Effingham v. Hamilton

Campbell, J., delivered the opinion of the court. Upon the facts stated in the petition before us, and which upon demurrer must be taken as true, the right of the petitioners to have [526] a contract made with them by the defendant, and to have their books selected by the committee on the 6th of October taught in the public schools of Holmes county, is indisputable. The refusal of the defendant to contract with them, as required by law, was wholly indefensible. He had no discretion about it. His plain duty was to proceed to contract, in pursuance of the action of the committee, and then “ to see that only the adopted text-books are used” in the schools; and if this were a matter affecting only the parties to this action, there could not be a doubt of the right of the petitioners to compel the performance of his official duty by the defendant in the matter wherein they have a j>ecuniary interest. But it is not in every case of clear legal right, and the absence of a sufficient legal remedy, and where therefore mandamus is an appropriate remedy, that it will be issued, lit is settled by numerous decisions that a sound judicial discretion^ is to be used, and where circumstances make it unwise and inexpedient to allow this writ, to refuse it when sought to enforce merely private right. 14 Amer. & E. Enc. Law, p. 97, and cases cited; State v. Board of Education, 24 Wis. 683; People v. Contracting Board, 27 New York, 378. We are therefore called on to consider the situation, and determine the propriety of refusing the writ. The petition shows that for some reason, after the action by the committee to select text-books on October 6th, and' its dissolution, the state board of education (assuming, as its order shows, that the text-book committee of Holmes county at their meeting on October 6, 1890, failed to adopt a complete list of books for use, etc.) directed the defendant to reconvene the committee to supply the omission, and acting upon this he attempted to reconvene the committee, and appointed to fill the places of those who refused to meet again; and at a meeting of the committee thus constituted (consisting of some of the former committee and of some substitutes) on November 8th, there was a revocation of the former action as to the books published by the petitioners, and a selection of others; and in pursuance of this action the books of other publishers have been contracted for and introduced into the schools, and are being taught. We are thus informed that a committee claiming the right to act has revoked [527] former action on which the right of the petitioners is founded, and that its action has been carried out so far as to result in a contract with other publishers, whose publications have been introduced into the schools. The patrons of the schools have incurred the expense of procuring the books, as we must assume, and the teachers are required by the superintendent of education to teach these books, and have no discretion about it. In view of these complications, and the evil consequences likely to arise affecting public interests, we deem it proper to deny the remedy sought. It is to be remembered that the object of the law providing for the selection of a uniform series of text-books for the public schools and of all its provisions was for the benefit and protection of the people, and not of book publishers, and while they may acquire rights and be entitled to their protection and enforcement in proper cases, they must be subordinated to the public interest as to the particular remedy here invoked. Affirmed.