Ellison v. Oliver
| Decision Date | 14 February 1921 |
| Docket Number | (No. 138.) |
| Citation | 227 S.W. 586 |
| Parties | ELLISON et al. v. OLIVER et al. |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Chancery Court; J. E. Martineau, Chancellor.
Suit by R. D. Ellison and others against Hogan Oliver and others. Decree for defendants, and complainants appeal. Reversed and remanded.
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. His 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 Ft. 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.
E. G. Shoffner, of Little Rock, for appellants.
Coleman, Robinson & House, of Little Rock, for appellees.
HART, J. (after stating the facts as above).
The decree of the chancery court is sought to be upheld 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 art. 19, § 15, of the Constitution of 1874, providing for the letting of contracts for public printing, the act of the Legislature passed for the purpose of executing this provision of the Constitution, and the act of 1917, together with the act of 1919 supplementary thereto, providing for the letting of the printing of certain volumes of the Arkansas Supreme Court Reports.
Article 19, § 15, of the Constitution of 1874 reads as follows:
The act of November 28, 1874 (Acts 1874-75, p. 42), makes the Governor, Auditor, and Treasurer of State ex officio commissioners to superintend the letting of the public contracts provided for in the section of the Constitution just referred to. That act also prescribed the regulations for letting such contracts.
In 1889 the act was amended to make the Governor, Secretary of State, and Auditor ex officio commissioners to superintend the letting of all public contracts for all the purposes set forth in art. 19, § 15, of the Constitution of 1874, and the act further provides that they shall discharge their duties in the manner hereinafter described. Crawford & Moses' Digest, § 9190 et seq.
The record in the instant case shows that the Governor, Auditor, and Secretary of State advertised for bids and let the contract under consideration to the Calvert-McBride Printing Company in November, 1917. The record also shows that no advertisement for bids was made under the statute passed in 1919, and that no new contract was let for the work done under it. The money provided for in that appropriation was paid out by the board under the contract made in November, 1917. The Governor and Auditor signed the contract, and also signed the minutes of the board's meeting at which the contract was let. The Treasurer did not approve the contract, nor was he called upon to do so. He had nothing whatever to do with making or approving it.
At the outset it may be said that the provisions of the Constitution with regard to letting the public printing and the regulations prescribed by the statute for letting such contracts are mandatory.
In Woodruff v. Berry, 40 Ark. 251, in discussing this question, the court said:
Again, in Hodges v. Lawyers' Co-operative Pub. Co., 111 Ark. 571, 164 S. W. 294, the court held that the publication of the Arkansas Supreme Court Reports fell within the provisions of art. 19, § 15, of the Constitution, and that that part of it requiring such contracts to be let to the lowest bidder is mandatory. The section of the Constitution in question provides that all such contracts shall be subject to the approval of the Governor, Auditor, and Treasurer. Before this is done no contract is made. These officers might consider all the bids too high and refuse to have the work done at the prices bid, or for some other legal and sufficient reason might not approve the contract. The language used is plain and unambiguous, and it is apparent that the requirement that the contract shall be approved by the designated officers is mandatory.
In Woodruff v. Berry, 40 Ark. 251, the contract was held invalid because the notice required by the statute was not given and because there was a combination among the bidders to stifle competition. The contract in that case was let by the Governor, Auditor, and Treasurer, acting as a board of commissioners to superintend the letting of public contracts under the act of November 28, 1874, constituting these officers as such board. The opinion in that case is silent upon whether the officers designated by the Constitution to approve the contracts could, under the statute, be made a board for the letting of such contracts.
The silence of the court on the question in that case cannot be said to be a recognition on the part of the court that the Legislature had the power to constitute the Governor, Auditor, and Treasurer a board to superintend the letting of printing contracts for the state. The construction of a provision of the Constitution is a matter of too much public importance to be decided by the mere omission of the court to pass upon a question in a given action unless the decision of the case necessarily involves a construction of the provision of the Constitution in the respect named.
As we have already seen, the decision of the court in the case just referred to proceeded upon other grounds and we do not consider that the question now presented was decided in that case.
It is contended that, inasmuch as all such contracts shall be subject to the approval of the Governor, Auditor, and Treasurer, this necessarily gives the Legislature the power to provide a board to superintend the letting of printing contracts...
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