State ex rel. Frohmiller v. Hendrix, Civil 4254

• Decision Date: 09 December 1940
• Docket Number: Civil 4254
• Parties: STATE OF ARIZONA ex Rel. ANA FROHMILLER, State Auditor, Appellant, v. HERMAN E. HENDRIX, Superintendent of Public Instruction, and CLINTON E. MANGUN, Appellees
• Court: Arizona Supreme Court

107 P.2d 1078

56 Ariz. 342

STATE OF ARIZONA ex Rel. ANA FROHMILLER, State Auditor, Appellant, v. HERMAN E. HENDRIX, Superintendent of Public Instruction, and CLINTON E. MANGUN, Appellees

Civil No. 4254

Supreme Court of Arizona

December 9, 1940

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Judgment reversed and cause remanded with directions.

Mr. P H. Brooks, for Appellant.

Messrs Snell & Strouss and Mr. Mark Wilmer, for Appellee Hendrix.

Mr Theodore G. McKesson, for Appellee Mangun.

OPINION

ROSS, C.J.

The question we have to decide is whether the legislature has authorized and empowered the plaintiff, state auditor, to audit the books, accounts and records of the board of education as kept by its secretary, the superintendent of public instruction, pertaining to the purchase and distribution of free textbooks for the common schools and other named institutions of the state.

Plaintiff alleges in her complaint, in substance, that approximately $375,000 have been expended in the purchase and distribution throughout the state of such free textbooks since January, 1933; that under agreements of the publishers from whom such books were purchased there was refunded 10 per cent. of the $375,000 and that there had been paid back to the state only $5,000, leaving $32,500 unaccounted for.

Defendants Hendrix and Mangun filed separate answers denying, in effect, that the records, accounts and books reflecting the disposition of the 10 per cent. refund were public, the defendant Mangun alleging in his answer that such records, accounts and books pertained to his personal affairs and business and were not subject to audit by the plaintiff.

The trial court, after receiving oral and documentary evidence, decided the issues in favor of the defendants and refused to grant a mandamus to compel defendants to deliver such records to the plaintiff for audit. Plaintiff has appealed.

To a proper understanding, it will be necessary that we state the law governing the furnishing of free textbooks, the course of conduct of the parties thereunder, and how Mangun gets into the picture.

Section 1048, Revised Code of 1928, as amended by chapter 20, Laws of 1933, provides that the state shall furnish free textbooks for the common schools and for all state welfare institutions maintaining educational facilities, and appropriates to the state board of education out of the state's general funds the necessary costs and contingent expenses therefor. Such section makes it the duty of the several county superintendents to furnish to the secretary of the state board of education, on or before the first day of April in each year, a complete list of the textbooks necessary for the schools of their respective counties, and the secretary of the board of directors of state institutions to furnish such lists for state welfare institutions, and the state board of education to supply the books requested.

Section 1049, Id., makes it the duty of the state superintendent of public instruction to advertise, for thirty days in a daily paper, published in the state capital, for bids for the required number of textbooks.

Section 1050, Id., provides that the state board of education shall enter into contracts with the successful bidders, who shall give bond conditioned for the faithful performance of their contracts; and section 1051 makes it the duty of the state board of education to distribute to each county superintendent the textbooks required for his county, and provides that the county superintendent shall issue said textbooks to the school trustees in his county.

Thus it is seen that the law very carefully provides who shall purchase free textbooks and how they shall be purchased and by whom distributed. This method, we take it, is exclusive.

In pursuance of the above statutes, the state superintendent called for bids to furnish textbooks for the common schools of the state, and it appears that thereunder the bids of nineteen publishers were from time to time accepted and thereafter contracts in writing entered into by such publishers and the state board of education. These contracts extend over a period of five to ten years, and when the state superintendent of public instruction orders any books thereunder the publishers agree to furnish them as required. One of the conditions of the call for bids was that "All bidders must submit bids per book f.o.b. cars at a central depot Chicago." All of the contracts between the publishers and the said board contained a provision that the books would be furnished at prices stated in bid f.o.b. cars at a central depot, Chicago.

Under these contracts the books became the property of the state when delivered to the carrier at any central depot in Chicago. The state became responsible for transportation charges from point of delivery to point of destination and if the books were lost or destroyed in transit the loss would be the state's. When parties have agreed, as here, that the seller may ship from a central depot in a given city, a delivery by the seller to a carrier at such a depot is a delivery to the buyer and constitutes full performance of the seller's obligation to make delivery, and in such case the delivery passes the title to the buyer and the risk of loss or injury in transit is on the buyer. 23 R.C.L. 1423, section 248, and cases cited under note 4; section 2822, Revised Code of 1928. That the parties to these contracts recognized this as the law is evidenced by the fact that the contracts themselves contain a provision that the publishers will prepay transportation charges "when requested to do so by proper authority, and to render original receipted bills for the same which bills shall be paid by the state board of education within ninety (90) days thereafter."

If these textbooks belonged to the state, and there can be no question but that they did, it was the duty of the state, by some officer, employee or agent, to receipt for them from the carrier and thereafter distribute them according to law, keeping a record of their disposition and on what account and to whom, also any expense incurred in connection therewith. The records so kept are as much the property of the state as the textbooks themselves.

The call for bids and the arrangement for the care and distribution of the books, we take it, were left by the state board of education entirely to the state superintendent of public instruction. He, in fact, testified that he had custody and control of all the records of the state board of education. Section 4, article XI of the state Constitution, makes such officer a member of the state board of education and its secretary. So, it conclusively appears that it was the duty of the state, superintendent, in behalf of the state board, to receive the free textbooks, to attend to their proper distribution and of course to keep any records, books and accounts necessary in that connection.

This was not the way things were done. It seems that a plan was adopted by ...