Tanner v. Nelson

70 P. 984, 25 Utah 226, 1902 Utah LEXIS 58

Opinion

McCARTY, District Judge,

after stating the foregoing facts, delivered the opinion of the court.

Appellant’s first contention is that the .convention, was a body of public officers of mixed powers, possessing and exercising legislative, executive, and judicial functions; 1 hence it cannot be restrained by injunction, or its acts and proceedings collaterally attacked; and that respondent’s remedy, if he has any, is by writ of certiorari. The convention is not a party to the suit, and is not before the court. The action is brought to enjoin a public officer from performing ah act, the legality of which depends upon the regularity of the proceedings of the convention. This being so, the only question raised by this contention, necessary for us to determine, is, was the action or proceeding of the convention in any respect judicial? “The distinction between a judicial and legislative act is well defined. The one determines what the law is; and what *the rights of parties are with reference to transactions already had. The other prescribes what the law shall be in future eases arising under it. Whenever an act undertakes to determine a question of right or of obligation or of property, as the foundation upon which it proceeds, such act is to that extent a judicial one; and not the proper exercise of legislative functions.” Per Field, J., in the Sinking Fund Cases, 99 U. S. 761, 25 L. Ed. 504. In the ease of People v. Board of Education of Oakland, 54 Cal. 375, the facts are in some respects identical with those under consideration. The question involved in that case arose over the adoption of certain schoolbooks by the defendant board of education; and the court, following the above rule as laid down by the Supreme Court of the United States, held that the action of the board of education adopting the books was not judicial. Section 1854, Bevised Statutes, provides that “the state superintendent, county superintendent^ and the principal of the state normal school, or a majority of them, shall decide what text-books shall be adopted in the district schools, except in cities of the first and of the second class; and their use shall be mandatory in all district schools of the State except in cities of the first and of the second class.” Section 1855, Id., provides that: “The state superintendent shall call a convention at least thirty days prior to the expiration of any contract regulating the supply and use of text-books in the district schools throughout the State, and shall give at least sixty days’ notice of the time of holding such convention, by publication in a newspaper having, general circulation in the State. Said notice shall state the subjects upon which text-books will be adopted, and that sealed proposals will be received by the state superintendent of schools for furnishing such books, the place where and the day and the hour when all proposals will be opened, and that the convention reserves the right to reject any and all proposals. Said convention shall be called for the adoption of text-books every five years from and after the first adoption, as herein provided; and any text-book so adopted shall not be changed within a period of five years after its adoption, except for a sufficient cause to be decided at a special convention called for that purpose.” Section 1859, Id., provides that “the publisher or publishers whose proposals shall be accepted must enter into a written contract with the state superintendent of schools, and shall give a bond with two' sufficient sureties in a reasonable sum, to be fixed by the convention, for the faithful performance of such contract.” The powers and duties of the convention are clearly defined by the foregoing provisions of the statute, viz.: Eirst, to publicly open and read the proposals; second, 1» decide what books, if any, of those offered, shall be adopted; and, third, to fix the bond to be given by the publishing house furnishing books. There was no party before the convention prosecuting any right. In fact there was no question whatever before it for adjudication in which personal or property rights were involved. Neither of the acts above mentioned is in any sense judicial, as the term is used and understood when applied to courts and judicial bodies. The rule is well settled that when a pub- lie body exercising legislative functions exceeds its authority, 1 and adopts any ordinance, rule, or regulation in violation of or in conflict with, constitutional or statute law, prejudicial to public or individual rights, any person who will sustain personal injury thereby, for which adequate compensation can not be had, may apply to a court of equity, and restrain the officer whose duty it is to enforce such void ordinance, rule, or regulation. 1 Spell. Extr. Relief, sec. 688, and cases cited; Krieschel v. Board (Wash.), 41 Pac. 186; Board v. McComb, 92 U. S. 531, 23 L. Ed. 623; Campana v. Calderhead (Mont.), 44 Pac. 83, 36 L. R. A. 277; Rand, McNally & Co. v. Hartranft (Wash.), 70 Pac. 77.

We now come to the consideration of the vital question in this case, viz., did the convention comply with the requirements of section 1856, Revised Statutes, which provides 2 that the convention shall meet and publicly open and read the proposals? Appellant contends that the provisions of this section are directory, and that its terms were substantially complied with by the convention. Respondent insists that the statute is mandatory, and that the bids should have been read as they were opened, and the failure of the convention to do so wa§ fatal to its proceedings. “The consequential distinction between directory and mandatory statutes is that the violation of the former is attended with no consequences, while a failure to comply with the requirements of the other is productive of serious results . . . The statutory provisions which may thus be departed from with impunity without affecting the validity of the statutory proceedings are usually those which relate to the mode or time of doing that which is essential to effect the aim and purpose of the Legislature, or some incident of the essential act.” Again the same author says: “Where the provision is in affirmative words, and there axe no negative words, and relates to the time or manner of doing the acts which constitute the chief purpose of the law, or those incidental or subsidiary thereto, by an official person, the provision has been usually treated as di rectory. Generally it is so, but it is a question of intention. Where a statute is affirmative, it does not necessarily imply that the mode or time mentioned in it are exclusive, and that the act provided for, if done at- a. different time or in a different manner, will not have effect. ‘It would not, perhaps, be easy,’ said Sharswood, J., To lay down any general rule as to when the provisions of a statute are merely directory, and when mandatory and imperative. When the words are affirmative, and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and to the limits of the power or jurisdiction itself, they may be, and often have been, construed to be directory.’ Unless a fair consideration of a statute directing the mode of proceeding of public officers shows that the Legislature intended compliance with the provisions in relation thereto to be essential to the validity of the proceeding, it is to be regarded as directory merely.” Suth. St. Const., secs. 446, 447. Mr. Sedgwick, in his work on Statutory and Constitutional Law (368), says: • “When the statute directs an act to' be done in a certain way at a certain time, and a direct compliance as to time and form does not appear to the judicial mind to be essential, the proceedings are held valid, though the command by the statute has been disregarded. The statute in . such a case is said to be directory.” Black, in his work on Interpretation of Laws (section 127), says: “Irregularities in official action, consisting in the neglect or lack of strict compliance with statutory directions, should not be allowed to vitiate the proceedings taken under á statute, when the objects and ends of the statute have -been substantially accomplished, and neither the public nor private persons are injured by the course of proceedings.” Applying this rule to the statute under consideration, its provisions can not be construed other than directory, so far as they relate to the time when the proposals shall be read. To hold that the provisions of the statute relative to the time when the bids shall be read is mandatory, and must be strictly and literally construed and followed, as contended by respondent, viz., “that the bids shall be ‘read’ at the first session of the convention,” would render the statute nugatory. Because of the great length of the proposals, and the voluminous amount of matter they contained, it would have been an utter impossibility for the convention to have read them on that day. It is a common rule of statutory construction that, when language construed in a strict and literal sense would lead to an absurdity, such language should be liberally construed, when by so doing the object and purpose of the statute will be accomplished. Suth. St. Const., sec. 238; Van Fleet v. Van Fleet, 49 Mich. 610, 14 N. W. 566; Smith v. People, 47 N. Y. 330; People v. Davenport, 91 N. Y. 574; Mayor, etc., v. Root, 8 Md. 95, 63 Am. Dec. 696; Swift & Given’s Appeal, 111 Pa. 516, 2 Atl. 539; Lau Ow Bew v. U. S., 144 U. S. 47, 12 Sup. Ct. 517, 36 L. Ed. 340.

It is not contended that the proposals were not read at all, but respondent insists that the time and manner of reading them was in no sense a compliance with the law, and that it failed to give the publicity intended by the foregoing provisions of the statute. It is conceded that on the first day of the session the introductory portions of the bids, and the communications that accompanied them, some of which were elaborate in detail, were read to- the convention; that, when proposals were referred to the committees on tabulation, they were open to public inspection; that the doors of the committee room were thrown open, and all persons, including the agents and representatives of the publishing companies, were permitted to attend, and had an opportunity to examine all the proposals;. and that there was no attempt to conceal anything that was being done. The record shows that the tabulated statements were open to public inspection, and that all of each bid was at some time read to the convention. The proposals, in the aggregate, contained 65 3-4 pages of typewritten matter. Allowing twenty minutes for the reading of each page (estimate made by respondent’s witness), it would take nearly three days, of eight hours each, to read the typewritten matter contained in the bids; and to include the printed catalogues that are made a part of the bids would require much additional time. It is evident that neither the members of the convention, the public, nor any person present, would or could have been benefited by the reading of the proposals in full, one after another, as they were opened, as no person could have remembered the innumerable details of the •bids, and the hundreds of different prices at which the books were offered. The respondent has not pointed out, and the record fails to disclose, wherein he, the public, or any person, can possibly be injured or in any way prejudiced by the failure of the convention to' read the proposals seriatim as they were opened. There is no claim made, nor is it even sug-' gested, that, if the. convention had read the bids in the order contended for by respondent, the convention would or could have made a more wise selection of books than those adopted •by it. The course pursued by the convention was not only practicable, but a substantial compliance with the requirements 3 of the statute. It is apparent that the intent and purpose of the statute is to prevent any bid from being suppressed or changed after it is received, and insure •a fair and impartial consideration of all proposals submitted, and thereby prevent the public from being imposed upon through fraud or collusion. That this was accomplished is not denied. Fraud is not charged or alleged, nor is there anything in the record that even suggests that the convention, or any of its members, failed in any particular to conscientiously perform every duty required of them, or that the books selected by the convention are not the very best that were listed and offered by the publishing houses.

While a change in text-books would necessitate an immediate outlay by respondent of $3.55, it is evident that • during the next ensuing five years, as his children advance 4 in their studies, and are promoted to higher grades, necessitating the purchase of new books, the amount he would save because of tbe reduction in price would equal, if not greatly exceed, tbe $3.55 first paid out, wbicb would mate bis damage, if any, infinitesimal in amount, and trivial in the extreme. Tbe record is silent as to whether tbe books adopted are better and more modem than those now in use by the public schools, yet it is presumable that such is tbe case, as some of the leading and most experienced educators in tbe State were members of tbe convention, and voted for a change. Eor a court of equity to grant relief when tbe injury threatened is more theoretical and imaginary than real and substantial, as it appears to be in this case, and when tbe probable consequences will be far-reaching, and detrimental to almost tbe entire public school system of tbe State, by depriving it cf tbe use of the best, most modern, and up-to-date books, thereby retarding tbe intellectual growth and development of from 55,000 to 60,000 school children, would be an un-■nuthorized use, if not abuse, of power.

The contention that the convention failed to fix the amount of the bonds to be given by the publishing companies whose proposals had been accepted is untenable, and not 5 supported by the record. . The bond to be given on the subject of readers was fixed at $7,000; this amount to be .used as a basis for the fixing of all other bonds; the amount of each bond to be 'determined by the size of the contract for which it is given. With the awards before him, the state superintendent of public instruction, by a simple mathematical calculation, can readily determine the amount of each bond. We are of the opinion, and so hold, that the convention substantially complied with the requirements of the statute relative to fixing the bonds.

The case is reversed, with directions to the trial court to set aside the injunction and dismiss the action; costs to be taxed against respondent.

BASKIN and BARTCH, JJ., concur.