Brown v. Seay

• Decision Date: 08 January 1889
• Citation: 86 Ala. 122,5 So. 216
• Parties: BROWN ET AL. v. SEAY, GOVERNOR, ET AL.
• Court: Alabama Supreme Court

5 So. 216

86 Ala. 122

BROWN ET AL. v. SEAY, GOVERNOR, ET AL.

Supreme Court of Alabama

January 8, 1889

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

Watts & Son, for appellants.

Thos. N. McClellan, Atty. Gen., for appellees.

CLOPTON J.

Appellants seek by the bill to enjoin the commissioner of agriculture from contracting with or paying any person or persons, other than complainants, for printing any books, documents circulars, notices, blanks, or other matter for the department of agriculture, and also to enjoin the governor auditor, and treasurer, respectively, from approving any account, drawing any warrant, and paying any warrant drawn, in favor of any person or persons, other than complainants, for printing any hand-books ordered by the commissioner of agriculture. The bill alleges that complainants in December, 1886, made a contract with the secretary of state to do the public printing and binding for a period of two years from January 1, 1887, in accordance with the statute requiring the public printing and binding to be let out to the lowest responsible bidder. It further alleges that in July, 1888, the commissioner of agriculture contracted with some persons unknown to print the hand-book of Alabama at the job printing-office of the Atlanta Constitution, in Atlanta, Ga., without advertising for bids therefor, and that such printing is covered by the contract of complainants. The hand-book, the publication of which is complained of, is provided for by section 13 of the act amending the act to establish the department of agriculture, which requires the commissioner, "as soon as practicable, to prepare a convenient hand-book, with the necessary illustrative maps, which shall contain all necessary information as to the mines, minerals, forests, soils, and other products, climate, water, and water-power; fisheries, mountains, streams, industries, and such statistics as are best adapted to give proper information of the attractions and advantages which the state affords to immigrants, and shall make illustrative exposition thereof, whenever practicable, at international or state expositions." Acts 1884-85, p. 168. On motion of defendants, the city court dismissed the bill for want of equity, and from this decree the appeal is taken.

Section 30 of article 4 of the constitution declares: "All stationery, printing, paper, and fuel used in the legislative and other departments of government, shall be furnished, and the printing, binding, and distribution of laws, journals, department reports, and all other printing and binding, and repairing and furnishing the halls and rooms used for the meetings of the general assembly and its committees, shall be performed under contract, to be given to the lowest responsible bidder below a maximum price, and under such regulations as shall be prescribed by law." It is contended that this provision is imperative upon the people, the officers and agents of the state, and is beyond the power of the governor or other officer to disregard. The purpose of the provision is to change the mode of having the public printing done,-from being performed by a state printer elected by the general assembly, which was the mode at the time the constitution was ordained, to performance under contract. The provision is not legislative in its nature, nor is it a negative or prohibitory clause, which of itself declares the law. It establishes a principle, but does not provide the means requisite to carry it into effect. Doubtless it was the intention to impose a duty on the general assembly, and to require the enactment of legislation on the particular subject of the public printing. The requirement, however, has only moral force, no rule for the enforcement of the duty being provided. The provision, in terms, contemplates and provides for supplemental legislation,-"shall be performed under contract, and under such regulations as may be prescribed by law." Not doing the thing which it declares shall be done, it is not self-executing, but expends its whole force in commanding legislative action. Being merely mandatory, it is inoperative until aided by legislation, and is operative only to the extent the supplemental legislation imparts vitality. Cooley, Const. Lim. 98.

In obedience to the constitutional mandate, and for the purpose of carrying into effect the principle declared thereby as to the mode of having the public printing done, the legislature enacted March 7, 1876, soon after the constitution went into effect, "An act to provide for the public printing of the state," which constitutes sections 111 to 117 inclusive, of Code of 1876. Section 111 declares: "It shall be the duty of the secretary of state to let out to the lowest responsible bidder, during the month of December, 1876, and during such month every two years thereafter, all the public printing and binding authorized by law for the state, for a period of two years, commencing on the 1st day of January thereafter." The terms of the section may be broad enough to include all the public printing and binding authorized by law, but the comprehensiveness of the language is limited and qualified by the provisions of the succeeding section, 112. The latter section provides: "Any person, company, or firm, citizens of this state, who shall desire to do such printing, shall file with the secretary of state a sealed proposal, setting forth the price at which he or they will execute the public printing and binding. No bids shall be received and considered at a greater rate than that fixed in an act to fix the...