
    ROW, PETERSON & CO. v. MARRS, State Superintendent of Public Instruction.
    (No. 4399.)
    (Supreme Court of Texas.
    June 10, 1925.)
    Schools and school districts <®=>80( I) — Approval of text-book contract by state board of education held waiver of irregularities in execution.
    Conceding that text-book contract was voidable because statutory affidavit required of contractor was not in strict compliance with statute, held, that, on approval of such contract by state board of education, any irregularities in its execution were waived, and contract became an enforceable one.
    Petition for mandamus by Row, Peterson & Co. against S. M. N. Marrs, State Superintendent of Public Instruction.
    Writ issued.
    Batts & Brooks, of Austin, for relator.
    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.

Relato? 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 of Texas for the purchase of certain text-books, to wit, Fourth Reader, Fifth Reader, and Sixth Reader, each by Free and Treadwell, and Seventh Reader, by Briggs.,,

The facts of this case in all essential particulars are the same as those contained and stated in the case of Laidlaw Bros., Inc., v. S. M. N. Marrs, State Superintendent of Public Instruction (Tex. Sup.) 273 S. W. 789, opinion delivered June 8, 1925, with one exception.

In the instant case, the relator, as provided by the statutes, filed with the state textbook commission what is termed its antitrust affidavit. Said affidavit was in statutory form, and signed by all of its directors, but one of its said directors (a Mr. Cousins) had executed it through his attorney and agent in fact, and not personally.

In passing on relator’s contract, the Attorney General called this fact to the attention of the state text-book commission. Thereupon, by resolution, the commission instructed respondent, Marrs, as secretary of the commission, to hold relator’s contract and bond until said director came to Austin and in person made the affidavit. Said director forthwith came to Austin, executed the affidavit in person, and the contract was delivered.

Respondent makes the defense that these acts constituted such an irregularity in the steps required by the statutes, preliminary to the making of relator’s contract, as to invalidate it. It "would appear that the objection is without substance; but if not, the action of the' state board of education on January 12, 1925, adopting the contract, and directing respondent to observe it, had the effect to waive the irregularity and mane the contract effective and enforceable. Charles Scribner’s Sons v. Marrs (Tex. Sup.) 262 S. W. 622.

The principles of law announced in the case of Laidlaw Bros., Incorporated, v. Marrs, State Superintendent, 273 S. W. 789, opinion delivered June 8, 1925, apply in all respects to this case, and in accord with the holdings therein relator is entitled to the writ of mandamus as prayed for, and it is ordered that it issue. 
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