Section 1 of the act provides for the adoption by the high school boards of the respective districts of textbooks for use in high schools, and directs that after July 1, 1920, textbooks shall be supplied to pupils of the high schools without charge. This includes all pupils of the school, whether residents or nonresidents of the district. It is further provided that the high school board may pay for textbooks furnished in accordance with the provisions of this act, out of the special fund of such high school district. Section 2 is an independent and supplemental provision, in no way affecting the sufficiency or validity of the preceding enactment. It merely provides a method by which the district that has furnished and paid for free textbooks to its pupils residing in other

Statutesinvalidity in part-effect on whole.

parts of the county may recover the moneys thus ex

pended. It is not apparent how the invalidity of this provision, if it should be held invalid, could affect the constitutionality of the general scheme of providing textbooks to pupils of the high schools, or in what way the elimination of this provision for reimbursement would entitle petitioner to the relief demanded. This particular fund provided for by § 2 has no relation to the payment of the publisher's claim for books supplied, referred to in § 9. We are of the opinion that, even though this provision of § 2 might be held invalid, it is not so vitally a part of the general scheme and purpose of the act as to nullify its main features, and the act would still stand as a valid substitute for § 1750, which petitioner is seeking to enforce, at least to whatever extent the two enactments are in conflict.

If it is contended by petitioner that the act of the legislature in placing upon high school districts the burden of providing free textbooks must necessarily result in imposing additional taxes upon such districts and municipalities, the answer is that the obligation thus created is not different from those

originating in the same manner for other school supplies, the validity of which has been repeatedly upheld by the courts. The school district is created by the legislature as an instrument of the state. Such quasi municipal corporations are but the agents or representatives of the state. They are organized for the purpose of the legislature in its province of providing for the general welfare. The organization and administration of a uniform public school system is especially delegated to the legislature by the Constitution. The legislature has provided for the institution and maintenance of schools through the agency of school districts and boards of education. If the legislature is denied the power to fix the nature and extent of

Tax-levy on municipality

district.

the burden to be effect on school borne by the dis

tricts, and to define and prescribe the duties of school boards in providing equipment for the schools, there would be an end to any coherent or uniform system of public education.

In State ex rel. Clark v. Haworth, 122 Ind. 462, 7 L.R.A. 240, 23 N. E. 946, at the petition of the relator for writ of mandate to compel the school trustees to certify the required textbooks for their school and to procure and furnish such books under the provision of a certain act of the legislature, a somewhat similar question of the invasion of local rights was raised. The supreme court of Indiana in that case, and under the general provisions of a Constitution similar to ours, uses this apt language: "Essentially and intrinsically the schools are matters of state, and not of local, jurisdiction. In such matters, the state is a unit, and the legislature the source of power. The authority over schools and school affairs is not necessarily a distributive one to be exercised by local instrumentalities; but, on the contrary, it is a central power residing in the legislature of the state. It is for the lawmaking power to determine whether the authority shall be exercised by a state

board of education, or distributed to county, township, or city organizations throughout the state.

Both by the Constitution and by the intrinsic nature of the duty and the power, the authority is exclusively legislative, and the matter over which it is to be exercised solely of state concern. It is

impossible to conceive of the existence of a uniform system of common schools without power lodged somewhere to make it uniform; and, even in the absence of express constitutional provisions, that power must necessarily reside in the legislature. If it does reside there, then that body must have, as an incident of the principal power, the authority to prescribe the course of study as well as the books which Having this

shall be used. authority, the legislature may not only prescribe regulations for using such books, but it may, also, declare how the books shall be obtained and distributed."

Under the California law the legislature has seen fit to create municipal districts through which to organize and conduct the schools. It retains all the powers not expressly conferred upon the school trustees or boards of supervisors.

It may well be questioned if the imposition of financial burdens upon school districts, by general laws, for maintenance of public schools, comes within the restriction of the Constitution against taxation for local or municipal purposes. The public schools are state schools, and it is within the discretion of the legislature whether to make them a charge upon the state at large, or to do as has been done in the matter of elementary schools, make them a charge partly upon the state at large and partly upon local districts, or, as in the case of high schools, place practically the entire burden for the local school upon a district organized for that purpose. But conceding the rule as recognized in McCabe v. Carpenter, 102 Cal. 469, 3 Pac. 836, its application goes no further than to place the constitutional inhibition

upon the power of the legislature to assess and collect the tax.

In other words, in dealing with these local municipal agencies for conducting the state administration, the legislature reserves the right to impose burdens which must be met by local tax levies. The whole county government system is based on that theory. The state, for example, enumerates the officers who are to conduct the public business of the municipality, and fixes their compensation, which the county is required to pay through the levy, collection, and disbursement of local taxes. In the administration of the public schools the general laws of the state direct the purchase of certain supplies, and require the directors or school board to include estimates for that purpose in their annual budgets, and impose upon the board of supervisors of the county the duty including in the tax levy a sufficient amount to cover the cost. Section 1620 of the Political Code provides that "writing and drawing paper, pens, inks, blackboards, blackboard rubbers, crayons, and lead and slate pencils, and other necessary supplies for the use of the schools, must be furnished under the direction of city boards of education . . . of school trustees, and charges therefor must be audited and paid as other claims against the county school fund of their districts are audited and paid."

This section applies primarily to elementary schools, but the High School Act (Pol. Code, § 1741) provides that, except as otherwise provided, the powers and duties of high school boards shall be "such as are now or may hereafter be assigned by law to boards of education or boards of school trustees in school districts." And, as has been pointed out, § 1756 of the same Code requires every high school board to file annually with the board of supervisors an estimate of the amount of money required for the annual expenses of the high school, including that for "books, magazines, and apparatus" and for "other miscella

neous expenses," and under § 1757 the supervisors are required to include in their tax levy as a special fund for such high school districts a sufficient amount to cover such expenses. This provision for free textbooks stands upon precisely the same grounds.

Having reached the conclusion that there is no constitutional limitation upon the legislature in supplying free textbooks, it follows, on the facts and reasoning stated, that the method of procuring and paying for such textbooks as provided in the Free Textbook Act is not in violation of the limitation of § 12, article 11, of the Constitution.

The petition is denied.

We concur: Angellotti, Ch. J.; Wilbur, J.; Lawlor, J.; Olney, J.; Lennon, J.

Shaw, J., dissenting:

I dissent.

If an amendment of the Constitution was necessary to authorize the legislature to provide for free textbooks in the elementary schools, as would seem to be implied from the adoption of the Amendment of 1912, expressly giving such authority (§ 7, art. 9), I can see no reason why it is not also necessary in order to authorize the legislature to provide free textbooks for the high schools for the use of the pupils therein. Both, alike, are gifts by the state to the pupil, or to the parents or guardians of the pupil, of the use of the textbooks during the attendance at school, and both are, therefore, gifts of a "thing of value" to an individual. As such it is expressly forbidden by § 31 of article 4, of the Constitution. If the prevailing opinion is correct, the submission by the legislature and the adoption by the people of the free textbook amendment of § 7, article 9, 1912, was a vain and useless performance.

There is not, it seems to me, any force in the suggestion that providing free textbooks to a high school pupil is no more a gift than is the providing of buildings and the furniture, fixtures, and appliances

and

therein which are reasonably necessary to carry on the schools. The Constitution itself provides that the legislature "shall provide for a system of common schools by which a free school shall be kept up and supported" (§ 5, art. 9), and that "the public school system shall include elementary schools secondary schools" (§ 6, art. 9). The history of § 6 and its successive amendments shows that the term "secondary schools" has been substituted for the term "high schools," and means, or at least includes, high schools. The authority to provide for and support high schools, of necessity, implies authority to provide the buildings and the furniture, fixtures, and appliances therein necessary to carry them on. The authority to provide all these things is therefore derived from the express language of the Constitution.

The fact that a provision for free textbooks is not essential to the maintenance of the high school system is demonstrated by the history of the common or elementary schools in this state and elsewhere. Such schools were successfully and effectively carried on in this state for more than sixty years before any free textbooks were furnished for

the pupils. Consequently, the authority to keep up and support high schools does not, by implication, include authority to furnish textbooks for the pupils who attend them.

If it were not for the aforesaid constitutional prohibition against gifts by the state to any individual, I believe the legislature would have power under the general grant of § 1, article 4, and under the command of § 1, article 9, to "encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement," to go to the length of providing free textbooks for pupils in all of the schools. But with this inhibition in force such gift is, in my opinion, beyond the legislative power.

Petition for rehearing denied January 13, 1921.

I. Introduction, 299.

II. Implied power in general, 299. III. Constitutionality of statutes, 300. IV. Construction and effect generally of statutory provisions, 301.

V. Miscellaneous, 303.

1. Introduction.

The present annotation is limited to consideration of the question of the power and duty of school or public authorities to furnish textbooks and

other school supplies for the pupils' individual use, as distinguished from maps, charts, dictionaries, etc., where one or two will suffice for the entire school. As to the power of school authorities to purchase the latter class of apparatus or equipment, see the annotation appended to Schofield v. School Dist. 7 A.L.R. 791, covering the general question of the extent of power of school districts to provide for the comfort and convenience of teachers and pupils.

II. Implied power in general.

To justify school or public authorities in furnishing textbooks free or at reduced rates to the pupils, authority must be found in constitutional or statutory provision. School townships and boards of education of school districts, it has been said, are corporations with limited statutory powers, and all who deal with them are charged with notice of the scope of their authority; and they can exercise no power not expressly conferred by statute, or arising from necessary implication. See, for instance, Honaker v. Board of Education (1896) 42 W. Va. 170, 32 L.R.A. 413, 57 Am. St. Rep. 847, 24 S. E. 544; Honey Creek School Twp. v. Barnes (1889) 119 Ind. 213, 21 N. E. 747.

In Board of Education v. Detroit (1890) 80 Mich. 548, 45 N. W. 585, the court said: "It has never been claimed, so far as we are aware, that school boards had the power to furnish free textbooks except by virtue of special legislation." And it was held that

where the board did not comply with the provisions of the Free Textbook Law in submitting the question of free textbooks to a vote of the electors, it action in including an item for textbooks in the estimate of the amount of taxes necessary for the support of the public schools was void.

See also decision of the Michiga court in Atty. Gen. ex rel. Marr v. Board of Education (Mich.) under IV infra, to the effect that the sole authority for purchases of textbooks

must be found in the statute.

The question of the power of school authorities, in the absence of express statute, to provide textbooks, is involved, also, in the language of the court in Ries v. Hemmer (1905) 127 Iowa, 408, 103 N. W. 346, in which it was said: "It is plainly not an incidental power of a school board, aside from express statutory authority, to use the money raised by taxation for school purposes, in purchasing books for scholars, or paying a portion of the price which they would otherwise be required to pay for such books. The maintenance of public schools does not necessarily involve the furnishing of school books to scholars; nor can it be implied from the authority to maintain schools that a school board may compel taxpayers in general, regardless of whether they have children attending the schools, to pay taxes for the purpose not only of supporting schools, but of enabling the children who attend them to have books without cost, or at a lower cost than that at which the books can be procured without the expenditure of public money. Therefore the right of the defendant board to contract for the payment of money from the contingent fund to secure the sale of books to scholars at a reduced price must depend on the exercise by the school board of the authority conferred by the statute; for, if the power is not expressly conferred, or necessarily implied from the powers that are conferred, it does not exist, and

any fair doubt as to the existence of the power is to be resolved against its existence."

In Wickersham's Appeal (1882) 1 Chester Co. Rep. (Pa.) 509, it was held that although express power to purchase and pay for textbooks was not given to school directors, they had implied power under a statute authorizing them to select textbooks in different branches, which alone should be used in the schools, and to pay all necessary expenses of the schools. The question was treated as analogous to the implied power to pay teachers' salaries and for school supplies generally. But in the later cases in the same state (Re School Directors' Accounts (1882) 12 W. N. C. (Pa.) 125, and Fitting v. Glassbrunner (1868) 1 Pearson (Pa.) 544) it was held that school directors did not have implied. power to purchase textbooks at the expense of the school district.

By statute passed in Pennsylvania in 1893, as amended in 1897, it was provided that school directors should purchase textbooks for use in the public schools, out of the school fund, the books to be furnished free to the pupils.

III. Constitutionality of statutes.

The constitutionality of a statute authorizing a school board to furnish textbooks in high schools, free of charge, is sustained in the reported case (MACMILLAN Co. v. CLARKE, ante, 288). It was held that express constitutional authority was not necessary to enable the legislature to provide free textbooks for high schools, although the Constitution expressly conferred such power with respect to elementary schools; that the furnishing of free books for high school pupils did not contravene a constitutional provision prohibiting the gift of public money or things of value to individuals; and that the general scheme of providing textbooks free to pupils of the high schools was not invalidated even if that provision of the statute was illegal which related to the recovery of money expended for books for nonresident pupils.

Without setting out the statute, the

general object of which, the court said, was to require school districts, at public expense, to furnish textbooks for the use of the children attending school, the court sustained its validity, in Affholder v. State (1897) 51 Neb. 91, 70 N. W. 544, as against the objection that the term "supplies" in the statute was not within the title, which referred only to "textbooks." The court said: "School supplies,' as used in this act, mean maps, charts, globes, and other apparatus necessary for use in schools, and we think that a chart or a map or a globe is as much a textbook as a reader or speller, within the purposes and intention of the act under consideration. Section 6, art. 8, of the Constitution of Nebraska provides that 'the legislature shall provide for the free instruction in the common schools of this state, of all persons between the ages of five and twentyone years.' What methods and what means should be adopted in order to furnish free instruction to the children of the state has been left by the Constitution to the legislature. Prior to the passage of the act under consideration, instruction in all public schools was gratuitous, and by this act the legislature has seen fit to require the various school districts to purchase textbooks necessary to be used in the schools. We do not think the term 'textbooks' should be given a technical meaning, but that it is comprehensive enough to and does include globes, maps, charts, pens, ink, paper, etc., and all other apparatus and appliances which are proper to be used in the schools in instructing the youth; and we conclude, therefore, that the act under consideration is not broader than its title, and that the term

supplies,' found in the 10th section of the act, is not foreign to the term 'textbooks' found in the title of the act, but is germane to, and comprehended and included within, the term 'textbooks.'"

As to the meaning of the term "schoolbooks" in a statute, see also Parker v. Board of Education (Ohio) under IV. infra.

The contention was overruled in Rodriguez v. Miller (1916) 23 P. R. R.