Heath Ct Al v. Johnson

• Decision Date: 06 October 1893
• Citation: 15 S.E. 980,36 W.Va. 782
• Court: West Virginia Supreme Court
• Parties: Heath ct al. v. Johnson.

15 S.E. 980

36 W.Va. 782

Heath ct al.

v.Johnson.

Supreme Court of Appeals of West Virginia.

Oct. 6, 1893.

Constitutional. Law—Amendment of Statute —Title—Referring to Sections of Original Act—Teacher of Free School—Mandamus.

1. When the title of an original act of the legislature sufficiently expresses its object in the manner required by the constitution, an act amendatory thereof may, by its title, simply refer to the section of the original act which it is intended to amend, and this will be a sufficient compliance with section 30 of article 6 of the constitution.

2. The occupation of a teacher of a free school in this state is not a public office, but an employment; and such teacher cannot be compelled by mandamus on the petition of a publisher to use such publisher's books in teaching, although their use may be prescribed by section 58, e. 103, Acts 1891.

(Syllabus by the Court.)

Error to circuitcourt, Kanawhacounty.

Petition for a mandamus by D. C. Heath & Co. to compel Belle Johnson, as teacher of a free school of the common class, to use certain school books exclusively in her school. The petition was quashed, and plaintiff brings error. Affirmed.

Brown, Jackson & Knight, for plaintiffs in error.

Watts & Ashby and J. E. Chilton, for defendant in error.

Lucas, P. This was an application to the circuit court of Kanawha county by the plaintiffs, D. C. Heath & Co., for a mandamus to compel one Belle Johnson, the respondent, as teacher of a free school of the common class, to use exclusively the school book entitled "Hyde's Practical Lessons in the Use of English" in teaching grammar classes in her said school. The plaintiffs or petitioners were the pub- Ushers of said school book, and allege in their petition that the aforesaid lessons in English are familiarly known as "Hyde's Language Lessons, Books 1 & 2. " They allege in the petition that the school taught by respondent is a common school; that she has classes studying English grammar; that in teaching said grammar classes she does not use Hyde's Language Lessons, either Books 1 or 2, as required by said act, but, on the contrary, she has refused, and still refuses, to use said books, and uses certain books not authorized by said act, to wit, Harvey's Revised Grammar. The petition further sets out the act of the 13th March, 1S91, being chapter 103 of said Acts, entitled "An act to amend and re-enact section 58 of chapter 45 of the Code of West Virginia, " which provides, among other things, that Hyde's Language Lessons, Books 1 & 2, should be used for common and graded schools, and Harvey's Revised Grammars for graded and high schools; and providing, further, that the state superintendent of free schools should on or before the 1st day of July, 1891, contract with the several publishers of the text-books prescribed, as aforesaid, for the supply of such text-books, such contract to be made for the period of five years from the 1st day of July, 1891. The petition further sets out that the contract just mentioned between them and the state superintendent of free schools has been entered into for a period of five years, and that they have complied with the same on their part. They further allege that they have applied to the superintendent of free schools of Kanawha county to enforce the use of their books as provided by statute, but he has failed and refused to do so. They asked for a rule against Belle Johnson, the teacher, to answer why a mandamus should not issue to compel her to use exclusively Hyde's Practical Lessons, etc., in teaching grammar classes in her school. On the 11th day of April, 1892, the respondent, Belle Johnson, appeared by counsel, and moved the court to quash the petition and dismiss the rule theretofore awarded, which motion the court sustained, and from this order this writ of error is prosecuted.

The act in question is section 58 of chapter 45 of the Code, as amended by the legislature of 1891, and will be found in Code 1891, p. 391. Counsel for the defendant in error maintain that this act is unconstitutional, because in its caption It simply reads, "An act to amend' An act to amend and re-enact section 58 of chapter 45 of the Code of...