public school in this state at a price above or in excess of the price at which such book or books are furnished by said person or publisher under contract to any state, county, or school district in the United States under like conditions prevailing in this state and under this act. And it shall be stipulated in such contract that the contractor has never furnished and is not now furnishing under contract any state county, or school district in the United States where like conditions prevail as are prevailing in this state, and under this act, the same book or books as are embraced in said contract at a price below or less than the price stipulated in the contract.

Section 8 provides that it shall be always a part of the terms and conditions of every contract made in pursuance of this act that the state shall not be liable to any contractor in any manner for any sum whatever, but all such contractors shall receive their pay or consideration in compensation solely and exclusively from the proceeds of the sale of books, as provided for in this act. It is also provided that the contractor shall take up the school books now in use in this state, and receive the same in exchange for new books at a price not less than 50 per cent. of the contract price.

Section 9 provides for the rejection of any or all bids, and for readvertisement for sealed bids or proposals under the same terms and conditions, and also for receiving proposals from authors who have manuscripts.

Section 10 requires the Governor, as soon as the contract for furnishing or supplying books for use in the public schools has been entered into, to issue his proclamation announcing such fact to the people of the state.

Section 11 requires the contractor to establish and maintain two or more depositories in this state, to be designated by the commission, where a supply of the books sufficient for all immediate demands shall be kept. It also requires that there shall be maintained in each county in the state not less than three agencies for the distribution of the books to the patrons. All books are required to be sold to the consumer at the retail contract price. It is also required that in each book shall be printed the following: "The price fixed hereon is fixed by state contract, and deviations therefrom shall be reported to your county superintendent of education or to the State Superintendent at Montgomery."

Section 13 requires the State Superintendent of Education, as soon as practicable after the adoption of the books provided for, to issue a circular letter to each county superintendent of education and each teacher in the state and to such others as he may desire to send it, giving the list of books adopted the prices, location of agencies, and manner of distribution and such other information as he may deem necessary.

Section 14 provides that the books adopted shall be introduced and used as text-books to the exclusion of all others in all the public free schools in the state.

Section 15 is in the following language, to wit: "Be it further enacted, that nothing herein shall be construed to prevent or prohibit the patrons of the public schools throughout the state from procuring books in the usual way, in case no contract shall be made, or the contractor fails or refuses to furnish the books provided for in this act, at the time required for their use in their respective schools."

Section 16 makes it a misdemeanor for any person or teacher to violate the provisions of this act.

Section 17 makes it a misdemeanor for any teacher to use, or permit to be used in his or her school any book other than the one adopted.

Section 18 makes it a misdemeanor for any clerk or agent to sell the books for more than the contract price.

Sections 20 and 21 deal with the compensation of the commission and clerk.

Section 22 fixes the term of the contract price at five years; and provides that the act shall not apply to those counties which have adopted a uniform system of text-books and entered into contracts for the supply of books, until such contract...