The sun. [volume] (Morris, Stevens County, Minn.) 1882-1895, 1890-01-02
THE CONTRACT BINDING.
Attorney General Clapp Holds the
Merrill Text Book Law Valid.

"SI III 4 SNL OSSN la" C&hAs
Following is the response of Attorney
General Clapp to question by State Super
intendent kiehle as to what course his de-
partment should adopt with reference to
carrying out the provisions of the school
textbook law:
Dear Sir: You inquire what course your
department should adopt with reference to
carving out the provisions of the school
text book law, commonly known as the
Merrill text book law. A full cOnsidera-
ton of your inquiry involves two questions:
First, Is there a valid contract existing be-
tween the State of Minnesota and Mr.. Mcr-
ril? Second, What is the legal method by
which the contract shall be carried out and
the districts subject to the law supplied
with books? AS the latter question has
been fully answered in prior communlca-
ton, | shall address myself to the consider
alton of the first question, making reference
to the second only SO far as may be neceS-
sary i'll 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 and dl-
reCted certain officers of the state to enter
into contract with Mr.. Merrill. BY chap
ter two (2), General Laws of 1873, it was
provided that the question of the Continu-
ance of the act of 1877 should be submitted
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 cOntinu-
tance in force of the said acts in the manner
in this section provided, then, and III 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
the canvass made by the Canvassing board,
that at the general election i'll 1880 there
were cast against continuing the law forty
five thousand four hundred and siXty-tiVe
as, 465) votes and there were cast in favor of
continuing the law tOrty-tOur thousand
seven hundred and thirty-nine al, 1897
votes, and there were cast in the districts
entitled to vote upon the question one hum
dred and twenty thousand six hundred and
thirty (120, ,63O) votes. 1t appears, therefore,
that while more votes were cast against the
law than in favor of it, yet majority OF all
the votes cast at such election were not cast
against the law, or in other words, a 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
ground, and it only becomes necessary to
consider the effect OF the language em-
ployed in the act of 1878, submitting the
matter to a vote, and the language em-
ployed is very plain:
And if, at such election, a majority of
the electors present and voting at such cleo
ton shall vote against the continuance of
the act, in other words, the act was TO re-
main in force unless a ma jOrity of those
present and voting voted against 1t. Where
subjects are submitted to a popular vote
they are usually submitted under law
which provides for the determination by a
majority of those voting upon such par
tiCular subject; in fact the law OF 1878 pro-
vidcd for another submission to popular
vote to be determined by two-thirds ma
iOrity OF those voting upon such particular
question; but the provision under COnSidera
ton is entirely different; here the act was
to continue in force unless a majority, not
of those voting upon hequestiOn, but those
voting at the election, should vote against
it, and no other meaning can be given to
the language employed Taylor VS.. Taylor,
10th Mimi. 107, and Dayton VS.. st. Paul, 22d
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 a 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
the legislature, and also by this Office by
my predecessor. ! have gone into this mat
tor 70 rNCrfh fnr hn INat a
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, war; ants
such construction, but the letter referred to
| was based upon a decision OF the district
court of,Hennepin county.
1t appears that in 1888, the legislature at
tempted to amend the law relating to the
distribution of books but the bill as finally
signed did not contain an enacting clause.
| In 1885 the legislature attempted to supply
the defect by an attempted amendment to
| the act of 1888, and in an action brought in
Henncpin county it was held that the law
of 1888 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 Of1983 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
records, but it also appears by a statement
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
the act of 1877 was not defeated by the vote
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
| c. Dell AI;r. nnn 1900