The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1889-12-11

payment OF the teacher, it inures also to the
/ benefit OF the book publisher. 1t is sim
| ply part of the inducement which was in
/ tended to secure school books to the peo-
| pie of the state at prices very much less
than must otherwise be paid.
so. The return also AYERS that the
books provided by the contractors are not
! equal TO the specimen books by which
they are measured in the contract
In this, to-wit: That they are not so well
made and bound as the books named in
the act as the standard of comparison.
There are books named in the act. to which
reference is thus made. The second sec
ton of the act required that specimen
copies of the various books offered for
selection by the state board of education
should accompany each bid. Whether the
specimens thus furnished were equal in
make and binding to the standards named
In the act was a question which it was re-
quired the state board should decide, and
this must have been decided il the affrma-
tive before the bid could be accepted or
contract made. This decision having been
made by the board upon which the
law devolved the duty of making
1t, Is not open to review by the courts,
until it shall be challenged for fraud.
Thus the specimen books became, by
the contract, the standard of comparison
thereafter. Books inferior in any respect
to these would not be such as the contract
requires, and the trustee need not receive
or sell them. But he could hardly assume
in advance that inferior goods would be
sent to fill his requisition, and, therefore,
refuse to make any requisition at all.
IS One question still remaining is not
quite so easy of solution. 1t concerns the
paragraph of the return numbered five,
which, stripped Of the immaterial matter,
AYERS that books of equal excellence. for
the same branches OF study, though not
adopted by the county board OF education,
which board had never adopted any books
for use in said township, had before been
adopted and were in use and in full sup
ply in the schools OF the township with the
approval of the defendant; that a change
now is not desired or approved by either
the trustee or the patrons OF the schools
and would only impair the efficiency of
the schools, and if the new books were
possessed by Smokes child he would not
be permitted to use them in the school
which he attends.
''As to this point the demurrer requires,
In its consideration, an examination OF the
act OF 1889. Did it, by its own force, re-
quire, in exclusion OF others covering the
state board might select and contract for?
Before the passage OF this act power to
adopt textbooks to be used in schools in
townships was vested by law in the county
board of education, and the township trus-
bees We're required, as nearly as practica-
te,' to conform TO this action oil the
County board. And when the county
board had adopted a textbook, it could
not be changed within six years except by
unanimous vote. { r. :. sec. 4, 1867 Cities
and incorporated towns were not thus sub
ject to the control of the county board, but
were under the care of their local officers.
f Il. =, stsc.f.+44.J IN the absence of action
upon the matter by the county board of
education, it seems to me that the town
ship trustee, by virtue of the general
power conferred on him by sec. 4, 4,444,
Il. S, had this authority
But the legislature could, at any time,
in its discretion, take away this authority
OF county and local boards or officers by
the express repeal OF the law conferring
it, or by implication repeal it by a new
enactment in conflict with it, in which
case the old statute, so far as it might be
in conflict with the new one, must be re-
garded as no longer in force. Repeal by
implication, however, is not favored, and
If by fair construction the two statutes can
be harmOniZed, that must be done, and
both be regarded as in force. The act of
1889 has a repeating clause. but it affords
US no help whatever, inasmuch as it re-
peals only such laws as are in conflict with
its own provisions, which would have
been quite as well accomplished without
it.
The inquiry must be whether, and, if at
all, to what extent, the act of 1889 is in
consistent with the control of the subject
of text books, which, by pre-existing laws,
as has been seen, was confined to the local
authorities. By our constitution the sub
ject of an act must be expressed by its
title, and if the body of an act goes beyond
the subject thus expressed, and matters
properly connected herewith, it is set
tied by our decided cases that, so far, the
act is void. In this case the title of the
act is: An act to create board of COM
missioners for the purpose of securing for
use in the common schools OF the state of
Indiana of series of text books fol-
lowing which is an unnecessary enumera-
ton OF matters merely connected with
the subject thus expressed, but do not
enlarge it. This language gives no idea
OF more than a purpose TO secure or
obtain the books-it does not by anv
apt expression even hint that there is any
requirement in the act that such books
shall exclusively be used in the schools.
But | am not sure that provision for the
exclusive use of the books to be secured
may not be properly enough connected
with the subject expressed that, if found
in the body OF the act it should be held to
be valid. | am much inclined to think so,
for reasons which need not be stated But
if this be the subject OF doubt, still any
such provision should, according to all
authority, be upheld. Such respect is due
to the legislature that even the court of
last resort may not, upon doubt, hold an
act of the lie egislature to be void.
ave must then look to the BODY of the
act itself, and, if need be, construe it. The
act is remedial. The mischief was not, /
think, that there was not a uniformity of
text books in use throughout the whole
state. Such uniformity in a single school
was. / suppose, generally deemed essential
to even a toleTable efficiency of the school
quite desirable if secured throughout a
township, and appreciably 80 if it covered
a whole county, but it is not recalled as a
part of the history of the times that it was
recognized as mischief that control of
the matter had been confided to each
county, city, town or township acting
through its local officers, and indepen-
IDENTITY of all other counties, cities and
towns There was, in short, no recognized
mischief, in remedy OF which it was neces-
sary to deprive the local authorities Of the
DOWer which they hadsof determining the