McMillan Company v. S. M. N. Marrs, State Superintendent of Public Instruction, 114 Tex. 576

MR. JUSTICE PIERSON delivered the opinion of the court. Relator seeks a mandamus against respondent to require him to do and perform the ministerial or statutory duties which it has a legal right to have performed in regard to its contract with the State of Texas for the purchase of certain textbooks, to-wit: New Physical Geography, by Tarr; Elements of Agriculture, by Warren; The New Civics, by Ashley; and supplementary readers: Everyday Classics; Primer; First Reader; Second Reader; Third Reader; each by Baker and Thorndike.

The facts of this case in all essential particulars are the same as those contained and stated in the case of Laidlaw Brothers, Inc., v. S. M. N. Marrs, State Superintendent of Public Instruction, opinion delivered June 8, 1925 (114 Texas, 561), with one exception.

The respondent alleges that The MacMillan Company did not comply with the requirements of the law in furnishing the statutory affidavit to the Textbook Commission." It filed the affidavits of its officers and directors that it was not connected in any manner whatsoever with any trust, and upon the information and belief of its said officers and directors that no individual stockholder in the company is acting as director, trustee, or stockholder, etc., of any other publishing house doing business in the United States, or in any publishing house outside the United States, except as stated in the affidavit.

Respondent contends that the affidavit should have been made positively, and not on information and belief. If it be admitted that the affidavit was insufficient, yet its effect at most could only make the contract thereafter entered into voidable; and as held in Laidlaw Brothers, Incorporated, v. Marrs, supra, and in Charles Scribner’s Sons v. Marrs, 114 Texas 11, 262 S. W., 722 after the contract had been adopted by the State Board of Education on January 12, 1925, any irregularities in its execution were waived, and the contract became an enforceable one.

This case is in all respects similar to the last two cases mentioned, and under the holdings in the case of Laidlaw Brothers, Incorporated, v. Marrs, relator is entitled to the writ of mandamus in this case. The writ will issue as prayed for.