Opinion
No. 4384.
Decided June 10, 1925.
School Text Books — Contract — Waiver and Election — Mandamus — Suit Against State — Case Followed.
This case being governed by the rulings in Laidlaw Bros., Inc. v. Marrs, 114 Tex. 561, mandamus is awarded in accordance with the opinion therein, which is approved and followed. (P. 573).
Original application to the Supreme Court, by Silver, Burdett Co., for writ of mandamus against Marrs, as State Superintendent of Public Instruction.
Batts Brooks, for relator.
Dan Moody, Attorney-General, and Wright Morrow, C.A. Wheeler, and L.C. Sutton, Assistants, (W.G. Love, of counsel), for respondent. Mr. Justice Pierson, delivered the opinion of the court.
Relator seeks a mandamus against respondent to require him to do and perform the ministerial or statutory duties which it has a legal right to have performed in regard to its contract with the State of Texas for the purchase of certain textbooks, to-wit: Two books on Physiology and Hygiene by Bigelow and Broadhurst, called respectively "Health For Every Day" and "Health In Home And Neighborhood;" also two books on English Composition by Clippinger, entitled "Written and Spoken English, Part One," and "Written and Spoken English, Part Two."
The facts of this case, in all essential respects, particularly regarding the making of the contract, the actions taken by the State Board of Education upon it, and the defenses interposed by respondent, are the same as in the case of Laidlaw Brothers, Incorporated, v. S.M.N. Marrs, State Superintendent of Public Instruction, opinion delivered June 8, 1925.
The status of this case is that relator's contract was regularly and duly made and entered into by the State, acting through the State Textbook Commission, and the relator, and on January 12, 1925, the State Board of Education reviewed the acts of the Textbook Commission, and determined that the relator's contract was duly executed and is valid. As was held in the above mentioned case, the Board of Education, having exercised its powers and duties under the statute regarding the existence and validity of the contract and ordered its performance, was without authority of law thereafter to reject it or to direct the respondent, the State Superintendent, to disregard it. The facts and the issues of law being the same, upon the authority of that case, and for the same reasons, we hold that the contract in this case is a valid and enforceable one, both against the State and relator, and it is adjudged that relator is entitled to the writ of mandamus prayed for, and it is ordered that it issue.