Montana Attorney General Opinion 16-42

Opinion No. 42. Schools-Text Books-Basal Text- Books-Supplementary Textbooks. HELD: The Textbook Commission may not contract with one company to supply basal penmanship textbooks and with another company to supply supplementary penmanship textbooks and leave it to the discretion of the myriad of school officials throughout the state as to which system shall be taught pupils under their jurisdiction. February 13, 1935. Miss Elizabeth Ireland Secretary, State Textbook Commission The Capitol You have submitted to this office Bond No. 955990-D, for $2,000, exe- cuted by The A. N. Palmer Company, as principal, and the American Surety Company of New York, and a pro- posed contract, executed in duplicate, by which The A. N. Palmer Company agrees to supply to the State of Mon- tana certain basal textbooks known as "Grades 1 and 2, Writing Lessons for Primary Grades; Grades 3 and 4, Palmer Method Handwriting; Grades 5 and 6, Palmer Method Handwriting; Grades 7 and 8, Palmer Method of Business Writing; Teachers' Manuals, Teachers' Correspondence Course, and Supervision" at prices fixed in the contract for a period of six years from and after the first day of September, 1935. On page 2 of this contract and made a part thereof is a copy of a letter dated December 11, 1934, to the Montana State Textbook Commis- OPINIONS OF THE ATTORNEY GENERAL 39 sion and signed A. N. Palmer Com- pany, by Alice Carlberg, Montana Representative. This letter is as fol- lows: "In the event that the A. N. Pal- mer System of handwriting is now adopted as the basal system for the schools of Montana and the Zaner- Blosser system of handwriting is placed upon the supplementary list, it is agreed that the A. N. Palmer Company or a representative of the A. N. Palmer Company will not in any of the state or Federal courts at- tempt to prohibit the use of the Zaner-Blosser system of handwriting in those schools adopting the said Zaner-Blosser system of handwriting instruction." You have advised us verbally that the textbook commission has also au- thorized its proper officers to execute a contract with the Zaner-Blosser Company by the terms of which that company will supply certain penman- ship textbooks to be used as supple- mentary texts. Under the uniform textbook law of this State (Section 1187-1200, R. C. M. 1921, as amended by Chapter 25, Laws of Montana, 1925), the Commis- sion must adopt a basic penmanship textbook that must be used in all pub- lic schools of this State. It may also adopt a supplementary penmanship textbook but such supplementary textbook must in fact be used as a supplementary and not as a substi- tute or co-basal text. (See opinion rendered by this office to you on De- cember 7, 1934.) At 56 C. J. 849 it is said: "Where a uniform series of textbooks has been adopted by the board or com- mission having statutory authority to make the selection and adoption, local districts and boards are com- pelled by law to use the books offi- cially adopted, and are not permit- ted to use other books selected in- dependently by themselves as sub- stitutes therefor; nor can the law be evaded, or noncompliance be excused, by local boards calling the books selected independently by them 'supplemental' to the officially au- thorized series, .. * * ." Accordingly, it is our view that if the contract submitted to us is exe- cuted by the Commission, the adopt- ing of the Palmer system of penman- ship will become mandatory in all public schools throughout the State and any other textbook must be used in connection with and supplementary to the Palmer system. In other words, under the law as it now stands, the Textbook Commission may not con- tract with one company to supply basal penmanship textbooks and with another company to supply supple- mentary penmanship textbooks and leave it to the discretion of the myriad of school officials throughout the State as to which system shall be taught pupils under their jurisdiction. (Chapter 25, Laws of Montana, 1925; 56 C. J. 845-852.) Under Section 1196, R. C. M. 1921, it is the duty of all school officers and teachers to use the books prescribed by the Commission. Indeed, under that section it is a criminal offense for them to do otherwise. There has been some question raised as to the possibility of the textbooks of one system of penmanship being supplemental to another. As a prac- tical matter, it is said, it is as physic- ally impossible to have one system of penmanship supplemental to an- other as it is to teach two systems of shorthand at the same time, one sup- plementing the other. This argument was well considered in an opinion rendered by Attorney General Foot, to Mr. W. A. Campbell, member of the State Textbook Com- mission, dated March 17, 1932 (not published in the official opinions of the Attorney General), from which we quote . with approval the following language: "The question is not a question so much of law as it is of fact. The question being whether two given systems can be used together, one being used as supplemental to the other. The answer to this question must come from the teaching pro- fession. It is not a question for a lawyer or a layman or even a court to answer as a proposition of law until it is first determined by ex- periment and practice by the teach- ing profession. It would appear to be clear that a totally different sys- tem would not be supplementary to the basal system." 40 OPINIONS OF THE ATTORNEY GENERAL We understand the conclusion of Mr. Foot to be: (1) that it is physic- ally impossible for a totally different system of penmanship to be used as a supplement to another; (2) that whether or not two systems of pen- manship are totally different to each other is a question of fact which must be decided in each given case; (3) that whether or not two systems of penmanship that are not totally dif- ferent may be used one supplementary to the other is also a question of fact which must be proved by competent evidence. With these conclusions we fully agree. Having all of the above general ob- servations in mind, we now proceed to consider the contract referred to at the outset of this opinion and, par- ticularly, the letter incorporated therein, which we have quoted above in full. For the purpose of this opin- ion we will presume that the Palmer and Zaner-Blosser systems of pen- manship are not totally different and that it can be proved that it is pos- sible for the Zaner-Blosser system to be used as a supplement to the Pal- mer system. What does this letter mean? Does it mean: (1) that if in a par- ticular school the Palmer Company's book is used as a basic text and the Zaner-Blosser system's book is used as a supplementary text, the Palmer Company or its representative "will not in any of the state or Federal courts attempt to prohibit the use of the Zaner-Blosser system of hand- writing in those schools adopting the said Zaner-Blosser system (as a sup- plementary text) of handwriting in- struction ?" Or does it mean: (2) that if in a particular school the Zaner-Blosser Company's book is used as a basic text or to the exclusion of the Palmer Company's book, the Palmer Com- pany or its representative "will not in any of the state or Federal courts attempt to prohibit the use of the Zaner-Blosser system of handwriting in those schools adopting the Zaner- Blosser system (as a basal text) of handwriting instruction?" Clearly, if the letter referred to has only the meaning first suggested, its incorporation in the contract is un- important. As pointed out above, the Textbook Commission may select and the schools may use both a basal and sup- plemental textbook; and a company that has been awarded a contract to furnish basal textbooks may not com- plain if another company has been awarded a contract to furnish sup- plemental textbooks which are used in addition and supplementary to the basic textbooks. Consequently, a pro- vision in a contract, such as the let- ter referred to, under which one party to the contract agrees to give up a right it does not have, is without legal effect since such an agreement is completely lacking in consideration. (13 C. J. 311, et seq.) If, however, the letter carries the second meaning suggested, a very se- rious question is presented. Section 7558, R. C. M. 1921, pro- vides: "Every stipulation or condition in a contract by which any party thereto is restricted from enforcing his rights under the contract, by the usual proceedings in the ordinary tri- bunals, or which limits the time with- in which he may thus enforce his rights, is void." Since the enforcement of the use in the schools of an adopted textbook may be had on petition of its publish- er to the proper court (Section 9848, R. C. M. 1921, Eaton v. Royal, 36 Wash. 435, 78 Pac. 1093; Rand v. Royal, 36 Wash. 420, 78 Pac. 1103; Westland Publishing Company v. Royal, 36 Wash. 399, 78 Pac. 1096; Rand v. Hartranft, 32 Wash. 378, 73 Pac. 401; 38 C. J. 736; 56 C. J. 849), if the second meaning is given to the letter, the Palmer Company would be "restricted from enforcing its rights under the contract," and the provi- sions of the letter would be void be- cause they are clearly contrary to the provision of Section 7558, supra, which section is nothing more than the statutory enactment of the com- mon law. (Wortman v. Montana Cen- tral Railway Company, 22 Mont. 267, 56 Pac. 316.) We have given a great deal of thought to the terms of the letter un- der discussion and the more we study it the more we are at a loss to deter- mine which of the two suggested meanings should be given to it. We have nothing but the cold writing be- OPINIONS OF THE ATTORNEY GENERAL 41 fore us. Many reasons may be ad- vanced why one meaning or the other should be given to it. We do not have before us any of the facts and circumstances which surrounded the awarding of the contract, which facts and circumstances could be shown in the event that the validity of this contract were challenged in the courts. For these reasons, then, we re- spectfully decline to pass upon the validity of the terms of so much of the contract as is embodied in the letter from the A. N. Palmer Com- pany to the State Textbook Commis- sion. It is our opinion, however, that even if the courts should hold that the provisions of the letter are void, such invalidity would not affect the validity of the other provisions of the contract. (13 C. J. 512.) Subject to the above observation we find the contract and bond refer- red to above to be in proper form.