
    AMERICAN BOOK CO. v. MARRS, State Superintendent of Public Instruction.
    (No. 4547.)
    (Supreme Court of Texas.
    March 31, 1926.)
    Mandamus &wkey;>79 — Schools and school districts &wkey;>47 — State superintendent of public instruction had no authority to omit from requisition blanks to school authorities books under contract approved by state board of education, and will be compelled by mandamus to cancel requisitions affecting such books and issue new notices and requisition blanks (Complete Tex. St. 1920, or Vernon’s Ann. Civ. St. Supp. 1922, art. 2904!/4d; Complete Tex. St. 1920, or Vernon’s Ann. Civ. St. Supp. 1918, art. 2909g).
    Where one having contract with state for text-books had omitted affidavit required by Complete Tex. St. 1920, or Vernon’s Ann. Civ. St. Supp. 1918, art. 2909g, and contract had been thereafter approved by state board of education after inclusion of such affidavit, state superintendent of public instruction, under Complete Tex. St. 1920, ■ or Vernon’s Ann. Civ. St. Supp. 1922, art. 2904%d, had no authority to make derogatory suggestion regarding books under such contract or to omit names of books from requisition blanks furnished school authorities, and writ of mandamus will issue requiring him to cancel requisitions affecting'such books theretofore, issued and to issue new notices and requisition blanks.
    cg^jFor other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
    Application by the American Book Company for mandamus against S. M. N. Marrs, State Superintendent of Public Instruction, to require respondent to perform duties necessary to the performance of relator’s contract with the state for the purchase of textbooks.
    Writ granted.
    W. A. Keeling, of Austin, for plaintiff.
    Dan Moody, Atty. Gen., and R. B. Cousins, Jr., Asst. Atty. Gen., for defendant.
   PIERSON, J.

This suit was brought by relator, in which it seeks a mandamus against respondent to require him to do and perform his ministerial and statutory duties necessary to the performance of its contract with the state for the purchase of certain text-books, to wit, Hunter and Whitman’s “Civic Science in Home and Community'’ and Pearson and Suzzahfs “Essentials of Spelling,” parts I and II, 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. '

The law relating to the character and nature of respondent’s responsibilities and duties concerning book contracts is fully analyzed and announced in the eases of Charles Scribner’s Sons v. Marrs, 111 Tex. 11, 262 S. W. 722; Laidlaw Bros., Inc., v. Marrs, 114 Tex. 561, 273 S. W. 789; McMillan Co. v. Marrs, 114 Tex. 576, 273 S. W. 794; Row, Peterson & Co. v. Marrs, 114 Tex. 578, 273 S. W. 795. It has been several times adjudicated that the duties of respondent in these respects are ministerial, and that, when a contract is voidable for irregularities or for fraud on the part of a contracting book company, the authority to elect for the state “to adopt and make use” of it has been vested in the state board of education by the Constitution and the statutes. Further, it is provided in article 2904%d, Vernon’s Complete Texas Statutes, or Vernon’s Ann. Civ. St. Supp. 1922:

“The purchase and distribution of free textbooks for the state shall be under the management of the state superintendent of public instruction, subject to the approval of the state board of education. All details of plans for purchase and distribution of books not definitely covered by the provisions of this law shall be subject to the laws of the state and approval of the state board of education.”

In its petition relator alleges the execution of the contract by it and by the state through the state text-book commission, and that thereafter the state board of education approved it and ordered respondent to perform it on the part of the state; that respondent, as a ministerial officer, failed and refused to send out notices and requisition blanks to the public school authorities containing the names of relator’s said books, as it was his duty to do, but, on the contrary, made public announcement that he would not recognize said contract, and left off and omitted the names of relator’s books from the notices and requisition blanks sent out by him to the school authorities of the state.

Respondent, Marrs, in his answer says that he now recognizes said contract; has taken the necessary steps for its performance ; and stands ready in good faith to continue to do so.

The case as finally pleaded resolves itself into the question whether or not respondent, Marrs, has given proper recognition to relator’s said contract and has taken the necessary and proper steps looking to its performance. With that issue in view, we will state the facts as follows:

At a regular meeting of the state text-book commission, beginning October 12, 1925, that body made an award selecting relator’s above-mentioned books. The terms of the award to relator, together with the affidavits which were filed with the commission by relator, having been delivered to the Attorney General with the request that a contract be drawn, the Attorney General, on October 20, 1925, called respondent’s attention to the fact that the affidavit provided for in article 2909g, Vernon’s Complete Texas Statutes, or Vernon’s Ann. Oiv. St. Supp. 1918, which requires that a statement be made that relator and none of its individual stockholders were interested in or in anywise connected with any other text-book publishing house, and that same shall be sworn to by the president and secretary and each of the directors, had not been complied with, in that the secretary of relator had not made his affidavit, and advised that the state text-book commission was without authority to make the award. On the same day relator’s secretary made his affidavit in due and proper form, and same was filed in the office of the secretary of state on October 23d, and a copy transmitted to the Attorney General on October 26th. On November 16th, the contract having been prepared by the Attorney General’s department, same was executed by being properly and duly signed by the parties as provided by law.

On the 23d day of November the state board of education, after having been fully apprised of the proceeding had in the making and execution of the contract, bond, etc., ratified, confirmed, and approved the contract as executed, and ordered respondent to perform same on the" part of the state. A proclamation was issued by Governor Miriam A. Ferguson announcing said contract, as provided by law. However, respondent Marrs declined to recognize the contract and the jurisdiction or authority of the state textbook commission to make it, and declined to recognize the binding effect on him of the order of the state board of education, but made public announcement that he would not recognize relator’s contract. Thereafter, on the 6th day of January, 1926, he sent out to the public school authorities in the state a list of adoptions made by the state textbook commission at its meeting in October, 1925, but omitted therefrom the names of relator’s books.

On the 9th day of February, 1926, the state text-book commission, being recalled, passed a resolution reaffirming relator’s said contract as theretofore made, and on the same day the state board of education met, and again in its official capacity ratified and approved said contract and relator’s bond, and again directed respondent, the state superintendent of public instruction, to do all things necessary and required by law for the carrying out and performing of said contract.

In response to the last-named instruction from the state board of education, respondent, Marrs, did certain acts, and sent certain letters to the public school officials of the state, which respondent alleges to be a performance of his duties respecting relator’s contract, as follows:

On March 4, 1926, respondent sent a letter to the school officials of the state which reads as follows:

“You are advised that o-n February 9, 1926, the state board of education, by a resolution, ordered me to advise you that the state textbook commission had made a contract with the American Book Company to supply as one of the texts on general science to be used in the first class high schools of Texas for the six scholastic years beginning with September 1, 19456, a certain text entitled “Civic Science in Home and Community,” by Hunter and Whitman. This contract is in addition to the contracts for four other books on general science, the names of which were submitted to you in a former communication.
“I deem it my duty, however, to advise that I am informed that a suit will be instituted by the Attorney General of Texas to cancel the contract which the said American Book Company claims it has for the supplying of this book, and that there is a possibility that the contract will be canceled.
“Should you desire to use this book as the text on general science in your school, you should write the name of this book in the spaces provided for the name of the general science text in the requisition blank which will be furnished to you. I desire to suggest also, however, that, in view of the litigation which is imminent in connection with this book, you indicate also a second choice from the other books mentioned in the communication heretofore sent you, so that, in case you cannot be supplied with the Hunter and Whitman text, your second choice can be furnished for your use.
“You are further advised that at a meeting of the said state board of education held on February 9, 1926, I was also ordered by the said board to advise you that the spelling books to be used in' the public schools of Texas for the ensuing six scholastic years, beginning September 1, 1926, are Pearson and Suzzallo’s Essentials of Spelling, books I and II. Since you have no choice in the matter of the selection of this text, it is only necessary for you to' write in the blank provided in the requisition for spelling books the number of books required.
“You are also advised that the time within which the first-class high schools may make a selection of the books which they desire to use in general science has been extended by the text-book commission until April 30, 1926.”

It is deemed proper to state here that there were five science books to be placed on the requisition notices, one of which was the one to be furnished by relator, and, in order that the school officials might choose between them, it was necessary that relator’s book be presented along with the others so ■that choice could be made. Also it is reasonably probable that, before receiving the above letter and information that the time for making requisitions had been extended; some, and perhaps many, of the school authorities had made their selections from the list sent, and had sent in their requisitions.

Along with the letter of March 4th respondent also sent additional requisition blanks to the school authorities. This form, under the heading “General Science,” contained a blank space which might be used by them for writing in their selection, but it did not mention the name of relator’s science book nor those of its spelling books.

It Is too apparent for argument that the method and manner in which notice of relator’s books was sent to the school authorities was a clear discrimination against them, and one which was not only calculated to prejudice said hooks in the matter of requisitions for them, but necessarily would have that effect. It was a breach of respondent’s duty to make any derogatory suggestion whatever regarding relator’s contract or its books, and to fail to include relator’s hooks and put them upon an equal'basis with other books from which selections might be made. We think it is unnecessary to further state this conclusion, as it is perfectly apparent. Not only should relator have made no suggestion to the school authorities to make a second choice in the event relator’s science book should be chosen, but said book should have been submitted to'said school authorities on an equal footing with the other four for which contracts had been made by the state text-book commission.

Clearly there was no evidence of fraud in the inadvertent omission of the affidavit of relator’s secretary. It was filed in due form soon thereafter. If the failure to file his affidavit with the others before the award was made was such an irregularity as to make the contract voidable, thereafter, on November 23d, the state board -of education, with knowledge of the irregularity, elected for the state to “adopt and make use” of it.

Under the facts of the case, and it is to be presumed that all the facts have been alleged, relator’s contract is valid, and should be observed by respondent without limitation or hindrance. His duties being ministerial, relator is entitled to the writ of mandamus herein, and it is ordered issued, directing and requiring that respondent cancel all requisitions heretofore made wherein relator’s books are affected, and issue new notices and send requisition blanks, putting in said books with their names and other information as usual, and instruct said school authorities to make new requisitions throughout upon said subjects as are involved herein.

Respondent is enjoined from making any derogatory or damaging statements regarding the validity of relator’s contracts, and is restrained from sending out any requisition blanks upon the subjects contained in its contract which do not contain the names of relator’s books and the necessary information regarding relator’s state depository. Regarding the science books, he is directed to send out requisition blanks to the high school authorities in accordance with law, in which is included in a single list, and supplied at the same time, the names of the five textbooks adopted by the state text-book commission on general science, together with the prices, etc., from which new selections may be made by said high school authorities.  