AMERICAN BOOK CO. v. VANDIVER

Creekmore, Creekmore Capers, of Jackson, for appellant.

The Circuit Court of Sunflower County had jurisdiction.

Section 495, Code of 1930; Pate v. Taylor, 66 Miss. 97; Woolly v. Bowie, 41 Miss. 553; McCleod v. Shelton, 42 Miss. 517; Campbell v. Triplett, 74 Miss. 365; Cook v. Pitts, 114 Miss. 39; Perry v. Nolan, 159 Miss. 384; State ex rel. Fontaine v. Anderson, 133 Miss. 533; Section 3054, Code of 1930; Tucker v. Gurley, 176 Miss. 708; Trolio v. Nichols, 160 Miss. 611; Sections 2349 and 2909, Code of 1930.

The books of the plaintiff were legally adopted and it is entitled to a writ of mandamus.

Sections 6791 to 6818, inclusive, and sections 6829 and 6830, Code of 1930; Lewis' Sutherland Statutory Construction (2 Ed.), sec. 611; Roseberry v. Norsworthy, 135 Miss. 845, 100 So. 514.

It is a fundamental rule of statutory construction of universal application that the controlling purpose is to ascertain and give effect to the intention and purpose of the legislature. This intention and purpose is to be deduced from the whole and every part of the statute taken together — from the words and context — and such a construction adopted as will best effectuate the intention of the lawgiver.

Green v. Weller, 32 Miss. 650; Lewis' Sutherland, Statutory Construction (2 Ed.), sections 410, 411; Earhart v. State, 67 Miss. 325, 7 So. 347; Adams v. Railroad Co., 75 Miss. 275, 22 So. 824; Ott v. Lowrey, 78 Miss. 487, 29 So. 520; Rock Island County v. United States, 4 Wallace 435, 18 L.Ed. 419; U.S. Sugar Equalization Board v. P. DeRonde Co., 7 F.2d 981.

In determining the intent of the law, we must look to the whole act, including its purpose, and thereby ascertain, if we may, the legislative will. It is not reasonable that the legislature, after carefully providing how books should be adopted, would permit the careful work of educators to be vetoed or nullified by the mere failure of an official to carry out the ministerial act of signing a contract.

Sections 6793, 6803, 6804, 6806, 6807, 6808, 6818, 6829, Code of 1930; U.S. v. Purcell Envelope Co., 63 L.Ed. 620.

The Mississippi act is similar in import with the uniform textbook act of Tennessee and Alabama. In Dickinson v. Wilmington, 37 So. (Ala.) 345, the court held that the purpose of such act was not to create a contract between the state and the book company, but that the adoption conferred on the successful bidder the exclusive right to supply the adopted text to the schools of the state.

The commission and the commission alone is vested with any discretion with respect to the adoption. It has fully and finally exercised every discretion necessary and delegated to it by the Legislature for such purpose. The contract to be formally executed therewith constitutes only a memorial of the adoption already effected by the order of the board.

Restatement of Law of Contracts, sec. 26; McLendon v. Hot Springs, 129 Ark. 286, 195 S.W. 686; Williams v. Stockton, 195 Cal. 743, 235 P. 986; California Highway Commission v. Riley, 218 P. 584; Charles Scribner Sons v. Marrs, Superintendent of Education, 262 S.W. 723; Collins v. Janey, 249 S.W. 801; Mentzer v. Kansas, 46 P.2d 969; Charles Scribner Sons v. Board of Education, 278 Fed. 366; Laidlaw Bros. v. Marrs, State Superintendent of Public Instruction, 273 S.W. 789; State v. Shawkey, 93 S.E. 759; State v. Toole, 55 L.R.A. 644; Vaughan, State Superintendent, v. Winston, 83 F.2d 370; State Highway v. Duckworth, 170 So. 148; Trotter v. Gates, 139 So. 843, 162 Miss. 569; Stokes v. Newell, 174 Miss. 629, 165 So. 542; Ex parte Jackson, 171 So. 545.

Harold Cox, of Jackson, for appellant.

Our statutory scheme for the uniform adoption of text books for the public schools does not contemplate a formal contract as a prerequisite to the validity of any adoption, but it is the adoption and awarding of the contract by the commission that gives rise to appellant's rights.

Section 6791, Code of 1930, as amended by Section 1, Chapter 253, Laws of 1934; Sections 6792, 6793, 6794, 6795, 6797, Code of 1930; Section 6799, Code of 1930, as amended by Section 2, Chapter 253, Laws of 1934; Sections 6801, 6802, 6803, 6808, 6828, 6806, Code of 1930; Section 6809, Code of 1930, as amended by Section 3, Chapter 253, Laws of 1934; Sections 6810, 6816, 6818, 6813, 6812, 6803, Code of 1930; White v. Porter, 78 S.W.2d 287; City of Newton v. Board of Supervisors, 112 N.W. 167; People v. Board, 39 N.Y. 81; French v. Edwards, 80 U.S. 506; Mentzer Bush Co. v. School Book Commission, 49 P.2d 969; Charles Scribner's Sons v. Board of Education, 278 Fed. 366; Collins v. Janey, 249 S.W. 801; Stokes v. Newell, 165 So. 542; U.S. v. Purcell Envelope Co., 249 U.S. 313; Laidlaw Bros. v. Marrs, 273 S.W. 789.

The State Text Book Commission is vested under the law with the exclusive authority to select and adopt text books, and award contracts therefor; and it is the directory duty of the Governor to affix his signature to the contract and bond, on a form prepared and approved by the Attorney-General; failing in which, the Commission is vested with authority to order the execution of said instruments on behalf of the state; if the execution thereof on behalf of the state is necessary at all.

Section 6803, Code of 1930; 57 C.J., sec. 5, pages 548-551; Miller v. White, 126 So. 833; Watkins v. Miss. State Board of Pharmacy, 154 So. 277; Butterworth, Commr. v. U.S., 112 U.S. 50; Vaughan v. John C. Winston Co., 83 F.2d 371; Charles Scribners Sons v. Marrs, Supt. of Education, 262 S.W. 722; Trotter v. Frank P. Gates Co., 139 So. 843; Masonite Corp. v. Hill, 154 So. 295.

W.W. Pierce, Assistant Attorney-General, Johnson Allen, of Indianola, and Lotterhos Travis, of Jackson, for appellee.

Appellant is not in a position to enforce any duty imposed by Mississippi Code Section 6813.

Appellant, American Book Company, is a foreign corporation domiciled in the State of New York, and interested, not in the public welfare of this state, but, only in the large profits to be derived from the sale of its books. In no sense of the word is the American Book Company a citizen or even a taxpayer of this state, nor is it a patron of our schools.

Section 6813, Code of 1930; 22 R.C.L. 651, sec. 55; Colorado Paving Co. v. Murphy, 78 Fed. 28, 49 U.S. App. 177, 23 C.C.A. 631, 37 L.R.A. 630; Donelly on the Law of Public Contracts (1922 Ed.), page 234, sec. 149; Effingham v. Hamilton, 68 Miss. 523, 10 So. 39.

The public interest and necessity required the denial of appellant's application for a writ of mandamus.

Selig v. Price, 167 Miss. 612, 142 So. 504; Ross v. Tidence Lane, 3 S. M. 695; Hendricks v. Johnson, 45 Miss. 644; Effingham v. Hamilton, 68 Miss. 523, 10 So. 39; Wood v. State, 142 So. 747, 169 Miss. 790; Overstreet v. Lord, 134 So. 169, 160 Miss. 444; Bogan v. Holder, 24 So. 695, 76 Miss. 597; 38 C.J. 548, sec. 17.

Appellant has no binding contract with the State of Mississippi.

Section 6803, Code of 1930; Words and Phrases (3rd Series), "Execute," and "Approve;" Words and Phrases (2nd Series), "Execute," and "Approve;" Western Hosp. Assn. v. Industrial Acc. Bd., 6 P.2d 845; McLean v. White, 102 N.E. 929; Ellison v. Oliver, 227 S.W. 586.

Words used in the statute must be given their usual and commonly accepted meaning. Indeed, this rule is so elemental that we refrain from doing more than citing cases from this court without quotations therefrom.

Koch Dreyfus v. Bridges, 45 Miss. 247; State v. Lbr. Co., 103 Miss. 263, 60 So. 215, 45 L.R.A. (N.S.) 851; Union v. Ziller, 151 Miss. 467, 118 So. 293, 60 A.L.R. 1155; Warburton-Beacham Supply Co. v. City, 151 Miss. 503, 118 So. 606; Chattanooga Sewer Pipe Works v. Dumler, 153 Miss. 276, 120 So. 450, 62 A.L.R. 999.

The generally accepted and widely quoted definition of a ministerial act which is subject to control by mandamus as distinguished from a discretionary act or duty is found in 18 R.C.L. 116, par. 28: "It is a frequently asserted and universally recognized rule that mandamus only lies to enforce a ministerial act or duty; in this sense a ministerial duty may be briefly defined to be some duty imposed expressly by law, not by contract or arising necessarily as an incident to the office, involving no discretion in its exercise, but mandatory and imperative. The distinction between merely ministerial and judicial and other official acts is that where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to exercise of discretion or judgment, the act is ministerial; but where the act to be done involves the exercise of discretion or judgment, it is not to be deemed merely ministerial."

The statute here involved is clear and unambiguous. It requires certain acts to be done before a binding contract can arise between the state and appellant, which is the method, and the only method, whereby the state has consented to be bound. We respectfully submit that it is not for the court to change the obvious provisions of the statute, or to hold that the Legislature meant something different from what is plainly expressed in the law. Where, as here, authority is given to do a particular thing and the mode of doing it is prescribed, it is limited to be done in that mode, and all other modes are excluded. The construction sought by appellant would render the positive provisions of the statute vain and useless.

Section 6803, Code of 1930; Section 126, Constitution of 1890; Sections 3302, 3303, 3304, 4818, Code of 1930; Koch v. Dryfus v. Bridges, 45 Miss. 247;

Where authority is given to do a particular thing, and the mode of doing it is prescribed, it is limited to be done in that mode; all other modes are excluded. Such affirmative legislation, and any other which introduces a new rule, implies a negative.

Donnelly on The Law of Public Contracts (1922 Ed.), sec. 4,

Powers vested in a particular official can only be exercised by him and not by his subordinates.

Donnelly on The Law of Public Contracts (1922 Ed.), sec. 5, page 7, and sec. 11, page 26; People ex rel. National Cigar Co. v. Dulaney, 96 Ill. 503; Lee County v. James, 174 So. 76; 59 C.J. 171, sec. 285; Bd. of Suprs., Leflore County v. Cannon, 33 So. 81, 81 Miss. 334; Jackson Equipment Service Co. v. Dunlock, 160 So. 734, 172 Miss. 752; Merchants Bank Trust Co. v. Scott County, 145 So. 908, 165 Miss. 91; Yerger v. State, 91 Miss. 802, 45 So. 849; City of Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890; Hamner v. Yazoo Delta Lbr. Co., 100 Miss. 349, 56 So. 466; McKenzie v. Boykin, 71 So. 382, 111 Miss. 256; Section 4160, Code of 1906.

It has been the rule in Mississippi since the decision of this court in the case of Vicksburg R. Co. v. Lowry, 61 Miss. 102, decided by this court in 1883, that the Governor is not subject to mandamus. Since that time we have had a constitutional convention and session after session of the Legislature. Nothing has been done, if indeed under our system of government anything could be done, to change the effect of the rule that the governor cannot be compelled by mandamus to perform any act.

Wykoff, State Board of Education v. W.H. Wheeler Co., 135 P. 399.

It is observed that in the case at bar appellant does not seek by its petition to require the Governor and the Secretary of State to execute the alleged contract and affix the seal of the state thereto, nor does it seek to require the Governor to approve the bond which it tendered. However, it is conceded that if these officials are vested with a discretion in the premises, the writ will not lie to control the action of the State Superintendent of Education, which is dependent upon the validity of appellant's alleged contract. The contention of appellant is in effect that the provisions relating to the execution of the contract and the approval of the bond involve no degree of discretion, but are merely ministerial and directory duties. Particularly, with reference to the bond, we respectfully submit that the question of whether or not the act of approval is a discretionary act is no longer an open question in this state. To the contrary, the question was expressly decided against the position taken by appellant in the early case of Swan v. Gray, 44 Miss. 393.

Shotwell v. Covington, 12 So. 260, 69 Miss. 735; Andrews v. State ex rel. Covington, 13 So. 853, 69 Miss. 740; State ex rel. Greaves v. Henry, 40 So. 152, 87 Miss. 125; Board of Suprs., Rankin County v. Lee, 113 So. 194, 147 Miss. 99; Sec. 184, Chapter 283, Laws of 1924; Bank of McCool v. U.S.F. G. Co., 91 So. 566, 128 Miss. 828; McRae v. State Text Book Commission v. Farquhar Albright, 269 S.W. 375; Wykoff v. W.H. Wheeler Co., 135 P. 399.

Argued orally by Harold Cox and H.H. Creekmore, for appellant, and by W.W. Pierce and Cecil Travis, for appellee.