American Yearbook Company v. Askew

• Decision Date: 10 March 1972
• Docket Number: Civ. No. 70-149.
• Citation: 339 F. Supp. 719
• Parties: AMERICAN YEARBOOK COMPANY, Inc., Plaintiff, v. Reubin O'D ASKEW et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

339 F. Supp. 719

AMERICAN YEARBOOK COMPANY, Inc., Plaintiff, v. Reubin O'D ASKEW et al., Defendants.

Civ. No. 70-149.

United States District Court, M. D. Florida, Orlando Division.

March 10, 1972.

William B. Barnett, of Edward J. Hanlon, Jr. & Partners, Orlando, Fla., for plaintiff.

Robert L. Shevin, Atty. Gen., State of Fla., Stephen Marc Slepin, Counsel, Bd. of Ed., Tallahassee, Fla., for defendants.

Before DYER, Circuit Judge, and YOUNG and TJOFLAT, District Judges.

MEMORANDUM OPINION AND FINAL JUDGMENT

TJOFLAT, District Judge:

This is an action brought by American Yearbook Company, Incorporated (American Yearbook), to challenge the constitutionality of certain Florida statutes and regulations which require that all public printing of the State of Florida be done in Florida.¹ By statute, state printing is divided into two classes: Class A, all printing required by the Legislative Department of the State Government; and Class B, all printing required by the state not included in Class A.² Class B public printing jobs are subject to further control by the Department of General Services,³ and, by regulation, it has designated, as Class B, printings for state-owned universities and colleges.⁴

American Yearbook is in the business of printing and manufacturing yearbooks for junior high schools, high schools, colleges and universities. It has agents in Florida who solicit contracts for the printing and manufacturing of yearbooks for various junior high schools, high schools, colleges and universities in Florida, both privately and state owned. However, because plaintiff has no printing facility in the state, it has been refused contracts to print yearbooks for state-owned universities.

American Yearbook attacks the constitutionality of the Florida printing statutes and regulations on three grounds. It complains that such statutes and regulations requiring that all printing be done within the state, first, place a burden on interstate commerce in violation of the Commerce Clause⁵ and, second, deny it the equal protection of the laws guaranteed by the Fourteenth Amendment. Plaintiff contends, finally, that the statutes grant the Department of General Services the power to determine what are Class B public printings, constituting a delegation of legislative power forbidden by the Florida Constitution.

Defendants, on the other hand, urge the validity of the printing statutes and regulations as a permissible exercise of the state's proprietary power which is exempt from the prohibitions of the Commerce and Equal Protection Clauses. As for the state-law question, they contend that the Department of General Services has no discretion to decide what may or may not be a Class B printing. Their arguments are well made.

Improper Delegation

The Court first considers the Florida constitutional question; for, if it can be answered in favor of American Yearbook, the federal constitutional questions can be avoided.

It is fundamental that the Legislature may not, except when authorized by the Constitution, delegate its legislative power, that is, the power to enact laws, or to declare what the law shall be or to exercise an unrestricted discretion in applying a law.⁶ What plaintiff desires the Court to find is that the printings that make up the Class B category are not adequately defined by the statute, leaving the Department of General Services unrestricted discretion to determine what they are and, thus, whether they must be done in Florida.

As we have indicated, the statute defines Class A printings as those required by the Legislative Department only; Class B includes "all of the printing required for the state not included in Class A."⁷ It is further provided by statute that Class B jobs shall be let under regulations adopted by the Department of General Services "to the lowest responsible bidder who shall manufacture the same within the state."⁸ Contrary to plaintiff's contention, the Legislature did not give the Department of General Services authority to designate what printing is Class B. The Department is only authorized to regulate the manner by which Class B contracts can be let.

The only non-federal question in this case must be resolved in the defendants' favor, and we are thus compelled to consider the federal constitutional questions.

Equal Protection of the Laws

Governments in the United States traditionally possess two kinds of power: one, governmental or public, in the exercise of which it is a sovereign and governs its people; the other, proprietary or business, by means of which the government acts and contracts for the private advantage of its constituents and of the government itself.⁹ Each of these types of power is limited by distinct sets of rules.¹⁰ In order to protect the rights and freedoms of private citizens from oppressive interference, the power of a state to govern is restricted by its own constitution and provisions of the federal constitution as well. When the state exercises its proprietary or business power, however, it is subject to no more limitation than a private individual or corporation would be in transacting the same business. While the line between governmental and proprietary function is none too sharply drawn and is subject to modification as concepts of government are changed to meet the demands of society, one principle remains fixed: the letting of public contracts, particularly those providing for internal needs of government, is a proprietary function.¹¹ This principle is implicit in the Supreme Court's decision in Atkin v. Kansas.¹² In that case an attack was made on a Kansas statute which imposed criminal liability upon contractors with the state who permitted or forced an employee to work longer than eight hours per day. Atkin, charged with violating that statute, argued that he was denied equal protection of the laws because employers, not doing state work, were not so restricted. The Court discarded his equal protection argument in no uncertain terms:

"Equally without any foundation upon which to rest is the proposition that the Kansas statute denied to the defendant or his employee the equal protection of the laws. The rule of conduct prescribed by it applies alike to all who contract to do work on behalf either of the state or of its municipal subdivisions, and alike to all employed to perform labor on such work."¹³

Significantly, the Court distinguished the statute in question from a similar statute which applies to employees in purely private work.¹⁴ This illustrates the Court's cognizance of the difference between an exercise of a state's proprietary power, such as placing conditions on its own public contracts, and an exercise of governmental power, such as regulation of private industry by placing limitations on private contracts. The state's right to dictate the specifications for its own work is further affirmed by the Court's closing statement:

"We rest our decision upon the broad ground that the work being of a public character, absolutely under the control of the state and its municipal agents acting by its authority, it is for the state to prescribe the conditions under which it will permit work of that kind to be done. Its action touching such a matter is final so long as it does not, by its regulations, infringe the personal rights of others; and that has not been done."¹⁵

American Yearbook argues that recent decisions of the Supreme Court have undermined the efficacy of Atkin. Two cases are cited to support this argument: Shapiro v. Thompson¹⁶ and Graham v. Richardson.¹⁷ We find them unpersuasive.

In Shapiro the Court reviewed constitutional challenges to state and District of Columbia statutes which denied welfare assistance to residents of the state or District who had not resided within their jurisdictions for at least one year immediately preceding their applications. The statutes in question created two classes of needy residents, indistinguishable except one was composed of people resident in the jurisdiction a year or more while the other comprised people resident less than a year. The Court overturned the statutes on two grounds: first, the classification constituted invidious discrimination against the second class of residents; secondly, it penalized the exercise of the constititional right to travel without promoting a compelling governmental interest.¹⁸

The Graham case involved constitutional challenge of two state welfare statutes. The question presented there was whether the Equal Protection Clause of the Fourteenth Amendment prevents a state from conditioning welfare benefits either (a) upon the beneficiary's possession of United States citizenship, or (b) if the beneficiary is an alien, upon his having resided in this country for a specified number of years. The statutes created two classes of needy persons, distinguishable only on the basis of citizenship. Recognizing that classification based on alienage, nationality or race is inherently suspect and subject to close judicial scrutiny, the Court held that the Equal Protection Clause had been violated.¹⁹

Shapiro and Graham are distinguishable from the case at bar in several meaningful ways. First, and most significantly, the former involved state and District of Columbia welfare statutes, not a state printing statute. The distribution of welfare benefits is obviously an exercise of governmental power. On the other hand, in framing specifications for its printing work, the state performs a proprietary function and stands in the shoes of a private party who is entitled in most instances to choose where and by whom his printing will be done. In that posture the state is like a trustee; the citizens are the beneficiaries. It may be necessary for the state to adopt discriminatory purchasing policies, such as those questioned here, to insure that the interest of the people is best served. In fact it is conceivable that the failure to do so would constitute a breach...