New Ulm weekly review. [volume] (New Ulm, Minn.) 1878-1892, 1890-01-08
THE CONTRACT BINDING.
Attorney General Clapp Holds the
Merrill Text Book Law Valid.

1IIOIhey 1enGfal. Clapp Holds the
Merrill Text Book Law Valid.
Following is the response of Attorney
General Clapp to question by State Super
1ntendent 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
carrying out the provisions of the school
text book law, commonly known as the
Merrill text book law. A full considera-
tlon OF your inquiry involves two questions:
First, Is there valid contract existing be-
tween the State of Minnesota and Mr. Mer-
TIL? Second, What is the legal method by
winch 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 communica-
ton, shall address myself to the consider
atlon OF the first question. making reference
TO the second only so far as may be neces-
sary III explanation of some discussion that
has arisen relative to the validity of the
contract In 1877 the legislature passed an
act known as chapter rs of the General
Laws or 1877; this act authorized and di-
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 II, at such election, majority Of
the electors present and voting at such cleo
tlOn shall vote against the further continu-
lance 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-
Till depends upon this provision, and the
vote taken pursuant thereto It appears by
the canvass made by the canvassing board,
that at the general election in 1880 there
We're cast against continuing the law forty
five thousand four hundred and sixty-ive
G45,46ol votes: and there were cast in favor of
continuing the law torty-four thousand
seven hundred and .thirty-nine GA, 1897
votes, and there were cast in the districts
emitted to vote upon the question one hun
dred and twenty thousand six hundred and
thirty (120, 630) votes. It appears, therefore
That Whlle 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 O. in other words, major
1ty 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 EN-
ployed in the act of 1878, submitting the
matter to vote, and the language en-
ployed is very plain:
And if, at such election, 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 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
majority Of those voting upon such par
ticular subject; in fact the law OF 1878 pro-
Vlded for another submission to popular
vote to be determined by a two-thirCis ma
jority 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 majority, not
ofthose voting upon thequestion, but those
voting at the election, should vote against
1t, and no other meaning can be given to
the language employed. Taylor vs. Taylor,
10th MINI. 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 subsist1ng 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-
cluslon, 1t 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
been the construction placed upon it by
the legislature, and also by this office BY
my predecessor. l have gone into this mat
ter to some length for the reason that 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, warrants
such construction, but the letter referred to
was based upon q 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
Hennepin county it was held that the law
of1SS3 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 1888, relating to the method of the
distri button 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 1t 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 obiec-
ton being made, the objection is untenable
and the contract remains in force, binding
alike upon your department and other off,
GERS. l am, very truly yours,
Moses E. CLAPP, Attorney General,
St. Paul Mimi Dec % 1889