The only prohibition in the statute with reference to the substance of a contract for furnishing schoolbooks is that "the commission shall not enter into contract with any person or publisher for any book or books to be used in the public schools of the State at a retail price above or in excess of the price at which said book or books are furnished by said person or publisher, under contract executed within one year next preceding the making of the contract with the commission, to any State, county, city, or other school district in the United States, under similar conditions of distribution and cost of delivery." There is not a particle of evidence that the contract of American Book Company is in violation of this feature of the statute. There is no evidence that the book company has, within the past year, sold or contracted to sell, books "under similar conditions of distribution and cost of delivery, " in any other State of the Union, at prices lower than those stipulated in this contract. The majority of the court do *Page 447 not, in this opinion; declare the contract void on that ground. But they seem to have found in the statute an implied prohibition against allowing a publisher to include, in his retail price specified in the contract, the expense of maintaining a central depository as a part of the cost of distribution. I am unable to find any such implication in the statute. Neither its language nor the general purpose of the legislation justifies it. The statute does indeed require the contractor to maintain a central depository for the distribution of books, and this means, of course, that the contractor must pay the cost of maintaining the depository, but that is far from prohibiting the contractor from including that expense in the cost of distribution which he adds to his wholesale price in fixing the retail price. The statute also requires the contractor to pay the freight charges on shipments of books from the central depository to the local dealer in each county, but will it be contended that this prohibits the contractor from adding the expense of transportation to his wholesale price in fixing the retail price? Surely not. To do so would be to violate all known customs of trade; in fact, to do violence to essential economic laws. Cost of production, plus reasonable profit and expense of distribution, necessarily fixes the retail price to the consumer. No producer or dealer can survive who omits either of these essentials in fixing his price to the consumer. An intention to violate those rules by prohibiting the inclusion of expense of distribution in fixing the retail price should not be attributed to the lawmakers in the absence of express language to that effect. An analysis of the contract with the book company will, I think, clearly demonstrate the error of the views of the majority in declaring it to be void. There are two books involved in the contract, viz., Overton's Personal Hygiene, and Overton's General Hygiene. The American Book Company is the publisher of each of these books, and the wholesale or publisher's prices are 54 cents and 75 cents, respectively. The publisher has, according to undisputed evidence, only one price on each book the above wholesale *Page 448 prices plus cost of delivery — and the list or retail prices are fixed in accordance with that rule.
The contracts for furnishing books required under our statute are for retail prices at point of delivery to local dealers in each county, with transportation charges prepaid, and the book company in this instance contracted to furnish the books named at 72 cents and $1, respectively, which includes the addition of 25 per cent. of the retail price to the wholesale or factory price to cover the expense of distribution and delivery. This addition of 25 per cent. consists of 15 per cent. allowed by the statute to local dealers and 10 per cent. the estimated expense of transportation charges and maintenance of the central depository. The book company has a contract with the central depository to distribute the books and pay all transportation charges. It is affirmatively proved that this percentage compensation to the central depository is fair and reasonable, and this is undisputed. It is thus seen that, under the contract, the book company receives only its uniform wholesale or factory prices, and that the remainder of the retail prices goes to pay the expense of distribution to purchasers. It would seem very clear that all of the expenses of distribution should be added to the wholesale price, and that the statute does not prohibit it. The fact that some of the bidders did not include the expense of the central depository is of no importance in determining the validity of this contract. Such bidders may have been willing to cheapen the price in order to induce the commission to adopt their books. The price, in comparison with prices of other books on this subject, is not the only consideration, for, in the procedure of adopting schoolbooks, there is no competitive bidding in the ordinary meaning of that term. The bidders are the publishers, and they bid on their own publications — no others. There is no way of comparing bids as to prices. The commission selects the particular book it wants and then makes the best bargain it can as to price. If the price is not satisfactory, another book at a lower price can be selected from some other bidder. The law, speaking *Page 449 through the commission, says to each publisher, if you want to enter into contract for furnishing a book on a given subject, fix a retail price for the book, delivered to all local dealers, pay all distribution charges, including local dealers' compensations fixed by statute, maintenance of central depository, and transportation. The publisher has the right to include in his retail price all of the expenses of distribution, and this does not invalidate the contract unless it is an improvident one.
There is no indication in the opinion of the majority that this contract is an improvident one in fact; it is merely denounced as an unlawful one, in conflict with the statute. I do not think so. No court has ever held that such a contract made under a similar statute is void. The primary purpose of the statute is to secure uniformity of books in use in the schools of the State for a given period of time, so that frequent changes may not be made at the expense or inconvenience of school patrons, and, incidentally, to cheapen the cost of books as far as practical. The purpose is to secure the best books, not the cheapest ones. Quality in subject-matter is not to be sacrificed for sake of economy. No right-minded teacher would think of selecting a book merely because it is the cheapest. All of the school men who testified in this case expressed concurrence in this rule, and the proof shows that such has been the prevailing rule in selecting books by the commission in former years.
Unless the law, as interpreted by the majority of the court in this case, is changed by the Legislature, the commission must, in selecting books, give more consideration to price than to quality. *Page 450