Attorney General ex rel. Marr v. Board of Education

Grant, J. (after stating the facts). The questions presented are these : (1) Has complainant D. C. Heath & Co. presented a case for equitable relief by injunction? (2) Has any one or all of the Walsh series of arithmetics been adopted, so as to bring it within the five-year limit ? (3) When was the Walsh Grammar School Arithmetic adopted ? (4) Did- the adoption and use of the Walsh Grammar School Arithmetic carry with it the adoption of the Walsh Primary Arithmetic ? (5) Has the Walsh Primary Arithmetic been adopted? 1. If the complainant D. C. Heath & Co. has any standing in the court, it is because it has made a valid contract with the defendant for five years, either for its entire series of arithmetics or for the Grammar School Arithmetic. It seeks an enforcement of this contract in equity. If it has a valid contract, its remedy at law is complete, in the appropriate action for breach of contract. Counsel cite in support of their right to maintain this suit Steward v. Winters, 4 Sandf. Ch. 587; Hamilton v. Dunsford, 6 Irish Ch. 412; Kemp v. Sober, 1 Sim. (N. S.) 520. In Steward v. Winters a lessee was restrained from carrying on a business upon the rented premises, which he had covenanted not to carry on. In Hamilton v. Dunsford it was held that the court had jurisdiction to grant relief on a covenant not to remove machinery from a mining property. In Kemp v. Sober the defendant was carrying on a business contrary to the covenants in the deed of conveyance to him. He was properly enjoined. It is urged as a ground for equitable interference that the measure of damages is uncertain, and that the thing itself is what the complainant seeks, and that to which it is entitled. It is not a ground of equitable jurisdiction that, in case of a violation of a contract, the damages are uncertain. If parties have deliberately made such a contract that, in case of a violation by either, no damages can be assessed on account of uncertainty, certainly equity can [687] not for that reason compel either party to perform the contract. There is no occasion to resort to equity to avoid a multiplicity of suits. Its contract had only three years to run from the date of the commencement of this suit. It could wait three years and bring one suit for damages, or could bring a suit at the end of each year, or as often as it chose, to recover damages. It was not threatened with a multiplicity of suits. The number of suits it might bring would be of its own choosing. The jurisdiction of chancery to avoid a multiplicity of suits has nó application to this case. The mere requirement of the law that books, when adopted, shall not be changed for a given time, and the resolution for the purchase of complainant’s Grammar School Arithmetic, to take the place of those then in use, did not constitute a binding contract between complainant and defendant. That law was enacted, not for the protection of book dealers, but for the protection of the public. Bancroft v. Thayer, 5 Sawy. 502 (Fed. Cas. No. 835). The law requires boards of education to enter into contracts with some dealer or publisher for the purchase of books at not to exceed wholesale prices. No such contract was made. The several resolutions of the board for the purchase of this arithmetic, under the advertisements for bids, and the furnishing of them by D. C. Heath & Co., did not constitute a five-year contract. These transactions covered only the books they purchased. The board, at a meeting held August 4, 1897, recommended the purchase of 400 Walsh’s Grammar School Arithmetics. On August 25, 1897, the agent of complainant wrote to the superintendent of public schools of Detroit a letter, in which he said: “Looking to the complete introduction of the Walsh series arithmetic into your schools, we beg to make the following proposition.” Here follows the proposition, giving prices of the Walsh Arithmetics, and the price to be paid for those which they were to supplant. Other correspondence passed between [688] this agent and the superintendent. This correspondence did not make a five-year contract, and, besides, there is no evidence that it was submitted to the board, and action upon it taken by them. It follows that the bill of D. C. Heath & Co. was properly dismissed. 2. But, upon the bill filed by the. attorney general on behalf of the people, the whole subject is open for investigation. An examination of the record conclusively shows that the defendant board had paid little heed to the law. It has not entered into contracts as the law provides it should, but has substantially ignored the law, and now insists that there is no valid adoption of any text-books, for the reason that it has not complied with the law. That the rights of the people under the law should be thus ignored will not be approved by the courts, if the action taken by the board of education can be reasonably construed into an adoption of a text-book, within the spirit of the law. It does not lie in the mouth of this defendant to say to the people of the school district: “By resolution, we have substituted one text-book for another; have provided for the purchase of a new in exchange for the old. We have not complied strictly with the law in adopting this text-book, and therefore we are at liberty to at any time make another change.” To uphold such a contention would be little short of a disgrace to the administration of law, and put it in the power of every school board in the State to virtually annul the law, as the defendant apparently has done in this case. We are therefore constrained to hold that the resolution in August, 1897, for the purchase and use of the Walsh Grammar School Arithmetic, was a sufficient compliance with the law, and that it was not in the power of the defendant to change it within five years. 3. We are of the opinion that the five years began to run from the date of the adoption of the resolution for the purchase and use of the Grammar School Arithmetic, and not from the time this arithmetic had been completely [689] installed in all the schools, in place of the others which it supplanted. Steps were immediately taken to introduce this book in the schools. There is no reason to doubt that the defendant used reasonable diligence in complying with the wishes of the district, as indicated at the election, and in placing this arithmetic in the schools. There might be very good reasons why the change should not be made all at once. The language of the statute is “ adopt.” Books are adopted when such action as the statute provides is taken, and not when every other book then in use has been removed, and the new one substituted. We think that this is the plain meaning of the statute. Unless this be so, the adoption must in most instances take place at some indefinite time after the resolution of adoption, for it would be impossible to effect a change immediately. If in the resolution of adoption a definite time were fixed for the installment of the new book, another question would be presented, upon which we express no opinion. Under this holding, the five years for the use of the Walsh Grammar School Arithmetic had expired. Jones v. Board of Education, 88 Mich. 371 (50 N. W. 309). 4. The adoption of the Walsh Grammar School Arithmetic did not mean the adoption of the Primary Arithmetic by the same author. Educators may think that the primary arithmetic of one author is better than that of another, and that the higher arithmetic of the other author is better. This law does not mean that the school board is obliged to use all the books of the same series for all the grades of the school. They are at liberty to select what shall be used in each grade, and as to those there must he uniformity. The term “uniformity” does not mean that all the text-books of one author in grammar, arithmetic, history, physiology, etc., for the different grades of scholars, must be used. Boards of education are at liberty, under this law, to adopt the book of one author for use in all the primary departments, and the book of another author on the same subject in all the grammar or higher depart [690] xnents. All the law requires is that they be uniform in .the same grade. 5. On August 23, 1900, the defendant board passed a resolution to purchase 4,000 copies of Walsh’s Primary Arithmetic, at 24 cents per copy, for “supplementary use.” This purchase was wholly illegal. The sole authority for such purchases must be found in the statute. Detroit Board of Education v. Detroit Common Council, 80 Mich. 548 (45 N. W. 585). Upon the face of the resolution, it appears that they were not purchased for general use in the schools, or with any intention of adoption. On the contrary, the language of the resolution is repugnant to any intention to adopt. It follows from the above that Walsh’s Primary Arithmetic has never been adopted. Under the above holding, both decrees must be affirmed. The other Justices concurred.