CHARLESTON.

#### State *ex rel*John Casey *v.*State Board of Education *et al.*

(No. 6010)

Submitted June 1, 1927.

Decided June 2, 1927;

Written Opinion filed June 7, 1927.

1. *Mandamus*— Matters *Lying Clearly Within State Board of Education’s Discretion Cannot be Controlled by Mandamus; State Board of Education’s Discretion as to Changes in School Books Cammot be Controlled by Mandamus (Code, c. J,5,*§ *11).*

Matters lying clearly within the discretion oí the State Board of Education cannot be controlled by mandamus, (p. 43.)

(Mandamus, 38 C. J. §§ 71, 331, 340 [Anno].)

2. *Same*— Party *Seeking Mandamus to Compel State Board of Education to Adopt Certain Books Must Show Alleged Exercise and Exhaustion of Discretion, Making Matter Sought to be Controlled Ministerial (Code, c. 45,*§ *11).*

Where a party seeks, by mandamus, to compel such Board to perform an act on the ground that it has exercised and exhausted its discretion and that by reason thereof the matter sought to be controlled now lies outside of its discretion and has become ministerial in character, he must establish such facts, (p. 43.)

(Mandamus, 38 C. J. § 671.)

(Note : Parenthetical references by Editors, C. J. — Cyc. Not part of syllabi.)

Original proceedings by the State, on the relation of John Casey, for mandamus to ibe directed to the State Board of Education and others.

*Writ denied.*

*Poffenbarger, Blue & Dayton,*for relator.

*H. B. Lee,*Attorney General; *B. Dennis Steed*and *B. A. Blessing,*Assistant Attorneys General, for respondent State Board of Education.

*E. Leslie Long,*for respondent National Pub. Co.

*42Woods, Judge:

John Casey seeks to invoke mandamus to require the State Board of Education to adopt for uniform and exclusive use in the elementary schools of this State, for a period of five years, a series of books on the subject of spelling, consisting of two volumes, entitled “Mastery of Words,” and to enter into a contract with the Iroquois Publishing Company, the publisher, in accordance with its offer. The proceeding is based on an alleged forty per cent, change of the subjects required by law to be taught in said elementary schools, in violation of §11, Chapter 45, Code, providing that not more than thirty per cent, shall be changed in any five-year adoption, unless further' changes be necessary to protect the State against unfair prices or discrimination iby the publishers of the books in use. Respondents demurred to the petition, moved to quash the alternative writ, and tendered and filed their joint answer and return. The answer and return shows that the State Board sent out notices to all publishers of school textbooks requesting them to submit samples and prices of textbooks on each of the ten subjects required to be taught in said elementary schools; that at a meeting of the Board the books now in use in six of the required subjects (Reading, Writing, Civil Government, United States and West Virginia History, English Grammar and Language, and Elementary Agriculture) were approved for another five-year-period, leaving the remaining subjects (Spelling, Arithmetic, Geography and Physiology & Hygiene) open for further consideration. After thoroughly considering the last four, the Board adopted a new speller, a new geography, a revised edition of the arithmetics now in use, and substituted a new book for one of those now in use on Physiology & Hygiene. This action, the Board contends, is clearly within the statute. Assuming, however, as relator contends, that this amounted to four changes (40%), within the meaning of the statute, it is alleged that the same were made iby the Board on one-motion, and that its entire action under the motion is void for want of authority. Even admitting such to be the case, our power to mandamus would only go to the extent of eom-*43pelling the Board to act in relation to the four subjects— Spelling’, Arithmetic, Geography and Physiology and Hygiene. The return shows an adoption of books for six subjects; hence, the Board would have a right under the statute to change the books in three of the remaining four subjects. If the action taken is void, then no action has been taken upon the question of the three changes it is permitted to make. We could not go farther, if at all, than to compel the Board to act. It has a discretion which we have held time and again may not be controlled by mandamus. *State ex rel.*v. *County Court,*33 W. Va. *589; Miller*v. *County Court,*34 W. Va. 285; County *Court*v. *Holt, Judge,*61 W. Va. 154; *State ex rel.*v. *O’Brien,*97 W. Va. 343. This Court has held that a publisher of school books, having a contract with a school board for furnishing school books, as the Iroquois Publishing Company has here, cannot compel said board to continue or renew its contract for five years after its expiration on the ground that the board has changed books without sufficient vote. *Ginn & Company*v. *School Book Board,*62 W. Va. 428. This same principle wordd have application in the case here if, as relator contends, the entire action of the Board is void. Therefore the adoption of the relator’s books on Spelling cannot be commanded on this ground. But, if the proposition that the books for four subjects were adopted at one time be not tenable, the relator says that the fact is that of the four subjects changed, the change in spelling was made last, and that the Board had power to make the change of the first three subjects, but no power to make the fourth change. This might be true if spelling were last. But the Board in its sworn return avers that of the changes made, the change in the speller was made first. This claim is supported by the fact that on the minutes of the Board the subject of spelling appears first in order of the four subjects last considered by it. The relator relies on the fact under the second proposition here that the change-was made last. He so avers. The law imposes upon him the burden of sustaining this issue. *State*v. *Fortney,*93 W. Va. 292; 18 R. C. L. 127. To support this issue he relies upon the affidavit of a third party that he was told by a member *44of the Board that the change in spellers was made last. This is merely hearsay evidence and cannot be considered. The relator has failed to bear the burden cast upon him of showing that the change in spelling was made last. His case for mandamus also falls upon this proposition. This conclusion makes decision of the other questions raised unnecessary.

*Writ denied.*