
    LAIDLAW BROS., Inc., v. MARRS, State Superintendent of Public Instruction.
    (No. 4383.)
    (Supreme Court of Texas.
    June 8, 1925.)
    I.Schools and school districts <§=>80(l) — State board/Of education’s approval of text-book contract final, and cannot be thereafter set aside by it.
    Action of the state board of education in establishing the identity and validity of contract for text-books, legally made by state textbook commission, and ordering its performance by state superintendent of public instruction, under Vernon’s Ann. Civ. St. Supp. 1922, arts. 29041/4 and 2904:*4i, is final and con-' elusive, unless set aside under Vernon’s Ann. Civ. St. Supp. 1918, art.. 2909n, by proper judicial action, for sufficient legal reasons, and cannot thereafter • be annulled or set aside by board.
    2. Constitutional law <§=>92 — Private rights vested by discretionary action of executive officer cannot be annulled by him.
    When rights -of private parties itave become vested by discretionary action of an executive officer, neither he nor his successors can annul such rights.
    3. Schools and school districts <§=>80(1) — Approval of text-book contract by. state board of education held waiver of irregularities in execution. '
    The approval by state board of education of text-book contract, legally entered into by state text-book commission, and ordering its enforcement by state .superintendent of public instruction, renders such contract valid and binding, thereby waiving any irregularities in its execution, and state superintendent is precluded from contesting its validity because of any such irregularities.
    4. Mandamus <§=>79 — Schools and school districts <§=^85 — States <§=>191 (2) — Mandamus lies against state superintendent of public instruction to perform text-book contract; duties of superintendent of public instruction required by law and ministerial; mandamus against superintendent of public Instruction not suit against state.
    The duties of state superintendent of public instruction in performance of text-book contract, finally approved by state board of education, are required by law and are ministerial, and mandamus will lie to compel his perform-. anee, and such a suit is not one against the state.
    5. Mandamus <§=>84 — That performance of ministerial act results in performance of contract does not preclude issuance of mandamus.
    That performance of ministerial act required by law results in performance of a contract is no reason why mandamus will not issue to require such performance.
    Petition for mandamus by Laidlaw Bros., Inc., against S. M. N. Marrs, State Superintendent of Public Instruction.
    Writ granted.
    D. K. Woodward, Jr., of Austin, for relat- or.
    Dan Moody, Atty. Gen., and Wright Morrow, C. A. Wheeler, and L. C. Sutton, Asst. Attys. Gen. (W, G. Love, of Houston, of counsel), for respondent.
   PIERSON, J.

Relator seeks a mandamus against respondent to require him to do and perform the ministerial or statutory duties which it has a legal right to have performed in regard to its contract with the state for the purchase of certain text-books, to wit, “Our Government,” Davis and McClure, regular edition, by the state, and the furnishing of them by it to the state under the terms of its said contract and the provisions of the statutes.

Without reciting each detailed step in the process of entering into and execution of the contract- by tbe Texas state text-book commission, and tbe action taken tbereon by tbe state board of education on January 12, 1925, and the subsequent actions taken by the board in April and May, aé set out in relat- or’s petition and respondent’s answer, tbe following will be sufficient for a comprehension of tbe issues involved:

Tbe Texas state text-book commission was duly convened in December, 1924, and under tbe formalities and requirements of statutory law said eommissjon made an award to relator, selecting its book, “Our Government,” for use in tbe public free schools of tbe state, and entered into a contract duly and regularly signed and executed by tbe state and relator under the provisions of tbe law.

Thereafter, on January 12, 1925, the state board of education, at a regular meeting, found and ascertained that relator is a contractor with tbe state, and that it has a contract to furnish to tbe state the above-named text-book. It entered its finding to that effect by proper resolution, and so notified respondent, in order that tbe contract might be observed according to its terms under tbe statutes relating thereto.

Thereafter, on April 13, 1925, and again on May 13, 1925, and before requisition blanks listing tbe aforesaid books of relator were sent out to the school officials in the various school districts of tbe state, tbe state board of education met, and passed a resolution directing respondent not to place tbe name of' the books of relator selected by tbe state text-book commission at its meeting in December, 1924, on tbe requisition blanks to be sent out by him, declaring tbe contract of relator void and voidable, and declaring that' tbe books named in tbe aforesaid contract were not needed, and that no funds had been set aside for tbe payment for said books, and instructing respondent, Marrs, to give no recognition to relator’s said contract.

This suit was brought by relator, alleging that its contract, as entered into between it and the state text-book commission, and found to exist by the state board of education on January 12th, created and contracted an obligation by and between it and tbe state of Texas that could not thereafter be set aside or annulled; that tbe state board of education was not thereafter empowered to reconsider, annul, or declare void or voidable its said contract, and that its said actions in regard thereto are without effect, and that respondent S. M. N. Marrs, state superintendent of public instruction, as be is required to do under Vernon’s Ann. Giv. St. .Supp. 1922, art. 2904%i, is, in duty, bound tdr send out requisition blanks containing tbe title of the books under relator’s contract. It alleged that said duty is one required by law, and is ministerial in its character; that respondent has refused and is refusing to perform that duty, and prays that this court issue its mandamus requiring said superintendent to send out tbe necessary requisition blanks containing tbe name of relator’s book, and to do tbe other necessary things as re'-' quired by tbe statutes relating to said contract.

Tbe issues made by respondent, Marrs, that are applicable under tbe facts of the case, are substantially as follows: That this court is without jurisdiction because this is an attempted suit against tbe state without its consentthat it is a suit to enforce specific performance of a contract against tbe state; that tbe duties of respondent are ministerial in character, and are performed under tbe direction of tbe state board of education, and that said board, by its orders of April and May, 1925, bad declared said contract to be void and' voidable, and bad instructed him not to carry it out; that the state of Texas is not obligated to purchase any particular amount of text-books, or any at all, unless and until needed, and, it having been determined by tbe state board of education that tbe text-book named in relator’s contract will not be needed, respondent has no authority to send out requisition blanks containing its title; ■ that relator’s contract, is in fact, void and voidable. However, it was admitted that the contract had been regularly made and entered into as alleged by relator.

Respondent maintains that tbe orders of the state board of education of April and May, 1925, are in all things valid, and are conclusive and binding upon him, bis duties being ministerial, and therefore relator is not entitled to tbe writ of mandamus.

In the ease of Charles Scribner’s Sons v. S. M. N. Marrs, State Superintendent (Tex. Sup.) 262 S. W. 722, the contention of respondent Marrs was not that the writ of mandamus should not issue if a contract existed between relator and the state, but that there was no legal contract. Here the contract is admitted, but it is insisted that the state board of education has the authority or discretionary power under the law to control its performance, and under their judgment, through instructions to respondent, to prevent its perfórmance or to cancel and set it aside altogether.

This case is ruled by the principles announced in the cases of American Book Co. v. Marrs, 113 Tex. 291, 253 S. W. 817, Charles Scribner’s Sons v. Marrs (Tex. Sup.) 262 S. W. 722, and American Book Co. v. Marrs (Tex. Sup.) 262 S. W. 730, and the facts of this case bear a close analogy to those in the Scribner’s Sons Case.

Relator’s contract was regularly and legally made by the state text-book commission, and on January 12, 1925, tbe state board of education acted upon it,,found it to-be regular and valid, and by formal order instructed respondent, state superintendent of public instruction, to take the necessary steps required by law looking to its performance. Thereafter, in April and May, 1925, the state board of education undertook to rescind the action taken by the board on January 12th, and by resolution instructed respondent Marrs to disregard relator’s said contract.

Was the action of the board of education on January 12th, establishing the identity and validity of the contract and ordering its performance, final and conclusive, and thereafter binding upon the state board of education? ,We must so hold. The contract had been regularly entered into and executed by both parties, the state and relator; the body authorized to do so, the state board of education, had entered its official recognition of it, and had officially certified its identity and validity -to respondent Marrs, state superintendent of public instruction, and contractual rights had attached under it.

It is the earnest contention of respondent Marrs that the state board of education may exercise power over the contract to review the act of affirmance and to set- the contract aside, as it attempted to do by its subsequent orders of April and May, 1925. Nowhere-in the statutes do we find any authority to do so. The provisions, generally looking to its performance, the purchase of books for use in the schools under it, the penalties provided for failure on’ the part of the contractor to furnish books when ordered, etc., seem to negative such continuing control or authority in this regard.

It is presented by respondent that this authority is within the discretionary power of the state board of education under its “duty to .purchase books from the contractors of text-books used in public free schools of this state” (article 290414), and the provisions of the Constitution and statutes which provide that the board of education shall set aside out of the available school fund a sufficient amount to provide free text-books for use of the children in the schools, and that the courts will not interfere with the exercise of discretionary power, and. that this suit is an attempt to control the discretion of the board of education. If the premise were correct, that is, that the board of education has the discretionary power to rescind the former act of the board of education and reject the contract, and if its acts in attempting to do so were valid, that would be true, and this- would be an attempt to control discretionary power of the board of education, and relator would not be entitled to a writ of mandamus against respondent Marrs to require him to do that which the board had instructed him not to do.

No effect can be given to the acts of the board of April and May, 1925. It is not con-, tended, and of course it cannot be held, that the board under discretion or otherwise has legal power or authority to reject or annul a valid contract once it has become legally binding upon the parties and rights have accrued thereunder.

After the contract had been legally executed, the act of the state board of education in reviewing the acts of the state textbook commission, in determining that relator had a valid contract, and in ordering it to be observed, concluded the matter of establishing the identity and validity of the contract,’ and was final. Nothing remained to be done in that respect. It was then subject to be performed under the statutes regulatory thereof, unless set aside by proper judicial action for sufficient legal reasons. Article 2909n, Vernon’s Ann. Civ. St. Supp. 1918.

Rights. under the contract had attached; the identity and validity of the contract’ had been legally determined, and the contract certified for performance at the hands of those charged by law with the doing of acts necessary to its performance. Contractual obligations become fixed, and cannot be recalled. Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60. If the duties of the state board of education in regard to determining who are contractors of text-books, and instructing respondent, state superintendent, in regard to them, are discretionary, in this case that discretion has been exercised, and rights have become fixed, and the discretion cannot be exercised again to undo them.

The case of Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60, in reasoning is analogous to the case before us. In the course of the opinion the Supreme Court of the United States, speaking through Chief Justice Marshall, said

“The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial.authority. * * *
“Where the head of a department acts in a case, in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation.
“But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the president, and the performance of which the president cannot lawfully forbid, and there.fore is never presumed to have forbidden; as for example, to record a commission, or a patent for land, which has received all the legal 'solemnities; or to give a copy of such record; in such cases, it is not perceived on what ground the -courts of the country are further excused from the duty of giving judgment, that right be done to an injured individual, than if the same services were to he performed by a person not the head of a department.”

In Noble v. Union River Logging Railroad Co., 147 U. S. 165, 13 S. Ct. 271, 37 L. Ed. 123, the Secretary of the Interior had approved a map filed by the railroad company, the filing of which nnder an act of Congress gave the railroad company a right of way through public lands of the United States. The successor in office to the Secretary of the Interior undertook to reconsider the approval of said map, rejected it, and canceled the railroad company’s permit. The United States Supreme Court held that the latter act was void; that, once the discretionary power had been exercised, rights attached, and the power could not again be exercised to divest those rights. The court said:

“The railroad company became at once vested with a.i right of property in these lands, of which they can only be deprived by a proceeding taken directly for that purpose. If it were made to appear th$.t the right of way had been obtained by fraud, a bill 'would doubtless lie by the United States for the cancellation and annulment of an approval thus obtained. Moffat v. United States, 112 U. S. 24; United States v. Minor, 114 U. S. 233.
“A revocation of the approval of the Secretary of the Interior, however, by his successor in office was an attempt to deprive the plaintiff of its property without due process of law, and was, therefore, void.”

When, by the discretionary action of an executive officer, rights of private parties have become vested, neither he nor his successors in office can annul those rights by undertaking to revoke such action. Emblem v. Lincoln Land Co., 102 F. 563, 42 C. C. A. 499; Garfield, Secretary, v. Goldsby, 211 U. S. 249, 29 S. Ct. 62, 53 L. Ed. 168; Harper v. Terrell, 96 Tex. 479, 73 S. W. 949; Mitchell v. Robison, Commissioner, 103 Tex. 641, 642, 132 S. W. 465; Logan v. Curry, 95 Tex. 664, 69 S. W. 129.

We have already applied the principles discussed to the facts of this case, regarding the action taken on relator’s contract by the state board of education on January 12,1925. This court has recognized these principles, and applied them to text-book contracts, under contention's similar to those in this case, in the recent cases of Scribner’s Sons v. Marrs (Tex. Sup.) 262 S. W. 722, and American Book Co. v. Marrs (Tex. Sup.) 262 S. W. 730 (June, 1924). It was distinctly held in those cases that if a text-book contract was voidable, it became valid when the state through the board of education had elected “to adopt and make use” of it, and was a valid contract, enforceable alike upon the state and the text-book company, and, when sof adopted, thereafter respondent, Marrs, could not contest its validity, and that his duties in doing the acts necessary to its performance were ministerial. The court said:

“Under the facts this contract is not voidable; but, if it had been, the state having elected to enforce it according to its terms, it would now be an enforceable contract.”

It was held in those cases that when the board of education acted, its act became effective and concluded the validity and bind-' ing effect of the contract, and also thereafter any irregularities in its execution were-waived, and that the respondent, Marrs, could not raise them. Therefore, this contract not only constitutes a valid enforceable contract, binding alike upon the state and the relator, but any irregularities in its execution were waived, and cannot be raised by respondent.

The action of the board of education on January 12th on relator’s contract gave rise to respondent’s duties regarding it. The-acts to be performed by respondent are required by law, and are ministerial, as was held in American Book Co. v. Marrs, 113 Tex. 291, 253 S. W. 817, and Charles Scribner’s Sons v. Marrs (Tex. Sup.) 262 S. W. 722. Being required by law and being ministerial, mandamus will lie to compel their performance.

' It is well established in law, and admitted,. we think, by counsel for respondent, that if' an act is required by law, and the perform-anee of it is purely ministerial, mandamus will lie to require its performance, and that, the suit is not one against the state.

In Jernigan v. Finley, Comptroller, 90 Tex. 205, 38 S. W. 24, in a mandamus proceeding - brought against the Comptroller, the Attorney General contended that “this is a suit against the state and cannot be maintained.” Responding to this contention, the court said:

“In pursuance of the power conferred upon-it by amended section 3 of article 5 of the Constitution, the Legislature has given this court jurisdiction to issue the writ of mandamus against any state officer, the Governor excepted. That is, it has authorized a suit agoJtnst any such officer to compel him to perform the duties imposed upon Mm by law. It can hardly be .said that such a suit is one against the state; but if it be such in any sense, it is nevertheless proper and maintainable, because the state has authorized it to be brought.” (Italics ours.)

This holding is clearly correct, and has been so uniformly applied by this court that seldom is the question raised or referred to in the cases.

Also, the fact that the performance of a ministerial act required by law results in the performance of a contract is no reason why it will not issue. The effect it may have upon the performance of a contract is incidental, provided the right under the law exists for its issuance.

The case of Herring et al. v. Houston National Exchange Bank, 113 Tex. 264, 253 S. W. 813, and Id. (Tex. Sup.) 269 S. W. 1031, was one simply to compel the performance of a contract made by the state; and it was held to be a suit against the state. Much care was exercised to determine whether or not the Legislature through a certain resolution had provided by law for the performance of the contract, i. e., for the payment by agents of the state of the notes sued on. It was assumed that if such acts had been required by law or authorized by joint resolution of the Legislature, the mandamus would issue.

For a discussion of the relation of a textbook contract to the number or amount of books needed, see Charles Scribner’s Sons v. Marrs (Tex. Sup.) 262 S. W. 725.

It being determined in this case that the order of the state board of education of January 12, 1925, is final and binding upon respondent, and that the acts to be performed by respondent, Marrs,. are ministerial in their nature and required by the terms of statutory law, relator is entitled to a mandamus, and the writ is granted as prayed for. 
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