551, that a student who had been supplied with free textbooks during his first year in high school acquired the right to free books and supplies during the whole high school course, and that a statute requiring pupils to pay for books for future use was in derogation of a right vested under the former law.

In Collins v. Henderson (1874) 11 Bush (Ky.) 74, it was held that the purchase by the superintendent of public instruction, of a sufficient number of copies of a certain historical book to supply one to each common school district, was not "in aid of common schools" within the meaning of a constitutional provision that the school funds "shall be held inviolate for the purpose of sustaining a system of common schools," and "may be appropriated in aid of common schools, but for no other purpose;" and that, therefore, the act of the legislature directing the purchase of such books and the payment therefor out of school funds was unconstitutional.

The question of the constitutionality of statutes relating to the selection or awarding of contracts for textbooks has, of course, arisen in a number of cases not within the scope of the present annotation, because the books were not to be furnished free to the pupils, the design of the statute being apparently merely to secure uniformity and the lowest possible price through purchase in quantities from a single dealer. See, for example, State ex rel. Clark v. Haworth (1890) 122 Ind. 462, 7 L.R.A. 240, 23 N. E. 946, and Leeper v. State (1899) 103 Tenn. 500, 48 L.R.A. 167, 53 S. W. 962, which, among other cases of the kind, involve the question of alleged illegal monopolies. IV. Construction and effect generally of statutory provisions.

See also Wickersham's Appeal (Pa.) under II. supra.

It was held in Harris v. Kill (1903) 108 Ill. App. 305, that a board of education had no power to purchase and distribute textbooks for the free use of all the pupils of certain grades, without reference to whether the parents of the children were finan

cially able to buy books, under enumerated statutory powers, among which were: to furnish schools with necessary fixtures, furniture, and apparatus, to prescribe schoolbooks and studies, and "generally to have and possess all the rights, powers, and authority required for the proper management of schools, and with powers to enact such ordinances as may be deemed necessary and expedient for such purposes."

In Honey Creek School Twp. v. Barnes (1889) 119 Ind. 213, 21 N. E. 747, it was held that school trustees had no power to purchase textbooks under a statute providing that they should take charge of the educational affairs of their respective townships and provide suitable furniture, apparatus, "and other articles and educational appliances necessary for the thorough organization and efficient management of said schools." The books purchased in this instance were readers, with the object of giving the pupils "a change of reading exercise," and as "an additional incentive to new exertion;" but the court stated that the same could be said of any readers or textbooks purchased; and if the trustee had authority to purchase this class of books, he might purchase any other class of textbooks. The same court had previously held that a trustee had power to purchase a number of dictionaries for the school; and, in distinguishing the two cases, it was said: "Blackboards, charts, maps, tellurions, and dictionaries are a class of articles, apparatus, and books which are not required for each individual scholar, but one of each would be sufficient, in most instances, for the whole school, and could be used by the teacher in giving instructions to the pupils. No person being required to furnish such common property for the benefit of the whole school, they can only be supplied by the trustees. The authority, certainly, cannot be extended to the right of purchasing general textbooks for the use of each of the individual pupils."

The provision of the Michigan Free Textbook Law, requiring that "all textbooks used in any school district shall be uniform in any one subject," was

held in Atty. Gen. ex rel. Marr v. Board of Education (1903) 133 Mich. 681, 95 N. W. 746, not to require the adoption and purchase of all the textbooks of one author in a given subject for the different grades; but a grammar school arithmetic by one author and a primary arithmetic by another might be adopted.

It was also held that the purchase by a board of education of a number of copies of an arithmetic for "supplementary use," and not for general use, in the schools, or with the intention of adopting the same, as authorized by statute, was illegal, since the sole authority for such purchases must be found in the statute. Ibid.

And the requirement of the Free Textbook Law, that books once adopted should not be changed within five years, being for the protection of the public, and not of booksellers, it was held, did not constitute a binding contract between a board of education and book publishers whose books were adopted that the books should be used for such length of time. Ibid.

Although the question involved was the power of school authorities to purchase school charts, attention is called to the statement in Honaker v. Board of Education (1896) 42 W. Va. 170, 32 L.R.A. 413, 57 Am. St. Rep. 847, 24 S. E. 544, in which it was said regarding a statute authorizing a school board to purchase furniture, fixtures, and appliances for schoolhouses, as the health and convenience of the scholars required, that the appliance must be something like a blackboard, map, or dictionary, in that one or two may be enough for the whole school, and must not be a schoolbook in disguise; that this is vitally important, for the opening of the sale of schoolbooks is so large, and the pressure brought to make sales so great, whether the books are needed or not, that it seems to be almost irresistible; so that quasi schoolbooks are gradually creeping in under the name of appliances.

As to whether a special school district may furnish textbooks free or at cost, attention is called also to Schroeder v. St. Paul (1911) 115 Minn.

322, 132 N. W. 317. The view was taken that under a statutory classification of school districts into common, independent, and special districts, a statute conferring certain powers upon school boards, among which was that of purchasing textbooks and providing for their free use or sale to the pupils at cost, did not apply to a city constituting a special school district, with powers inconsistent with those named in the statute, although by the provisions of the city charter the school district was vested "with all the powers and rights specified in any general law of the state . . in relation to school districts." The point in controversy, however, was as to a provision of the statute forbidding the change of adopted books during a certain period.

The term "schoolbooks" in a statute providing that school boards may furnish necessary books free to indigent children has been construed by the state school commissioner to include copy-writing books, pens, ink, paper, and pencil; and this construction has been approved by the court. Parker v. Board of Education (1884) 12 Ohio L. J. 186, 9 Ohio Dec. Reprint, 335.

But it was held in Parker v. Board of Education (Ohio) supra, that a school board had no power to purchase pencils, copybooks, and other writing material for free distribution and use by the pupils, under statutory authority to build, repair, and furnish schoolhouses, purchase sites therefor, "and make all other provisions necessary for the convenience and prosperity of the schools," and to determine the amount of money necessary to be levied for the purchase of sites, the erection and furnishing of schoolhouses, "and for other school expenses."

It was held, also, in Parker v. Board of Education (Ohio) supra, that a statute providing that each board of education should establish a sufficient number of schools "to provide for the free education of the youth of school age within its district" did not authorize the board to purchase books and writing materials for free distribution

and use by the pupils, in order to comply with the requirement for "free education."

As to the meaning of the term "textbooks" in the title of a statute, see also Affholder v. State (Neb.) under III. supra.

Poor children.

See Parker v. Board of Education (Ohio) supra.

In Harris v. Kill (1903) 108 Ill. App. 305, supra, the court, in holding that the school authorities did not have power under the particular statute to purchase and distribute textbooks for the free use of all pupils of certain grades, without reference to the financial ability of their parents to provide the books, indicated that there might be a distinction between the power to supply free textbooks to those too poor to purchase them, and the power to supply them to all pupils without reference to ability to purchase.

Although clothing rather than school books were furnished in this instance, the ruling would apparently have been the same as to the latter, in Miami County v. Falk (1902) 29 Ind. App. 683, 65 N. E. 10, where a statute providing that if any parent, guardian, or custodian of any child was too poor to furnish it with the necessary books and clothing to attend school, the school authorities should furnish temporary aid for such purpose, which aid should be allowed and paid upon the certificate of the school officers by the board of county commissioners, did not vest power in a school corporation to contract a debt on behalf of the county in favor of third persons for supplies furnished.

Under a statute authorizing school authorities to furnish temporary aid to children whose parents were too poor to furnish necessary books for attending school, and to file with the auditor of the county a list of the children so aided, and providing that the county commissioners should investigate the cases and make provision for such children, to enable them to continue in school, it was held in Shelby County Council v. State (1900) 155 Ind. 216, 57 N. E. 712, that mandamus would not

lie to compel the county authorities to make such provision before temporary aid had been rendered or the list furnished.

V. Miscellaneous.

In Mitchell v. Kearns (1901) 16 Pa. Super. Ct. 357, it was held that an injunction would be granted to restrain the carrying out of a contract for the purchase of textbooks, entered into by a part of the directors, without notice to the other directors, since the making of the contract, involving determination of the kind and number of books and prices to be paid, was not a mere ministerial act, although at a previous meeting the board had, by resolution, voted to adopt the series of books in question.

The fact that textbooks purchased without authority are received by the school authorities, and used in the schools under their direction, was held in Honey Creek School Twp. v. Barnes (1889) 119 Ind. 213, 21 N. E. 747, to' create no liability on the part of the school township to pay for them.

And in First Nat. Bank v. Osborne (1897) 18 Ind. App. 442, 48 N. E. 256, it was held that, since the invalidity of township warrants issued for "reading circle" books appeared upon their face, a school trustee was not personally liable thereon, although he had informed plaintiff, upon his contemplated purchase of them, that they were all right.

The annotation does not, however, purport to cover the question of the liability of school authorities for books or other supplies arising from an implied promise from use in the schools.

The purchase of "reading circle books" by a township trustee, for use of the schools of the township, was held unauthorized in First Nat. Bank v. Adams School Twp. (1897) 17 Ind. App. 375, 46 N. E. 832, under a statute giving the trustees "charge of the educational affairs" of the township, empowering them to employ teachers, establish and locate schools, and provide suitable furniture and apparatus," and other articles and educational appliances necessary for the thorough organization and efficient

management of said schools." This case was followed without discussion, on similar facts, in Bannister V. Adams School Twp. (1897) 17 Ind. App. 701, 46 N. E. 1154.

In Roland v. Reading School Dist. (1894) 161 Pa. 102, 28 Atl. 995, it was held that the contract between a book dealer and a school committee for the supply of free textbooks was to be found in the bid of the dealer and the resolutions of the committee accepting it; and that if the president of the committee, without authority, changed the contract, so as to allow the book dealer a percentage above the cost price for an additional number of the books, if needed, the dealer could not recover for the excess. And it was held that the question was properly submitted to the jury whether, by the terms of the contract for free textbooks made between the dealer and the school district, the former undertook to furnish at cost additional books of a different kind from those submitted in the list to the dealer.

A writ of mandamus to compel a district school board to purchase and lend to the pupils the necessary textbooks, pursuant to a statute empowering and making it the duty of such boards to purchase textbooks, was denied in Farris v. State (1896) 46 Neb. 857, 65 N. W. 890, where there were no available funds with which the board might purchase the books.

Several other cases, although not presenting the question of free textbooks and therefore not within the scope of the annotation, are here referred to because the power to provide books was involved.

Under

school committee of each town shall procure a sufficient supply of schoolbooks at the expense of the town, to be paid for out of the town treasury, it was held in Hartwell v. Littleton (1833) 13 Pick. (Mass.) 229, that the committee was not obliged to contract with third persons for books on the credit of the town, but might make themselves creditors by purchasing and paying for books with their own money, and delivering them to the scholars at wholesale prices.

A board of education has no power to purchase textbooks and sell them to the pupils at wholesale prices, under statutory authority to sell real and personal property as the interests of the school require, and to make bylaws relative to the regulation of school-books to be used and anything whatever that may advance the interest of education, the prosperity of the schools, and the welfare of the public concerning the same. Atty. Gen. ex rel. Sheehan v. Board of Education (Kuhn ex rel. Sheehan v. Board of Education) (1913) 175 Mich. 438, 45 L.R.A. (N.S.) 972, 141 N. W. 574.

It has been held that a statute authorizing the school authorities to purchase such books as may be needed or adopted for the schools, and sell or rent them to the patrons and pupils at a proper charge, does not authorize such authoritites to make renting of the books a condition precedent to admission to the schools; but children whose parents supply them with the necessary books are entitled to admission without payment of rental fees. Mathis v. Gordy (1904) 119 Ga. 817, R. E. H.

V.

-

abro

3. Provisions of a will that at the end of five years the property be divided and one equal part given to the wife for life, with remainders, are not abrogated by a second will, providing that the estate be kept together during minority of the youngest child, and that the court fix, every three years, the income to be allowed the wife for maintenance.

testator that the election of the widow to take her share of the estate in lieu of a life estate given her by the will is, in legal contemplation, equivalent to her death, and will accelerate the remainder.

[See 23 R. C. L. 557; 28 R. C. L. 333, 334.J

election against will acceleration failure to provide for contingency.

5. The election of the widow to take her share of the estate in lieu of a life estate which has been created, with remainder over to such of testator's children as may be living at her death and the issue of such as may be then dead, accelerates the remainders, whether they are vested or contingent, and it is immaterial that testator made no provision to meet the contingency of such election.

[See 23 R. C. L. 559; see note in 5 A.L.R. 473.]

C. Massie, for appellant:

The chief intent of the testator was to make provision for his children, and the period fixed by the second paper for the vesting of their estates is the majority of the youngest child.

Compton v. Rixey, 124 Va. 548, 5 A.L.R. 465, 98 S. E. 651; Keeton v. Tipton, 184 Ky. 704, 212 S. W. 909; Cummings v. Hamilton, 220 Ill. 480, 77 N. E. 264; Chapman v. Chapman, 90 Va. 409, 18 S. E. 913; Crews v. Hatcher, 91 Va. 378, 21 S. E. 811; Lantz v. Massie, 99 Va. 709, 40 S. E. 50; Allison v. Allison, 101 Va. 537, 63 L.R.A. 920, 44 S. E. 904; Halsey v. Fulton, 119 Va. 571, 89 S. E. 912; Fearne, Remainders, 216.

The remainders to the children, even though contingent, are accelerated.

Jull v. Jacobs, L. R. 3 Ch. Div. 711, 35 L. T. N. S. 153, 24 Week. Rep. 947; Roe v. Doe, 5 Boyce, 545, 93 Atl. 373, 17 A.L.R.-20.

Ann. Cas. 1918C, 409; Slocum v. Hagaman, 176 Ill. 533, 52 N. E. 332; Sherman v. Flack, 283 Ill. 456, 5 A.L.R. 456, 119 N. E. 293; Wood v. Wood, 1 Met. (Ky.) 512; O'Rear v. Bogie, 157 Ky. 666, 163 S. W. 1107; Fox v. Rumery, 68 Me. 121; Small v. Marburg, 77 Md. 11, 25 Atl. 920; Randall v. Randall, 85 Md. 430, 37 Atl. 209; Re Schulz, 113 Mich. 592, 71 N. W. 1079; Yeaton v. Roberts, 28 N. H. 459; Sarles v. Sarles, 19 Abb. N. C. 322; Wilson v. Stafford, 60 N. C. (Winst. Eq.) 103; Brown's Appeal, 27 Pa. 62; Coover's Appeal, 74 Pa. 143; Ferguson's Estate, 138 Pa. 208, 20 Atl. 945; Woodburn's Estate, 151 Pa. 586, 25 Atl. 145; Disston's Estate, 257 Pa. 537, L.R.A.1918B, 62, 101 Atl. 804; Wyllner's Estate, 65 Pa. Super. Ct. 396; Meek v. Trotter, 133 Tenn. 145, 180 S. W. 176; Keeton v. Tipton, 184 Ky. 704, 212 S. W. 909; Cummings v. Hamilton, 220 Ill. 480, 77 N. E. 264; Compton v. Rixey, 124 Va. 548, 5 A.L.R. 465, 98 S. E. 651; Young