Mentzer, Bush & Co. v. Schoolbook Commission of State of Kansas

• Decision Date: 05 October 1935
• Docket Number: 32611.
• Citation: 49 P.2d 969,142 Kan. 442
• Parties: MENTZER, BUSH & CO. v. SCHOOLBOOK COMMISSION OF STATE OF KANSAS et al.
• Court: Kansas Supreme Court

49 P.2d 969

142 Kan. 442

MENTZER, BUSH & CO. v. SCHOOLBOOK COMMISSION OF STATE OF KANSAS et al.

No. 32611.

Supreme Court of Kansas

October 5, 1935

Syllabus by the Court.

Where state schoolbook commission had at regular meeting voted to adopt publisher's textbook and secretary of commission had mailed publisher notice to such effect inclosing for execution in duplicate a form of contract which publisher executed and returned, contract held to have resulted between publisher and commission, notwithstanding commission had not signed duplicate, in absence of anything to indicate to prospective purchaser that commission's action in meeting was not final or that no contract should result until commission signed a writing (Rev. St. 1923, 74--301, as amended by Laws 1933, c. 273, § 1).

State schoolbook commission's discretion over subject of adoption of textbooks held to have been exhausted when it contracted with publisher for use of particular textbook preventing commission's subsequent cancellation of contract (Rev. St. 1923, 74--301, as amended by Laws 1933, c 273, § 1).

Publisher with whom state schoolbook commission had contracted for use of particular textbook held to have special private interest in performance of contract authorizing issuance of mandamus in discretion of court to compel performance of contract since publisher was without plain and adequate remedy in ordinary course of law in view of uncertainty as to number of books which could be sold (Rev. St. 1923, 74--301, as amended by Laws 1933, c. 273, § 1).

Paramount public interest in seeing that organs of state government kept within law held to require issuance of mandamus to compel state textbook commission to perform its contract with publisher for use of particular textbook notwithstanding public interest in keeping down expense by use of older textbooks (Rev. St. 1923, 74--301, as amended by Laws 1933 c. 273, § 1).

The pleadings considered in an action by a publisher of textbooks to require the state textbook commission to carry out a contract of adoption of the publisher's textbooks for use in the public schools, and held: A contract had been made between plaintiff and the commission, although the commission had not signed the written memorial. The commission had exercised all the discretion it possessed with respect to adoption of the textbooks, and rested under clear legal duty to perform. The plaintiff had a special interest in performance by the commission, and was without plain and adequate remedy in the ordinary course of law; and the court was not authorized to exercise a discretion to refuse the relief prayed for.

Original proceeding in mandamus by Mentzer, Bush & Company against the Schoolbook Commission of the State of Kansas and others.

Writ allowed.

HARVEY and SMITH, JJ., dissenting.

Thomas F. Doran, Clayton E. Kline, Harry W. Colmery, M. F. Cosgrove, Balfour S. Jeffrey, and Francis C. Clark, all of Topeka, for plaintiffs.

Clarence V. Beck, Atty. Gen., and Theo. F. Varner, Asst. Atty. Gen., for defendants.

BURCH Chief Justice.

Mentzer, Bush & Co., a corporation which publishes school textbooks, commenced an action of mandamus in this court to compel the state schoolbook commission to perform a contract with plaintiff relating to publication and distribution of certain school textbooks. The commission answered, and the cause was submitted on plaintiff's motion for judgment on the pleadings. The court found a contract had been made which the commission subsequently undertook to repudiate. The commission had exercised all the discretion it possessed over the subject of adoption of the textbooks, and rested under clear legal duty to perform. The plaintiff had a special interest in performance by the commission, and was without plain and adequate remedy in the ordinary course of law; and this court was not authorized to exercise a discretion to refuse the relief prayed for. Therefore a writ of mandamus was issued on July 6, 1935, commanding the commission to perform. What follows will be a statement of the basis for the court's action.

The commission has authority to provide for the printing and distribution by private publishers of such school textbooks as the commission may find it is impracticable for the commission itself to print and distribute. In November, 1934, the commission found that on July 1, 1935, previous adoption of certain textbooks would expire. On November 16, 1934, the commission directed its secretary to call for bids for new texts in those subjects. On November 21, 1934, the secretary addressed a letter to publishers, including plaintiff, calling for bids for certain high school texts, and for samples of texts. On January 4, 1935, plaintiff submitted bids on certain texts. The bids were supplemented on January 7 by a provision necessary to comply with the law. Sample texts were submitted in time for the commission to consider them.

On April 29 and April 30, 1935, the commission, in session for the purpose, considered bids and texts, and the record of the meeting for April 30 shows the following:

"The Commission voted by ballot on a textbook in business arithmetic, and Social-Business Arithmetic, Barnhart-Maxwell, and Social-Business Arithmetic, Half Year, Barnhart-Maxwell, published by Mentzer, Bush & Company, received a majority of the votes cast, and was adopted by the Commission for use in the high schools of Kansas for a period of five years."

After adoption of texts was completed, the commission sent to all publishers whose texts were adopted, including plaintiff, and to all dealers in schoolbooks throughout the state, a printed list entitled:

"Books Adopted for Use in Kansas Schools Beginning September, 1935."

The list was classified with respect to subjects, contained the names of thirty-nine texts which the commission had adopted, including those of plaintiff, and gave the names of authors and publishers.

On May 9, 1935, the secretary of the commission mailed to plaintiff a letter inclosing for execution in duplicate a form of contract. The letter reads:

"At their meeting last week the Schoolbook Commission of Kansas adopted your Social-Business Arithmetics for use in high schools of Kansas. I am enclosing herewith contract made out in duplicate which we will be pleased to have you sign and return to us. One copy of the contract will be signed here and returned to you for your files."

Immediately after the contract was received, plaintiff signed the duplicates and returned them to the commission.

Plaintiff proceeded to notify, at its own expense, some 654 high schools, and many teachers of adoption of plaintiff's books. Many teachers asked for sample copies of the books, to enable them to prepare for the September terms of school. Plaintiff furnished the sample copies, and plaintiff purchased paper for the editions of its books, all at large expense.

The meeting of the commission on April 30 adjourned to meet on May 27. On that date it was moved, seconded, and carried:

"That all steps pertaining to the further effectuation, carrying out and consummation of contracts entered into by the Schoolbook Commission for the adoption of books for the year 1935, and the succeeding five year period be suspended pending further information and investigation from the educational departments of Kansas University, Kansas State Teachers' College of Emporia, and Kansas State College."

The commission then adjourned, to meet at the call of the chairman.

On June 8, the commission met, rescinded the resolution of May 27 and adopted the...