State Text-Book Commission v. Weathers

• Decision Date: 13 June 1919
• Parties: STATE TEXT-BOOK COMMISSION v. WEATHERS.
• Court: Kentucky Court of Appeals

213 S.W. 207

184 Ky. 748

STATE TEXT-BOOK COMMISSION v. WEATHERS.

Court of Appeals of Kentucky.

June 13, 1919

Appeal from Circuit Court, Franklin County.

Action by E. B. Weathers, Jr., against the State Text-Book Commission. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles H. Morris, Atty. Gen., E. C. O'Rear, of Frankfort, and Thomas W. Thomas, of Bowling Green, for appellant.

Elwood Hamilton, of Frankfort, L. B. Finn, of Franklin, and James H Polsgrove and Thomas B. McGregor, both of Frankfort, for appellee.

A. J Carroll, of Louisville, amicus curiæ.

SETTLE J.

The state text-book commission, composed of the Governor of the state, its ex officio chairman, the superintendent of public instruction, its ex officio secretary, and ten other members appointed by the Governor, one from each of the seven appellate court districts of the state, and one each from the faculties of the State University at Lexington, the Eastern State Normal School at Richmond, and the Western State Normal School at Bowling Green, at a series of meetings, which began February 11, 1919, and continued about ten days, adopted an alleged complete list of text-books for use in the common schools of the state, including high schools, during the ensuing five years, and awarded 29 contracts therefor to alleged successful bidders. The meeting of February 11, 1919 was called by a resolution adopted by the commission at a previous meeting of January 14th, and newspaper advertisements on the 15th for bids from publishers of schoolbooks, to be sent the board on or before February 11th.

The appellee, E. B. Weathers, Jr., a resident of Franklin, Ky. a city of the fourth class, substantially complaining that the appellant, state text-book commission, in the matter of adopting the list of text-books for the common schools and awarding the contracts therefor, violated in numerous particulars the provisions of the statute defining its duties and regulating the manner of their performance, and that such derelictions, if not corrected, would result in great injury to the common schools of the state and loss to pupils and patrons, brought this action in his own right as a resident and citizen of the state and patron of its common schools, and on behalf of all citizens, patrons, and pupils thereof, seeking a writ of mandamus to compel the appellant commission to reassemble and proceed as required by the statute to a new adoption of text-books for the use of the common schools during the succeeding five years, in lieu of those adopted on or following February 11, 1919.

Without quoting the averments of the petition, it is sufficient to say that they specify the following as errors or failures of duty committed by the commission in its recent adoption of text-books for the common schools and in awarding contracts for supplying them, all or any of which, it is charged, rendered the adoption void: (1) That the accepted bids for three of the text-books adopted were not accompanied by sample or specimen copies of such books as required by the statute; (2) that none of the bids stated the price to dealers in the counties; (3) that more than 50 per cent. of the books then in use were changed without readvertisement; (4) that books in use under prior contracts were adopted at higher prices than formerly paid; (5) that the commission did not advertise for proposals from those holding contracts under the former adoption for a continuance of their contracts at the same or lower prices. The several contentions of appellee set forth by the averments of the petition were traversed by the answer, which, in addition, alleged what was done by the commission in effecting its adoption of the list of text-books in question; and, in the final paragraph, pleaded that appellee had no right to maintain the action. Numerous exhibits were filed with the petition and answer, and these constitute the only evidence introduced by the parties. The case was submitted upon the pleadings and exhibits and decided by the circuit court in appellee's favor; its judgment sustaining each of his contentions and granting him the writ of mandamus prayed. The appellant, state text-book commission, excepted to the judgment, and by this appeal urges its reversal.

We are met at the threshold of the case by apellant's challenge of the right of appellee to bring or maintain the action, and this contention will first be passed on. Appellee rests his right to maintain the action on two grounds:

First, he claims that, as the duties required of the state text-book commission by the statute are purely ministerial and also mandatory, if there was, as alleged, a failure on its part to legally perform them, the matter respecting which they were required by the statute to be performed being one that directly concerns the public generally rather than the state in its sovereign capacity, and there being no statute of the state making it the duty of any public officer to bring an action to compel of the recalcitrant commission a proper performance of its duties, the right to bring an action for that purpose cannot be denied to any reputable citizen of the state and patron of its common schools, although he may be unable to show a special interest in the proper performance of the required duties by the commission, and, moreover, that such right of action in the citizen was recognized by this court in Gay v. Haggard, Road Supervisor, 133 Ky. 425, 118 S.W. 299, under substantially like conditions. It is true the plaintiff in that case was a taxpayer as well as a citizen, but that fact, though mentioned in the opinion, was not declared to furnish a decisive test of the plaintiff's right to sue out the writ of mandamus prayed, such right being more especially rested by the opinion, on the rule stated in the following excerpt quoted from 26 Cyc. 401:

"The true distinction seems to be that, where the right or duty in question affects the state in its sovereign capacity as distinguished from the people at large, the proceedings must be instituted by the proper public officer, but, if the general public as distinguished from the state in its sovereign capacity is affected, any member of the state may sue out the writ."

Following its mention of the frequent application of the rule supra in cases in which one taxpayer had sued for himself and others, to restrain the levy of a tax or other excessive ministerial act, the opinion thus proceeds:

"It would seem to follow that, where a ministerial act was required by law to be done, which, if done, would inure to the benefit of the public, the tardy official might be set in motion and compelled to act by a suit by one of the public affected suing on his own and on the behalf of others. Nor is it necessary that the plaintiff should show a special interest to be affected by the act. * * * Nor do we think it necessary to allege or to show that the public will sustain damage if the act is not done."

While the petition in the instant case does not allege that appellee is a taxpayer, it does allege his citizenship in the state, and that he is a patron of its common schools, the first showing him to be a member of the state, and the last showing him to have a direct interest in the maintenance of its common schools, saying nothing of his being a contributor to the expense of such maintenance. So, in point of fact, he is not without some interest, though not of a special character, that may be affected by the acts of the state text-book commission complained of. The doctrine that a private citizen or citizens having no special interest in the result may, as here attempted, move for a mandamus to enforce a public duty due the public, rather than to the state in its sovereign capacity, was also recognized in Lou. Home Tel. Co. v. City of Louisville, 130 Ky. 611, 113 S.W. 855, and later approved in Christian-Todd Tel. Co. v. Commonwealth, 156 Ky. 557, 161 S.W. 543. Indeed, such seems to be the preponderance of American authority. 13 Enc. P. P. 632; U. P. Ry. Co. v. Hall, 91 U.S. 343, 23 L.Ed. 428; State v. Weld, 39 Minn. 426, 40 N.W. 561; Chicago, etc., Ry. Co. v. Suffern, 129 Ill. 274, 21 N.E. 824.

The second ground relied on as establishing appellee's right to maintain the action is conferred, as claimed, by certain provisions of an act of the Legislature approved March 29, 1918, now section 4421a8, Kentucky Statutes (Carroll's Ed. 1918), in large part applicable to cities of the first, second, third, and fourth classes. It will be observed that the section supra does not compel the cities of the classes mentioned to use the books adopted by the state text-book commission, but it does make it the duty of the secretary of the state text-book commission "to submit to the board of education of each of the said cities a certified list of all books filed for adoption with the state text-book commission as soon as practicable after such bids have been received by the text-book commission, and also a list of such books as have been adopted in said cities which may be continued for a period of five years." The cities, however, are left free by the section to adopt through their respective boards of education a series of books for a period of five years and contract with the publishers for them, but it requires that the five-year adoption of text-books by the boards of education in these cities "shall be made within sixty days after the adoption has been made by the state text-book commission for the state of Kentucky," and in connection with such requirement declares:

"And such adoption in the various cities may be made from the list of books certified by the state text-book commission. It being the intention of this act to permit uniformity in the state of Kentucky and in

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