Separate Opinion.
Olds, J.I concur in the conclusion reached in the principal opinion, but not in all the statements and arguments contained in it.
I do not think the statute in question in conflict with any express provision of, or the spirit of the State Constitution, nor do I think it an encroachment on the rights of the citizens of the State not delegated to the legislative department of the State government by the Constitution. In reaching this conclusion I do not concur in the broad statement of counsel for the appellant that before the law can be declared unconstitutional and void, some express provision of the Constitution must be pointed out which prohibits such legislation; but I adhere to the doctrine recently enunciated by this court, that the grant of power to the legislative department is a grant only of all legislative power, and that there are some rights of the people which can not be taken away by legislative enactment, notwithstanding there is no -pro*485vision in the Constitution expressly prohibiting such legislation.
The common schools of the State are in the main supported by the State, and the tuition is free. The Constitution expressly enjoins on the General Assembly the duty “to encourage by all suitable means, moral, intellectual, scientific and agricultural improvement, and to provide by law for a general and uniform system of common schools, wherein tuition shall be without charge and equally open to all.” By the Constitution the common schools of the State are expressly placed under the control and supervision of the General Assembly. It is made the duty of that department of the State government to provide for a uniform system; this must relate to books, as it is manifestly essential that there must be a uniformity in books to secure proper efficiency in the schools, and such uniformity can only be brought about and maintained by legislation, providing for the adoption and use of certain books. Whether there should be a unifoi'mity in the books of but a single school, or whether one system and the same class of books should extend to all schools in a township or county, or in the schools of the whole State, is a matter of policy to be considered by the General Assembly in the passage of laws to govern the common schools in this respect. This uniformity in books has always been controlled by legislation, and I think properly so, and it is committed to the General Assembly by the provisions of the Constitution.
When once admitted that it is subject to legislative control at all, as it seems to me it must be, then it is exclusively within the province of the General Assembly to determine whether there shall be a uniformity of books in a single school or the schools of a township, county or State, and the manner by which the books to be used shall be adopted, and courts can in no way interfere.
I do not believe the General Assembly has power to create a monopoly, nor do I believe they have done so in the pas*486sage of this statute. School-books jare usually copyrighted, and when adopted under the system provided for in the law under consideration, or under any other law, or in any manner so that the parent or child is required to purchase the particular kind of a book or books used in the school the child attends, they of necessity have to purchase of the person or persons publishing and controlling the copyright of the particular book or books used in the school; or, if not copyi’ighted, of the person or persons publishing the particular books. Under the old system of adopting books which it is not contended is objectionable to the provisions of the constitution, when books were adopted for use in the township or county, the patrons of the schools had, of necessity, to purchase the books directly, or indirectly, _of the person or persons who controlled and published the books adopted. If the present law creates a monopoly, the old law likewise created one, differing only in extent, the present system not having so many of the features of a monopoly, as it provides for a competition before the adoption, and the old did not. The necessity of uniformity in books exists, and the Constitution expressly enjoins the duty on the General Assembly to provide for it; and to have uniformity requires that the books be purchased of the person or persons publishing and controlling the particular books used.
While the contract entered into between the State board of education and the school-book company does not possess the usual elements of mutuality, and may be of doubtful validity as a contract, yet I think the action of the State board of education, under the law, amounts to an adoption of the particular books to be used in the common schools.
It has been suggested by counsel that if this act be valid, then the Legislature may pass laws of the same character relating to any merchantable article which citizens purchase one from another, or even relating to the clothing of school children, or some matter about which there is no necessity for uniformity. But as between the law under consideration *487and laws of the character suggested, there is a decided difference. If the law related to ordinary merchantable articles, purchased in the common and ordinary dealings between citizens, or related to clothing of school children, or to some matter about which there was no necessity for any uniformity, then I would concede at once that'such legislation was beyond the power of the General Assembly, and not contemplated by the Constitution; but the question under consideration is entirely different, it is legislation concerning a matter for which there is a necessity for system and uniformity, and the duty of providing for a uniform system is expressly enjoined upon the General Assembly by the Constitution.
The services to be performed by the township trustees, who are school officers, are to be done for the public. The paramount object of the services to be rendered is to put in force the law and execute it, by requiring the school officers of the townships to keep the particular books where all patrons of the schools may easily obtain them, and to require that such books be used in the schools, and while the services of the trustees may incidentally benefit the persons furnishing and selling the books, yet I do not regard that this fact renders the law invalid.
As to whether the law repeals the old law, and whether it is mandatory or not, it seems to me that from the reading of the whole act there can be no question as to what was the legislative indent, and that such intent was to establish a uniformity in school books throughout the State, and that it was intended to supersede and take the place of all other laws on the same subject.
As to whether the law is a salutary one or not, and as to whether it will prove beneficial or detrimental to the common school interest of the State, are matters about which the court has nothing to do ; these questions were with the General Assembly, and determined by them in the passage of the law.
Filed March 13, 1890.