Harrison Co. v. Code Revision Commission

• Decision Date: 26 September 1979
• Docket Number: 34873 and 34903,34872,Nos. 34871,s. 34871
• Parties: , 1980-1 Trade Cases P 63,147 HARRISON COMPANY v. CODE REVISION COMMISSION et al. (two cases). MICHIE COMPANY v. HARRISON COMPANY et al. CODE REVISION COMMISSION et al. v. HARRISON COMPANY et al.
• Court: Georgia Supreme Court

Page 30

260 S.E.2d 30

244 Ga. 325, 1980-1 Trade Cases P 63,147

HARRISON COMPANY v. CODE REVISION COMMISSION et al. (two cases).

MICHIE COMPANY v. HARRISON COMPANY et al.

CODE REVISION COMMISSION et al. v. HARRISON COMPANY et al.

Nos. 34871, 34872, 34873 and 34903.

Supreme Court of Georgia.

Argued May 15, 1979.

Decided Sept. 7, 1979.

Rehearing Denied Sept. 26, 1979.

Davis, Matthews & Quigley, Baxter L. Davis, William M. Matthews, Atlanta, for appellant (Case No. 34871).

Hansell, Post, Brandon & Dorsey, David J. Bailey, Atlanta, Arthur K. Bolton, Atty. Gen., Jefferson J. Davis, Asst. Atty. Gen., for appellees (Case No. 34871).

Gary W. Hatch, David J. Bailey, Atlanta, for appellant (Case No. 34872).

Baxter L. Davis, Atlanta, Arthur K. Bolton, Atty. Gen., Jefferson J. Davis, Asst. Atty. Gen., for appellees (Case No. 34872).

Baxter L. Davis, Atlanta, for appellant (Case No. 34873).

David J. Bailey, Atlanta, Arthur K. Bolton, Atty. Gen., Jefferson J. Davis, Asst. Atty. Gen., for appellees (Case No. 34873).

Arthur K. Bolton, Atty. Gen., Jefferson J. Davis, Asst. Atty. Gen., for appellants (Case No. 34903).

Baxter L. Davis, David J. Bailey, Atlanta, for appellees (Case No. 34903).

HILL, Justice.

The Harrison Company, publishers of numerous Georgia legal materials including the unofficial Code of Georgia Annotated, brought this lawsuit to challenge the validity and constitutionality of Resolution 447 of the 1978 session of the Georgia General Assembly continuing the Code Revision Commission (Ga.L.1978, p. 230), and the contract for Code revision between that Commission and the Michie Company, another publisher of numerous legal materials. Among other things, Resolution 447 authorized the Commission "to select a publisher to conduct revision of the Code and laws of Georgia."

A Code Revision Commission was created in 1976 (Ga.L.1976, p. 739). A second Code Revision Commission was commissioned in 1977 with power to select and contract with a publisher (Ga.L.1977, p. 922). The Commission was made a continuing body in 1978 pending revision of the Code and completion of the publishing contract (Ga.L.1978, p. 230).

After hearing presentations of several publishers and after receiving estimates from them (the Harrison Company's estimate was just under $500,000), the Commission in 1978 contracted with The Michie Company for $950,000 to "codify, revise and annotate, index, print, bind and deliver according to the directions of the Commission pursuant to the provisions of this agreement 500 sets of a revised and recodified Code of Georgia, which shall be designated 'Official Code of Georgia Annotated.' " The contract specifies that the statutory portion of the proposed revised Code will be submitted to the 1981 legislative session. It specifies further that statutes which have been held unconstitutional or have been repealed by implication or have become obsolete or duplicitous will be identified to the Commission.

The contract provides that all decisions of the appellate courts of Georgia plus applicable federal cases construing state law and federal and state constitutions shall be annotated. Case names, dates and complete citations will be given. Court decisions rendered obsolete by subsequent statutory or constitutional changes will be identified for the reader. Opinions of the Attorney General and relevant law review articles will be included, as will references to American Jurisprudence, Corpus Juris Secundum, American Law Reports and Uniform Laws Annotated. Annotations will be captioned, arranged and catchlined. Cross references and legislative history, including English common law and statutes, will be included.

Indexes shall be revised and updated, with references to repealed laws being deleted, and shall be based upon reader use as well as headings used by the legislature. "Double jump" cross references are to be avoided. Provisions are made for conversion tables, numbering system, printing and binding, as well as computer tapes.

The finished product, including constitutions, appellate court rules, annotations, indexes, tables, and notes are to be known as the "Official Code of Georgia Annotated," on which the state shall own the copyright. For its work, the publisher is to be paid $950,000 by the state. The publisher is to furnish the state 500 copies of the recodified Code and is given the exclusive right (excluding computer rights) to distribute and sell this Code for 10 years, at a beginning price of $450 per set plus a price index increase. During the 10 year period, annual supplements shall be ready for delivery within 90 days after the Governor approves the last bill and the price for annual supplements shall be fixed by the Commission.

Harrison named as defendants the Commission, its individual members, and The Michie Company. The original six count complaint was filed on June 16, 1978, when Harrison learned of the Commission's intention to contract with Michie. After the contract was entered into, Harrison amended its complaint and added eight additional counts.

Harrison moved for summary judgment on Counts 4, 5, 7, 8 and 10-14 of its complaint. The defendants moved for summary judgment on all counts. The trial court denied Harrison's motion for summary judgment and granted defendants' as to Counts 1-5, 7, 8 and 11-14, denying summary judgment to the defendants on Counts 6, 9 and 10. Applications for interlocutory appeals by all parties were granted by this court; additionally, Harrison filed a direct appeal. All appeals have been consolidated and the entire case is before this court for disposition. The trial court's rulings on Counts 1, 2 and 3 of the complaint, however, have not been appealed by Harrison and need not be considered. We will consider Counts 4-14 in sequence, without regard to who is appealing each ruling.

1. In Count 4 of its complaint, Harrison alleges that awarding the contract without competitive bidding violates Ga.Code Ann. § 40-1910 and that the contract will establish a monopoly in Georgia in violation of the constitutional prohibition against monopolies, Ga.Const. Art. III, Sec. VIII, Par. VIII (Code Ann. § 2-1409). ¹ Code Ann. § 40-1910 provides for competitive bidding for "all contracts for the purchase of supplies, materials or equipment made under the provisions of this Chapter . . . wherever possible . . ." The General Assembly is not subject to "the provisions of this Chapter". Code Ann. § 102-109 provides that the state is not subject to a law unless named therein or the intent that it be included be clear and unmistakable. By the same token, the General Assembly, including its committees, commissions and offices, is not subject to a law unless named therein or the intent that it be included be clear and unmistakable. See Coggin v. Davey, 233 Ga. 407 (II), 211 S.E.2d 708 (1975). Moreover, although the state will get some paper in the 500 Code sets received, the bulk of the contract involves publishing services and not "supplies, materials or equipment" within the meaning of Code Ann. § 40-1910.

The second claim in Count 4 is that the contract will tend to create a monopoly. There are two aspects to this claim. One is that the state's purchase of the Code from Michie, as provided for in the contract, tends to create a monopoly because it gives Michie a subsidy and a substantial competitive advantage. This, however, clearly does not tend to create a monopoly within the constitutional prohibition. If it did, many purchases by the state would be subject to the same challenge. ²

The second aspect of Harrison's claim that the contract tends to create a monopoly revolves around the clause in the contract which grants to Michie "the exclusive right to distribute and sell sets and volumes of the Code for a 10 year period extending from the date of the initial publication of the Code, as well as the exclusive right to publish annual supplements and periodic replacement volumes to the Code for the same 10 year period . . ." The exclusive right referred to is the exclusive right to publish the "Official Code of Georgia Annotated," the copyright for which will be in the name of the state. Both Michie and the state, however correctly concede that this provision does not prevent Harrison from publishing a competitive product; i. e., a Code with annotations by Harrison. As was said in Davidson v. Wheelock, 27 F. 61 (D.Minn.1866), a state's laws are public records open to inspection, digesting and compiling by anyone. Michie is not being given an exclusive franchise as to the publication of laws in Georgia. Thus the contract does not bar Harrison from the market, as was the case in Macon Ambulance Service, Inc. v. Snow Properties, Inc., 218 Ga. 262(2), 127 S.E.2d 598 (1962). Nor does the contract show an intent to drive plaintiff out of business and thereby create a monopoly as was alleged in Blackmon v. Gulf Life Ins. Co., 179 Ga. 343(1), 175 S.E. 798 (1933). The trial court did not err in granting summary judgment to all defendants on Count 4.

2. In Count 5, Harrison alleges that the composition of the Commission violates the separation of powers provision in the Georgia Constitution. Ga.Const. Art. I, Sec. II, Par. IV (Code Ann. § 2-204). The Commission, pursuant to Resolution 447, was comprised of ten legislators (including the Lt. Governor) and five members of the State Bar; of the five State Bar members, one was a superior court judge and one was a district attorney. Harrison argues that the Commission's function was executive and that therefore the appointment of ten legislators and two members of the judiciary (the judge and the district attorney) was unconstitutional, relying on Greer v. State of Ga., 233 Ga. 667, 212 S.E.2d 836 (1975) (George L. Smith II World Congress Center Authority) and Murphy v. State, 233 Ga. 681, 212 S.E.2d 839 (1975) (State Properties Commission). In our view, however, the work of the Commission; i. e., selecting a...