B. T. Johnson Publishing Co. v. Mills

79 Miss. 543 | Miss. | 1901

Calhoon, J.,

delivered the opinion of the court.

Mr. Mills, averring himself to be a citizen and resident of Lee county, with children attending the public schools, charges in his bill that appellant is a corporation, nonresident, and the owner of the copyrights of certain schoolbooks; that its charter is duly filed in the office of the secretary of state, with all fees paid, and with the consequent authority to exercise its franchises and sell its books in Mississippi; that‘the proper statutory schoolbook adopting agency of the state, proceeding in all respects according to law, selected certain of appellant’s copyrighted schoolbooks, among divers bids from divers publishing houses to furnish books on the same branches of education, on divers terms of selling prices, for exchange,. introduction, and permanent supply, as by law provided; that appellant offered to “sell, by way of exchange,” its books, new for old books, then in use of like grade and subject, by any author, on even terms, regardless of their condition as to wear, etc.; that accordingly its books were adopted, and a contract was concluded between appellant and the county superintendent of public education for “exchange, introduction, and permanent supply.” This contract, exhibited with the bill, has this clause: “Provided, however, for the next 90 days from date, or until January 1, 1901, an even exchange is granted on all above-named books, book for book. After January 1, 1901, the regular exchange prices as above are to be in effect.” The regular exchange prices had been before specified. Outside this proviso, the exchange and introduction prices were to remain in force for only one year from the date of the contract, when prices agreed upon were to take effect and control for the remaining four years of the life of the contract. The bill further charges that the school patrons owned other books, and were thus compelled to exchange old books for new ones, of more value mechanically; that appellant was thus selling these schoolbooks, which are termed a “commodity,” at a price “below the normal cost of production;” that the design of this was to destroy competition, and thus to effect a monopoly, etc. The prayer is that appellant be declared “an unlawful trust and combine,” the contract declared void and canceled, for injunction restraining appellant from further selling, and the school patrons from further buying, and for general relief. •An amended bill shows that the district-attorney and the attorney-general were applied to, before the original bill was •filed, for the use of the name of the state, with appellee as relator, to have appellant “declared a trust and combine, and forfeiture of its right to do business' in this state, and a cancellation of its contracts,” but that both of these officers declined, though •the attorney-general would have allowed it, provided, “if any book concern was behind the suit, causing it to be brought, such book concern should be the relator.” But the bill says, “Oom-.plainant’s attorneys did not care to divulge who, besides complainant, were interested in this matter,” and so Mr. Mills proceeds alone. A demurrer to the amended bill was overruled, •and the B. F. Johnson Publishing Company appeals.

We do not consider now, nor decide, whether, under § 3520, code 1892, and ch. 88, acts 1900, the remedy by quo warranto is exclusive; nor whether a patron of a school may proceed alone in equity; nor whether, if he had any remedy affecting such large public interests, he should or should not have proceeded by mandamus; nor whether the state, or the Lee comity schoolbook adopting board, or the superintendent of education of that county, or all three, were necessary parties to the suit brought; nor whether competitive bids pursuant to advertisement, for any purpose, fall within the purview of our anti-trust statutes; nor whether copyright schoolbooks are “commodities,” within those statutes. We do not decide any of these questions, because we are not required to decide them in order to dispose of this case, and “sufficient unto the day is the evil thereof.” We do decide that our anti-trust laws do not apply to the state, or any of its statutory agencies, in making such contracts as the one exhibited here, although their bids may be below the normal cost of production; and it cannot be said that a public contract for an article below cost is “inimical to the public welfare,” under sec. 198 of the constitution. The authors of books copyrighted already enjoy a monopoly which neither legislatures nor state conventions can interfere with, and we see no reason to prevent them from introducing their works, by way of contract with the state or its public agencies, on the terms set out in this contract. It is all in fair competition with other holders of patent-right books. It would seem they might give them to a state, if they wished. After all, it is hardly the price of a book, but its educational value, which should control boards of adoption.

Reversed and bill dismissed.