she has no interest in such surplus. It goes back to the person in whom the title was vested before the sale.

In the case of Sartor v. Beaty, 25 S. C. 293, it was held that the doctrine of equitable re. tainer did not apply to the interest of the distributee in the real estate of an intestate or to the proceeds of the sale thereof.

In Procter v. Newhall, 17 Mass. 81, in considering this same question, the court says: "The other objection would be fatal to the title of the tenant if it were true that Joseph Hulthorn had but a defeasible estate, as has been suggested; for the tenant has no greater or better estate than Joseph Hulthorn had at the time of the attachment. But we are of the opinion that his estate was no more subject to the debt formerly due to the intestate than it was to any other debt. In the division of real estate among heirs no deduction can be made from the share of any one of them on account of any debt due from him to the estate. This can only be done in cases of advancement.'

In exact accord with the unanimous holding of the courts of other States, this court has twice decided this question adversely to the majority opinion and in accordance with what I believe to be the settled law.

In the case of Campbell v. Martin, 87 Ind. 577, Campbell, the appellant, recovered a judg ment against Alexander C. Martin in the Washington Circuit Court on January 14, 1876. On June 1, 1876, Mason L. Martin, father of Alexander C. Martin, died testate, owning land in said Washington County which he devised to his said son, Alexander C. James A. Martin was appointed administrator of the father's estate with the will annexed. Alexander C. was indebted to the father, and at the August Term, 1878, of the Washington Circuit Court the administrator recovered a judgment on said indebtedness to the estate. At the April Term, 1879, the court ordered the administrator to retain and hold the real estate so devised to Alexander, giving him credit for its appraised value on the judgment against him in favor of In the case of Mann v. Mann, 12 Heisk. the administrator. The proceedings in the (Tenn.) 245, it was held that the son's indebted-court below were undoubtedly irregular, but ness to the father's estate is not a lien on the this court in deciding the case expresses its son's share of his father's realty, and that such views in regard to these judgment-liens, and share in the realty is subject to a race of dili- says: "There is some reason for the application gence between the personal representatives of of this doctrine to the payment of legacies by the father and other creditors of the son. the executor, and especially so when the indebtedness of the legatee to the estate might be regarded as a total or partial ademption of the legacy. But we know of no reason whatever for the extension of this doctrine and making it applicable to devisees of real estate. As a general rule, legacies are payable by the executor out of the testator's personal estate which may come to his hands to be administered; but, ordinarily, the executor has absolutely nothing to do with the real estate devised by his testator unless it may be needed for the payment of the testator's debts. Otherwise the devise of the real estate will take effect at once upon the death of the testator, without any intervening act of the executor. Upon the facts stated in the complaint in the case at bar, we are of opinion that the lien of the appellant's judgment upon the real estate devised to Alexander C. Martin was not and could not be devested nor postponed to the lien of the junior judg ment against him in favor of the administrator."

In the American Law of Administration, by Woerner, vol. 2, § 564, in speaking of the equitable doctrine of retainer, it is said: "If the lands have been sold and there is a residue of the proceeds for distribution, it has been held both that the administrator may retain to the extent of the debt due by the distributee, and, on the other hand, that, since in equity the converted estate retains its original character, the equitable doctrine of retainer does not extend to the proceeds of real estate."

In support of the doctrine that it may be retained the author cites but one case, and that is Nelson v. Murfee, 69 Ala. 598, in which it was held that, as against the heir the executor could retain the amount, but in that case the court says: Whether, when the heir is insolvent and owes the estate of the ancestor, as in this case, the administrator has any prior right to demand payment out of lands descended, or whether it becomes a mere race of diligence between him and other creditors of the heir, is a question not raised by this record"; and by a diligent search for authorities this is the only case that I have been able to find where the question has been considered, that any court has even intimated that the doctrine applies in such a case as we have under consideration. See Hancock v. Hubbard, 19 Pick. 167; Towles v. Towles, 1 Head, 601.

In Pennsylvania it was held that the indebtedness was an advancement and could be retained. Springer's App. 29 Pa. 203.

In Strong v. Bass, 35 Pa. 333, it was held, as we have herein before stated, that the doctrine applied in case of legacies, and I do not question that the doctrine does apply in case of legacies or advancement, and the authorities cited in support of the decision of the case in Koons v. Mellett, this term, ante, 231, go, no farther than to hold that the doctrine applies in cases of distributive shares of personal property, legacies and where the debt is an advancement.

The case of Ball v. Green, 90 Ind. 75, is a case involving exactly the same principle as the one under consideration, and it was held by a unanimous court that the mortgagee was entitled to the surplus. In that case the court well says: "No authority is cited to support this position, and we know of none, nor do we believe it can be maintained on principle. The administrator had authority to sell this land to pay the decedent's debts, but no power to sell in order to collect a claim from the owner. After the payment of the decedent's debts, the residue of the money, if any, will belong to Jesse Adams, and its retention by the adminis trator will not make the estate the debtor of Adams, nor will it make the administrator such debtor except at the option of Adams. In addition to this, the appellee has a lien upon the money that is superior to any claim of the administrator, if, indeed, he has any, and which was not impaired or affected by the accidental

PPEAL by relators from a judgment of the Circuit Court for Howard County in favor of respondent in a proceeding by mandamus to compel him to procure certain books impinge in the slightest degree upon the right of for use in the public school as required by the Act of March 2, 1889. Reversed.

long as he does not, by its exercise, interfere with the rights of others.

Arrowsmith v. Burlingim, 4 McLean, 497; Evansville v. State, 4 L. R. A. 93, 118 Ind. 426. A law that attempts to take away any privilege essential to the inherent right of local self government is void.

See State v. Denny, 4 L. R. A. 79, 118 Ind. 382; State v. Denny, 4 L. R. A. 65, 118 Ind. 449; Evansville v. State, supra; People v. Albertson, 55 N. Y. 50; People v. Hurlbut, 24 Mich. 44; People v. Detroit, 28 Mich. 228.

The Act assailed does not impinge in the slightest degree upon the right of local selfgovernment. The right of local self-government is an inherent, and not a derivative, one. Individualized, it is the right which a man possesses in virtue of his character as a freeman. It is not bestowed by Legislatures, nor derived from statutes. But the courts which have carried to its utmost extent the doctrine of local self-government have never so much as intimated that it exists as to a matter over which the Constitution has given the law-making power supreme control; nor have they gone beyond the line which separates matters of purely local concern from those of state control. Essentially and intrinsically, the schools in which are educated and trained the children who are to become the rulers of the Commonwealth 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 Re Jacobs, 98 N. Y. 98; People v. Marx, 99 over schools and school affairs is not necessarily N. Y. 377; Butchers Union S. H. & L. L. Co. v. a distributive one to be exercised by local inCrescent City L. L. & S. H. Co. 111 U. S. 746 strumentalities, but, on the contrary, it is a cen(28 L. ed. 585); Santa Clara Co. v. Southern tral power residing in the Legislature of the Pac. R. Co. 118 U. S. 394 (30 L. ed. 118); Pem- State. It is for the law-making power to debina Consol. S. Min. & Milling Co. v. Penn-termine whether the authority shall be exercised sylvania, 125 U. S. 181 (31 L. ed. 650); Pom. Const. Law, § 256 E

Section 9 of the School-Book Act gives the contractors privileges not conferred on any other publisher of or dealer in the "Indiana Educational Series" or other books to use the trustees, at public expense, to sell its books and appropriate their bonds for its security. This deprives book makers and book sellers of "liberty" and "property," within the Fourteenth Amendment.

That clause does undoubtedly prohibit discriminating and partial legislation by any State, in favor of particular persons, or against others in like condition.

Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 28 (32 L. ed. 586).

The discriminations which are open to objection are those where persons are engaged in the same business, are subjected to different restrictions or are held entitled to different privileges under the same conditions.

Soon Hing v. Crowley, 113 U. S. 709 (28 L. ed. 1145), quoted in Minneapolis & St. L. R. Co. v. Beckwith, supra.

It is undoubtedly the right of any citizen of the United States to follow any lawful calling, business or profession he may choose, subject only to such restrictions as are imposed upon all persons, of like age, sex and conditions. Dent v. West Virginia, 129 U. S. 121 (32 L. ed. 625).

by a state board of education, or distributed to county, township or city organizations throughout the State. With that determination the judiciary can no more rightfully interfere than can the Legislature with a decree or judgment pronounced by a judicial tribunal. The decision is as conclusive and inviolable in the one case as in the other, and an interference with the legislative judgment would be a breach of the Constitution which no principle would justify nor any precedent excuse.

But we need not rest our conclusion that the control of school and school affairs is vested in the law making power of the State upon the proposition that schools are intrinsically matters of state concern, and not of a local nature

although it may there be securely rested; for our Constitution, in language that cannot be mistaken, declares that it is a matter of the State and not of the locality. The language of the Constitution is this: "Knowledge and learning, generally diffused throughout the community, being essential to the preservation Elliott, J.,delivered the opinion of the court: of a free government, it shall be the duty of The questions presented and argued in this the General Assembly to encourage by all suitcase do not require us to do more than outline able means moral, intellectual, scientific and the pleadings, for the questions are general agricultural improvement, and to provide by ones, involving the validity and the construc-law for a general and uniform system of comtion of a statute. It is sufficient, to bring the mon schools, wherein tuition shall be without question clearly enough before the mind for in-charge and equally open to all." Art. 8, § 1. vestigation and consideration, to say that the relator petitioned for a writ of mandate to compel the appellee, as school trustee of Monroe Township, in the County of Howard, to certify to the county superintendent of schools the number of text books required by the children of the township for use in the public schools, and to procure and furnish such books as the law requires, and that the return of the appellee to the alternative writ is so framed as to present the question of the constitutionality of the Act of March 2, 1889, and also the question as to the duties of the school trustee under that Act. Elliott's Supp. § 1289; Acts 1889, p.—.

The Constitution enjoins a duty and confers a power. The duty and the power are coextensive, but the effect they are designed to accomplish is unified, because the duty is to "provide a uniform system of common schools," and the power is granted to enable the General Assembly to effectively perform the duty. 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.

That this conclusion is sound is so clear that authorities are not required to fortify or support it; but authorities are not wanting, for the

Judge Cooley has examined the question with care, and discussed it with ability, and he declares that the Legislature has plenary power over the subject of the public schools. He says, in the course of his discussion: "To what extent the Legislature shall provide for the edu-enactments, and all rules and regulations have cation of the people at the cost of the State or of its municipalities is a question which, except as regulated by the Constitution, addresses itself to the legislative judgment exclusively.” Again, he says: "The governing school boards derive all their authority from the Statute, and can exercise no powers except those expressly granted and those which result by necessary implication from the grant." Const. Lim. 5th ed. 225, note 1.

lative and exclusive, then the Legislature has | people of the State to any class; on the contraauthority to impose upon all officers whose ten- ry, all who are prepared to supply such books ure is legislative such duties respecting school as the Statute makes the standard are invited affairs as it deems proper. All such officers to compete for the contract. No special privitake their offices cum onere, and must do what lege is granted to anyone, no right denied to the Legislature commands, or else resign. anyone, for all are invited to enter the field as competitors.

ers.

It is a mistake to suppose that the Statute under consideration imposes duties upon the school officers for the benefit of the book dealNot a word in it indicates such an intention. The purpose of the law makers, clearly manifested and expressed, is to secure a benefit to the public. The effect of the Statute is not to make officers perform duties for the benefit of private individuals, but to make them render services for the benefit of the public, and that benefit results to private persons is an unavoidable incident, not a designed or express provision of the Statute. At the time the Act was passed it was not known, nor could it be known, what persons would secure the contract for furnishing the books re-stitution prevent such a result, for they make quired by law; for it was provided that competition should be invited and the contract awarded to the lowest bidder. It may be true that the book dealers are incidentally benefited by the services of the officers, but if that be a sufficient reason for condemning the Act, then all statutes providing for the award of contracts by public officers, the certification of accounts or the making of reports where individuals are interested, must be condemned, since, in every instance, there is an incidental benefit to the dealer or contractor. The truth is that in no event can a public officer award a contract or certify estimates, accounts or the like, without at the same time rendering a beneficial service to the person with whom he deals on behalf of the State. If the services of the officers benefit the public and are imposed for the good of the public, the Statute is rescued from successful attack although the services of the officers may also benefit a private person. Either this is true, or else it is true that no public officer can be required to award contracts, verify accounts, audit claims or certify estimates to an individual who has a claim against the State or any of its municipalities.

It is true that the Statute declares that the books shall conform to a designated standard, but this standard no one will deny the power of the Legislature to establish. The right to fix the standard is, indeed, a condition essential to the existence of the power; deny the condition, and it must follow that each father or guardian that controls a pupil may dictate what studies he shall pursue and what books he shall use. Such a result would be most deplorable, for it would produce such chaotic confusion that the usefulness and efficiency of the school system would be completely and forever destroyed; but the provisions of the Conit the duty of the Legislature to establish a uniform system. A standard must be fixed in order that there may be fair and open competition, since there could be no intelligent bidding if bidders were not informed what they would be required to furnish. If only a limited class own or control property that the public good demands, then that class is in the best situation to bid; but there is no reason why the public shall not have the best that their representatives can secure. The utmost that can be done is to establish a standard and invite competing bids. If school books can be bought by local boards or by a state organization, some one publisher must of necessity be favored in every instance where a uniform system is adopted. This result can by no possibility be avoided. If, for illustration, McGuffey's series of readers should be selected as the standard, then the owners of the copy-right of that series would be favored, to the exclusion of all others. It comes at last to this, either the Legislature may authorize the state board to select the books, even though the selection may give peculiar advantage to one publisher, or it can neither buy nor authorize anyone to buy books protected by copyright. Everyone knows that the best books are thus protected, and so they should be, for an author is entitled to the benefit of his work, and it would be sinning against justice to pirate his books.

The Statute is not within the constitutional provisions directed against monopolies, It designates as the standard for the guidance of the state board of education certain books; requires that the books furnished for the use of the schools shall be equal in merit to those If no copyrighted books can be bought, then named; requires the board to advertise for pro- new discoveries and new methods, however imposals to furnish the books in a newspaper pub-portant, may be denied the children of our lished in each of the five large cities of the nation, and requires the board to award the contract to the lowest bidder. In the section directing the award of the contract it is enjoined upon the board to "ascertain under which of said proposals or propositions the school books" can be furnished to the people of the State for use in the common schools. In another section it is provided that the books shall be distributed by the township trustees, and that the books shall be sold to the pupils and patrons of the schools. It appears, therefore, that the object of the Act is to secure books for the public schools by means of open competition after full notice.

There is no exclusion of bidders, no limitation of the right to furnish school books to the

common schools, and this without sufficient reason, for no rule of law prohibits the purchase for public use of articles protected by letters-patent or by copyright. A familiar and forceable illustration is supplied by cases of the improvements of streets with patented pavements at the expense of the property owners.

We conclude our discussion of this phase of the subject by affirming that the Statute cannot be considered as creating a monopoly because it does require that a certain class of books shall be used, and in doing this does favor some publishers to the exclusion of others.

We accept as correct the assumption of appellant's counsel that the Statute does require the people of the State to buy the particular