Dickinson v. Cunningham, 140 Ala. 527

140 Ala. 527 | Ala. | 1903

DOWDELL, J.

Tbe appellant’s first contention is that, undfur* tbe provisions of tbe act and the contract made with tbe American Book Company, tbe company has not tbe exclusive right to furnish the books .that were adopted by tbe Text Book Commission for use in tbe public free schools, and that under tbe law a patron of tbe public schools muy purchase tbe books for use by bis child in tbe public free school from any one who deals in such books so long as tbe books are by tbe same author and have tbe same subject matter, as those adopted by tbe commission. That under the law it is not an indispensable prerequisite to render the books receivable in tbe public schools, that tbe printing with reference to tbe price, etc., provided for in sections 7 and 11 of tbe act, should appear on and in tbe books.

The next contention of tbe appellant is that, if tbe act and tbe contract secures to tbe American Book Company, tbe exclusive privilege of supplying the books adopted by tbe Text Book Commission, then tbe act is obnoxious to tbe State Constitution, and contravenes the provisions of tbe Interstate commerce law, and cannot therefore, be enforced.

A comparison of tbe enactment under consideration with tbe uniform text book statute of tbe State of Tennessee, reveals a very striking similarity between tbe two, and it would be a difficult matter to differentiate them. Indeed, the two statutes- are substantially tbe same and in many respects identical. It appears that the titles are precisely alike, verbatim et literatim.

It would seem that this striking similarity did not come by accident, but it must be accounted for on the theory that the draftsman of the Alabama statute had the Tennessee statute before him when he drew the Alabama statute.

We have mentioned this similarity for the reason that, the Tennessee statute has been construed by the Supreme Court of that State, and upheld by it jn a very elaborate and able opinion by Judge Wilkes.

In the Tennessee case the assailant of the statute, unlike the appellant in this case, admitted that the act and the terms of the contract made in pursuance of it, secured to the person with whom the State contracted the exclusive .privilege of furnishing the text books adopted to the schools and their patrons. And on this account it was insisted that a monopoly was created and that the act could not be enforced.—Leeper v. State, (Tenn.) 48 L. R. A. 167.

The question then recurs, does the act and contract secure to the American Book Company the exclusive privilege of supplying the books adopted by the Text Book Commission for use in the public free schools in Alabama?

Tested by the canons of construction applicable to statutes, we have no doubt that it was the intention of the Legislature to secure to the person who proved the best bidder in the open competition so carefully provided for by the act, the exclusive privilege of supplying the books adopted by the Text Book Commission to the public free schools and the patrons of them. As was said in Leeper v. State, supra, “it is indeed hard to construe the statute as to deny the exclusive privilege of the successful competitor, since the language employed by the Legislature clearly and unmistakably indicates its intention to exercise its power by creating a uniform system, and to our minds it quite as clearly evinces a purpose to secure the practical enforcement of the system.” “Two things are very clear to our minds: one, that the Legislature meant to provide an exclusive privilege in order to secure books at the best prices; the other, that the Legislature meant to prevent the possibility of any break in the uniformity of the system framed by the statute.”

We, therefore, hold, that the act in connection with the contract made and entered into by the State with the American Book Company, secures to that company the exclusive right to supply the books adopted and stipulated in its contract, to the public free schools and the patrons thereof.

“But it is said that, if it he granted that a uniform series may he selected, still it is beyond the power of the Legislature to confer upon one individual, or concern, the right to publish and sell to the patrons of the public schools any particular book or books, and to prohibit teachers and patrons from using any other.” This contention presents a fruitful field for discussion, but we have not the inclination to indulge in the discussion at great length, nor do we believe the exigencies of the case require it. The contention of the appellant is rested upon the proposition that if the exclusive privilege is secured to the American Book Company a monopoly is thereby created, and it would fall under the prohibition contained in the 22d subdivision of the Declaration of Bights, as found in the State Constitution. The prohibition is to the effect, that the Legislature cannot pass a law which confers exclusive grants or special privileges. We think it is very easy of demonstration, that the privilege secured to the Book Company to furnish the hooks is not a grant of a special privilege, within the meaning of the subdivision of the Declaration of Bights above quoted, and that it is not a monopoly which is offensive to the law.

Section 356 of the Constitution provides that the Legislature shall establish a liberal system of public schools throughout the State for the benefit of the children thereof between the ages of seven and twenty-one years. This is quoted to show that the power to regulate and control the public schools is confided to the Legislature. “If the power to regulate and control public schools does reside in the Legislature, then the Legislature must exercise its discretion and adopt such measures as it deems best, and if tlie measure adopted lead to the exclusion of some book owners it is an incident that no ingenuity can escape nor system avoid.”—State of Indiana v. Haworth, 7 L. R. A. 240.

Judge Cooley says that it is held competent for the State to contract with a purchaser to supply all the schools of the State with text books of a uniform character and price.”—Cooley’s Const. Lim. (5th ed.), 225, note 1; Bancroft v. Thayer, 5 Sawy. 502.

In the case last above cited is this language: “To authorize and provide that by means of legislative grant or by contract a particular person or persons shall have the exclusive right to do or furnish a particular thing, upon certain conditions, for the use and convenience of the public schools, has always been a common mode of exercising the public power of the State.” The Tennessee case cited above is, so far as the question in hand is concerned, a very helpful authority. Art. 1, § 22 of the Tennessee Constitution provides, among other things, that perpetuities and monopolies are contrary to the genius of a free state, and shall riot be allowed. Art. 11, § 8 of the same Constitution, provides among other things, “that the Legislature shall not have power to pass any law granting any individual right, privileges, immunities, or exemptions, other, than such as may be by the same law extended to any member of the community who may be able to bring himself within the provisions of this law.” This last section quoted from the Constitution of Tennessee, is very similar to section 22 of our Declaration of Rights, quoted above. It really has the same meaning. It was insisted in the Beeper case that the provisions of the Constitution above quoted were violated by the Text Book Law of Tennessee. The Supreme Court of Tennessee in passing on the contention, states the proposition in this language, to-wit: “There may be presented together, as presenting the general question that the effect and operation of the act is to grant to the publisher who has been successful in obtaining the privilege of furnishing the books a monopoly, and. has conferred on him special rights, privileges, immunities and exemptions, and thus a monopoly is allowed, and that the people generally of the State are deprived of the right and privilege of (1) selecting their own school books, (2) of buying them in the open market, and (3) other publishers are excluded from selling in competition with the successful party.” Discussing the question that court says: “It may be noted that the act only applies, and the inhibition only extends, to persons interested in public-schools as officers, teachers, patrons, and pupils, ana only to books that are used and to be used in public schools; any book may be bought, and from any person, and by any person, and put to any use. This is the common right to buy and sell which existed before the act was passed and which still continues unaffected. The books may now be bought as freely as before the Act. It is the use in the public schools which the act regulates, and is intended to regulate. So that as to the buyer no common right is taken away. As to the seller he may also sell as before the act; and not only so, but, under the provisions of the act, the exclusive right to publish and sell for schools was left open to his competition in the first instance, that is, all publishers were invited to freely compete for the contract or privilege of furnishing all the books, or any series of them, to be used in the schools.”

It is certainly not the purpose of the act to ¿confer a pecuniary benefit on the State, or school officials or publishers. “On the contrary, its evident purpose is to confer a benefit upon the public, by providing ways and means by which the books may not only be made uniform throughout the State, but also furnish to the public at as small cost as possible. If a privilege thus conferred upon an individual, the object of which is to benefit the State and its citizens, can be termed a monopoly, it is certainly not of that class prohibited by law, which refers to privileges granted for a money consideration, or which are bestowed upon’an individual for his benefit. The monopoly which is obnoxious to the law, or the special exclusive privilege under the ban of the Constitution, is a privilege farmed out to the highest bidder, or conferred because of favoritism to the donee, and not one awarded t'o the lowest bidder, and for the convenience and benefit of the public. If this doctrine be not correct, then the State can make no contract for supplies for its penitentiary, for its charitable institutions, for its public printing, or any other work of public utility or necessity ; for when it has, perchance after the sharpest competition, awarded a contract or privilege for any particular enterprise, such contract becomes at once a monopoly, because every other citizen of the State may not also do the work or furnish the material. In other words, to let any public work to the lowest bidder creates at once a monopoly, and special exclusive privilege contrary to the Constitution. If this contract with the publisher to furnish all the books needed in the public free schools were not coupled with a restriction upon price and other benefits to the citizen, then it might be denominated as a monopoly.”—Leeper v. State, (Tenn.) 48 L. R. A. 167.

We are clear in our conclusion that the statute does not create a monopoly, nor grant a special exclusive privilege of the kind which would be obnoxious to the Constitution, or the common law. In reaching this conclusion we have not been unmindful of what was said by the court in the case of Birmingham & Pratt Mines Street Railway Co. v. Birmingham Street Railway Co., reported in the 79 Ala. 465, on the subject of monopolies. There the court was dealing with a contract made by and between the municipality and individuals, whereby the municipality granted to the individuals the exclusive right to contract and operate a street railway over and upon certain streets in the city of Birmingham. The facts of the case clearly differentiate it from the case we have in hand.

We have noticed, too, the point made by the appellant in connection with the principle announced in the case reported in the 79 Ala. 465, supra, that the contract is not one between the State of Alabama on the one part, and the American Book Company on the other part, whereby the latter is to furnish books to the former for a definite period. This same point was urged against the Tennessee statute, and. the response of the court in that case is so clear and satisfactory that we content ourselves with, the citation of thé authority.—Leeper v. State, (Tenn.) 48 L. R. A. 171.

It is also insisted by the appellant that the act was passed in violation of section 45 of the Constitution. This section requires that “each law shall contain but one subject, which shall be clearly expressed in its title.’-'

After carefully examining the title and the act it seems to us that this insistence is untenable. We are satisfied that every clause in the statute is germane and complementary to the subject expressed in the title, and necessary to a full rounding out of the purpose of the act. We, therefore, hold that the act is not offensive to the 45th section of the Constitution.—Ballentyne v. Wickersham, 75 Ala. 533; Ex parte Mayor of Birmingham, 116 Ala. 186; State ex rel. Williams v. Griffin, 132 Ala. 47; Mitchell v. State, 134 Ala. 392.

Lastly, the appellant contends that the act runs counter to the interstate commerce law. We cannot see any ground for the support of this contention, we think there is no merit in it.

It follows from the foregoing considerations that the city court properly sustained the demurrer to the petition for the mandamus, and that its judgment must be affirmed.

Affirmed.