The pioneer express. [volume] (Pembina, Dakota [N.D.]) 1883-1928, 1890-01-10
THE conrRAcr BINDING.
Attorney General clapp Holds I'll

THE CONTRACT BINDING.
Attorney General clapp Holds the
Merrill Text Book Law Valid.
Following ~ the resfunse<of Attorney
General Clapp to a QUESTION by State Super
intcndent Kiehlc n. 10 what course his de.
partmcnt 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 hook lay, commonly known as the
ton or your inquiry involves two questions:
First, Is there valid contract existing be-
tween the State of Minnesota and Mr.. Mer-
rili? 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
!: neen fully answered in prior communica.
alton ofthe first question. making reference
TO the second only SO lar Is may be neccS-
sary in explanation ofsOme discussion that
has arisen relative to the validity of the
contract. In 1877 the cilegislature passed an
net known as chapter IS of the General
Laws OF 1877; this act authorized and di-
rcctcd certain officers OF the state to enter
into contract with Mr.. Merrill. By Chan.
ter two .(2), General Laws OF 1878, 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 ut such elcc-
ton shall vote against the further continu.
tance i'm force Of The said acts in the manner
in this section provided, then, and i'm tint
case, the said act shall cease to be of further
force and effect from ana after the dcclara-
tion of the result of such Vote
The validity ofthe contract with Mr.. Mcr-
rlil depends upon this provision, and the
vote taken pursuant thereto. 1t appears by
Z he canvass made by the canvassii,g board,
hat ut the general election in 1850 there
were cast against continuing the law forty.
five thousand four hundred and sixty-tivc
io,it0) votes. and there were cast in favor of
continuing the law iorty-four thousand
seven hundred and thirty-ninc (44,739)
entitled to vote upon the question one hun
lrcd and twenty thousand six hundred and
thirty q90, ,63o) votes. 1t appears, therefore,
That while more votes were cast against the
law than in favor Off yet u majority of all
the votes cast ut such election were not east
against the law, or i'll other words, Il major
lty OF the voters present and voting at such
act in force. ! do not know that the con-
tract has ever been assailcd upon any other
ground. and it only becomes necessary to
consider the effect OF the language cm-
ploycl i'll the act of1S7S, submitting the
matter to vote, and the language em-
played is very plain:
"And il, ut such election. IL majority of
The electors present and voting ut such cleo
ton Shall vote against the continuance of
the act. i'll other words. the act was to re-
main i'll force unless a majority of those
present and voting voted against it. 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 lar-
vided for another submission to popular
vote TO be determined by two-thirtls ma
iorlty OF those voting upon s,cl, particular
question:; but the provision under conSidera-
tion is entirely different; here the act was
to- continue in force unless Il majority. not
Of hose voting upon theguestion but those
it, and no other meaning can be given to
the language employed. Taylor vs.. Taylor.
lutl Minn. lO1, and Dayton VS.. St. Paul, 22,i
MINI. iUU. 1t follows, therefore, that mas
much asa majority oftllc votes cast at the
general election in 1850 were not cast against
continuing the act of 1877 in force, the lat
between the state and Mr.. Merrill is valid
and subsisting contract, and should be SO
recognized by your department, and by the
various officers who are charged with tho
duty of carrying it into effect.
While there is no escape from this con.
cl'ision, il might be proper to add that the
state board OF calvassers. consisting OF two
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
ter To some length for the reason that Il
recent communication from this office has
contract, nj perhaps the language of the
letter, which was hastily written, variants
such construction, but the letter referred to
was based upon q decision OF the district
court of licnncpin county.
IL appcars that in 1883, the legislature Mt
tempted To amend the law relating to the
distribution of books, but the bill us finally
,!"nc'i did not contain an enactng clause.
In lSSj the legislature attempted to supply
he defect by an attempted amendment to
the act of lSS3, and in an action brought in
llcnncpin county it was held that the law
OF lss, was void; this being the decision re-
icrrcd to in the letter just mentioned. An
examination OF the records shows that this
decision only involved the validity of the
law Of 1883, relating to the method of the
distribution of books, and in no manner ir-
v"lvcd or affected the validity of the act Of
1871. 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
ni lSS0. AS above stated, the objection to
the validity OF the contract being based
upon the vote of lssO, and no other ohjec-
ton being made, the objection is untcnable
alike upon your department and other oil-
GERS. am, very truly yours,
MOSES l.. CLArf. Attorney General.
st. Paul, Mimi, Dec. 2s. 1889.