People v. State Bd. of Educ. — 49 Cal. 684

Majority

p. 684

[No. 4,662.]

THE PEOPLE ex rel. BELLMER v. THE STATE BOARD OF EDUCATION.

Headnote

Change oe Books in Public Schools.—The State Board of Education cannot change the books once adopted as a part of a uniform series for the public schools, without giving six months’ notice of the proposed change.

Idem.—Such notice must be given by authority of the Board. The publication in a newspaper, as a matter of news, of the proceedings of the Board in which their intention to effect a change was declared, is not sufficient notice.

Appeal from the District Court, Sixth Judicial District, County of' Sacramento.

The case was thus: The State Board of Education, on the 12th day of July, 1870, by resolution adopted McGuffey’s Eclectic Series of Readers for the use of public schools, to go into use on the 1st day of June, 1871. At a meeting of the Board, held June 22,1874, a resolution was passed inviting publishers of text-books to lay before the Board, on or before January 5,1875, proposals for supplying text-books for the use of the public schools in this State. The resolution and the proceedings of the Board that day, were published as a matter of news by the Sacramento “Union,” a daily paper published at Sacramento. On the 5th day of January, 1875, the Board held a meeting, and, by resolution, adopted the Pacific Coast, First, Second, Third, Fourth and Fifth Readers, published by A. L. Bancroft & Co., to go into use in the public schools on the 1st day of June, 1875. This was an application for a writ of review to set aside the proceedings of the Board, as being in excess of jurisdiction, because official notice was not given of the proposed change. The Court below set aside the proceedings, as null and void. The defendant appealed.

Jos. W. Winam and S. M. Wilson, for the Appellant.

Creed Haymond and Attorney-General Love, for the Respondent.

The Act of April 4th, 1870, (Sec. 88) contains the following provision: “Any books once adopted in the State series shall be continued in use for a period not less than four years.” The Political Code, as originally adopted, contains the following provision: “Sec. 1874—Any books once adopted as part of a uniform series must be continued in use for not less than four years.” It is apparent that the provision of the Code last recited is “substantially the same ” as the provision found in the Act of April 4, 1870, and under the rule of construction prescribed by the fifth section of the Political Code, Sec. 1874 of that Code, is a continuation of Sec. 88 of the Act of 1870. It is, in fact, a mere repetition of Sec. 88 of that Act in reference to the use of books under the established system of public instruction administered through the agency of common schools, hi either the Act nor the Code permitted a discontinuance of an adopted series of books until such series had been in use for the period of four years, and neither of them prescribed the procedure by which, even after the lapse of that time, the adopted series might be authoritatively changed. This defect was remedied by the amendment of Sec. 1874 of the Code, by which six months’ notice of any proposed change was required to be given. The authority of the Board to effect the change was thereby made dependent upon the giving of the prescribed notice, and its exercise was forbidden, except after such notice first given. It is not seriously claimed that any notice of the attempted change here in question was ever given, or attempted to be given upon the part of the Board. Certainly the circumstance that the proceedings of the Board, in which their intention to effect the change was declared, subsequently appeared in the columns of a newspaper as a mere matter of public interest, could not be claimed to amount to official notice given by authority of the Board, pursuant to the provisions of the statute in that behalf.

It results that the judgment of the Court below must be affirmed, and it is so ordered.