The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1889-07-30
THE SCHOOL TEXTBOOK LAW
A Few Questions as to Its Construction
Answered by the Attorney General.
Trustees Required to Supply the Books to Pupils
The Governor PrOclaims the Contracts
as Awarded to Be in Force.

Encouragement Kitchener yesterday
filed his answers to the questions SUBJ
mitted to him by the Superintendent of
Public Instruction, touching the construc-
ton of different sections of the new school
book law. The answers, coupled with the
citations referred to in the opinion, will
furnish, doubtless, guide to some extent
for county and township school officers, who
are bewildered by the obscure language
and defective phraseology of the new
statute. The following is the full text of
the opinion as filed:
Hon Harvey NJ. LaFollette. Superintendent of Pub
lie Instruction:
copy and answer in their order.
Il. Is the new school-bOok law compulsory
upon the school trustees, or Is 1t directoryi"
Inc language or the act, SO far as it defines the
duties or the school trustees, is imperative or
compulsory In its nature. See Sections and 8.
be rern e1e trustee liable on his official bond II
books provided for by the new school lawq"
section 2 OF the act makes it the duty Of the
tendent the number of school-books provided for
IN the contract which are required by the chill
dren for use In the schools Of their several
duty OF trustee in that particular. Section
oo2s, X. s., 1881, Is as follows "Au official
bonds shall be payable to the State of Indiana;
sqr s st.. for The - faithful disoharss
law, then or subsequently in force. for the
use OF any person injured by any breach OF the
condition thereof" Ii trustee fails to obey
any command OF the new schoolbOok law. he
will violate the conditions of his bond and will
De liable In damages In action thereon brought
t ny any person Injured by reason OF such viola
uon. See, also, Davis vs.. The State; "A Ind 30.
% Can trustees retain the old books In the
s, and permit the pupils to buy only such
DOCKS as are now necessary; or must they de-
mand of the pupils that they buy all new books,
secure uniformityi'
The trustees are not allowed to retain the old
books In the schools and permit the pupils to buy
sucn BOOKS only as are now necessary. The
trustees are not given any discretionary powers
ia sucn matters by the act under consideration.
They possess such powers only as are given by
tne express terms OF the act or by necessary i'm
ptcatlon. The last proviso of Section recog-
nzes the right OF school trustees to devise means
ana make arrangements for the sale, exchange
or other disposition of such books as may be
owned e, by pupils at the time of the adoption of
tne books under the provisions Of the act. No
other powers are given them by the act so far
The books now in use are concerned. Ii the Leg
islature had intended that the trustees should
nave the power to permit the use of the old
DOCKS II would have been conferred in plain
terms, OF would have been made to appear
by the use OF language warranting such
an Interpretation without doing violence to the
ordinary rules OF statutory construction. Again,
IL Is apparent that one OF the objects OF the new
books in the common schools throughout the
state. such uniformity cannot be obtained il
the pupils are allowed to retain the books now
In use, Tor some OF the pupils, by necessity, will
be compelled to buy the new books, while others
would be using the old ones, to the utter destruc
don Oh uniformly. Upon the trustees Is cast the
sired uniformity. With this duty dwells the cor
responding power to demand that the pupils
snail buy the new books adopted by the State
Board of Education.
Il. If patrons refuse topurchase new books and
SEND their children to school with their old
DOCKS, can they be compelled 10 purchase the
newly adopted books, with the alternative of hav-
Ing their children suspended from schools Can
child be excluded from school privileges for
refusing to buy the newly-adopted boOksl"
The various duties enumerated in the act, or
arising FROM necessary Implication, deyOlve upon
the officers of the law only, for none other than
osnctal duties are defined. The law, however,
expects pupils TO use the new books IL they
attend the common schools, but IL does not fix
any penalty II they attend the schools and do
of punishment is necessarily left to the decision
OF the school authorities.
The trustees have the power to prescribe by
rules that the new books shall be used by all the
pupils, and Tx reasonable punishment-such
as suspension. or the like-if the rules are vio-
lated This principle Is established by the de-
cision of our Supreme Court, in the State
Weber, los Ind, 81, decided in 1856. the opin-
ion being written by Chief,justice HOwk. The
accepted doctrine Is that the general power re-
siding I'm school trustees to take charge OF the
educational affairs of district, or prescribed
territory OF kind, includes the power to make
all reasonable rules and regulations for the dis
cipline, government and management OF the
schools within the district territory 1t is for
the school trustees to decide what reasonable
rules shall be prescribed for such purposes
Without such rules there is no way to compel the
parents to purchase new books, or prevent the
pupils from using the old ones.
"5. VIII an unexpired contract between the
county board OF education and any other pub
fishing company than those contracting with
the State be binding upon the county represent
ed by such bOardf LIS written contract, made
or adopted by the county board OF education,
binding upon the corporations composing such
1 do not know of any law which has au-
thoriZed such a contract. III there Is none, such
a contract has no validity against the
new law. presume you refer to the adoption
OF school books by the county board OF educa-
ton under Section 4436, X. S., 1881. Such an
adoption is not contract in legal sense. The
object of that law is TO prevent the frequent
changes of school books.
SO. II the trustees ignore the law. and use the
books heretofore adopted and now In use, how
can they be compelled to order the use of the
new onesi If trustees order the books, re-
quired by law. and keep the same on sale, as
provided by law, but fail or refuse to enforce the
use of the same in the schools under their juris-
diction, how may such trustees be compelled. il
at all, TO enforce the use of such books in their
The remedy is the writ of mandate under
Section 116S, X. s. 1891.
az What part Of Section 4436, r. s. 1881,
which prescribes the powers Of county boards of
education in the adoption OF textbooks, is re-
peaIed by operation OF this 1awl In other
words, can county boards hereafter adopt text
books in grammar, history. physiology, or any
other branches in which textbooks have not
been contracted for by the State Board OF Educa-
ton; and If So, are such adoptions bound by
the limitations of six years. as heretoforei'
The section you cite Is now operative
to the extent that the county hoard Of
education only adopt such school-books
as are not covered by the contracts
made under the new law by the State Board OF
Education. BY reason of the new law the county
board of education can do no more than adopt
schO0l-books not included in the contracts men,
toned. The contracts nulify all previous
adoptions OF schoOl-bOOks embraced within the
terms of the contracts. In other words, such
adoptions do not prevail against the contracts
made under the new law.
"6. Can trustees, in ordering books for their
townships order less number than will be re-
Quired, in their judgment, 10 supply all of the
pupils in their respective school, cOrpOratiOnsi'
No. The statute says that they shall certify
"the number of school textbooks provided for in
such contract required by the children for use in
the schools OF their several school corporations"
(See Section ~
In conclusion, I will say that the words
trustees and school trustees" wherever used
in this opinion are intended 10 include township
trustees and the school trustees of towns and
cities The territory under their control is the
township, town. and city: respectively. See in
this connection Sections 4437, 443S, 4439, 4444,
4445, II. s. 1881. Respectfully submitted.
LOUIS Il. MICHENER,
Attorney general.
The schoolBook Company's Bond.
9he bond of the Indiana School book
Company, which was filed yesterday. sets
forth that the aforesaid company of
Marian rounfv composed of Josephus