Laidlaw Bros. v. Marrs
| Decision Date | 08 June 1925 |
| Docket Number | (No. 4383.) |
| Citation | 273 S.W. 789 |
| Parties | LAIDLAW BROS., Inc., v. MARRS, State Superintendent of Public Instruction. |
| Court | Texas Supreme Court |
D. K. Woodward, Jr., of Austin, for relator.
Dan Moody, Atty. Gen., and Wright Morrow, C. A. Wheeler, and L. C. Sutton, Asst. Attys. Gen. (W. G. Love, of Houston, of counsel), for respondent.
Relator seeks a mandamus against respondent to require him to do and perform the ministerial or statutory duties which it has a legal right to have performed in regard to its contract with the state for the purchase of certain text-books, to wit, "Our Government," Davis and McClure, regular edition, by the state, and the furnishing of them by it to the state under the terms of its said contract and the provisions of the statutes.
Without reciting each detailed step in the process of entering into and execution of the contract by the Texas state text-book commission, and the action taken thereon by the state board of education on January 12, 1925, and the subsequent actions taken by the board in April and May, as set out in relator's petition and respondent's answer, the following will be sufficient for a comprehension of the issues involved:
The Texas state text-book commission was duly convened in December, 1924, and under the formalities and requirements of statutory law said commission made an award to relator, selecting its book, "Our Government," for use in the public free schools of the state, and entered into a contract duly and regularly signed and executed by the state and relator under the provisions of the law.
Thereafter, on January 12, 1925, the state board of education, at a regular meeting, found and ascertained that relator is a contractor with the state, and that it has a contract to furnish to the state the above-named text-book. It entered its finding to that effect by proper resolution, and so notified respondent, in order that the contract might be observed according to its terms under the statutes relating thereto.
Thereafter, on April 13, 1925, and again on May 13, 1925, and before requisition blanks listing the aforesaid books of relator were sent out to the school officials in the various school districts of the state, the state board of education met, and passed a resolution directing respondent not to place the name of the books of relator selected by the state text-book commission at its meeting in December, 1924, on the requisition blanks to be sent out by him, declaring the contract of relator void and voidable, and declaring that the books named in the aforesaid contract were not needed, and that no funds had been set aside for the payment for said books, and instructing respondent, Marrs, to give no recognition to relator's said contract.
This suit was brought by relator, alleging that its contract, as entered into between it and the state text-book commission, and found to exist by the state board of education on January 12th, created and contracted an obligation by and between it and the state of Texas that could not thereafter be set aside or annulled; that the state board of education was not thereafter empowered to reconsider, annul, or declare void or voidable its said contract, and that its said actions in regard thereto are without effect, and that respondent S. M. N. Marrs, state superintendent of public instruction, as he is required to do under Vernon's Ann. Civ. St. Supp. 1922, art. 2904¼i, is, in duty, bound to send out requisition blanks containing the title of the books under relator's contract. It alleged that said duty is one required by law, and is ministerial in its character; that respondent has refused and is refusing to perform that duty, and prays that this court issue its mandamus requiring said superintendent to send out the necessary requisition blanks containing the name of relator's book, and to do the other necessary things as required by the statutes relating to said contract.
The issues made by respondent, Marrs, that are applicable under the facts of the case, are substantially as follows: That this court is without jurisdiction because this is an attempted suit against the state without its consent; that it is a suit to enforce specific performance of a contract against the state; that the duties of respondent are ministerial in character, and are performed under the direction of the state board of education, and that said board, by its orders of April and May, 1925, had declared said contract to be void and voidable, and had instructed him not to carry it out; that the state of Texas is not obligated to purchase any particular amount of text-books, or any at all, unless and until needed, and, it having been determined by the state board of education that the text-book named in relator's contract will not be needed, respondent has no authority to send out requisition blanks containing its title; that relator's contract is in fact, void and voidable. However, it was admitted that the contract had been regularly made and entered into as alleged by relator.
Respondent maintains that the orders of the state board of education of April and May, 1925, are in all things valid, and are conclusive and binding upon him, his duties being ministerial, and therefore relator is not entitled to the writ of mandamus.
In the case of Charles Scribner's Sons v. S. M. N. Marrs, State Superintendent (Tex. Sup.) 262 S. W. 722, the contention of respondent Marrs was not that the writ of mandamus should not issue if a contract existed between relator and the state, but that there was no legal contract. Here the contract is admitted, but it is insisted that the state board of education has the authority or discretionary power under the law to control its performance, and under their judgment, through instructions to respondent, to prevent its performance or to cancel and set it aside altogether.
This case is ruled by the principles announced in the cases of American Book Co. v. Marrs, 113 Tex. 291, 253 S. W. 817, Charles Scribner's Sons v. Marrs (Tex. Sup.) 262 S. W. 722, and American Book Co. v. Marrs (Tex. Sup.) 262 S. W. 730, and the facts of this case bear a close analogy to those in the Scribner's Sons Case.
Relator's contract was regularly and legally made by the state text-book commission, and on January 12, 1925, the state board of education acted upon it, found it to be regular and valid, and by formal order instructed respondent, state superintendent of public instruction, to take the necessary steps required by law looking to its performance. Thereafter, in April and May, 1925, the state board of education undertook to rescind the action taken by the board on January 12th, and by resolution instructed respondent Marrs to disregard relator's said contract.
Was the action of the board of education on January 12th, establishing the identity and validity of the contract and ordering its performance, final and conclusive, and thereafter binding upon the state board of education? We must so hold. The contract had been regularly entered into and executed by both parties, the state and relator; the body authorized to do so, the state board of education, had entered its official recognition of it, and had officially certified its identity and validity to respondent Marrs, state superintendent of public instruction, and contractual rights had attached under it.
It is the earnest contention of respondent Marrs that the state board of education may exercise power over the contract to review the act of affirmance and to set the contract aside, as it attempted to do by its subsequent orders of April and May, 1925. Nowhere in the statutes do we find any authority to do so. The provisions, generally looking to its performance, the purchase of books for use in the schools under it, the penalties provided for failure on the part of the contractor to furnish books when ordered, etc., seem to negative such continuing control or authority in this regard.
It is presented by respondent that this authority is within the discretionary power of the state board of education under its "duty to purchase books from the contractors of text-books used in public free schools of this state" (article 2904¼), and the provisions of the Constitution and statutes which provide that the board of education shall set aside out of the available school fund a sufficient amount to provide free text-books for use of the children in the schools, and that the...
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...of the state, either in its property or funds, would be injuriously affected by awarding the writ. Id. at 25; see Laidlaw Bros. v. Marrs, 114 Tex. 561, 273 S.W. 789, 792 (1925) (quoting this holding of Jernigan and stating that "[t]his holding is clearly correct, and has been so uniformly a......
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City of Round Rock v. Whiteaker, No. 03-07-00009-CV (Tex. App. 9/14/2007)
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