taining a demurrer to the petition, relator brings certiorari. Affirmed.

Kingsley & Kleinhans, for relator.

Henry J. Felker (Fletcher & Wanty and W. W. Taylor, of counsel), for respondent.

LONG, J. The board of education of the city of Grand Rapids is composed of 24 members and the mayor of the city. It was created under Act No. 344, Laws of 1871, as amended by Act No. 451, Local Acts 1887. Section 11 of the amended act prescribes the powers and duties of the board as follows:

"The board of education of said city shall have power and authority to designate and purchase school-house sites; to construct and erect school buildings, and furnish the same; to employ superintendents, teachers, librarians, janitors, and workmen; to provide room, furniture, apparatus, books, and charts and all things requisite for the district library; to provide apparatus and scientific collections for illustration; to establish, locate, and maintain high schools, grammar schools, primary schools, and industrial or manual training schools; to establish and maintain a district library; to purchase, exchange, repair, and improve the school apparatus, books, furniture, appendages, fixtures, text-books, and all other school supplies used in said schools; to supply and loan to all pupils in the several grades and departments of said schools, free of charge, but under such rules and regulations as the board shall prescribe, all text-books and supplies used and to be used by the pupils of said schools; to collect in and recover back all books and apparatus heretofore loaned and given to indigent pupils of the public schools of said city; to do all things needful and desirable for the maintenance, prosperity, and success of said schools, and the promotion of the thorough education of the pupils thereof; and to adopt by-laws and rules for the procedure of the board, and to make and enforce all needful rules and regulations for the control and management of the schools and district library of said city."

Section 5067, 3 How. Stat., provides that when textbooks are once adopted by any school board they

shall not be changed within five years, except by consent of a majority of the qualified voters of the district present at an annual meeting, or a special meeting called for

that purpose.

Harper's series of geographies had been in use in the schools of Grand Rapids for more than five years, when, on January 5, 1895, notice was given by one of the members that at some future time he would propose the adoption of Frye's series of geographies. The matter was thereafter presented, and referred to a committee, who made a report to the board on August 3, 1895, recommending the adoption of the Frye series. Twenty-one members of the board were present. A motion was made to lay the report on the table. The vote was taken by yeas and nays, 15 members voting nay and 6 voting yea. The motion was declared lost. A motion was then made that the report be adopted, and upon this motion 13 voted yea and 8 nay. The motion was declared carried, and the Frye series adopted. Relator made a petition to the court below asking a mandamus to compel the board to rescind its action, and that in the meantime the board be restrained from incurring any liability on account of such action. The board demurred to the petition. The case was heard in the court below, and the demurrer sustained. The case comes here by certiorari to review the action of the lower court.

The contention of counsel is that the board acted without authority of law, and contrary to its by-laws, rules, and regulations, and especially to rules 13 and 66. Rule 13 of the board provides:

"The committee on text-books shall, from time to time, recommend to the board such changes in the books used in the schools as may be deemed expedient. No action shall be had upon text-books except at a regular meeting of the board, and no text-book shall be adopted which has not been proposed at a regular meeting at least one month previous to its adoption, and no book or books shall be considered adopted which do not receive the

affirmative vote of a majority of the entire board. The text-books used and the studies pursued in all schools of the board shall be such, and such only, as are authorized by the board; and no pupil will be allowed to continue in school unless furnished with the required books and stationery, except by permission of the superintendent. Twenty copies of every book, atlas, or other production, and six copies of every extended map, sought by publisher, author, or agent to be introduced into the public schools, must be donated to the board before the same shall be referred to the text-book committee, and all such presentations shall lie on the table one month for examination before the final action of the board. No text-book, song, or printed paper of a sectarian or political character shall be adopted or used in any of the schools of the board."

Rule 66 provides that any rule or by-law may be sus pended by a vote of two-thirds of all the members present.

The contention is that rule 13 was in force, and not suspended, and that upon the adoption of the report two-thirds of the members did not vote in the affirmative. Counsel proceed upon the theory that these rules are binding upon the present board; that under the statute the board was compelled to adopt rules in reference to changes of text-books in the schools. But, however this may be, we think it clear that the board, at its meeting on August 3, 1895, suspended rule 13, as provided by rule. 66; that is, by a two-thirds vote of all the members present. The motion was made to lay the report of the committee on the table. This was declared lost by a vote of 6 yeas to 15 nays. The report was then by a vote of twothirds of the members present before the board for action, and there was nothing then before the board but the report to be acted upon. The rule having been suspended, it required only a majority vote to carry it. This was given, and the report adopted. As this action, we think, must settle the case, no further discussion is necessary.

The court below very properly sustained the action of the board, and that order must be affirmed.

The other Justices concurred.

LANAHAN v. KENT CIRCUIT JUDGE

REPLEVIN-NON-RESIDENT DEFENDANT-PLURIES WRITS DISMISSAL OF SUIT.

The appearance of a non-resident defendant in replevin cannot be forced by the seizure of property and the issuance of successive writs without expectation of service, and where a considerable period (e. g., 11 months) has elapsed since the issuance of the last writ, and no return thereof has been made, the proceedings should be dismissed upon motion, and an assessment of damages awarded.

Mandamus by William Lanahan and others to compel William E. Grove, circuit judge of Kent county, to dismiss a replevin suit. Submitted October 8, 1895. Granted October 22, 1895.

Rood & Ryan, for relators.

D. E. Corbitt, for respondent.

MCGRATH, C. J. On the 21st of January, 1893, a writ of replevin issued from the Kent circuit court against property alleged to be unlawfully detained by relators. The writ was returnable February 7, 1893. On that date, the sheriff made return that he had seized the property, but was unable to find defendants or either of them. On February 15, 1893, defendants appeared specially, and moved to quash the writ, and that they have judgment for the value of the property taken. On February 20, 1893, the motion was denied, and on application an alias

writ was issued, returnable May 20, 1893. June 5, 1893, the sheriff returned that he was unable to find defendants. May 20, 1893, a pluries writ was allowed, returnable August 19, 1893, and returned not found. Other pluries writs were issued August 19, 1893, November 17, 1893, and February 13, 1894, the first two of which were regularly returned, but the last was not returned. On January 14, 1895, again on February 13, 1895, and again on February 19, 1895, defendants appeared specially, and moved to dismiss and for judgment for the value of the property, which motions were denied. Pending the second motion, plaintiff, on February 15, 1895, asked for another pluries, and the same was allowed. Upon the motions made by defendants, it was set forth that, on the same day that the writ of replevin was issued against relators, said relators had caused to be issued out of the same court a writ of replevin for the same property against one Gelock; that said replevin suit had since been tried, resulting in a judgment in favor of relators. It further appeared that relators were at the time of the issue of said writs, and ever since have been, residents of the State of Maryland. Relators ask for a mandamus directing the circuit judge to dismiss said proceedings, and award to relators a judgment for the value of the property. The answer admits the facts set forth in the petition.

The appearance of non-residents in a replevin suit cannot be forced by successive writs, issued without expectation of service. The writ may run against any party in possession, and the claimant is thereby fully protected. Alias and pluries writs in such cases should issue seasonably, and with reference to a prospective service. There is no claim that the absence of defendants from the State was temporary, but it is conceded that they were and are non-residents, and beyond the reach of process. When, in January, 1895, defendants moved to dismiss, 11 months had elapsed since the issuance of the last writ, and no return thereof had been made.