Ginn v. Sch. Book Bd.

• Decision Date: 29 October 1907
• Citation: 62 W.Va. 428
• Court: West Virginia Supreme Court
• Parties: Ginn & Company v. School Book Board.

62 W.Va. 428

Ginn & Company

v.School Book Board.

Supreme Court of Appeals of West Virginia.

Submitted September 5, 1907.

Decided October 29, 1907.

Schools and School Districts Renewal.

A publisher of school books, having a contract with a school book board for furnishing school books, cannot compel such board to continue or renew his contract for five years after its expiration on the ground that the board has changed books without a sufficient vote. (p. 432.)

Application by Ginn & Co. for writ of mandamus to the school book board of Berkeley county and others.

Writ Denied.

Herbert Fitzpatrick and Bowman & Byrer, for petitioners.

Ira E. Rorxnson and Faulkner, Walker & Woods, for respondents.

Bra won, Judg e:

Under the school book law, Code, Edition of 1899, chai)ter 45, section 57a VIII, Annotated Code of 1906, section 1654, Ginn & Company had a contract with the school board of Berkeley county for furnishing certain books for use in the free schools of that county, dated 24 February, 1902, and expiring 1 July, 1907. Among the books to be furnished by Ginn & Co. under that contract is a work called Hezen's Graded Speller, As required by section 57a VI, before the expiration of the contract the school board met to select books to be used for the five years succeeding the 429'

expiration of the contract. By a vote of six members a book called Farr's Physical Geography was adopted in place of Appleton's Physical Geography, which was then in use. Next the board, by a vote of only five members, adopted a book called Hunt's Progressive Speller in place of Hezen's Graded Speller. Ginn & Co. offered to renew their said contract for the succeeding five years; but the school board refused to renew the contract; and Ginn & Co. ask of this Court a mandamus to compel the school board to do so. A mandamus nisi, has been awarded, and the school board has entered a motion to quash it.

Under such motion to quash the question arises, Does the mandamus nisi show good ground for a mandamus? Section 57a VI, chapter 45, says," It shall be the duty of the board to meet at least three months before the expiration of any such contract, and adopt one text book, Or a series of text books on each subject contracted for." It is argued that this imposes a "duty" to adopt books. So it does. That is, a duty to adopt the books to be used, but not a duty to select any particular publisher. Section 57a VII says that "no book or series of books already contracted for under the act shall be changed for another or different book or series except by the affirmative vote of five members of the board. * * * * And not more than one book or one series of books on one subject shall be changed in any one year, except by the affirmative vote of six members." It is argued that as one book was changed by a vote of six members, the other, changing Hezen's Speller, by only five, the latter change is utterly void, and is no change at all, and that it was the duty of the board to renew the old contract for furnishing Hezen's Speller, just as if no change at all had been made, and mandamus lies to enforce the duty. Waiving the question whether the language means that when one book has been changed only the additional changes must have six votes, say that the board could not make a second change by five votes. The question then comes, has a book publisher any right to compel the renewal of his contract? A plaintiff in the action of mandamus must, as in other cases, have a vested legal right to be enforced. An alternative mandamus is a declaration, and must show title..Fisher v. Charleston, 17 W. Va. 596; State v. County (hart, 47 ld. 672; Milliner v. Harrison, 32 Grat. 422: 19 Am. & Eng. Ency. L. 725. Now, Ginn & Company's contract was at an end. The board, as a party capable of contracting, had a right to refuse to contract again with Ginn and Co., unless the statute confers on them a vested right to have that contract made for their benefit. Was it the purpose of the statute to confer on book publishers a right to have a renewal of a contract under such circumstances? Or, was it the purpose to provide only for the public interest? We think the latter was the object of the law makers. When the statute says no change of books shall be made except by a vote of six, it means, as it says, no change of books, and does not prohibit a change of contractors. In section 57a VIII, it is provided that " after the adoption of any text books the board shall contract with the publishers proposing the same." We think that it is not the purpose of this clause to bind the board to contract with any particular publisher, but that its only aim is to say that after selection the board shall make a contract to guarantee a supply of books, and that a contract of certain character defined in that section. Its second object is to cautiously provide the terms of the contract in the interest of the people. This is why this clause was inserted. It is entirely reasonable to say that among many provisions for obtaining books, giving minute details of procedure, there should and would be a direction to make a contract; but that is the only design of the clause quoted. Its design is not to give any particular publisher a legal right to a contract. Suppose several publishers propose the same books. Cannot the board select the one to be contracted with? Section 57a IV, says that in the selection of books the board must " procure the best possible terms for exchange and introduction and for the regular supply of the books for a term of live years." Section 57a III says the board must have reference to books and terms in selection. This speaks a discretion in the board of selection of publishers. Suppose no change in books. Must the board continue to contract with the same...