80 W. Va. 638 | W. Va. | 1917
The legislature in 1909 created a state school book commission, to consist of the state superintendent of free schools] ex oficio secretary, and eight other citizens having the qualifications prescribed by the act, to be appointed by the governor on or before the first day of April, 1912, and every fifth year thereafter, each member thereof to qualify and enter upon the discharge of his duties thirty days after his appointment and serve five years therefrom unless sooner removed by the governor. Acts 1909, ch. 23; Code, ch. 45, §155a. The act requires the commission to meet and organize by the election of a chairman on the first Tuesday in May following the appointment of its members, and then to request the publishers of text-books to submit samples of books and the prices therefor on all subjects required to be taught in the schools of the state; and, on the first Tuesday in June following, to adopt rules of procedure, consider the merits of the books offered, select and adopt one of each series so used. It makes it the duty of the attorney general to prepare in duplicate the contracts with the publishers whose books are adopted for the period covered by the appointments, and of the chairman of the commission to execute them on its behalf, a copy for the contractor, the other for filing with the secretary of the commission: and requires a bond by each successful bidder, in an amount not less than ten thousand dollars, payable to the state, conditioned on the faithful and honest performance of his contract.
The appointees for the five year period commencing in
The sole cause assigned by Shawkey, in his original return, for such failure or refusal, is that the selection and adoption of school books and the contracts therefor remained, under the further advisement and control of the commission, then convened in the city of Charleston to reconsider its-, former action, and its deliberations were not finally concluded, wherefore it was improper and a violation of his official duty to deliver the duplicate to the petitioner, which, he had not been directed to do by the commission; and, in his amended and supplemental return, that the state school', book commission, on July 10, met in the city of Charleston, in response to a call of the chairman, for the purpose, among-other things, of reconsidering its action of June 6, and adjourned on the 11th without taking any action upon the question, because of the pendency of these proceedings, to reconvene at the call of the chairman; that on July 19, in response to such call, it again convened and reconsidered the-adoption of books, reversed its former action in many in
The board of public works and the several members thereof appeared as commanded by the writ, moved to quash it. and dismiss the petition, assigning several grounds therefor; and, for answer thereto, reiterate substantially the same matters contained in the returns of the superintendent of schools, and add that they have no right or power to approve or disapprove a bond given for the performance of the contract with the relator until it shall have been completed and delivered to thé relator and the deliberations of the book commission concluded “as required by the statute”; and that,, by an order entered of record on its minutes, the governor,, a member of the board of public works, was directed to request the commission to reconvene to reconsider its former-action as to school text-books, and it did reconvene July 10, as requested, but adjourned without proceeding to such reconsideration.
The return of the governor contains the same averments as the answers of the other respondents, except he contends, first, that his action is not subject to the control of the court by mandamus; and, second, that the contract with the relator “was not made in accordance with the judgment of the members of the school book commission acting together in their-official capacity and sitting as a board, but was the result of' certain negotiations and compromises between the agents of the companies who secured similar contracts and certain, members of the commission, and said contract, if not fraudulent, is at least void as contrary to public policy”. The allegations as to negotiations and compromises conducted on made outside of and not in actual session of the commission are denied by replications and by the answers of the individual members of the commission, and not proved or attempted to be proved by any evidence whatsoever, the burden of sustaining them being upon the respondents.
The first ground assigned in support of the motion to quash the alternative writ and dismiss the petition is that, while this proceeding is only nominally in the name of the state, it is in effect a suit against the state for the purpose of con
By the second ground for the motion the respondents challenge the regularity and validity of the appointment of the several members of the school book commission, in that they were appointed March 3, 1917, and attempted to qualify before the term of the former members had expired, and thex-e-~fore that the acts of the commission in adopting text-books ¡and authoilzing the contract with the petitioner are null and void and without authority of law.
Whether the appointments made on Mai’eh 3 were premature or irregular, a question not decided, deserves but a brief notice and comment. We need only cite some of the decisions of this court consistently holding that where the interests of the public or third persons are concerned full faith and credit shall be accorded to the acts of de facto officers. At all «vents, the duties performed by the commission, conceding
Besides, since the date- of these appointments no other school book commission has performed or attempted to arrogate to itself the right to discharge the important duties entrusted to such a commission by' the legislature. No rival organization of the same or like character, pretending to act in the selection and adoption of school books, has appeared to contest the right of the present one to perform these functions, nor any one or more private citizens or public officials to obstruct the performance of the functions assigned to the commission as at present constituted, by legal proceedings or otherwise, save by this indirect and collateral method.
Nor does the charge that the contract has'not been completed, and hence remains subject to the control and further delibefations of the school book commission, accord with the
Contracts with the state school book commission stand on the same solid foundation, and are to be dealt with on the same general rules and legal principles, as contracts between individuals. They are entitled to as much respect and are as enforcible as private contracts. Whether the school book commission acted prudently or wisely it is not within our province, or the province of any member of the board of public works, or all of its members combined, to say. The legislature has entrusted these matters solely to the sound discretion and judgment of the' state school book commission; and, if free from fraud, accident or mistake and not otherwise invalid, its action is conclusive and not subject to the control of any other power or authority. Nor is the contract, when awarded, subject to alteration or impairment by the voluntary act of the commission. State v. Poole, 26 Mont. 22. See also Marbury v. Madison, 1 Cranch 137; State v. Barbour, 53 Conn. 76.
It is urged that the legislature, by requiring the board of public works to approve the bond, intended to confer on it authority to exercise a discretion which the court can not control by mandamus; from which the only permissible conclusion is that, without assigning cause therefor, captious or sound, the board arbitrarily may refuse to give its approval, though the bond be in due form, properly executed and with ample security, if for any reason whatever the board shall be of opinion that the commission has acted unwisely or imprudently in the discharge of its official functions. This conclusion is permissible, because nowhere in any answer does any respondent in anywise attempt to sustain by proof, though averred, any impropriety, committed by any one or
The relator presents a case which clearly and conclusively shows its right to some relief. It is entitled to have the contract delivered and the bond approved. The return of none of the respondents except the governor presents a valid reason for withholding what it asks. These answers show no legally sufficient excuse for failure of the commission’s secretary to deliver to the relator a duplicate of the contract, and of the members of the board of public works to approve the bond. If the returns did show such excuse, there might perhaps be some substantial reason for a further discussion of' the claim asserted that the approval is discretionary. But surely some reasonable extenuation for the inaction of the board must be made to appear to shield it from compulsion to perform this duty. A mere arbitrary and unexplained lack of action will not suffice. The act of approval is ministerial; and the authorities generally hold that, except as to chief executive officers, performance .by public officials of mere ministerial acts may be compelled by mandamus. 9 Enc. Dig. 515.
Writs awarded.
Peremptory ivrits awarded.