Montana Attorney General Opinion 17-7

Opinion No.7. Schools-Textbooks, Supplementary- State Textbook Commission. HELD: Schools are not required to use a supplementary textbook adopted by the State Textbook Commission for a given subject before purchasing other supplementary textbooks in that sub- ject. December 18, 1936. Miss Elizabeth Ireland State Superintendent of Public Instruc- tion The Capitol Dear Miss Ireland: In your letter of December 16 you ask for our opinion upon the following question: "After a basal textbook has been adopted and in use in anyone sub- ject. for example, physiology and hy- giene, and a supplementary text is also adopted by the Commission, must such supplementary text be pur- chased and in use in a school before that school system may purchase other supplementary texts in that subject ?" The only two cases directly in point that we have been able to find are Mills v. Schoberg (1926) 216 Ky. 223, 287 S. W. 729, and Funk & \¥agnalls Co. v. American Book Co. (1927), 18 Fed. (2d) 739. Both of these cases construe the statutory provisions of Kentucky which are substantially the same as found in our uniform textbook law (Chapter 111 and Sections 1187 to 1200 inclusive. R. C. l\<1. 1935). The conclusions reached in each of them are that the designation of supple- mentary texts was recommendatory only and did not prevent local authori- ties from recommending other texts or give publishers of designated texts any exclusive right to furnish them. Since the opinion of the Supreme Court of Kentucky in Mills v. Scho- berg, supra, is precisely applicable to your question, we quote from it at length: "* * * The question presented by this record goes to the extent of the power of the Kentucky state text- book commission to make a binding adoption of text-books for use in the common or elementary schools of the state. More concretely expressed, the question is, conceding the power of the text-book commission to make adoption of text-books upon 'basal' subjects or subjects 'required by law' to be taught in the common elemen- tary schools of the state: Can the commission also make a binding and exclusive adoption as to any other books for use in such schools? Can it legally adopt and require the ex- clusive use of books 'supplemental' or 'supplementary' to the 'basal' text- books legally adopted by it? * * * "It must therefore be taken as the definitely established law in this state that the the text-book commission is restricted and limited, in so far as the common elementary schools are concerned, to the adoption of text- books upon these subjects, and these alone (section 4383, section 4369bl, Kentucky Statutes), spelling, reading, writing, arithmetic, English gram- mar, English composition, geography, physiology and hygiene, civil govern- ment. United States history, the his- tory of Kentucky, and elementary agriculture. * * * "Just what motive actuated the state text-book commission in voting to adopt a number of books upon a OPINIONS OF THE ATTORNEY GENERAL 11 variety of subjects and to publish them as 'supplemental' or 'supple- mentary' adoptions, does not appear, but the members of the commission may have intended their action to be a mere recommendation, which we hold they had the right to do, and perhaps their recommendation might carry as much or even greater weight than any other school authority in the state; but, clearly, the text-book commission had no authority at all to make an adoption of books beyond the power granted it, as set forth in the statutes. It could adopt books upon subjects 'required by law to be taught' in the common elementary schools. The subjects required by law to he taught are clearly desig- nated by statute. The adoption of books upon any other subject is, therefore, wholly wtihout warrant. vVe are unable to find in the law the slightest indication that the commis- sion was free to adopt schoolbooks generally, or books upon any subject it saw fit, thought it is clear that the Legislature had in mind that other books would be used in the schools." "* * * Not only is the law un- doubted that the authority of the commission is limited to the adoption of text-books upon the subjects 're- quired by law' to be taught, but it seems apparent that it cannot adopt unlimited books even upon such sub- jects. * * * The commission may adopt one book on each subject, and only one. * * * "Having arrived at the above con- clusion, it is obvious and it neces- sarily follows that an attempted adoption of supplementary books by the state text-book commission would not require the exclusive use in the public schools, nor would it authorize the commission to enter into a con- tract for the furnishing of them as is necessary with reference to the adoption of text or basal books. That being true, the one who so con- tracted as to the recommended or futile adoption of such supplementary books would acquire no right for their exclusive furnishing, and the fact that he may have executed bond for the performance of his contract does not enlarge his rights, since both the con- tract and the bond were each un- authorized. " In the Funk & Wagnalls case, supra, the Circuit Court of Appeals for the Second Circuit stated that it found the court's construction in the ~Ilills v. Schoberg case of the Kentucky stat- utes "consistent with our own views, and further pointed out: ". * • The state text-book com- mission was directed to adopt a uni- forll1 series of text-books, which should include all branches required as necessary study for school chil- dren in elementary grades other than the cities referred to. Supplementary text-books might freely be used; the Legislature did not forbid it. They were subject to recommendation only. It is, of course, possible that children in the schools wished their own dic- tionaries to supplement their text- books, and recommendations as to dictionaries are valuable. This was one of the purposes of section 4421a17, Ky. Stat. The statute is plain as to the studies, as it is the manda- tory direction to select the text-books. But the superintendent, teacher, and parent each has a voice in the sup- plementary books that might be used. * * *" By virtue of the prOVISIOns of Sec- tion 1196 R. C. M. 1935, our uniform textbook law is a penal law, and the only method of enforcing it is by prose- cution of the school officers as for a misdemeanor for failure to use the text adopted by the State Textbook Commission. In view of the conclu- sions reached in the above two cases, it is the opinion of this office that no prosecution for violation of said stat- ute would lie for failure to adopt texts recommended by the Commission as supplementary only, and your question is hereby answered in the negative. We are further strengthened in this conclusion upon the ground of public policy for, as the Supreme Court of Kentucky in the Mills v. Schoberg case pointed out, to hold otherwise would utterly defeat the primary pur- pose of the act which was to establish a uniform system of textbooks upon the fundamental subjects to be taught, and would open the door to unlimited trickery, bargaining and perhaps cor- ruption in an effort to foist books upon the schools of no value in the scheme of instruction there taught.