Leeper v. State

• Citation: 53 S.W. 962,103 Tenn. 500
• Parties: LEEPER v. STATE.
• Decision Date: 15 November 1899
• Court: Supreme Court of Tennessee

53 S.W. 962

103 Tenn. 500

LEEPER v. STATE.

Supreme Court of Tennessee.

November 15, 1899

Appeal from circuit court, Blount county; J. G. Parks, Judge.

Edward Leeper was convicted of violating the "Uniform Text-Book Act," and he appeals. Affirmed.

H. A Mann, Thos. B. Turley, Ingersoll & Peyton, and E. E. Houk for appellant.

G. W Pickle, for the State.

WILKES J.

Defendant is convicted of violating the provisions of Act 1899, c. 205 commonly known as the "Uniform TextBook Act," and sentenced to pay a fine of $10 and costs, and has appealed.

The indictment in the case is in the following words: "State of Tennessee, Blount County, Circuit Court. Oct. Term, 1899. The grand jurors for the state of Tennessee, upon their oaths, present that Edward Leeper heretofore, to wit, on the 5th day of October, 1899, in the state and county aforesaid, being then and there a public school teacher, and teaching the public school known as 'School No, 5,' Sixth district of Blount county, did unlawfully use and permit to be used in said public school, after the state text-book commission had adopted and prescribed for use in the public schools of the state Frye's Introductory Geography as a uniform text-book, another and different text-book on that branch than the one so adopted as aforesaid, to wit, Butler's Geography, and the New Eclectic Elementary Geography, against the peace and dignity of the state. A. J. Fletcher, Attorney General."

From the bill of exceptions, it appears that the defendant is a teacher of the public school known as "School No. 5," in the Sixth district of Blount county, and that he failed and refused to teach the geography adopted by the state text-book commission, namely, Frye's Introductory Geography, and that instead he willfully and unlawfully taught Butler's and the New Eclectic Elementary Geography in said school. It is not insisted that there is any defect in, or objection to, the book prescribed by the state text-book commission to be used, and which he refused to teach.

The caption to the act under which the conviction is had thus expresses the object and subject-matter of the law, to wit: "An act to create a state text-book commission, and to procure for 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 an appropriation for the carrying into effect this act, and to provide punishment and penalties for the violation of the same." The substance of the act, so far as now necessary to be set out, is as follows:

Section 1 creates a state text-book commission, and empowers and directs it to select and adopt a uniform system or series of textbooks for use in the public schools of the state. The commission is to consist of the governor, state superintendent of public instruction, and three members of the state board of education, to be selected by the governor. The text-books selected by the commission are to be used for five years in all the public schools of the 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. The commission is required to appoint a subcommission of five, to be selected from the teachers, and city and county superintendents, actually engaged in teaching in the state, to whom all books submitted to the commission shall be referred for report.

Section 2 makes the governor president of the commission; requires the commission to meet and organize immediately after the passage of the act; and directs it, as soon as practicable, and not later than 30 days after organization, to 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 textbooks, for furnishing books to the public schools in the state, through agencies established by said publishers at places designated by the commission. Each bidder is required to deposit with the treasurer of the state a sum of money, such as the commission may required, not less than $500, nor more than $2,500, according to the number of books he may propose to supply. This deposit is to be forfeited if the bidder, in the event his bid is accepted, fails and refuses to make the contract and bond required by the act. Each bid is to be accompanied by one or more specimen copies of each book proposed to be furnished.

Section 3 requires all the specimen copies sent in with the bids to be referred to the subcommission for examination, with instructions to report back to the commission the books they recommend for adoption. When this report is submitted, the commission is to meet in executive session, open the bids, examine and consider the report of the subcommission, and determine the books to be selected for adoption. The successful bidder is then to be notified, and the contract executed. Each contractor is to give a bond, in the penalty of not less than $30,000, for the faithful performance of the contract.

Section 4 provides that the contractors shall print plainly on the back of each book the contract price, as well as the exchange price, at which it is to be furnished; and it then provides, among other things, as follows: "And the said text-book commission shall not, in any case, contract with any person, publisher or publishers, for the use of any book or books which are to be, or shall 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, publisher or publishers 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 each contract that the contractor has never furnished, and is not now furnishing under any 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 said contract."

Section 5 provides 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 derived from the proceeds of the sale of the book. It also provides that, in furnishing the new books, the contractor shall take up the old school books now in use, in exchange, at a price not less than 50 per cent. of the contract price.

Section 6 provides for readvertising for other bids and proposals if the first are not satisfactory, and also for receiving proposals from authors who have manuscripts of books not yet published.

Section 7 requires the governor, as soon as the contracts have been entered into, to issue his proclamation announcing such fact to the people of the state.

Section 8 requires the contractors--First, to establish and maintain, in some one city in each grand division of the state, a depository to be designated by the commission, where a supply of the books, sufficient to meet the immediate demand, shall be kept; second, to maintain in each county of the state, if the commission so demands, not less than one, nor more than four, agencies for the distribution of the books; and, third, to deliver to the person ordering all books ordered, provided the price is paid in advance, free of exchange or postage, if out of the county. It also provides that in each book sold there shall be printed the following: "The price fixed herein is fixed by state contract, and any deviation therefrom shall be reported to your county superintendent of public instruction, or the state superintendent at Nashville."

Section 9 allows the commission to renew the contracts, or, in its discretion, to readvertise and make new contracts, for an additional five years.

Section 10 requires the state superintendent to issue a circular letter to each city and county superintendent, and to such others as he may desire, giving the list of books adopted, prices, location of agencies, etc.

Section 11 provides that the books adopted shall be introduced as text-books, and be used as such, to the exclusion of all others, in all the public free schools in the state.

Section 12 reserves to the citizens the right to buy books in the usual way, in the event that no contract is made, or if the contractor fails or refuses to furnish the books.

Sections 13 and 14 make it a misdemeanor for any person or teacher to violate the act, and for any teacher to use, or permit to be used, in his or her school, any text-book other than those adopted by the commission, and fix as the punishment for same a fine of not less than $10, nor more than $50.

Section 15 makes it a misdemeanor for any dealer, clerk, or agent to sell the book for more than the contract price.

Section 16 appropriates $1,000 for the purpose of carrying out the provisions of the act.

Section 17 deals with the question of compensation for the commission and subcommission.

And section 18 provides that the act shall take effect from its passage.

It is insisted that the act is unconstitutional, because (1) it allows a monopoly; (2) it delegates legislative power; (3) it denies local self-government.

These are quite general terms, and, if they stood alone, would be insufficient to challenge the validity and constitutionality of the act; for it is well settled that he who insists upon the unconstitutionality of an act of the general assembly must point out the specific provision of the...