36 Wash. 399 | Wash. | 1904
This action was instituted by the plaintiff to enjoin the defendants, as the board of directors of school district FTo. 1, of Thurston county, from using certain books and publications, during specified times, in the common schools of the city of Olympia, and to compel them to use exclusively, during the time mentioned, a text book “Why We Vote,” and “St. John’s Analytic Writing Tablets,” published by plaintiff, and furnished for use in the schools throughout the state under an alleged contract with the state board of education. The complaint alleges, that the plaintiff is a corporation, duly organized and existing under the laws of the state of Washington, and duly empowered to do
*403 “This contract, made and entered into this fourteenth day of May, 1900, between the state board of education of the state of Washington, party of the first part, and West-land Publishing Company of Olympia, a corporation organized and operating under the laws of the state of Washington, party of the second part, witnesseth: That the aforesaid party of the second part has made a proposition to supply to the people of the state of Washington certain text boohs, a copy of which proposition is hereto attached and made a part of this contract; and in consideration of the terms set forth in said proposition, and of the terms of this contract, the state board of education of the state of Washington, party of the first part, hereby adopts the following named books to be used in the public schools of the state of Washington, for a period of five years from and after September 1st, 1900: Elementary Civics, ‘Why We Vote/ St. John’s Writing Tablets, for the grammar grades. That for and in consideration of the adoption of the books hereinbefore mentioned, the said party of the second part hereby agrees to furnish said books in sufficient quantities for the use of the common schools of Washington for the full term of five years, as aforesaid, at the following exchange, wholesale and retail prices, in accordance with the law governing the same [stating them]. And the said party of the second part agrees to maintain the present or superior style and quality of scholarship, material, illustrations and general mechanical excellencies of the aforesaid book as shown by sample submitted to said board of education, party of the first part And the party of the second part hereby promises and agrees that the books above named shall be of the kind and quality set forth in their proposal and this contract, and the prices of said books shall be as hereinbefore specified, and that this contract shall be null and void at the option of the party of the first part if the party of the second part fail to comply with all the terms hereof; Provided, a reasonable notice shall be given to the party of the second part by the party of the first part, together with a reasonable opportunity wherein to fulfill the terms of this agreement.” (Signed, etc.)
It is further alleged, that, acting under the direction and instruction of the defendants herein, the teachers of said school district have adopted and prescribed a pretended course of study, and are attempting to enforce the pursuit of the same in the schools of said district, hy which said, books of plaintiff will not be used but will be supplanted; that the said board of directors threaten and intend to use other books in the future, during the lifetime of this contract, and in place and stead of the said books of plaintiff, and will discard the use of the said books altogether, unless restrained by the court, and that the employees of the said school district, acting under the illegal direction of these defendants, will discard altogether, and not use, the contract books of the plaintiff, unless the defendants are restrained as prayed and required by plaintiff; that the rights of the plaintiff under
It is next alleged, that the damage that would accrue to the plaintiff by reason of said illegal action of defendants would continue during the life of the plaintiff’s contract, and may not be calculated in money, and that the injury which would result to the plaintiff is irreparable, and that the plaintiff has no remedy at law; that the said illegal action of the defendants prevents and interferes with the sale, by the plaintiff, of the books in said contract, assured to the plaintiff by the laws of the state of Washington; that the work on civics, entitled “Why We Vote,” has not been used in the public schools of the state, and in the schools of said district bio 1. of Thurston county, as required by law, during the entire sixth year, but only during one-half of said year, and in one class in said year; that St. John’s Writing Tablets should have been used during the fifth, sixth, seventh, and eighth years, and in all the classes prescribed, but it has been used and prescribed to be used only in the fifth, sixth, and seventh years, and one-half of the eighth year; that, in addition to St. John’s Writing Tablets, the defendants have used, during said years, certain other text books and tablets covering the same subject matter covered by the St. John’s Writing Tablets, to the great detriment and damage of plaintiff, and that the officers of said school district have no right,
The defendants interposed a motion to make this complaint more definite and certain in certain particulars, which motion was by the court denied. They then demurred to the complaint on practically all the statutory grounds. The demurrer was overruled, and the defendants thereupon answered, denying each and every averment of the complaint, except that they were the qualified and acting directors of school district Ho. 1, of Thurston county, Washington, and setting up certain matters as affirmative defenses, the principal purpose of which seems to have been to show why plaintiff’s contract and bond, mentioned and described in the complaint, were invalid, and wherein there was a defect of parties to the action. The plaintiff interposed a demurrer to the affirmative defenses, which demurrer was sustained. The defendants declined to amend further, and the cause went to trial upon the complaint and the amended answer of the defendants theretofore filed. Having duly considered the evidence adduced upon the trial, and made and filed its findings of fact and conclusions of law, the court dismissed the action, and gave judgment against the plaintiff and in favor of the defendants for their costs and disbursements. From this judgment both parties appealed.
The defendants move the court to dismiss plaintiff’s appeal for the reason that no appeal bond has been given by said appellant to respondents, “the adverse party,” as required by law. The appeal bond in question runs to the state of Washington, instead of to the adverse party (respondents), as prescribed by § 6505, Bal. Code, but in all other respects it strictly conforms, both in form
In view of the provisions of our school law above referred to, it was certainly the intention of the legislature to confer upon the state board of education the exclusive power to adopt a uniform series of text books, and to prepare a general course of study for the public schools of the state. And they also evidently intended that the books adopted by the board should be used, and the prescribed course of study pursued, in the various departments of the public schools. But it must be borne in mind that, although the state board of education is empowered to adopt text books, and to prepare a course of study for the schools, it is neither expressly nor by
The trial court found, and the evidence shows, that the state board of education entered into the contract above set out with the appellant, at the time therein mentioned; that, at or about the same time, said board adopted a series of text books for the use of the common schools for the period of five years from and after September 1, 1900, and prepared and published a course of study for the schools of the state-. The series of books adopted by the hoard included St. John’s Writing Tablets and the text book on civics entitled “Why We Vote” (both published by appellant), and the state course of study required the use of the former for the fifth, sixth, seventh, and eighth school years, and the latter for the sixth year. The respondents, as directors of school district No. 1, graded the schools and established a course of study therein, prescribing the use of St. John’s Writing Tablets, in conjunction with Heath’s Copybook, during the fourth as well as the fifth, sixth, seventh, and eighth
The power to grade the schools of districts, where grading is necessary, is plainly and explicitly conferred upon the board of directors by § 13 of the school law; and the power to establish a course of study not inconsistent with law is impliedly conferred by the proviso contained in that section. It being the province of the directors of the school district embracing the city of Olympia to
“That the legislature intended that the state board of education should adopt a course of study that could be adjusted to the several school districts according to their conditions and requirements; and that the board of directors, in grading their district, . . . should establish a course of study for their district- by fitting the state course to the grades established for their district,” and, therefore, held that the course of study adopted by
But we do not think that the construction placed by the court upon the proviso in § 73, as we understand it, is entirely correct, for it appears to us, from a consideration of that provision, together with all other cognate provisions of the statute, that it was the intention of the legislature to authorize or permit the directors of designated school districts to establish only such courses of study as are consistent with the course adopted by the State board of education. To hold otherwise, would be to hold that the legislature intended to confer upon certain boards of school directors practically the same power as to the adoption of courses of study that it had already conferred, by § 27, upon the state board of education; and there is no provision in § 73, or elsewhere in the statute, which would justify such a conclusion. We therefore think it was the purpose of the legislature to provide for one, and only one, course of study for the graded schools in cities such as Olympia, and that the course of study established by respondents was, and is, inconsistent with the law of the state, in so far as it departs from the state course of study. But it does not necessarily follow, from this conclusion, that the appellant is entitled to the relief sought in this action. In Rand, McNally & Co. v. Hartranft, 29 Wash. 591, 70 Pac. 77, which was an action for an injunction based on a contract similar to the one here in question, this court, after having carefully considered the authorities bearing on the question in hand, said:
“We are constrained to the conclusion, therefore, that the weight of authority is in support of the principle that equity will not interfere by injunction in behalf of*416 one who is merely nominally damaged as to profits arising from a contract such as the one at bar. The wrong asserted must be more than a mere technical or inconsequential one to warrant equitable interference.”
That case is decisive of this, so far as the merits of the case are concerned. There is no evidence in the record showing that appellant has been, or will be, more than nominally damaged, if damaged at all, by the alleged wrongful action on the part of the respondents. It is true, one of the teachers in the seventh grade, who testified as a witness for appellant, said he thought more of St. John’s Tablets would be used in that grade if Heath’s Copy Books were not also used. But how many more of such tablets would be used if the copy book were discarded is not shown by the evidence. Moreover, the testimony in the case shows that these writing tablets have been regularly used in the schools of the district from the fourth to the eighth years, inclusive, which is one year more than the state course of study requires. How, then, can it be successfully maintained that the appellant has not furnished as many of these tablets as it was entitled, under the contract, to furnish for the use of the schools in question?
The contention that the appellant has been damaged by the failure of the respondents to cause the text book “Why We Vote” to be used in class B as well as in class A of the sixth year is not tenable. In the first place, the state course of study does not contemplate or require the use of that publication at all times during that year, for it is suggested therein that such book may be used alternately with some reader. And, in the second place, it does not appear that there were any pupils in the sixth grade who did not purchase and study that hook. The proof shows, and the court found, that the
In regard to the objection of appellant that the finding of the trial court that the school district in question is one requiring the employment of more than one teacher, is not within the issues formed by the pleadings, and is unsupported by the evidence, it is perhaps sufficient to observe that, although the question of the character of the district was virtually eliminated from the issues to be tried, by the ruling of the court upon the plaintiff’s demurrer to the affirmative defenses set up in the answer, still the record discloses that as many as three teachers employed in the schools were called as
Our conclusion is that the judgment is right, and it is therefore affirmed with costs.
We shall not extend this opinion by discussing the numerous questions raised by the defendants on their cross-appeal, for the reason that the affirmance of tlie judgment renders them immaterial.
Before the trial of this cause between the original parties, one David Lincoln applied to the court, by petition, for leave to intervene in the action, by joining the defendants in resisting the claims of the plaintiff. The petition, after reciting that the petitioner is a resident of, and a taxpayer in, school district Ho. 1 of Thurston county, and the father of children attending school in said district^ alleges substantially the same facts which were stated in the amended answer of the defendants. This petition was denied and the petitioner appealed.
Our statute, Bal. Code, § 4846, provides that “Any person may, before the trial, intervene in an action or proceeding, who has an interest in the matter in litigation in the success of either party, or an interest against both.” The sole question for determination on this appeal is, has the petitioner such an interest in the matter in litigation between the original parties as entitles him to intervene? And we are of the opinion that he has no such interest. The matter in litigation here — in
“The interest mentioned in the statute, which entitles a person to intervene in a suit between other parties, must he in the matter in litigation, and of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. ... To authorize an intervention, therefore, the interest must be that created by a claim to the demand, or some part thereof, in suit, or a claim to, or lien upon, the property, or some part thereof, which is the subject of litigation.”
The doctrine thus stated by Judge Field is approved by Mr. Pomeroy in his treatise on Code Bemedies (3d ed.), § 130. And this California case was cited and followed by the supreme court of Nevada in Harlan v. Eureka Mining Co., 10 Nev. 92, in interpreting a statute identical with that of this state. Tested by the above authorities — and many more to the same effect might be cited — the order denying appellant’s petition was right, and it is therefore affirmed. No costs will be recovered by either party on this appeal.