| Kan. | Jan 15, 1881
The opinion of the court was delivered by
This was an action brought by R. B. Shadduck against School District No. 1 of Reno county, Kansas, and the school-district board, and also against the superintendent and principal of the schools of such district, to perpetually enjoin them from using McGuffey’s revised readers in the public schools of that district. The petition alleges, among other things, that the school board first adopted “Appleton’s readers” to be used in said schools; and afterward, within less than five years, and without any petition therefor, illegally attempted to adopt McGuffey’s revised readers for the use of said schools; that the plaintiff, who was “a resident, tax-payer and patron of the public schools in said school district,” furnished his minor son, who was then of school age,
“Therefore plaintiff prays that this honorable court issue a tempoi’ary order of injunction to restrain the said School District No. 1, Reno county, state of Kansas, said N. T. P. Robertson, director, S. B. Zimmerman, clerk, and A. R. Scheble, treasurer of said district, and J. J. McBride, principal and teacher of said schools, from proceeding further with the introduction of said McGuffey’s revised readers into the schools of said district, and to restrain the said parties from the further use of said McGuffey’s revised readers in the schools of said district, and that on the final trial of this cause such injunction be made perpetual, and for such other and further relief as plaintiff may be entitled to, and for costs.”
The court below allowed the temporary injunction, as prayed for in plaintiff’s petition. The sole question now presented for our consideration is, whether this temporary injunction was rightfully allowed or not. That it is too broad, must be admitted. That it covers too much ground, cannot be denied. But is it right in any particular orto any extent? It enjoins the use, not only of' McGuffey’s revised readers, but it also enjoins the use of all of McGuffey’s readers, whether of the first, second, third, fourth, fifth or other number; and it enjoins the use of all these readers, not only by the plaintiff’s boy, but by all boys and girls too who may attend the public schools of that district. It proscribes the use of said readers, not only in the plaintiff’s son’s class, but also in all other classes of his school, and in all classes of all the public schools of his district. Even if all the parents and children of the district, and all the school-district officers, and the teachers, and all others interested in the public schools of that district, except the plaintiff, should desire to use McGuffey’s revised readers, this injunction prevents them from doing so. Even if some parent should desire that his or her little girl should
But why should it interdict the use of McGuffey’s readers at all ? The plaintiff is not interested in excluding McGuffey’s readers, but only in having Appleton’s fifth reader used as a • text-book in the class in which his son may be placed. And yet this temporary injunction has nothing to say concerning Appleton’s readers, and all to say about McGuffey’s revised readers. Now the exclusion of McGuffey’s revised readers does not bring Appleton’s readers into the schools. The exclusion of all of McGuffey’s' readers, revised or otherwise, does not do so. Indeed; the exclusion of all readers, McGuffey’s and others, would not necessarily introduce Appleton’s. And yet, as to Appleton’s readers, this temporary injunction is silent. The plaintiff’s true remedy is by mandamus, to compel the school board and the teachers to allow the plaintiff’s son to use Appleton’s fifth reader as a text-book. But under the facts of this particular case; he might find it difficult to maintain even this remedy. In this state the school • board, in adopting text-books, has authority to adopt only “a uniform series of text-books,” (Laws of 1879, p.279; Comp. Laws 1879, p. 831, §28;) and in this particular case it does not appear that the board adopted “a uniform series of text
Now it appears from the evidence introduced on the hearing of the application for the temporary injunction, that there was no “uniform series” of “Appleton’s readers,” of any particular number or in the aggregate. For instance, three of Appleton’s fifth readers were introduced in evidence, and are now before us, one dated in 1878, and the other two in 1879, and each is different from each of the others; not wholly different, but different in important particulars. Indeed, all the three look alike, and the differences can be ascertained only by a careful examination. Some, of these differences, however, are very important, such as differences in the subject-matter of the lessons. The evidence below also tends to show that still later editions of these books, with still other differences, have been published. Now as the board can adopt only “a uniform series of text-books,” which of these various editions did it adopt, or did it legally adopt any ? If we were to compel the board and teachers by mandamus to use any one of these three fifth readers which are now before use, which one of them should we compel them to use? With these doubts and difficulties, is not the order of the board adopting “Appleton’s readers” void for uncertainty? The plaintiff says that the fifth reader which his son took to school was “the legal book adopted by the school board.” Now how does he know this? And how are 'we to know it? Of which edition was it? We have the order of the board adopting “Appleton’s readers” before us, and .the order merely uses the words, “Appleton’s readers.” It does not designate which fifth reader is intended, and therefore no one can. tell whether the plaintiff’s son’s fifth reader was “ the legal book adopted by the school board,” or not. But the plaintiff is not asking for a writ of mandamus to compel the board and teachers to permit his son to use Appleton’s fifth reader, or to use any of Appleton’s readers; nor is he even asking for an injunction to restrain them from
Now an injunction might, under some circumstances, be allowed, at the instance of a private individual, to restrain the use of McGuffey’s readers, '(provided they had not been legally adopted,) so far as their use might interfere with the plaintiff’s or his child’s use of some one of Appleton’s readers as a text-book, (provided Appleton’s readers had been legally adopted.) But this is not the kind of injunction that was asked for or allowed in this case; and whether e.ven this kind of an injunction could or should be allowed under the.facts of this case, is at least doubtful. Unless we can say that it was clearly shown that the school board had previously and legally adopted the very kind of fifth reader which the plaintiff’s son took to school, we cannot say that even this kind of injunction should, under any circumstances, be allowed. A clear right must be shown before an injunction can be granted ; and even then, if the plaintiff is a private individual, as in this case, the injunction can be granted only to the extent of protecting his special and individual interests. If a general injunction is desired for the protection of the interests of the entire public, it can be granted . only at the instance of the proper public officer.
The judgment of the court below will be reversed, and the cause remanded for further proceedings in accordance with' the views herein expressed.