103 Tenn. 500 | Tenn. | 1899
Defendant is convicted of violating the provisions of the Act of 1899, Chapter 205, commonly known as the “Uniform Text-book Act,” and sentenced to pay a fine of $10 and costs, and has appealed. The indictment in the case is in the following words:
“State oe Teh-jvessee, Blount Counts-.
“Circuit ■ Court, October Term, 1899.
“The grand jurors for the State of Tennessee, upon their _ oaths, present that Edward Leeper heretofore, to wit, on the 5th day of October, 1899, in the State and county aforesaid, being then and there a public school teacher and teaching the public school known as School No. 5, Sixth District óf Blount County, did unlawfully use and permit to be used in said public school, after the State Text-book Commission had . adopted and prescribed for use in the public schools of the State Frye’s Introductory Geography as a uniform text-book, another and different text-book on that branch than the one so adopted as aforesaid, to wit, Butler’s Geography and the New Eclectic Elementary Geography, against the peace and dignity of the State.
“A. J. Fletcher, Attorney-general.”
From the bill of exceptions it appears that the defendant is a teacher of the public school known as School No. 5, in the Sixth District of Blount County, and that he failed and refused to teach
The caption to the Act under which the conviction is had thus expresses the object and subject-matter of the law, to. wit:
“An Act to create a State Text-book Commission, and to procure for use in the public free schools in this State a uniform series of textbooks; to define the duties and powers of said commission and other officers; to make an appropriation for the carrying into effect this Act, and to provide punishment and penalties for the violation of the same.”
. The substance of the Act, so far as now necessary to be set out, is as follows:
Section 1 creates a State Text-book Commission, and empowers and directs it to select and adopt a uniform system or series of text-books for use in the public schools of the State. The Commission is to consist of the Governor, State Superintendent of Public Instruction, and three members of the State Board of Education to be selected by the Governor. The text-books selected by the commission are to be used for five years in all
Section 2 makes the Governor president of the Commission, requires the Commission to meet and organize immediately after the passage of the Act, and directs it, as soon as practicable, and not later than thirty days after organization, to advertise in such manner, and for such length of time, and at such places as may be deemed advisable, for sealed bids or proposals from publishers of school text-books, for furnishing books to the public schools in the State, through agencies estab-tablished by said publishers at places designated by the Commission. Each bidder is required to deposit with the Treasurer of the State a sum of money, such as the Commission may require, not less than $500, nor more than $2,500, according to the number of books he may propose to supply. This deposit is to be forfeited if the. bidder, in the event his bid is accepted, fails and. refuses to make the contract' and bond required by the
Section 3 requires all the specimen copies sent in with the bids to be referred to the subcom-mission for examination, with instructions to report back to the Commission the books they recommend for adoption. When this report is submitted; the Commission is to meet in executive session, open the bids, examine and consider the report of the subcommission, and determine the books to be selected for adoption. The successful bidder is then to be notified and the. contract executed. Each contractor is to give a bond, in the penalty of not less than $30,000, for the faithful performance of the contract.
Section 4 provides that 'the contractors shall print plainly on the back of each book the contract price, as well as the exchange price at which it is to be furnished; and it then provides, among other things, as ' follows.: “And the said Text-book Commission shall not, in any case, contract with any person, publisher, or publishers, for the use of any book or books which are to be or shall be sold to patrons for use in any public school in this State, at a price above or in excess of the price at which such book or books are furnished by said person, publisher' or publishers, under contract to any State, county or school ” district in the United States, under like conditions
Section 5 provides that the State shall not be liable to any contractor in any manner for any sum whatever, but all such contractors shall receive their pay or consideration in compensation solely and exclusively derived from the proceeds of the sale of the books. It also provides that in furnishing the new books the contractor shall take up the old schoolbooks now in use, in exchange, at a -price not less than 50 per cent, of the contract price.
Section 6 provides for readvertising for other bids and proposals if the first are not satisfactory, and also for receiving proposals from authors who have .manuscripts of books not yet published.
Section 1 requires the Governor, as soon as the contracts have been entered into, to issue his proclamation announcing such fact to the people of the State.
Section 8 requires the contractors, first, to establish and maintain in some one city in each grand division of the State a depository, to be
Section 9 allows the Commission to renew the contracts, or, in its discretion, to readvertise and make new contracts for an additional five years.
Section 10 requires the State Superintendent to issue a circular letter to each city and county superintendent, and to such others as he may desire, giving the list of boobs adopted, prices, location of agencies, etc.
Section 11 provides that the books adopted shall be introduced as text-books, and be used as such to the exclusion of all others in all the public free schools in the State.
Section 12 reserves to the citizens the right to buy books in the usual way, in the event that no contract is made, or if the contractor fails or refuses to furnish the books.
Section 15 makes it a misdemeanor for any dealer, clerk, or agent to sell the book for' more, than the contract price.
Section 16 appropriates $1,000 for the purpose of carrying out the provisions of the Act.
Section 17 deals with the question of compensation for the Commission and subcommission.
And Section 18 provides that the Act shall take effect from its passage.
It is insisted that the Act is unconstitutional, because (1) it allows a monopoly, (2) it delegates legislative power, (3) it denies local self-government.
These are quite general terms, and if they stood alone would be Insufficient to challenge the validity and constitutionality of the Act, for it is well settled that he who insists upon the unconstitutionality of an Act of the General Assembly must point out the specific provision of the Constitution which either expressly or by necessary implication it violates. ' It has been said: “It cannot be invalidated upon some supposed or assumed natural right or equity, upon the general statement that it is
It is insisted that the following provisions of the Constitution are violated:
Art. L, Sec. 8, provides, among other things, that no man shall be disseized of his privileges but by the judgment of his peers or the law of the land.
Art. I., Sec. 22, provides that perpetuities and monopolies are contrary to the genius of a • free State, and shall not be allowed.
Art. XI., Sec. 8, provides, among other things, that the Legislature shall not have power to pass any law granting any individuals rights, 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.
These may be considered together as presenting the general question that the effect and operation
The interpretation given to this Act by the State school authorities is clearly set out in an official letter from the State Superintendent of Public Instruction, as follows:
“State of Tennessee, Department of Public InSTRUCTION.
“Morgan C. Fitzpatrick, Superintendent.
“David L. Spence, Clerk.
“Nashville, Tenn., September 23, 1899.
“Mr. Wilford Oauihins, Chattanooga, Tenn.:
“Deab Sik — The text-book law passed by the last Legislature»provides that the contract and exchange prices of all books shall be printed 'upon -them, and the law provides further: fAll books shall be sold to the consumer at the retail contract price, and in each book shall be printed the following: “The price fixed hereon is fixed by State contract, and any deviation therefrom shall be re*513 ported to your county superintendent, or the State Superintendent at "Nashville.’ ”
“From this it will he clearly seen that it was the intention of the Legislature to adopt for use in the schools of this State a certain series of books, and that every book so adopted should have printed upon it the contract and exchange prices, and that no books should be used except those so marked. It was the intention of the Commission, acting under the law, to provide an' excellent series of books, and to protect the people against the importation and sale of second-hand books. The safe, correct, and legal rule to follow is: Purchase and use no books unless they have the contract and exchange prices printed upon them. Superintendents and teachers should accept and use those books adopted by the Commission, with prices, according to law. Yours very truly,
“MORGAN 0. FlTZPATRICK/’
Treating this, as well as the Act, as an inhibition againsj; the use of any books unless they have printed upon them the words specified in the eighth section, even though other books similarly bound, containing the same matter and by the same author, can be bought at less price in the open market, the question recurs: Is such legislation valid, or does it allow a monopoly and confer special rights and privileges, or restrict the right to sell and buy which previously existed %
.■It must be noted that the Act only applies
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.
A monopoly has been defined to be an exclusive right granted to a few of something which was before a common right. Memphis v. Memphis Water Co., 5 Heis., 529; Charles River Bridge v. Warren River Bridge, 11 Peters, 707.
It is insisted that the right to sell and the right to buy in the open market are common rights, open to all, and without restriction upon
But legislation has not been confined to such cases in limiting the right to contract. It is provided by statute that a .husband may not sell his wife’s real estate during her life without her consent, and that he may not contract away the-
It is immaterial whether we consider this Act as deriving validity from the police power of the State or the public character of the schools. It is evident that the basic principle of it is the power of the Legislature to subserve the general welfare by prohibiting certain contracts and throwing around others restrictions tending to promote the general welfare and protect the citizen from oppression, fraud, and wrong.
That the State may establish a uniform series of books to be taught in the schools which it provides and controls, seems to be a proposition as evident as that it may provide a uniform sys-
But it is said that, if it be granted that a uniform series may be selected, still it is beyond the power of the Legislature to confer upon one individual the right to publish and sell- to the public schools any particular book or books, and to prohibit teachers and patrons from using any other, thus forcing "them to buy the books thus furnished or refusing them the benefits of the public school.
We think it .clear that the State itself might, if it saw proper, publish the books to be used in its public schools, and might sell them to the
The authority of the State over schools is a legislative one, and it is difficult to see how a uniform system can be maintained which will confer equal benefits upon all sections of the State, unless it is done by legislative action. If the authority to regulate and control schools is legislative, then it is must have an unrestricted right to prescribe methods, and the Courts cannot interfere with it unless some scheme is devised which is contrary to other provisions of the Constitution, so that the question recurs: Does the Act create such a monopoly as the Constitution inhibits ?
It is not insisted that the intention or operation of this Act is 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 books may not only be made uniform throughout the State, but also furnished 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
If this doctrine he not correct, then the, State can make no contract for supplies for its penitentiary, for its charitable institutions, for its public printing, for building its statehouses, 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 contrary to the Constitution. Under this reasoning the successful bidder becomes ipso fado a monopolist, because, by virtue of his bid (the lowest made), he becomes entitled or onerated to supply the article or do. the work. If this grant to a publisher to furnish all the hooks needed in the schools was' not coupled with a restriction upon price and other benefits to the citizen, then it- might be denominated a monopoly.
It is said that the arrangement made with the
We think this contention, however, is not well made. The State frequently grants to railroads and other agencies privileges and concessions coupled with conditions in favor of the public and so with municipalities in granting water rights, and lighting rights, and rights to street car companies. It is said there are no safeguards against extortion • and oppression, but we have, in the first place, a letting at the lowest, rates in free competition, after public advertisement, and a further, provision that the price shall always be a? low as the books have ever been, or are now being published under contract in any State, county, or district of the United States where like conditions prevail. It is said that this term, “like conditions,” is indefinite and that it is not specified who is to be the judge as to whether the conditions are alike or not. But this, as well as the enforcement of the undertaking, is
It is said the schools do not belong to the State, hut to the people, and while in a certain
It is said the State has no right to prescribe that the citizen or consumer must pay cash in adi^ance for an article he buys, and that credit is a matter . of public right. It is evident that the requirement for a cash payment must be considered along with all the other features of the legislation, and that if the payment of cash may
It is said that it is not a function of government to pass statutes to secure cheap prices to the consumer, and this should be left to the laws of competition, of supply and demand. This is but- a statement of the main question in a different shape. We may grant that the State may not regulate prices of commodities generally; and may not legislate so as to secure cheap rates for the same, but this does not prevent thq State from securing for the children of the State who desire to enter the schools which it has provided for their benefit, favorable terms upon which they may enter and enjoy their benefits.
The next objection urged is t that the Act delegates legislative power to a Commission and to the Executive of the State.
The main provisions of the Act which bear ujoon this question are those which provide that a Commission may select the books, make contracts for obtaining them, and perfect the details of the general plan of providing all schools with
The Commission has no power to delay its force as a law. It simply is authorized to report when it has consummated the preliminary work devolving upon it of selecting the course, making contracts for the bpoks, fixing their price, designating the depositories, and otherwise prescribing the time and manner in which the patrons and children may begin to receive its advantages.
This Commission is given no power to delay the enforcement of the law beyond this limit. It is true it may do so, but this would be not in obedience to the law, but in violation of i't. Sup
There is a difference between a delegation of power to make laws, involving necessarily a discretion as to what they shall be, and a grant of authority relating to their execution, though the latter may . involve the exercise of discretion under and in pursuance of the law. 6 Am. & Eng. Enc., 2d Ed., 1029.
Mere administrative or executive- functions may be delegated. Cin. R. R. Co. v. Clinton Co., 1 Ohio State, 88.
The difference between the power to pass a law and the power to adopt rules and regulations to
The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. Locke’s Appeal, 72 Pa. State., 498; same case, 13 Am. Rep., 716.
In Moers v. Reading, 21 Pa. State, 202, it was said: “Half the statutes on our books are either alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them, and it cannot, be said that the exercise of such a discretion is the making of the law.”
A notable instance of the delegation of such discretion and power to the Executive is found in the case of Field v. Clark, 143 U. S., 649, wherein the President was authorized to' reduce the revenue and equalize duties on imports and for other purposes, to suspend by proclamation the free introduction of sugar, molasses, coffee, tea, and hides, when he should be satisfied that any country producing such articles imposed duties or exactions upon the agricultural or other products of the United States, which he deemed to be reciprocally unequal or unreasonable. See the doctrine fully illustrated in 6 Am. & Eng. Ene. L., 2d Ed., 1029 to 1031, and cases there cited.
It is insisted that heretofore there has been more or less of local control and government of the public schools, but this local government was authorized by and was the creature of the statute, and the Legislature is not precluded from framing other statutes if it, deem it wise to do so, modifying former plans. By the Act of 1873, under which the .present system was inaugurated, it was provided that there should be established and maintained in this State a uniform system of public schools, and that it should be administered by a State Superintendent, County Superintendent, and District Directors. Shannon, Secs.- 1401, 1402. The fund for school purposes was provided by the same
The interest on the permanent school fund and school tax was augmented by a poll tax, and by tines and penalties in certain . cases, and also by a tax by each county when other taxes were not sufficient to sustain the schools for live months in the year.
By the Act of 1844 all school - funds then existing, no matter from what source derived, were ordered to be deposited in the Bank of Tennessee for investment ‘in State bonds.
The proceeds of lands which had been sold under the Acts of Congress became thenceforth a part of the capital of the bank. They became assets of the bank, and the counties which had deposited school land funds became simple creditors of the bank, except so far as they might be enabled to identify bonds bought for them, and this they could never do. So that counties entitled to such special funds thereafter had no priority over other depositors of the bank or its general creditors. State v. Bank of Tenn., 5 Baxter, 7, 31, 32. However this may be, - the Constitution of 1870, and the Act of 1873, recog
The constitutional provision of 1870 relating to it is as follows:
“Knowledge, learning and virtue, being essential to the preservation of republican , institutions and the diffusion of the opportunities and advantages of education throughout the different portions of the State being highly conducive to the promotion of this end, it shall be the duty of the General Assembly, in all future periods of this government. to cherish literature and science. And the fund called the Common School Fund, and all the lands and proceeds thereof, dividends, stock, and other property of every description whatever, heretofore by law appropriated by the General Assembly of this State for the use of common schools, and all such ns shall hereafter be appropriated, shall remain a perpetual fund, the principal of which shall never be diminished by legislative appropriation; and the interest thereof shall be inviolably appropriated -to the support and en*530 couragement of common schools throughout the State, and for the equal benefit of all the people thereof; and no law shall be made authorizing said fund or any part thereof to be diverted to any other use than the support and encouragement of common schools.” Const., Art. XI., Sec. 12.
Since the inauguration of the present system of public schools in 1873 it has never been even suggested that the State and counties may have different systems and .schools, the State operating a State school and the county a county school, but the basic idea is that the county may supplement the State funds so as to enlarge and improve the State schools. Carried to its logical result, the contention of counsel is that each county may have its own system, make its own rules, prescribe its own- course of study, and, proceeding further, each school district may do the same, so that we may have as many systems in the 'State as there are school districts. This is carrying the doctrine of local government too far. By the same parity of reasoning it might be said that each county may establish its own criminal laws, provide its own courts to execute the laws, and to deny them such rights would be to deny the right of local self-government.
We are of- opinion that the Legislature, under the constitutional provision, may as well establish a uniform system of schools and a uniform administration of them as it may establish a uni
Tbe object of tbe criminal- laws is by punishment to deter others from the commission of crime, and thus preserve the peace, morals, good order, and. well-being of society, and the object of the public school system is to prevent crime by educating the people, and thus, by providing and securing a higher state of intelligence and morals, conserve the peace, good order and well-being of society. >
The prevention of crime and preservation of good order and peace is the highest exercise of the police power of the State, whether done by punishing offenders or educating the children. What is ■ the scope and meaning of the term “police power" has never been defined. The Supreme Court of the United States has expressly declined to define its limits. Stone v. Mississippi, 101 U. S., 814.
In Mayor of New York v. Miln, 11 Pet. (U. S.), 139, it is said: “It embraces every law which concerns the welfare of the whole people of the State or any individual within it, whether it relates to their rights or duties, whether it respects, them as' men or citizens of the State, whether in their public or private relations, whether it relates to tbe rights of persons or property of thu whole people of tbe State, or of any individual
In Hannibal R. R. Co. v. Husen, 95 U. S., 465, it is said:. “The police power of á State extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and to the protection of all property within the State, and hence to the making of all regulations pro-motive of domestic order, morals, health, and safety.”
In Smith v. The State, 16 Pickle, 505, it is said, in substance, that it extends to all questions of health, morals, safety, order, comfort, 'and well-being of the public, and that this enumeration does not make the list complete.
Similar language has but recently been used in the case of Harbison v. The Knoxville Iron Co., and this is no new doctrine, either in this. State or in the United States.
In Bancroft v. Mayer, 5 Sawyer (U. S.), 502, it has been held that a State may provide by legislation that a designated person shall have the exclusive privilege of . furnishing all the text-books needed for use of the public schools, and the Court said: “To authorize and provide that, by means of contract or legislative grant, a particular person shall have the exclusive right to do or furnish a particular thing upon certain conditions for the use and convenience of the public, has
This question of providing a uniform series of text-books and prescribing the manner in which it may • be done, and the procuring, of such books and their distribution, as here done, is not a new one in the United States. It appears that more than twenty States have preceded Tennessee in passing uniform text-book laws. It is said that in some of them it has not resulted favorably, and the system has met with disfavor. How this is, is a matter which addresses itself to the Legislature and not to the Court. With the wisdom and policy of the law we have nothing to do.
In some of the States the validity and Constitutionality ' of the Acts have been called in question, and the material provisions of the law have been sustained.
The subject is elaborately considered in the case of State v. Haworth, 122 Ind., 462 (S. C., 7 L. R. A., 240), where the constitutionality of an Act very similar to the one now under consideration was involved, and 'the arguments against it were much the same as are now made. The Court very elaborately considered the provisions of the Act and the objections raised, and sustained the Act, citing many authorities in accord, and among them: Cooley’s Constitutional Limitations, 5th Edition, 225, note 1; Curryer v. Merrill, 25 Minn., 1 (S. C., 33 Am. Rep., 450); State v.
The reasoning of the Court in the principal case of State v. Haworth is so satisfactory and conclusive that we cannot, perhaps, do better than give a synopsis of it. It was held that such an Act does not infringe in the slightest degree upon the right of local self-government; that essentially and intrinsically the schools in which are educated and trained children who are to become rulers of the Commonwealth are matters of State, and not local, jurisdiction; that in ' such matters the State is a unit, and the Legislature the source of power; that the establishment and control of public schools is a function of the General Assembly, both under the Constitution and because it is a matter of State concern. Being a matter of legislative control, the Legislature may abandon one plan and try another if it see proper, and the Court cannot interfere. It is further pertinently said that it is impossible to conceive of the existence of a uniform system of public schools
The Court says: ° “We can find neither reason nor authority that suggests a doubt as to the power of the Legislature to require a designated series of books to be used in the schools, and to require that the books selected shall be obtained from the person to whom the contract for supplying them may be awarded. It is to be remembered that the statute does not command that every person shall buy the books; it confines the requirement to those who receive the benefit of the public schools. These schools are owned and maintained by the State, and the State may pre
“The regulation of the. mode of receiving books by the pupils of the common schools is not analogous to a regulation of general property rights,
Eor the reasons stated wo are of opinion the Act is valid ánd constitutional, and there is no error in the judgment of the Court below, and it •is affirmed, with costs.