The great West., 1890-01-03
THE CONTRACT BINDING.

Attorney General OiaPp
Merrill Text Book Law Valid.
Following is the response OF A'torney
General Clapp to question by state super
intendent Kiehle as to what course ms oe-
| partment should adopt with reference 70
carrying out the provisions OF the scnooA
| text book law:
department should adopt with reference 70
carrying out the provisions OF the scnool
| text book law. commonly known as the
Merrill text book law. A full considera-
| ton of your inquiry involves two oAuestlohs'
First, Is there valid contract existing De-
| tween the State of Minnesota and Mr. Mer-
rill? Second, What is the legal method py
which the contract shall be carried out ana
the districts subject to the law supplied
| with books? AS the latter question has
been fully answered in prior communca-
ton, shall address myself to the consider
alton of the first question. making reference
to the second only so far as may De neces-
sary in explanation of some discussion that
has arisen relative to the validity OF the
/ contract. In 1877 the legislature passed an
act known as chapter IS of the General
Laws of 1877; this act authorized ana tn- a,-
rected certain officers of the state to enter
into contract with Mr.. Merrill: BY chap
| ter two (2, General Laws of 1878, 1t was
| provided that the question OF the contlnu,
| ance of the act of 1877 should be submltted
| to the legal voters of the state at the general
| election to be held in 1880. The PROVISION
| referred to was in these terms.
"And if, at such election, majority OF
| the electors present and voting at such elec-
ton shall vote against the further contlnu-
| tance in force of the said acts in the manner
in this section provided, then, and IN that
case, the said act shall cease to be OF further
| force and effect from and after the declara-
| ton of the result Of such vote
The validity of the contract with Mr.. Mer-
| rill depends upon this provision, and the
vote taken pursuant thereto. 1t appears by
| that at the general election in 1850 there
| were cast against continuing the law forty
five thousand four hundred and sixty five
| u.s. 1863 votes. and there were cast in favor OF
| continuing the law torty-four thousand
seven hundred and thirty-nine 73)
votes, and there were cast in the districts
entitled to vote upon the question one hum
! dred and twenty thousand six hundred and
| thirty (12O, ,63O) votes. 1t appears, therefore,
| that while more votes were cast against the
| law than in favor of it, yet majority OF al!
| the votes cast at such election were not cast
against the law, or in other words, major
ity of the voters present and voting at such
| election did not vote against continuing the
act in force do not know that the con-
tract has ever been assailed upon any other
| consider the effect of the language enl-
ployed in the act of 1878, submitting the
| matter to q vote, and the language en-
! ployed is very plain:
"And if at such election, majority of
the electors present and voting at such elec-
| ton shall vote against the continuance of
| the act, " in other words, the act was to re-
main in force unless a majority OF those
present and voting voted against it. Where
subjects are submitted to popular vote
they are usually submitted under a law
| which provides for the determination by
| p,aiority nf those VOTING SIlch
| icular subject; in fact the law OF 1878 pro-
| vided for another submission to popular
vote to be determined by two-thirds ma
| jority OF those voting upon such particular
question; but the provision under consldera-
ton is entirely different; here the act was
to continue in force unless majority, not
of those voting upon the question, but those
voting at the election, should vote against
it, and no other meaning can be given to
the language employed. Taylor VS.; Taylor;
MINI. 400 1t follows, therefore, that mas
much as majority of the votes cast at the
general election in 1880 were not cast against
continuing the act of 1877 in force the lat
| ter act remains in full force and the contract
between the state and Mr.. Merrill is valid
| and subsistlng contract, and should be so
recognized by your department, and by the
| various officers who are charged with the
duty of carrying it into effect.
| While there is no escape from this con-
clusion, it might be proper to add that the
state board Of canvassers, consisting of two,
justices of the supreme"court and two dis
trict judges, considered this to be the effect
| of the law, as plainly appears by the form
of their returns of the VOTE and such has
been the construction placed upon it by
my predecessor. have gone into this mat
ter to some length for the reason that
recent communication from this office has
been construed against the validity of the
contract, and perhaps the language of the
letter, which was hastily written, warrants
such construction, but the letter referred to
was based upon decision OF the district
| court of Hennepin county.
1t appears that in 1883, the legislature at
| tempted to amend the law relating to the
distribution of books, but the bill as finally
| signed did not contain an enactlng clause.
In 1885 the legislature attempted to supply
the defect by an attempted amendment to
| the act of 1883, and in an action brought in
Hennepin county it was held that the law
of 1883 was void; this being the decision re-
| ferred to in the letter just mentioned. An
examination of the records shows that this
| decision only involved the validity of the
| law of 1885, relating to the method of the
distribution of books, and in no manner in
volved or affected the validity of the act of
| 1877. Not only does this appear from the
made by the judge who tried the case, from
which statement it further appears that
while the question was not involved in any
manner, that in the opinion of the judge
OF 1880. AS above stated, the objection to
the validity of the contract being based
upon the vote of 1880, and no other objec-
ton being made, the objection is untenable
and the contract remains in force, binding
alike upon your department and other Off
GERS. am, very truly yours
| MOSES E. CLAPP, Attorney General.
st. Paul, Mimi, Dec. %. 1889.