* Opinion of the Court-Leonard, J. stopping to make any extended investigation, it is safe to say that it will be difficult to find that any court of last resort in any of the states had, at the time of the adoption of our constitution, ever exercised an appellate jurisdiction over orders made, in actions or otherwise, by judges at chambers, or out of court, and it is equally safe to say that the framers of our constitution, when conferring appellate jurisdiction upon this court, intended such jurisdiction should be limited to the judgments and orders made by the courts. of the state. * To hold that the power exists in the legislature to compel this court to take jurisdiction of appeals from orders not made by any court, would, by indefinitely extending the right of appeal, greatly embarrass its proceedings, and hinder and delay it in its determination of those strictly judicial matters which were the sole object of its creation. We must, therefore, both for the protection of this court and in the interest of public justice, hold that the constitution limits the appellate power of this court to the judgments and orders of courts, and that 'orders' made by judges or other officers out of court cannot be the subject of review in the first instance in this court." And see Ex parte Cosner, 4 Tex. Ct. App. 89; Arberry v. Beavers, 6 Tex. 470; Baker v. Chisholm, 3 Tex. Conter v. St. Paul & S. C. R. R. Co., 24 Minn. 313; Hoffman v. Mann, 11 Minn. 366; Schurmeier v. Railroad Co., 12 Minn. 351; McNamara v. Minn. Cent. R. Co., Id. 389; Sturges v. Rogers, 16 Ind. 18; French v. Lighty, 9 Ind. 475; Wilmington & Susquehanna R. Co. v. Condon, 8 Gill. and J. 448. Without further discussion of this question, our opinion is, that there is no right of appeal in this case, and the same is dismissed. Argument for Relator. [No. 1160.] THE STATE OF NEVADA, EX REL. JOHN R. NEWNHAM, RELATOR V. THE STATE BOARD OF EDUCATION OF THE STATE OF NEVADA, RESPONDENT. THE STATE BOARD OF EDUCATION-TEXT BOOKS-WHEN RESOLUTIONS MAY BE RECONSIDERED.-The state board of education may, after it has passed a resolution prescribing a certain series of text books, reconsider its action and rescind such resolution at any time before the adoption of such books by the different school districts. APPLICATION for mandamus. The facts are stated in the opinion. A. C. Ellis, for Relator: I. When text books are once prescribed by the proper authority, every parent having children of school age attending the public schools, and who has procured such text-books, has a direct personal, legal right to have such books used in the schools. There can be no distinction taken between the enforcement of such right and the right of the parent to compel the admission of his child to the public schools when entitled to the benefit of such schools. Mandamus will lie to compel such admission. (State ex rel. Garnes v. Mc Camm, 21 Ohio St. 198; Roe v. Deming, 21 Ohio St. 666; People v. the Board of Education, 18 Mich. 400; Slate ex rel. Stoutmeyer v. Duffy, 7 Nev. 342.) II. It was not within the powers of the board, after it had prescribed Appleton's readers as text books, on the first day of December, 1879, to reconsider this action and change the text books on the third day of December 1879. (State ex rel. Flower v. Board of Education, 35 Ohio St. 368; People v. Board of Education, 49 Cal. 684.) W. H. Davenport, Attorney-General, for Respondent. Relator prays for the issuance of the writ of mandamus, Opinion of the Court-Leonard, J. commanding respondent, the state board of education, to allow his child and all other children in the public schools. of this state to use Appleton's school readers as text-books, and to take such steps as may be requisite for the introduction and use of said Appleton's school readers as textbooks in the public schools of the state, and for the exclusion therefrom of Sheldon's readers. The statute provides that, "the state board of education shall have a seal. *** It shall be the duty of said board to hold semi-annual sessions, for the purpose of devising plans for the improvement and management of the public school funds, and for the better organization of the public schools of the state, and such special sessions as may be called by the president. A full record of the proceedings of the board shall be kept by the secretary, and shall be embodied in the annual report of the superintendent of public instruction. (Comp. Laws, 3322.) "The state board of education shall have power, and it is hereby made their duty, to prescribe, and cause to be adopted, a uniform series of text-books in the principal studies pursued in the public schools, to-wit, spelling, reading, and physiology; and no school district shall be entitled to receive its pro rata of the public school moneys unless such text-books as prescribed by the state board of education shall be adopted and used in all the public schools. Orthography, reading, and geography shall be taught in all the public schools; and in each school above the grade of primary, there shall be taught English grammar and chemistry ; and in such schools as the board of trustees may direct, algebra, * astronomy, and the elements of book-keeping, or such other studies as the board of trustees may direct; provided, that the text-books shall not be changed oftener than once in four years." (Comp. L. 3361.) * * * * * * * * * * * * * * It will be seen that, by the first section of the statute quoted, the board of education has power to do, at a special session, any act that it may do at a regular or semiannual session. It will be observed, also, that under the last section quoted the board has power, and it is its duty, Opinion of the Court-Leonard, J. to prescribe and cause to be adopted a uniform series of textbooks in the principal studies, including reading. No school district can receive its proportion of public moneys unless it adopts and uses such text-books as are prescribed by the state board; and the text-books shall not be changed oftener than once in four years. The only facts of this case necessary to be stated are these: On the first day of December, 1879, Sheldon's readers were in use in the public shools of the state. It is not shown just when they were prescribed as text-books by the state board, or when they were first adopted and used in the public schools. It does appear, however, that they had been in use six years prior to May 1, 1883, and also that at its meeting held on the first day of December, 1879, the board did not intend any change in the readers used in the public schools, until September 1, 1880. It is probable that the four years provided by the statute, during which the Sheldon readers could not be changed, did not expire, in the opinion of the board, until September 1, 1880. To show the action of the board, we quote from its minutes: "CARSON CITY, December 1, 1879. "The board met as per announcement in circular issued May 29, 1879, to consider the matter of text-books. Members all present. * Mr. Hatch moved to make a change of readers. Carried. Messrs. Kinkead and Hatch voted in the affirmative, and Mr. Sessions in the negative. Mr. Hatch next moved to select a series of readers for use in the schools of Nevada for the next four years, beginning September 1, 1880. Carried by the same vote as above. The vote was taken by means of open ballot, and Appleton's readers were adopted. * * * It was moved by Mr. Hatch, and carried, that the secretary be authorized to enter into a contract with D. Appleton & Co. for furnishing readers in accordance with the proposition of their agent, Mr. White, and that in case of failure to fulfill said contract the agreement thus entered into shall be null and void. It was moved and carried that the consideration of the arith Opinion of the Court-Leonard, J. metics be postponed until the next meeting of the board, December fifteenth, prox. The proposition of D. Appleton & Co. (which was accepted) is as follows: * * * JOHN H. KINKEAD, President. D. R. SESSIONS, Secretary." 66 "CARSON, Dec. 3, 1879. Special meeting called to reconsider and review the action of the board at its previous session. Present full board. Mr. Hatch moved to reconsider the action had in adopting the Appleton readers, and to defer any further consideration of a change of readers until next meeting. Carried unanimously. The board then adjourned to meet again on Monday, December 15th, proximo. "N. B. There being no quorum present December 15, 1879, an adjournment was ordered, subject to call of the president. D. R. SESSIONS, Secretary." We shall concede, for the purposes of this decision, that on the first day of December, 1879, respondent, the board of education, prescribed Appleton's readers as text books for the public schools of this state, and that, if it did not have power to reconsider its action then had, it is now its duty to cause those readers to be adopted and used in the public schools for the period of four years. State v. Board of Ed. of City of Columbus, 35 Ohio St. 368, is cited by counsel for relator as being a case on all-fours with this, and we are urged to follow the decision there made as authority here. The value of a decision of another state court depends greatly upon the reasons given in its support, but beyond this, when it is based upon a statute, before we can be influenced by the conclusion arrived at, it must appear that, as to material points, the statute there construed was similar to the one we have under consideration. The school law of Ohio provided for a board of education for each district. or city. In the case referred to, the board's powers and duties did not extend beyond the city of Columbus. These boards were required to hold regular meetings every two weeks, and were empowered to hold such special meetings |