School District No. 1 v. Shadduck

1. School Books, Illegal Adoption of; Injunction. Where a school board first adopts Appleton’s readers to be used in the public schools of the district, and in less than five years thereafter, and without any petition therefor, illegally adopts MoGuffey’s revised readers, to be used in place of Appleton’s, and a private citizen, who is a resident and taxpayer of the district, and a patron of the public schools therein, and who has a minor son whom he wishes to have study reading in Appleton’s fifth reader at such public schools, commences an action against the school district, the school board and the principal of the schools, for an injunction to restrain them from using McGufFey’s revised readers in the schools, held, that he is not entitled to such an injunction. 2. Injunction, When Allowed. Under some circumstances an injunction might be allowed, at the instance of a private individual, to restrain the use of McGuffey’s readers in a public school, (provided McGuffey’s readers had not been legally adopted,) so far as their use might interfere with the plaintiff’s or his child’s use of some one of Appleton’s readers as a text-book in such school, provided Appleton’s readers had been legally adopted. 3. Injunction, When Hot Granted. But where the order of the school board adopting readers provides merely for adopting “Appleton’s readers,” without further defining what is meant by the use of the words “Appleton’s readers,’.’ and without designating what edition, or what kind of first, second, third, fourth or fifth readers of Appleton’s is intended, and the plaintiff desires that his child shall use one of Appleton’s fifth readers as a text-book in the public schools, and it appears that there are at least three kinds of Appleton’s fifth readers, each different from each of the others in important particulars, some of the differences being differences in the subject-matter of the lessons, held, that even the injunction mentioned in syllabus No. 2 will not be granted. 4.-An injunction for the protection of the interests of the entire • public can be granted only at the instance of the proper public officer.

Error from Meno District Court. November 9, 1880, B. B. Shadduck filed in the district court of Reno county bis petition (court and title omitted) as follows: “Plaintiff says that he is a resident, tax-payer and patron of the public schools in School District No. 1, in Reno county, state of Kansas; that said school district is a duly-organized school district of said county and state, and is hereby made one of the defendants in this cause; that the said N. T. P. Robertson is director, A. R. Seheble treasurer and S. B. Zimmerman clerk of said district, and J. J. McBride principal of the schools in said district, and are also made parties defendant; that during the month of May, 1879, the legal school board of the district, pursuant to the statutes of the state of Kansas, adopted a uniform series of text-books to be used in said district, including Appleton’s readers; that said series was so adopted for the term of five years from said month of May, 1879; that at a meeting of the school board of said school district, held sometime in the month of October, 1880, the said school, board, contrary to law, and without any petition being presented therefor signed by four-fifths of the legal voters of the district, and without any petition whatever therefor, made an order changing the series of readers in said district, and adopted a series known as McGuffey’s revised readers; that plaintiff", on the 8th day of November, 1880, being desirous of sending his minor son, who is of the age of eighteen years, and entitled to the privileges of the schools in said district, to the public schools of said district, furnished to his said son a set of school books, including Appleton’s fifth reader, and sent him to the public schools of said district; that his son was then informed by the superintendent of said schools, the principal thereof, the defendant J. J. McBride, that Appleton’s readers were not the series adopted by the school board of the district, but that he must procure a fifth reader of the McGuffey series; that he refused to teach his said son in. reading in Appleton’s fifth reader, which book had been furnished by plaintiff, and which was the legal book adopted by the school board of the district; that as yet the said district has not fully introduced McGuffey’s revised readers into said district, but is threatening, so to do; that the plaintiff prefers the use of Appleton’s reader; that as a patron of the school he has not consented to the change of school books in said district; that by the change he will be compelled to purchase a McGuffey’s reader; that he cannot obtain the advantages of instruction in reading in said school unless he purchases a reader which he does not prefer, and which has not been legally adopted; that by the change he will be compelled to suffer pecuniary loss, and lose the advantages of the instruction in reading in said school, to which he is entitled as a resident tax-payer in said district, and a patron of the public schools therein. “Therefore plaintiff prays that this honorable court issue a temporary order of injunction to restrain the said School District No. 1, Reno county, state of Kansas, N. T. P. Robertson, director, S. B. Zimmerman, clerk, and A. R. Scheble, treasurer, of said district, and J. J. McBride, principal and teacher of said schools, from proceeding further with the introduction of McGuffey’s revised readers into the schools of said district, and to restrain the said parties from the further use of McGuffey’s revised readers in the schools of said district, and that on the final trial of this cause such injunction be made perpetual; and for such other and further relief as plaintiff may be entitled to, and for costs.” Upon this petition, which was duly verified by the plaintiff, and the following orders and affidavits; together with some other evidence, the court below granted a temporary injunction. The order of the school board adopting Appleton’s readers reads as follows: “ HutchiNSON, May 5, 1879. “At a meeting of the district board of said district, held this 5th day of May, 1879, the following series of books were adopted for use in the schools of said district, to be introduced and to remain in use for five years from the date of said adoption and introduction, as provided for in section 28, article 4, of chapter 122, entitled ‘An act for the regulation and support of common schools,’ approved March 12th, 1879: Appleton’s readers, Swinton’s word primer and word-book spellers, Robinson’s shorter -course in arithmetic, Swinton’s geographies, Harkness’s Latin grammar, Swinton’s condensed U. S. history, Bryan & Stratton’s book-keeping, Hitchcock’s physiology, philosophy, Hooker, chemistry, Hooker, geology, Hooker, entomology, Hooker, physical geography, Guyot, Webster’s dictionary, drawing, Kruis, Gray’s botany, Robinson’s geometry-, Robinson’s algebra, ancient history, Swinton’s Spencerian penmanship, German, Woodbury, Riddle’s shorter course in astronomy, Potter’s elocution.” It-seems to be admitted that this order was regularly and properly adopted. The order substituting McGuffey’s revised readers for Appleton’s readers, which was adopted by the school board October 30,1880, reads as follows: “ Whereas, It appears to this school board that there is not a uniform series of readers in use in the public schools in this district: Be it resolved, By this board, that we hereby adopt and order the immediate use of the McGuffey’s revised eclectic readers in all the departments of said school, on the proposition of the publishers of said books, this day made to this board.” This order was made by the board without any petition having been first presented to it. On November 17, 1880, the school board adopted another order adopting McGuffey’s revised readers, which order reads as follows: “Hutchinson, KANSAS, Nov. 17, 1880. “ Whereas, The board of School District No. 1, Reno county, Kansas, adopted McGuffey’s revised readers for the public schools of said district; and whereas, a question has been raised as to whether or not the action of the board in adopting McGuffey’s readers was legal: Now, in order to settle disputes as to the said legal question, this board having before it a petition for the use of McGuffey’s revised readers in the public schools, which said petition is signed by more than four-fifths of the legal voters of said school district, as proven by affidavits thereto attached, and ascertained by this board to be ■ legal in every respect, does hereby readopt McGuffey’s revised readers as a uniform series of readers to be used in said public schools, and in place of Appleton’s or any other readers; and this action is taken by virtue of the authority vested in this board by law, and by virtue of said petition aforesaid, presented to and acted on by this board.” The foregoing order was made upon a petition, which the defendants claim was sufficient. They claim that it was signed by and contained the names of four-fifths of all the legal electors of the district. The plaintiff, however, claims that the petition was.not sufficient, and his evidence seems to show that there were about 950 legal electors in the district, and that only about 600 of them signed the petition. The affidavit of the defendant, N. T. P. Robertson, which was read on the hearing of the application for the temporary injunction, is as follows: “N. T. P. Robertson, of lawful age, being duly sworn, says that he is director of School District No. 1, and also one of the defendants herein; that the board of said district (affi-ant one of its members) found that there was no uniform series of readers in the public schools of said district; 'that Appleton’s readers were in use, but the same were not uniform for the reason that several editions of Appleton’s readers, published in quick succession, had been promiscuously thrown on the market; that said editions were the same in appearance and binding, but greatly different in words, figures, phrases, sentences, lessons and arrangement, so as to make concert reading nearly impossible and causing great confusion and loss of time to teachers and pupils, and seriously impairing the study of reading in said schools. The board also found that Appleton’s readers published the same year, and apparently the same edition, were dissimilar in material respects. Also, the board was informed by the agent of Appleton that when a new edition was published the old edition was discontinued by Appleton, and the board knew that two editions of Appleton’s readers were published after May, 1879, and that the new editions of Appleton’s readers were sold with the old (when any old were on hand) indiscriminately and confused together, and that the difference could be detected only by comparison of text and arrangement — a care which patrons and pupils did not exercise, and in some instances could not. There was no evidence before the board and nothing in the record to show that any series of readers had ever been adopted by the board. Under this state of facts, and on recommendation of the teachers, the board adopted a uniform series of readers known as McGuffey’s revised, and in order that the patrons and pupils of the schools be put to no expense, stipulated that the new books be exchanged for the old, which change can be effected, book for book, and has been effected in all cases unless it be in the case of R. B. Shadduck, who chose not to exchange; and McGuffey’s readers are now established in the schools and giving satisfaction. Affiant says that the said R. B. Shadduck, by exchanging the old book for a new book, will be supplied with the new reader, McGuffey’s revised, and instead of being put to any expense he will make the difference between a new book and an old book. Affiant also says McGuffey’s revised is a better reader than Appleton’s. Affiant further says, that at the time plaintiff’s son went to the school house, • referred to in the petition, McGuffey’s readers were there, and he could have gotten a new book for the old without expense had his father chosen to permit him to make the exchange. Affiant has no means of knowing whether Appleton’s readers were ever adopted to be used in said schools, and therefore denies that they ever were. Affiant further says that the Appleton readers in said schools are now all exchanged and gone, and the pupils'of said schools are armed with McGuffey’s revised, and that if the said last-named readers are enjoined from further use the study of reading in said schools will be stopped until new books are procured, which will cause great confusion and expense.” The affidavit of the defendant, J. J. McBride, which was also read on the hearing of the application for the temporary injunction, is as follows: “I am principal of the public schools of District No. 1, Eeno county, Kansas; I have read and examined and studied the readers known as Appleton’s. The difference between the editions in punctuation, figures, words, phrases, sentences, paragraphs, lessons and arrangement, is great. In two editions of the first reader there are 85 changes by omission, omission and substitution, and by transposition of paragraphs; in two editions of the second reader there are 700 changes, counting those in punctuation; and in two editions of the third reader over 500 changes occur. In the fourth reader are many changes, and also in the fifth reader. In support of my affidavit in whole or in part, I herewith furnish a lot of Appleton’s readers containing changes marked with red ink. Said books are marked ‘A,’ ‘B,’<C,’‘D,’ (E,’ ‘F,’ ‘G,’ ‘H,’ & ‘ C,’ said readers being the same as have. been used in the public schools. Of course I did not mark all. the changes which occur, but simply a sufficient number to illustrate. Some of the books of the same edition are materially dissimilar.” The following are the affidavits of the undersigned teach•ers of the schools of said school district: “The undersigned hereto on their oaths say: That they are teachers in the public schools of District No. 1, Eeno county, Kansas, duly employed by the district board of said school district, and as such employés they are engaged in instructing about 420 pupils in said public schools, and are acquainted with the text-books used in each branch of study in said schools, and particularly with the readers now in use and those which have been in use. These affiants say that the series of readers how in use is McGuffey’s revised, which is uniform, and satisfactory in every particular; that prior to the adoption of McGuffey’s revised readers, Appleton’s readers were used in said schools, and that the said readers were not uniform; that there are three more editions of Appleton’s readers, at least two of which have been published since the alleged time of the alleged adoption of Appleton’s series of readers in the said schools; that these .editions differ one from the other greatly, in words, letters, in lessons and ‘arrangement, as shown by the affidavit of J. J. McBride, and the books themselves, to which reference is hereby made; that as fast as one edition was published, it was thrown on the market to supplant the old; that the said editions were indistinguishable in appearance, and could not be distinguished one from the other save by special examination and comparison of the text; that said books were sold promiscuously (as to editions) to dealers, and by dealers to pupils, and in consequence the pupils of said schools had all the various editions, and, by reason of the various differences hereinbefore stated, the said varied editions of said readers produced in the said schools an utter want of uniformity in readers, resulting in confusion to the teachers and to the pupils, also in the loss of time, and the making it impossible to teach concert reading in said schools, and for the pupils to advance generally in that branch of study as rapidly and thoroughly as they should advance; that owing to the state of facts above detailed, the affiants, as teachers, in duty to themselves and patrons of said schools, sought and recommended that a uniform series of readers be adopted therein. Affiants further say, that they are informed, and believe, that the edition of Appleton’s readers alleged to have been adopted and introduced into said schools is not now published, and has not been since the publication of the first of the two succeeding editions; and these affiants know from personal examination and experience that the changes in words, figures, sentences, phrases, lessons and arrangement are so numerous and radical that the said later editions are in fact distinct and different books from the edition in existence at the alleged time of the alleged adoption into the schools; also, that the said two late editions not only differ from the prior as aforesaid, but that they are equally different from each other. These affiants further say, that it would be impossible for the pupils of said schools to get books of the edition in existence at the alleged time of the alleged adoption of Appleton’s readers, save at great expense and trouble, if they could do so at all, and that the parents of said pupils would not all get said edition, even if it were possible, and they were required to do so by us. Lizzie Hellowell. J. J. McBride. Ada M. Bell. Jessie Hale. LOU. CHRISMAN. Fannie Oakes.” To the foregoing affidavit was suffixed the following affidavit: “The undersigned say that they were teachers in the schools of District No. 1, last year, and that the same troubles detailed in the above affidavit then existed. Lizzie Hellowell. Fannie Oakes. Lou. ChrisMAN.” December 2,1880, the judge of the district court granted a temporary order of injunction as prayed for by plaintiff. The defendants bring the case to this court.