Davis v. Jerry, 5--4705
| Decision Date | 28 October 1968 |
| Docket Number | No. 5--4705,5--4705 |
| Citation | 245 Ark. 500,432 S.W.2d 831 |
| Parties | Wilbur P. DAVIS and Frank Humphreys, Appellants, v. Carlton JERRY, County Judge; Ray J. Ellen and C. Robert Mason, Election Commissioners, Appellees. |
| Court | Arkansas Supreme Court |
Shackleford & Shackleford, El Dorado, for appellants.
Beryl Anthony, Jr., El Dorado, for appellees.
The appellants brought a taxpayer's suit in the Union County Chancery Court to enjoin the county judge and election commissioners from signing a contract for the purchase of voting machines. The injunction was refused by the chancellor and appellants rely on the following points for reversal:
'There was a failure to comply with the county purchasing procedure act.
'There was a failure to comply with the freedom of information act.'
At the general election in 1966 the people of Union County voted in favor of purchasing voting machines for that county. Several meetings were held where the procedure for carrying out the mandate of the people was discussed by the election commissioners, the county officials and other interested parties including representatives of the League of Women Voters who had initiated and sponsored the election. Finally on July 15, 1967, the chairman of the county election commission, the county judge and other interested citizens, including Mrs. Cash, a representative of the League of Women Voters, met and discussed the procedure to be followed in purchasing voting machines. The county judge was directed to seek bids and Mrs. Cash requested notice of the meeting when the bids would be opened. It was determined at this meeting that since there were only two eligible voting machine companies qualified to sell voting machines in Arkansas, it would not be necessary to follow the county purchasing procedure act of 1965, Ark.Stat.Ann. §§ 17--1601 through 17--1613, so it was decided that formal notices would be sent to the two eligible prospective bidders requesting bids which would be opened on June 29, 1967. This procedure was carried out by the county judge under the direction of the county election commission. Both of the eligible companies submitted sealed bids and sent representatives to be present at the opening of the bids on June 29.
On June 29, 1967, at the time and place agreed upon, the bids were opened and read, and at this point there is considerable conflict in the testimony as to what followed. Appellants say that the meeting went into executive session with everyone cleared from the room except the county judge, the election commissioners and the deputy prosecuting attorney, and that after the closed session, 'outsiders' were again admitted to the room where it was announced that the election commission had voted unanimously to accept the lowest bid of Shoup Voting Machine Corporation. Appellees contend that after the bids were opened and read at the open meeting, identical questions were asked each voting machine company representative out of hearing of the other, and that when the voting machine company representatives were asked to step out of the room, others also left, without protest or objection, and without being asked to do so. Appellees contend, and so testified, that it was not their intention to exclude anyone from the meeting who desired to stay and that they did not hold a closed executive session to the exclusion of the public in violation of the Freedom of Information Act of 1967, Ark.Stat.Ann. § 12--2801 et seq. (Supp.1967).
Under the conflict of testimony on this point, we are unable to say that the chancellor's finding was against the preponderance of the evidence. This disposes of appellants' second point, but appellants' first point gives us more difficulty.
The purchase and use of voting machines in Arkansas was authorized by legislative Act 53 of 1963, now Ark.Stat.Ann. §§ 3--1701 through 3--1733 (Supp.1967). Section 3--1703 of this statute reads in part as follows:
'The State Board of Election Commissioners or the County Board of Election Commissioners shall have the authority to purchase or lease-purchase voting machines and payment may be provided for in such manner as is deemed best for the interests of the State, County or City in which an affirmative vote is cast under the provisions of this section.'
The County Purchasing Procedure Act (No. 52 of 1st Ex.Sess.1965) was passed by the legislature two years after the voting machine act, supra. The County Purchasing Procedure Act, Ark.Stat.Ann. §§ 17--1601 through 17--1613 (Supp.1967), is rather comprehensive in relation to all purchases by county officials with county funds in excess of $1,000.00 and is penal in nature.
Section 17--1601 is as follows:
Section 17--1602 provides as follows:
'(a) 'Purchasing Official' shall mean any county official, individual, board or commission, or his or its lawfully designated agent with constitutional authority to contract or make purchases in behalf of the county.
(b) 'Commodities' shall mean all supplies, goods, material, equipment, machinery, facilities, personal property, and services, other than personal services, purchased for or on behalf of the county.
(c) 'Purchase Price' shall mean the full sale or bid price of any commodity, without any allowance for trade-in.
(d) 'Purchase' shall mean and include not only the outright purchase of a commodity but also the acquisition of commodities under rental-purchase agreements or lease-purchase agreements or any other type of agreements whereby the county has an option to buy the commodity and to apply the rental payments on the purchase price thereof.
(e) 'Formal Bidding' shall mean the proedure to be followed in the solicitation and receipt of sealed bids, wherein: (1) notice shall be given of the date, time and place of opening bids, and the names or a brief description and the specifications of the commodities for which bids are to be received, by one insertion in a newspaper with a general circulation in the county, not less than ten (10) days nor more than thirty (30) days prior to the date fixed for opening such bids; (2) the furnishing, not less than ten (10) days in advance of the date fixed for opening the bids, of notices and bid forms to all eligible bidders on the bid list for the class of commodities on which bids are to be received, and the furnishing of notices and bid forms to all others requesting the same; and (3) by posting in a conspicuous place in the County Court House, at least (10) days in advance of the date fixed for opening bids, a copy of the notice of invitation to bid.
(f) 'Informal Bidder' shall mean the procedure to be followed in the solicitation and receipt of bids wherein: (1) notice or bid forms shall be furnished to all eligible bidders on the bid list for the particular commodity at least (5) five days prior to the date fixed for opening the bids; and (2) notice of invitation to bid shall be posted in a conspicuous place in the County Court House at least (5) five days prior to the opening of the bids.
(g) 'Open Market Purchases' shall mean those purchases of commodities by any purchasing official in which competitive bidding is not required.
(h) 'Trade-in Purchases' shall mean all purchases where offers must be included with the bids of each bidder for trade-in allowance for used commodities.
(i) 'Used or Second Hand Equipment or Machinery' shall mean any equipment or machinery having had at least 500 working hours prior use. Any purchase of used equipment or machinery shall be accompanied by a statement in writing from the vendor that such equipment or machinery has been used a minimum of 500 hours prior to such sale, and such written statement shall be filed with the county clerk at the time of purchase.'
Section 17--1603 provides as follows:
'All purchases of commodities made by any county purchasing official with county funds, except those specifically exempted by this act, shall be made as follows:
(a) Formal bidding shall be required in each instance in which the estimated purchase price shall equal or exceed $1,500.00.
(b) Informal bidding shall be required in each instance in which the estimated purchase price shall equal or exceed $1,000.00 but shall be less than $1,500.00.
(c) 'Open Market Purchases' may be made of any commodities where the purchase price thereof is less than.$1000.00.
(d) No purchasing official shall parcel or split any item or items of commodities or estimates, with the intent or purpose to change the classification or to enable the purchase to be made under less restrictive procedure.'
Sections 17--1607 to 17--1609 provide as follows:
'The County Purchasing Official shall establish and maintain a list of eligible bidders covering all commodities and shall furnish copies of the same to all purchasing officials of the county. Any firm which desires to bid and have its name on the list of prospective bidders shall notify the purchsing official in writing of such desire, setting forth the class and description of commodities on which it desires to bid, and the firm's qualifications as responsible bidder. Every effort shall be made by the purchasing official to notify all eligible bidders before purchases are made.
'(a) All bids which require either formal or informal bidding shall be opened in public and read at the time and place specified in the notice.
(b) The awarding of contracts need not be upon the day of the opening of the bids, but may be at a later date to be determined by the purchasing official. In order to assure that the bidder...
To continue reading
Request your trial
- Sims v. Powell's Estate
-
Mackey v. State
...That case held that the mayor was Civilly liable for ordering the payment of an illegal appropriation. Also cited is Davis v. Jerry, 245 Ark. 500, 432 S.W.2d 831 (1968). That was a civil proceeding. We there held that the county judge should be enjoined from failing to follow the county pur......