State Bd. of Ed. v. Levit
| Decision Date | 03 July 1959 |
| Citation | 52 Cal.2d 441,343 P.2d 8 |
| Court | California Supreme Court |
| Parties | STATE BOARD OF EDUCATION, Petitioner, v. Bert W. LEVIT, as Director of Finance, Respondent. Sac. 7057. |
Stanley Mosk, Atty. Gen., B. Abbott Goldberg, Asst. Atty. Gen., Richard L. Mayers and Preble Stolz, Deputy Attys. Gen., for petitioner.
A. L. Wirin, Los Angeles, and Richard W. Petherbridge, El Centro, amici curiae on behalf of petitioner.
Macklin Fleming, Los Angeles, for respondent.
Ralph N. Kleps, Legislative Counsel, Angus C. Morrison, Chief Deputy Legislative Counsel, and Barbara C. Calais, Deputy Legislative Counsel, Sacramento, amici curiae on behalf of respondent.
This is an original proceeding in mandamus. The petitioner, the State Board of Education, is authorized by the state Constitution to 'provide, compile, or cause to be compiled, and adopt, a uniform series of textbooks for use in the day and evening elementary schools throughout the State * * * (and to) cause such textbooks, when adopted, to be printed and published * * *.' (Const., art. IX, § 7.) The respondent is the state executive officer in charge of the Department of Finance. This department is charged by law with the duty of executing promptly all orders for printing received from state agencies 1 and all orders of the State Board of Education for printing must be approved and supervised by the Department of Finance. (Ed.Code, §§ 115, 4801 and 11221.) 2
The State Board of Education here seeks to compel the respondent to comply with orders to print 'Science for Work and Play' and 'Science for Here and Now' two elementary school textbooks and their teachers' manuals, published and copyrighted by D. C. Heath and Company. The board alleges that these books were adopted by it on March 6, 1958, for use in grades one and two, respectively, as part of a uniform series of science textbooks for the elementary grades; that it has secured a license to print these books from D. C. Heath and Company, under a contract dated September 15, 1958; that item 435, section 2.2 of the Budget Act of 1958 3 appropriated funds for textbooks; that there is presently an unencumbered balance of $817,009.44 of these funds available to meet the cost of printing these books, and that the respondent has violated the statutory duty imposed on him by Government Code section 13570 and Education Code sections 4801 and 11221 in refusing to order the printing of these books.
The respondent originally refused to comply with these printing orders solely because of the restrictive provision appearing in item 435 which reads: 'None of the moneys appropriated by this item shall be expended for publishing, purchasing, shipping, or paying royalties for the books known as 'Science for Work and Play' and 'Science for Here and Now. " In his return to the alternative writ the respondent took the further position that he has no duty to comply with these orders because the contract with D. C. Heath and Company has not been presented to him for approval and until approved by him it is ineffective under the specific provisions of Government Code section 13370. 4 He therefore now contends that he has no duty to execute printing orders with respect to a contract which has never become effective because not approved by him, and for which no funds have been appropriated if the restrictive provision of budget item 435 is valid.
The exhibits attached to the petition support the allegation as to the sole ground on which the respondent originally based his refusal to act. The printing orders were presented to respondent's predecessor in office. He returned them to the president of the State Board of Education by letter dated October 30, 1958, which read as follows:
'I am herewith returning to you, unapproved, the printing requisition invoices submitted for the printing of 'Science for Work and Play', Grade 1; 'Science for Work and Play', Grade 1, teacher's edition; 'Science for Here and Now', Grade 2; and 'Science for Here and Now', Grade 2, teacher's edition; (set forth in printing requisition invoice numbers 729 through 732 inclusive).
'The cost of printing these textbooks was to be charged to item 435 of the Budget Act of 1958. Item 435 provides in part:
'Although there are sufficient unencumbered funds in item 435 to meet the cost of publishing these textbooks, I am rejecting the requisitions and directing the state printing office not to proceed with the printing, solely and only because of the provisions in item 435 of the Budget Act prohibiting the publication of these two particular books. Should a court determine that such restriction is invalid I will, of course, immediately direct the state printer to proceed with the work requested.
'(Signed) T. H. Mugford
'Director of Finance.'
'Science for Here and Now'.'
'The communication reads as follows:
'Under date of 30 October 1958, my predecessor * * * as Director of Finance, addressed a letter to President William L. Blair of the State Board of Education advising that he was rejecting the above requisitions and directing the State Printing Office not to proceed with the printing because of the provisions in Item 435 of the Budget Act which expressly deny use of the appropriation for the two texts referred to.
'Mr. Goldberg of your office has stated that on direction of the State Board of Education you are about to file a suit to test the validity of the refusal to print these books or, to put it another way, the validity of the restriction contained in the appropriation item. Because of the change in Directors of Finance in the interim, Mr. Goldberg has asked that I address this letter to you stating whether my position on the matter differs from that of my predecessor. The answer is that it does not differ, and that I consider myself bound to comply with the restriction which the Legislature placed in the appropriation item.
'While you would normally act as my counsel in connection with litigation involving me in my official capacity, it is my very definite opinion that inasmuch as your office will be filing the suit as attorneys for the State Board of Education or such other plaintiff as may be selected, it would not be proper for my defense to be presented to your office. Therefore, I request your permission to employ counsel to represent me in connection with this contemplated litigation, and would appreciate your written consent to do so pursuant to Section 11040 of the Government Code.
'(Signed) Bert W. Levit
'Director of Finance.'
Accordingly the respondent is separately represented.
The petition further alleges that the books in question are part of a carefully graded series of science textbooks that have been approved by the board for use in elementary grades one through eight. The board argues that the removal of these books, at legislative discretion, greatly reduces the effective use of the entire series of state approved texts and that if the Legislature, by appropriation restrictions such as budget item 435, may evade the restrictions on its powers imposed by section 7 of article IX of the Constitution there will be created a serious and continuing threat to the entire structure of uniform and coordinated state textbook selection.
This court issued the alternative writ to consider the single issue presented by the petition, namely, the validity of item 435 as measured by the provisions of section 7 of article IX of the Constitution. There appeared to be no other plain, speedy or adequate remedy available to the petitioner to compel the respondent to print these books.
It is contended in the return to the alternative writ that the petitioner's selection of textbooks is in no way affected either by the Legislature's refusal to appropriate funds for these two books in the Budget Act of 1958 or by the respondent's refusal to print them and charge their cost against funds appropriated in item 435. It alleges that the Governor's Budget for the fiscal year 1958-59, as submitted to the Legislature on February 3, 1958, had recommended the sum of $8,854,711 for printing and royalties for textbooks; that the Legislature thereafter rejected a request made by the board, through the Department of Education, for an augmentation of these funds in the sum of $1,683,839, and that in appropriating the sum recommended in the Governor's Budget the Legislature had provided that no moneys were thereby appropriated for the publishing of first and second grade science textbooks. These textbooks, the return alleges, were the first supplemental textbooks adopted in science at the first and second grade levels and that they had been adopted on a distribution ratio of one book for each two pupils. The respondent contends that under the Legislature's general powers over the curriculum of the public elementary schools it has a right to refuse to appropriate money for printing and distributing textbooks covering subjects which it has not yet established as part of the curriculum. It also contends that when the Legislature was not able to provide funds for the whole textbook program adopted by the board, the Legislature had a right to determine for which part of the program it would make an appropriation and for which part it would not make an appropriation. The respondent therefore takes...
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