
    The State ex rel. Flowers v. The Board of Education of the City of Columbus.
    The city of Columbus is a school district of the first class. On the 15th of July, 1879, the committee on text-books made a report to the board of education, condemning the Cornell series of geographies, which had been adopted by the board as text-books on that subject more than three years previous to that time, and recommended for gradual introduction in their stead, a part of the Eclectic series of geographies. The report was laid over for action, and on the 12th of August, at a regular meeting of the board, the report was taken up, and a proposition was then received from H. "W. Derby & Co., containing terms as to tbe prices upon which they would furnish Harpers’ geographies for the use of the schools. Thereupon the report was amended by substituting tbe name of Harpers’ geographies for that of the Eclectic series, and the report as amended was adopted by the board, and thereupon the board adjourned, no motion to reconsider having been made. On the 26th of August, the board, by a vote of six to five, assumed to reconsider its action of the 12th of August, and six of the eleven members of the board now claim that this action left the Cornell series as the text-book in the schools, and refuse to permit the child of the relator, the latter being a resident tax-payer of the school destrict, to use Harpers' geographies in the schools: Held, 1. That the action of the board on the 12th of August, 1879, was, within the meaning of section 52 of the school law (70 Ohio L. 209), an adoption as of that date of Harpers’ geographies as the text-books to be used in the schools on that subject. 2. That there could be no change in such text-books within three years after that date, without the consent of three-fourths of the members of the board, given at a regular meeting thereof. 3. By the action of the board on the 12th of August, Cornell’s geographies are to be gradually excluded, and Harpers’ geographies to be gradually introduced into the schools, so that no pupil will be required to purchase a new book who already has the old. 4. That Harpers’ geographies were adopted in connection with the proposition of H. W. Derby & Co., dated August 12, 1879, the terms of which, as to prices, are to be considered as conditions upon which they were adopted. 5. That the action of a mere majority of the board on the 26th of August, 1879, did not rescind or otherwise affect the action of the board on the 12th of August, 1879, and the determination of the last-named date is still in full force. 6. It was the duty of the board to carry into effect its determination of August 12, 1879, and this duty may be enforced by proceedings in mandamus on the application, of the relator.
    Proceedings in mandamus.
    The facts necessary to an understanding of this case are as follows : The city of Columbus, for school purposes, is a city district of the first class.
    The board of education consists of eleven members.
    There is a superintendent of the public schools of the city, who is appointed by and acts under the instructions of the board of education.
    The schools of the city are graded into eight designated grades, and high school. In three of the designated grades geography is taught by the aid of text-books on that subject.
    Eor many years prior to August, 1879, the Cornell series, consisting of a Primary, Intermediate, and Physical Geography, had been the text-book on this subject in use in the public schools of the city.
    At a regular meeting of the board, held July 15, 1879,. the committee on text-books made a report to the board,. which, so far as it relates to text-books on geography, is as follows:
    “ The undersigned members of the committee on textbooks, beg leave respectfully to recommend the following addition to and changes in the text-books now in use in our public schools, with their reasons for the same : (Omitting the first and second, which relate to other subjects.)
    “ 3. Eor several years there have been serious complaints made by our very best teachers of the subject of geography of the text-book in use. It is alleged that the methods are old, the maps and illustrations behind the time, and the general make-up of the book unattractive, and therefore uninteresting, and at the same time the cost is fully equal to the newest and best books recently published.
    “By an examination of the books in use, the committee find that the complaints of the teachers are well founded. Other series of text-books on this subject have been in the hands of other members of the board of education, and have, no doubt, been examined with care and attention as well as by the members of the committee. In the selection to be made, the committee had to take into consideration the age and capacity of the children to be supplied, and the time it was proper to devote to this subject. The textbook to be selected must be for children between ten and twelve years of age, and the quantity and quality must be adapted to their comprehension, and within a given time. The committee, keeping these points in view, and also the best methods of presenting the subject, the accuracy of the maps and illustrations, the adaptation of the stylo of composition to children, the cost of the books, and the general appearance of the same, recommend as the most suitable for adoption the Intermediate, or No. 2, and the Primary geographies of the Eclectic series, published at Cincinnati, Ohio, by Van Antwerp, Bragg & Co.
    “ The committee is conservative, and is slow to recommend a change, although demanded by the good of the schools, and would not, if it imposed an additional expense ■upon the patrons of the schools. It is recommended that no pupil be required to purchase a new book who already has the old. That the introduction be gradually made upon the following prices: Primary, 45 cents, and Intermediate, or No. 2, 90 cents. Exchange for books now in use, 30 cents for Primary, in addition to old book, and 60 cents for No. 2, in addition to old book. The people will be at no additional expense whatever, but, in all respects, the gainers in the change.
    “ The committee have carefully considered the whole subject, in view of the best interests of the schools.”
    The report was received, and that part of the report referring to new geographies was laid over for two weeks. No further consideration of the subject was had, until the regular meeting of the board, on the 12th of August, 1879, when, on motion, the report was taken up.
    Mr. Loving, a member, thereupon presented the following communication from H. W. Derby & Co., of Columbus :
    “ Columbus, Ohio, August 12, 1879.
    “ To the Board of Education:
    
    “Gentlemen: — We will furnish Harpers’ Introductory Geography and Harpers’ School Geography, forming a complete series, for use in the public schools of Columbus, at the following prices :
    Exchange. Introduction.
    Harpers’ Introductory...................$0 30 $0 45
    Harpers’ School........................... 60 94
    “After introduction, we will furnish our geographies to the book dealers of this city, at such prices as will enable them to retail the Introductory at $0.65, and the School Geography at $1.30, realizing thereby a fair and reasonable profit.
    “We guarantee that the present superior excellence of our books shall be maintained during their use in your schools; and that there shall be no advance in prices' during the period of their adoption. School patrons shall also have the benefit of any reduction in prices that may hereafter be made. H. W. Derby & Co.” ■
    
      "Whereupon, Mr. Andrews, one of the members of the board, moved that the name of Harpers’ geographies be-substituted in the report of the committee for that of the Eclectic series of geographies, and the question being upon the substitution of Harpers’geographies in the report for the Eclectic series, the vote resulted as follows :
    
      Teas. — Messrs. Andrews, Beck, Hardy, Loving, Neil, Siebert, and Olnhausen. A
    
      Nays. — Messrs. Eugeroff, Huff, Palmer, and Walcutt.
    And thereupon, Mr. Loving, a member of the board, moved that the report of said committee on text-books, as amended, be adopted, and the vote thereon resulted as follows :
    
      Teas. — Messrs. Andrews, Beck, Hardy, Huff, Loving, Neil, and Olnhausen.
    
      ■ Nays. — Messrs. Palmer and Walcutt.
    • . No motion to reconsider this action of the board was made at that meeting.
    Subsequently, at a regular meeting of the board, held on the 26th of August, 1879, Mr. Neil, a member, offered this resolution: “Resolved, That so much of the action of the board of education, at its last meeting, on the report of the committee on text-books, as relates to the adoption of Harpers’ geographies, be reconsidered.” The vote on the resolution resulted as follows :
    
      Yeas. — Messrs. Engerhoff, Huff, Neil, Palmer, Walcutt, and Olnhausen — 6.
    
      Nays. — Messrs. Andrews, Beck, Hardy, Loving, and Siebert — 5.
    This meeting was not a continuation or adjourned session of the meeting held on the 12th of August, 1879. The proceedings above referred to all took place during the summer vacation of the schools, which re-opened for the fall term on the 1st of September, 1879.
    The relator is, and for many years has been, a resident citizen and tax-payer of the city of Columbus and of the city school district, and has been and is now sending one of Ms children, of school age, to one of the public schools of the city.
    Shortly after the adoption of Harpers’ geographies by the board, on the 12th of August, the relator purchased and paid for Harpers’ geographies, and wishes his child to use the same as text-books on that subject, in the school she is attending; and other patrons of the schools have purchased Harpers’ geographies for their children, and desire that they may be permitted to use them as text-books on that subject, which the superintendent refuses to permit them to do.
    An alternative writ has been issued, commanding the board of education and superintendent to allow the relator’s child and all other pupils in the schools to use Harpers’ geographies as text-books so long as they shall attend those grades in which geography is required to be taught.; or that they show cause why they do not do so. The board of education has returned the writ accompanied by its answer. Mr. Stevenson, the superintendent, has made a separate answer and return,-in which he says that he holds his appointment from, and acts under the instructions of, the board, and is willing to obey the orders of this court.
    A reply to the answer of the board has been filed.
    Harrison, Olds & Marsh ; L. J. Critchfield, C. N. Olds, and Rankin & Heitman, for plaintiff.
    
      R. A. Harrison, for the 'relator, maintained, at the oral argument, the following propositions :
    I. Harpers’ geographies were “adopted” by the board as the text-book on geography in the schools under their control. By reference to lexicographers, it will be found that the word “ adopted,” as used in the fifty-second section of the school law signifies “ selected for use.” — Webster. That is, a present selection either for immediate or future use.
    A text-book, then, is “ adopted ” in the sense meant by the statute, when it is selected by the board for use in the schools. The actual introduction and use of the book in the schools is not necessary in order to constitute an adoption or selection of it by the board. If the legislature had so intended, the language of the statute would have been: “ No text-book shall be changed after its adoption and actual introduction into the schools.” The introduction and use of the book is the effect which is to follow the adoption of it by the board. It is no part of the act of adoption or selection of the board.
    When a board of education “ determines” that a particular text-book shall be used in the schools under its control, such text-book is “ adopted.”
    The period of three years must necessarily begin on the da}^ of the “ adoption ” of a given text-book, as shown by the record of the proceedings of the board. The three years do not begin on the day upon which it is actually introduced by use into this or that or the other school building. Such introduction into the different school buildings may be on different days. No record is kept of such matters.
    2. If we take a wider view, we shall arrive at the same conclusion. Had the language of the statute not been unambiguous, the mischiefs which the statute was enacted to remedy would show that the construction for which we contend is the true one.
    The objects of this limitation upon the power of boards of education to change text-books are obvious :
    One was to prevent the evils resulting to both patrons and pupils from frequent changes of text-books.
    Another was to remove, as far as practicable, inducements to publishers of text-books and their agents to make use of improper means and instrumentalities to bring about such changes.
    A third object of this limitation upon the power of the board was to enforce a thorough examination, upon the part of the board, of the relative merits of rival text-books before adopting either.
    , II. It has been suggested that, although Harpers’ geographies were adopted as text-books, Cornell’s geographies were not thereby superseded. There are several answers to this suggestion.
    ■1. The action of the board conclusively shows that they discarded Cornell when they adopted Harper. They adopted Harper in the place of Cornell, because the latter is now unfit for use, while the former is a good text-book. The report of the text-book committee and the action of the board prove this.
    2. When a text-book for a given study is adopted by the board without qualification or limitation, it becomes the sole text-book for such study. Otherwise, there would be the anomaly of two different text-books on the same subject in the same schools, and under the pretense of adopting several text-hooks on the same subject in the same schools, the statute restricting the power to change the text-books might be practically nullified. Perhaps a textbook may be adopted for use in the schools in one building, and a different text-book in the schools of different buildings. Even if this be so, which, we think, to say the least, is doubtful, it is plain that this can only be done when the adoption of each of such text-books is expressly limited and confined to some only of the schools. When the adoption is universal (as it is in this case) the use must necessarily be universal for the reasons above stated.
    III. The action of the board, by which Harper’s geographies were adopted, became operative at the conclusion of the meeting at which the action was taken.
    1Y. 1. The statutory limitation upon the power to change text-books in the public schools can not be evaded under color merely of a motion to reconsider at' a meeting held subsequently to that at which a text-book may be adopted. If the board can, by a bare majority, change a text-book, under the form of a motion to reconsider, at the first regular meeting after the adoption of such text-book, then it can effect such a change at the second or any subsequent meeting. The operation of the statute would be, by this shift and device, effectually defeated.
    2. The petition shows that one of the “ rules of business,” for the government of the board, provides that no “ textbook shall be changed within three years after its adoption, without the consent of three-fourths of the members of the board, given at a regular meeting. By the adoption of this rule for their government, the board cut off' the right, if such a right would have otherwise existed, of reconsidering the vote by which a given text-book was adopted, unless three-fourths of the members vote for such reconsideration.
    3. Even if this question were not to be decided by the statute, nor by the by-law of the board, but by the rules of parliamentary law, the board had no power to change these text-books under the disguise of a motion to “ reconsider.” Roberts’ Rules of Order, §§ 42, 60.
    4. The pretended change was null and void. See The People v. State Board of Education, 49 Cal. 684.
    V. Mandamus is the only legal and specific remedy.
    1. Education, in this state, is a matter of public governmental concern, and has been such from its organization. The school district was created as a public territorial corporation, and the duty of providing for the education of the children within its limits, is imposed on it by public statute law. And the board were elected, and their duties prescribed, and their powers conferred and defined, by force and dii’ection of the same law.
    2. The relator has a direct, personal, legal interest in the enforcement of the right created by the statute. This interest and right are as clear as the right of the parent of a child to compel the admission to the public schools of his child, when entitled to the benefits of such schools. The State, ex rel. Garnes, v. McCamon, 21 Ohio St. 198; Roe v. Deming, 21 Ohio St. 666; The People v. The Board of Education of Detroit, 18 Mich. 400.
    3. Mandamus will issue to compel the performauee, by a public corporation, of a public duty not due to the government as such, on the petition of a private person, without the intervention of the government law officer. Union Pacific 
      
      R. R. Co. v. Hall, 91 U. S. 355; Pumphrey v. Mayor, etc., of Baltimore, 47 Md. 145.
    4. The board exercised their judgment or discretion in determining whether Hai’pers’ geographies shall be used as text-books in the schools under their control. Such determinatiou was in effect a judgment. It thereupon became their duty to carry such judgment into effect. When they determined that Harpers’ geographies should bo so used as text-books, they exhausted their discretion over the subject, unless their judgment should be reversed by a majority of three-fourths of the members of the board. Their duty to carry the judgment into effect then became purely ministerial; and mandamus is the proper process to compel the performance of such ministerial duty.
    5. The prohibition in section 52 of the school law is positive and imperative. It was enacted, principally, for the protection of the patrons and pupils of the public schools against the evils of the exercise of an unlimited and arbitrary discretion to change text-books by a bare majority of a board of education. Each patron and each pupil has, therefore, an immediate individual interest in the observance and enforcement of the prohibition. This interest, from its nature, creates a legal right in each patron and pupil. The statute makes the consent of three-fourths of the members of the board a condition precedent to the exercise of the power to change a text-book at any time within three years after its adoption. It is, therefore, a limitation of power. No principle is better settled than that acts done by a corporation, either public or private, in contravention of those restrictions on its powers which are in the nature of conditions precedent, or limitations shown by the express provisions of the statute under which it derives and exercises its powers, are in themselves unlawful. The power of the board as to changing text-books does not depend upon something to be done or determined by them, hut upon a condition required by statute. They can not dispense with nor evade the statutory condition. If they could, the provision enacted for the protection of the patrons and pnpils of the public schools would be rendered nugatory; and the power sought to be restrained, would be practically unlimited.
    6. The court is not asked to prevent the board from exercising their lawful discretion. They have no discretion to violate a provision of the very law under which they are organized, and which, in this particular, defines and limits their authority. We are not dealing with a question of discretion — not even with a wanton or capricious exercise of discretion. We have to deal with a naked question of power. The declaration of the sovereign will of the legislature excluded the exercise of any discretion in relation to the subject-matter of such declaration, by the inferior authority — the board. Hence, the action of the board, of which the relator complains, is unlawful, in breach of their trust, and in excess of their powers.
    
      Lorenzo English and James E. Wright, for defendants :
    1. What constitutes an adoption of a text-book in the public common schools of the State, within the meaning of section 52 of the act for the reorganization and maintenance of common schools, passed May 1, 1873 (70 Ohio L. 195)?
    This question involves a construction of section 52 of the school act. The power of the board of education to change the course of study or text-books, under this statute, is full and complete. The limitation upon the power is that, after the adoption of any text-book, no change shall thereafter be made in such text-book for the period of three years, without the consent of three-fourths of such school board, given at a regular meeting; but this section nowhere provides when or how long such board of education shall be occupied in determining both or either of these questions, or what acts within the purview of the statute shall be regarded as amounting to an adoption of a text-book, and in view of the peculiar character and. constitution of these local bodies, we think we can safely assume that the provisions of the statute will receive a most beneficial construetion, consistent with the rules of interpretation, in favor of the fullest opportunity tobe given to them to determine these questions, as they shall deem that the public interests require.
    The claim of the plaintiff seems to be that the determining by the board of a text-book is its adoption ; in other words, that, under this section, the determination and adoption are one aud the same thing. In our judgment, however, they import two very different things; the one, very clearly, is the act of the board; the other is not; and in this conclusion we are strengthened by the fact that there is no limitation imposed .upon the power of such boards of education to change the course of study in these public schools, by a majority vote, just as often as they please to do so; the limitation is confined solely to the power to change text-books. When we consider the phraseology, it is very evident that the legislature did not use the word adoption in any technical sense, nor in its primary sense, nor strictly in its secondary sense, as defined by lexicographers. In its primary sense, it pertains to persons and their relations to one another; in its secondary sense, it means to take, select, or assume as one’s own; as judicially construed, it has been held to embrace all the steps which may be necessary to accomplish a given purpose, as, for instance, to adopt a route for the transportation of the mail, means to take the steps necessary to cause the mails to be transported over that route. Rhodes v. United States, Dev. 47. And, on the construction of words,’ see Broom’s Legal Maxims, 586 (7th ed.); Maxwell, 17, 50, 54; R. v. Hall, 1 B. & C. 136; The Lion, L. R. P. C. 531; 2 A. & E. 531; Bird v. Bird, L. R., 1 P. & D. 231; Corrance v. Corrance, Id. 498; 6 A. & E. 339; Hardcastle on Stat. Con. 76.
    We therefore think that, while the determination of the text-books to be used is the act of the board, the adoption of them into practical use is the work of the pupils and the patrons of the schools, in accordance with such determination.
    
      In this view, there could have been no adoption of the Harper geography in the vacation of the school, and, as an abstract proposition, neither the plaintiff nor any other citizen could rightfully complain that the board of education, on the 26th of August, receded from its determination expressed in favor of this geography on the 12th of August.
    But, if it shall be found that the determination that a particular book shall be used as a text-book in the schools, and its adoption, are both acts of the board of education, the result is not different, for the thing to be done which limits the power of the board to make a change is not accomplished until it is completed by the adoption; and, during the time it is being done, the board may retrace its steps; and in neither view was the act complete on the 26th of August, when the board, by its order, revoked its order touching the same subject-matter made on the 12th of August.
    The action of the board on the 26th of August stands as the act of the board, and not as the act of the members of the board, or of a part of them. At this meeting, the members were all present, and, under the statute, a majority of the members is a quorum for the transaction of business ; and, if we are correct in the views which we have expressed, this action was final and conclusive of the subject.
    II. We insist that the board, by its action at the meeting held August 12, 1879, did not exclude the Cornell series of geographies from the public schools of Columbus. And, if that action amounted to an adoption of the Harper series, it did not have the effect of adopting the series as an entirety, but only in so far as it might be found feasible to use the series, having due regard to the classification itnd grades of such schools.
    III. Under what circumstances, if any, may a board of education reconsider its action with respect to the adoption of text-books upon subjects to be taught in such schools ?
    
      Section 14 of the school act provides that “ the board of education shall hold regular meetings once every two weeks, and such special meetings as they may deem necessary.”
    These meetings of August 12th and-26th were held by virtue of the provisions of this sections, and there is nothing in the record to show that any special meeting intervened. .
    "While boards of education may partake of the character of deliberate bodies, they are in no wise controlled by parliamentary rules and usages, but may conduct the proceedings before them in any way or manner which will accomplish the purposes intended by the statute relating to the public schools of the state, and we think no greater strictness will be required of them, in the transaction of the business before them, than that which is required of a New England town meeting, which possesses even larger and more extended powers than a board of education; and yet, with respect to these town meetings, it is well settled that they are not restrained by the rules and usages of parliamentary law. Hill v. Goodwin, 56 N. H. 441; Hunneman v. Grafton, 10 Met. 457; 6 Met. 497; 13 Allen, 163; 8 Cush. 66; 117 Mass. 391.
    But the relator claims that the statute and a by-law of the board provide that “ no text-book shall be changed withiu three years after its adoption, without the consent of three-fourths of the members of the board, given at a regular meeting; ” and that, after such adoption, it is not the subject of reconsideration for the period of such statutory limitation. In other words, however unadvisedly the board may have acted — however grave may be their mistake in this regard — that, having once adopted such book, they can not retrace their steps. If this rule were applied to the proceedings of the legislative departments of the government, the consequences would be frightful, indeed ; and it will not be applied here by the court, unless there is a controlling necessity for doing so.
    Conceding, therefore, for the sake of the argument, that the adoption of a text-book is the act of the board, and not of the pupils and patrons of the public schools, our position is, that up to the point when the board has given its final assent to such adoption, and before any expense has been incurred by these pupils and patrons in the purchase of such text-books, acting in good faith, and according to the rules and usages governing such public schools, it is competent for the board to reconsider its action with respect to such adoption, and that under the circumstances existing in the case at bar, it was rightfully exercised ; for it is conceded that from the commencement to the close of the discussion of the geography question, in so far as it .pertains to the question of the adoption of the Harper series, every step was taken by the board during the summer vacation of the schools. No rights, therefore, could have become vested in the pupils and patrons of these schools, without an utter disregard of ordinary caution and prudence.
    IV. As to whether a writ of mandamus should be issued, see 1 Ohio St. 30, 78; 20 Ohio St. 425 ; 22 Ohio St. 546 ; 2 Dutcher, 135 ; 33 Mich. 164; 33 Ill. 17; 23 La. 388; 31 Ohio St. 213.
    
      Alexander W. Krumm, city solicitor, also for defendants,
    filed a brief, discussing the same points as his associate counsel.
    
      DeWitt C. Jones, also of counsel for defendant,
    made an oral argument.
   Gilmore, C. J.

Recognizing, as we do, the importance of any question affecting the welfare of the common schools of our state, we have fully and carefully considered the questions that are raised by the writ, answers, and reply; and to us it is quite clear that the case can be satisfactorily decided upon the questions of law that are presented, without reference to the issues of fact that are made in the case.

If it is apparent that the relator is legally capable of prosecuting this proceeding, and that he has a clear legal right to the remedy he is seeking, we can not stop to inquire whether he is moving of his own volition, or at the request of some third party. Neither will we inquire whether the geographies in controversy are or are not adapted to the grades or classes in which they are required to be taught; nor can we pass upon the merits of the several series of geographies that are mentioned in the pleadings. Under the law the board of education is clothed with discretionary power to regulate and decide these matters ; and with the exercise of such discretion this court can not interfere; and hence it would be out of place to hear oral testimony on these subjects, or either of them.

The questions of law presented for decision are as follows :

1. Has the relator a legal right to prosecute this .proceeding ?

2. Hid the action of the board, on the, 12th of August, 1879, amount to an adoption of Harpers’ geographies, as of that date ?

3. If so, what effect did such adoption have upon Cornell’s geographies, which had long previously been adopted and used in the schools ?

4. Was the action of the board, on the 12th of August, 1879, affected by its subsequent action, on the 26th of August, 1879 ?

First. In answer to this question but little need be said. The relator was a resident tax-payer of the city of Columbus, and of the city school district, and was also the father of a child who was of school age; who was attending school in the city, and for whose use, in school, he had purchased and paid for Harper’s geographies, shortly after the action of the board, on August, 12th. He had, therefore. a pecuniary, and also a parental interest in having the public schools of the district controlled and conducted in the manner prescribed by the statute; and these interests are sufficient to enable him to maintain this proceeding to compel the board to perform its legal duty toward him and his child, on his making it appear that it has failed and refused to do so. Weir v. Day, ante, p. 143. The duty-sought to he enforced is not a public duty due from the board to the state as such, but a duty due from the board to the relator personally, and such a duty may be enforced in the name of the state on his relation, without the intervention of the attorney-general. Union Pacific R. R. Co. v. Hall, 91 U. S. 355; Pumphrey v. Mayor of Baltimore, 47 Md. 145.

Second. The legal effect of the action of the board, on the 12th of August, must be ascertained by a construction of section 52 of the statute (70 Ohio L. 209), under which its action was had. The first clause of the section, which alone bears upon this question, reads as follows: “Each board of education shall determine the studies to be pursued, and the text-books to be used, in the schools under their control; and no text-book shall be changed within three years after its adoption, without the consent of three-fourths of the members of the board of education given at a regular meeting,” etc.

The fair meaning of this statute must be ascertained by a reference to its words, the subject-matter to which they relate, and the object intended to be obtained by its passage.

The clause quoted is divisible into two sentences, each complete in itself.

The first confers power on the board to act upon two subjects — the studies to be pursued, and the text-books to be used in the schools. The second is a conditional restriction on the power of the board over the latter subject, when it is within the condition; and, when the restriction is inapplicable, the power of the board over both subjects is equal and complete. In this case, the restriction was inapplicable to the action of the board on the 12th of August, for the reason that more than twice three years had then elapsed since the board had adopted the Cornell geographies as the text-book to be used in the schools. Consequently, at the date last named, the board could legally exercise, without restriction, all the powers conferred by the first sentence in the clause above quoted. Under this, the-board is to determine the text-books to be used. "What is. the meaning of the word determine, as here used; or, what, operation and effect ought to be given to it ?

When taken in connection with the purpose of the law— which is the education, in free public schools, of the children of the state — and the subject-matter to which it relates — which is the text-books to be used in such schools— it is manifest that the word “determine” must mean, something more than investigating ar>d arriving at a conclusion by mental processes, although these are embraced.. Official action is contemplated and required, to give a practical effect to the word, and the injunction to do this is mandatory upon the board; and, in order that those who-must obey may know the will of the board, it is necessary that it should be declared in such a way that it may be-known. The usual mode by which the board of education makes known its will on any subject over which it has. control, is either by a motion, or by a resolution passed by the board at an official meeting and entered upon the-record of its proceedings, where it may be seen by any party interested. All this was done in the case before us. On the 15th of July, 1879, the_ committee on text-books-made a report to the board on the subject, among others, of the text-books on geography then in use, and those which they recommended for use in the future, in which they give their reasons for excluding the Cornell series then . in use, and substituting in their stead the intermediate, or' No. 2, and the primary geographies, of the Eclectic series.. If the report as made, had been adopted, its operation, would have been to exclude the condemned series then in-use, and to introduce those recommended into the schools-to be thereafter used.

By official action that part of the report, referring to new geographies, was laid over for two weeks. On the-12th of August, 1879, at a regular meeting of the board,. the report was taken up; when a proposition from II. W. Derby & Co. was presented, stating the terms upon which they would furnish Harper’s geographies for use in the .schools. On motion of a member, the name of Harper’s geographies was substituted, in the report of the committee for that of the Eclectic series, by a vote of seven to four. And thereupon the report of the committee, as amended, was adopted by the board by a vote of seven to two.

"Whatever the legal effect of this action may be, it at least clearly shows that the board thereby intended to exercise the powers conferred upon it by law, in reference to the text-books to be used in the schools on the subject of .geography. It appears to us that the legal effect of this action of the board, by whatever name it may be called, was the adoption of Harpers’ geographies as the text-books •on that subject, to be thereafter used in the schools under •its control, until they are lawfully changed. When the action of the board was consummated, on the 12th of August, its power over the subject was exhausted for the period of three years from that date, unless the text-book so adopted should be changed within that time by the consent of three-fourths of the members of the board, given at a regular meeting thereof.

The “three years” begins to run from the date of the •official adoption of a text-book, and not from the time such •book is introduced and brought into actual use in the •schools.

From what has been said, it necessarily follows that the action of the board on the 26th of August, 1879, in which a bare majority of the members of the board voted to reconsider the action of the board on the 12th of August, was a nullity; and hence the action of the board of the date last named is still in full force and effect; and the effect of this action is to exclude Cornell’s geographies, and •substitute in their stead Harpers’ geographies, which are, as before stated, to be hereafter used in the schools until they are lawfully changed.

Following a recommendation of the committee in its report, wbicb we think reasonable and. proper, we are of opinion that no pupil shall be required to purchase a Harpers’ geography for use in said schools, who, on the 12th of August, 1879, already had a book of the Cornell series ■of geographies for such use ; but if any pupil, who had such old book at that date, shall purchase or otherwise obtain any other book for use in the schools, in the place of his or her old book of the Cornell series, it shall be a Harpers’ geography.

Further; Inasmuch as Harpers’ geographies were adopted .as text-books, in connection with the proposition of H. W. Derby & Co., the terms of said proposition are to be considered as conditions upon which the text-books were .adopted.

Peremptory vyrit allowed.  