
    AMERICAN BOOK CO. v. MARRS, State Superintendent of Public Instruction.
    (No. 4001.)
    (Supreme Court of Texas.
    June 30, 1923.)
    1. Mandamus <@=>154(4)— Not granted unless petition shows necessary facts and right.
    A writ of mandamus will not be granted, unless the petition shows every fact necessary to entitle the relator to the relief sought, and that he has a clear right to the writ, and that it is clearly the duty of the officer against whom the writ is sought to perform the thing demanded.
    2. Schools and school districts ⅞=>79 — Duty of state board of education and not state superintendent of schools to control contracts for purchase of text-books.
    Under Const, art. 7, § 3, and Vernon’s Ann. Civ. St. Supp. 1922, arts. 2904½¾ 2904¼1, it is the duty of the state board of education and not the superintendent of schools to ascertain or determine who are contractors of text-books and to specify such contracting company and the books to be used, and any specification by the superintendent without the approval of the board is a nullity,
    3. Mandamus <@==>10 — Held not to lie against state sohool superintendent as to contracts for text-books; duties being these of board of education.
    Since, under Const, art. 7, § 3, and Vernon’s Ann. Civ. St. Supp. 1922, arts. 2904¼<1, 2904¾1, it is the duty of the state board of education and not the state superintendent of public instruction to specify the text-books and determine who are contractors of text-books from whom the books are to be purchased, mandamus by one claiming to have a book contract with the state would not lie to cancel requisition made by school superintendent on blanks sent by the state superintendent which it was alleged did not contain the books which relator had contracted to furnish the state, but which it was alleged contained the names of books other than the ones so contracted for.
    Application for mandamus by the American Book Company against S. M. N. Marrs, State Superintendent of Public Instruction.
    Application denied.
    H. M. Garwood, C. R. Wharton, and E. F. Smith, all of Houston, for relator.
    W. A. Keeling, Atty. Gen., Jno. C. Wall, Frank M. Kemp, and Bruce Bryant, Asst Attys. Gen., and Etheridge, McCormick & Bromberg, of Dallas, A. M. Frazier, of Hills-boro, T. N. Jones, of Tyler, and Chas. L. Black, of Austin, opposed.
   PIERSON, J.

Relator, American Book Company, filed its petition in this court for writ of mandamus against respondent, S. M. N. Marrs, state superintendent of public instruction, in which it alleges that it has two certain valid contracts with the state of Texas, entered into between it and the Texas state text-book commission, by the terms of which it had contracted and obligated itself to furnish and sell to the state of Texas, for a stated period of time, certain text-books, and that the state of Texas had obligated itself to use said text-books in its public schools. It further alleged that it is the duty of respondent, as state superintendent of public instruction, to furnish to all boards of school trustees of the state of Texas blank forms for reports for requisition of such text-books, and that after such requisitions have been made, to order the appropriate number of books from the relator’s state depository, such order to be made not later than June 1st of each year. Relator further alleged "that respondent had failed and refused to perform his ministerial duties in relation to its said two contracts, but had sent out blank forms for requisition of text-books to the school superintendents of the state, which contained the names of geographies other than the ones which relator had contracted to furnish, and which it had the exclusive right under its contracts to furnish, and had thus deprived relator of all opportunity to furnish and sell to the state the text-books it had contracted to furnish, and prevents relator from carrying out the terms of its said contracts. It prayed for a mandamus, commanding respondent: (a) To cancel and hold for naught any and all requisitions made by the school superintendents of the state on the blank forms theretofore sent out by respondent, which did not contain the names of the books which relator had contracted to furnish to the state; (b) to immediately send out, or cause to be sent out, blank forms for reports for requisition of text-books which will contain the names of the books which relator has contracted to furnish to the state of Texas for use in its public schools; (e) that, as soon as requisitions are received by respondent on the blank forms to be sent out, respondent be required to furnish to relator’s state depository an order for all of the text-books so requisitioned on said forms; and (d) to do anything and everything that is necessary and proper to carry out the contracts made by relator with the state of Texas.

After demurring generally and specially to relator’s petition, in which he alleges that relator’s petition on its face is insufficient to entitle it to the relief sought, respondent answers and alleges that relator has no contracts with the state of Texas as alleged by it, and that the contracts alleged by relator are void and were never in fact legally made, for the reasons and on account of the facts thereinafter alleged. He then alleges that in various and sundry ways, not necessary here to set out, the contracts alleged by relator had not been executed in the manner and in the particulars required by the statutes relating to the awarding, making, and executing of contracts, bonds, etc,, by and between tbe Texas state text-book commission and publishers of books. For and on behalf of the state, he alleges facts that he contends avoid the contracts.

■ In view of the disposition we are making of the ease, it is not necessary to detail the allegations of fact set up in respondent’s answer.

A writ of mandamus will not be granted unless the petition shows every fact necessary to entitle the relator to the relief sought. Munson v. Terrell, 101 Tex. 220, 105 S. W. 1114; Ewing v. Commissioners’ Court, 83 Tex. 607, 19 S. W. 280; Arberry v. Beavers, 6 Tex. 457, 55 Am. Dec. 791.; Burrell v. Blanchard (Tex. Civ. App.) 51 S. W. 46.

Also, the petition must show that the relator has a clear right to the writ, and that it is plainly the duty of the officer against whom the writ is sought to perform the things demanded. H. T. & B. Ry. Co. v. Randolph, 24 Tex. 317; Bank v. March (Tex. Civ. App.) 51 S. W. 266; Tex. Mex. R. Co. ‘ v. Locke, 63 Tex. 623.

Article 7, § 8', of the state Constitution reads as follows: -

“The Governor, comptroller and secretary of state shall constitute a board of education, who shall distribute said funds to the several counties and perform such other duties concerning public schools as may be prescribed by law.”
“Said funds,” as used in this section of the Constitution, refers ten the various state school funds, including the annual available funds, in which is embraced that appropriated by the Legislature under section 3 of article 7, as well as from other sources. Webb County v. School Trustees, 95 Tex. 137, 65 S. W. 878. The Constitution having placed the distribution of this fund in the hands of the state board of education, the grant is exclusive, and the power must be exercised by them alone or under their direction. State v. Moore, 57 Tex. 307; Gillam v. Null, 58 Tex. 298; Parks v. West, 102 Tex. 11, 111 S. W. 726.

Section 3 of article 7 makes it the duty of the board of education to set aside from the available schools funds the necessary funds with which to provide free text-books for the use of children attending the public schools. This grant of power is likewise exclusive, and leaves directly with the board the sole power and duty of determining how much money may be necessary. In order to ascertain this, the school board must know, first, the number and kinds of books required in the various schools'of the state, and, second, what they will cost under the contracts. In order to ascertain the latter, they must know whether or not any contracts have been made, and with whom, and the kind, character, and price of the books therein specified. It is thus seen that the power of ascertaining the number of book needed, price, etc., the existence of contracts, and the identity of contractors, is by the Constitution confided alone to the state board of education. The various statutes authorizing acts upon the part of the state superintendent with reference to the requisitions complained of, necessary in order to determine the number and kinds of books required by the schools, must be construed with reference to the exclusive grant of power to the state board of education. Since, under the Constitution, the distribution of the available school fund is placed exclusively in the hands of the state board of education, and since the free textbook fund is simply a portion of the available school fund, invested in the books, it follows that the books themselves can be distributed only by the state board of education, or under its direction.

Article 2Q0ÍVÍ, Vernon’s Ann. Civ. St. Supp. 1922, provides:-

“Tbe state board of education is hereby authorized and empowered and it is made its duty to purchase books from the contractors of textbooks used in public free schools of this state and to distribute the same without other cost to the pupils attending such schools within this state in the manner and upon tbe conditions hereinafter set out.”
Article 2904½d provides:
“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.”
Further, article 2904¼1 provides:
“Specific rules as to the requisition, distribution, care, use, and disposal of books may be made by the state superintendent of public instruction subject to the approval of the state board of education.”

The primary duty to purchase and distribute these books is, by article 2904¼, placed upon the state board of education. The management thereof, its ministerial features, is by article 2904%d placed upon the state superintendent of public instruction, subject, however, to the approval’of the state board of education.

Thus the Constitution and the statutes place the responsibility and ultimate authority in the matters of purchasing text-books from the contractors of text-b6oks selected by the text-book commission, and their distribution, with the state board of education.

It will be noted that by the terms of article 2904¾ the state board of education is authorized and empowered, and it is made its duty, “to purchase books from the contractors of text-books,” and “to distribute the same,” etc. This language places the responsibility upon the state board of education to ascertain or determine who are contractors of test-boolcs from whom they are to purchase books. This is the agency the Constitution and the law have created and charged with the administration of these functions of government, and clothed with the powers necessary to their performance.

From the foregoing it is clear, we think, that unless the acts of the superintendent in specifying the contracting companies and the books to be used have the approval of the state board of education, all he may do is a nullity. It amounts to nothing. Only the state board of education has authority to determine what books have been contracted for, with whom the contracts have been made, and what matter should be placed in the requisitions sufficient to enable it to ascertain the books to be used, the price thereof, and the money necessary to pay for them, and the counties to which the requisite books should be distributed. Any other con: struetion of the powers and duties of the superintendent would be inconsistent with the Constitution and corollated statutes.

'Relator does not allege that the state board of education has in any way acted upon its said contracts. Nowhere in relator’s petition does it allege that the said state board has exercised its powers and authority in any manner as affecting its contracts, or that respondent, in his ministerial capacity, has refused, or is refusing, to do and perform the decisions, ruling, or mandates of the board, or that he, in the matters complained of, was acting contrary to or without the approval of the board.

From the foregoing it follows that relator, in order to show itself entitled to a mandamus against respondent, must allege that the state board of education has determined that a contract exists with it, and has instructed the respondent to place its books on the requisition lists. Otherwise the respondent has no duty in the premises. Whatever he may do amounts to nothing, so far as abrogating the contract of relator is concerned, or determining its nonexistence, unless what the respondent may do is authorized by or approved by the state board of education.

The decisions upon the matters involved in relator’s petition lying with the state board of education, and not with respondent, it is clear that respondent could not by mandamus be required to do the things prayed for here, unless and until the state board of education had ordered and directed him to do them and he had failed or refused to do them. Therefore relator has not shown itself entitled to the relief sought.

It becomes unnecessary to notice or discuss the interesting questions raised by relat- or and respondent.

The application for the'writ of mandamus is denied. 
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