Ellison v. Oliver

• Decision Date: 31 January 1921
• Docket Number: 138
• Citation: 227 S.W. 586,147 Ark. 252
• Parties: ELLISON v. OLIVER
• Court: Arkansas Supreme Court

227 S.W. 586

147 Ark. 252

ELLISON v. OLIVER

No. 138

Supreme Court of Arkansas

January 31, 1921

Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor reversed.

STATEMENT OF FACTS.

Appellants brought this suit in equity against appellees to restrain them from proceeding further in carrying out an alleged contract for the reprinting and binding of certain Supreme Court Reports.

The facts are as follows: Appellants are citizens and taxpayers of the State of Arkansas. The Legislature of 1917 passed act 226 providing for the reprinting and sale of certain Arkansas Supreme Court Reports. Pursuant to the act the Governor, the Auditor and the Secretary of State advertised for bids for the printing and binding of certain volumes of the Supreme Court Reports, and C. C. Calvert submitted a written proposal to do the work. This bid was accepted, and the Governor Secretary of State, and the Auditor of State, purporting to be the board of commissioners to let public contracts entered into a written contract with the Calvert-McBride Printing Company of Fort Smith, Ark., for printing and binding 500 copies of certain volumes of the Arkansas Supreme Court Reports. The contract was signed by the Governor, as president of the board, and by the Auditor of State and the Secretary of State. The minutes of the board approving the contract were written up and signed by the Governor Secretary of State, and the Auditor of State. The printing company entered upon the work and printed reports until the appropriation, amounting to $ 40,000, was exhausted in payment of the work. The Legislature of 1919 passed act 257 entitled, "An Act to Appropriate Money for the Reprinting of Certain Supreme Court Reports." No new contract for the printing of the reports was let, and the Calvert-McBride Printing Company continued to do the work under the contract made on the 2d day of November, 1917, above referred to, and the act of 1919 was treated by the board and by the printing company as an appropriation to carry on the work under the contract executed on November 2, 1917. The printing company in good faith continued the work of reprinting the Supreme Court Reports and a large part of the appropriation made by the Legislature in 1919, was expended in paying for the same. The State Treasurer did not approve the contract made in 1917, nor was he asked to do so.

The chancellor was of the opinion that the contract between the Board of Commissioners and the Calvert-McBride Company, dated November 2, 1917, was a valid and binding contract and covered the reprinting of all the Supreme Court Reports involved in this controversy which were out of print, and that act 257 passed by the Legislature of 1919, was in effect an appropriation bill to pay the Calvert-McBride Printing Company for work done under the terms of the contract dated November 2, 1917, and that therefore a new letting was unnecessary under the last mentioned act.

A decree was entered accordingly, and the case is here on appeal.

Decree reversed and cause remanded.

E. G. Shofner, for appellants.

1. The chancellor erred in holding that act 257 of 1919 was a mere appropriation bill to pay the printing company for work done under its contract awarded under the act of 1917. The board did not advertise for bids and let a contract in the constitutional way. The act of 1919 can only be made a simple appropriation bill by judicial construction, and there is no room for construction of a statute unambiguous in its language. 56 Ark. 110; 47 Id. 404. Statutes should be construed according to their natural and obvious language. 110 Ark. 99. If the statute is plain and unambiguous, there is no room for construction, and resort to extrinsic facts is not permitted. 11 Ark. 44; 104 Id. 583; 93 Id. 42. If it was the intention of act 257, § 2, to adopt the terms of the contract let in 1917, it is void. 111 Ark. 571. If that was not the intention, then the machinery provided in act 226 of 1917 must govern, and the action of the board in proceeding without competitive bids is void.

2. The court erred in holding, in effect, that the act of 1917 authorized the board to let the contract for an amount of printing beyond the appropriation made and that this authority was legal. If the act of the board is to be upheld, their authority must be found in act 226 of 1919, and it must be firmly grounded upon the Constitution and general laws. Article 5, § 28, Constitution; article 16, § 12, Constitution; Kirby's Digest, §§ 3403, 3415-18; 120 Ark. 80; 42 Id. 243. If the act did not give the board authority to contract beyond the appropriation made for the purpose, a new contract must be made under the act of 1919; and the board is without authority to give the work to any printer without advertising for bids. 40 Ark. 251; 54 Id. 645; 111 Id. 571.

3. The court erred in holding that the contract let to Calvert-McBride Company November 2, 1917, covers any amount of printing beyond the appropriation made. Having entered into a contract for printing all the books out of print, the board left themselves without the right to select volumes. 42 Ark. 243. The reservation was not of the right to designate the order in which the books should be printed, but an absolute reservation of the right to designate the volumes that should be printed at all, or in any event. In the contract there is the right to terminate the contract at any time by the board. In view of the law, constitutional and statutory, the board reserved the right to shut off work whenever the printing company had executed enough work to absorb the appropriation and therefore to let a contract for reprinting $ 40,000 worth of books and no more. If the contract did cover all of the books out of print, regardless of the amount, and the board's authority to let the contract was legal, then the Legislature itself was without power to enact a law which would deprive it of the benefit of the contract. Even the Legislature could not do this. 42 Ark. 243. Unless both parties are bound, neither is. 4 Ark. 251.

4. The chancellor erred in holding that the contract of November 2, 1917, was a valid contract, and in refusing to go into an accounting under it. Art. 19, § 15, Const.; Kirby's Digest, § 6408. The contract in controversy was not approved by the Treasurer in his official capacity. The reprinting of these reports was such State printing as was covered by the Constitution and statute above quoted. 111 Ark. 571. Although our Supreme Court has not passed on the question presented, there are numerous decisions construing provisions identical with article 19, section 15, Constitution. See 56 P. 818; 57 Id. 449. These cases are peculiarly applicable here. The contract was never properly approved, and it was not effective after December 1, 1919. The Treasurer never approved it.

5. The chancellor erred in refusing to order an immediate accounting and in refusing to rescind the contract. The chancellor could and should have rescinded the contract and ordered an accounting. 40 Ark. 251.

The chancellor should have held the act of the printing board in employing the Calvert-McBride Company without advertising for bids under the act of 1919 to be illegal and restrained further payments and ordered an accounting.

Coleman, Robinson & House, for appellees.

Act 257 of 1919 was intended as a continuation of the appropriation of the act of March 18, 1917. There is no legal objection to the Legislature appropriating money for carrying out any contract in which the State is interested and making additional appropriations from time to time as the emergency exists. The matter is entirely in the Legislature's hands.

As to whether or not the board could have advertised for bids under the Acts of 1919 and been restrained by the contractor is entirely beside the question, as all parties have accepted the construction placed upon the act by the board and have been proceeding thereunder, and there is no merit in the contention that under the act of 1919 the Calvert-McBride Company expected to do the work for all time to come, as that is a matter entirely within legislative discretion.

Article 19, section 15, Constitution, was complied with, and the contract was properly approved. The cases in 57 P. 449 and 56 P. 818; have no application. See 127 N.W. 1079-81, 149 Iowa 76; 100 P. 1114-16; 23 Okla. 489; 96 P. 731; 37 Mont. 408.

John D. Arbuckle, Attorney General, and Silas W. Rogers, Assistant, for appellees.

1. Sections 6408 of Kirby's Dig., is a reproduction of section 5363 of Mansfield's Digest, and the contract was approved by the Governor, Secretary of State and Auditor.

2. There was no error in refusing to order an immediate accounting. Appellants have not been injured, as the case is still in court subject to final adjudication. The contentions of appellants are purely technical. State officers and the printing company have each acted in good faith, and the State has received a good contract and is receiving good work at a price which is a saving to the State.

HART J. MCCULLOCH, C. J., and SMITH, J., concurring.

OPINION

HART, J. (after stating the facts).

The decree of the chancery court is sought to be reversed on the ground that the contract of the date of November 2, 1917, for reprinting certain volumes of the Arkansas Supreme Court Reports is a valid and binding contract and that the act supplementary thereto, passed by the Legislature in 1919 was, in effect, an appropriation bill to pay the Calvert-McBride Printing Company for work done by it under the original contract. The correctness of the holding of the chancellor depends upon the construction to be given article 19, section 15, of the Constitution of 1874, providing for the letting of contracts...