Hodges v. Lawyers Co-operative Publishing Co.

Hart, J. The General Assembly of 1913 passed the following act: “Section 1. That the Secretary of State is hereby authorized and directed to lend to the Lawyers’ Co-operative Publishing Company, of Rochester (N. Y.), the plates of volumes 1 to 90, inclusive, of the Arkansas Supreme Court Reports. Be it further provided, that before the Lawyers’ Co-operative Publishing Company is given possession of said plates, it will give a bond to be approved by the Attorney General of the State of Arkansas and the Secretary of State in the sum of five thousand dollars, conditioned to the effect that the said Lawyers’ Co-operative Publishing Company will publish said Arkansas Supreme Court Reports, volumes 1 to 101, inclusive, and volumes 102 to 112, when they have been published, and exhaustively annotate the same, and, when so published, annotated and completed, will sell to the residents of the State of Arkansas said annotated reports at a sum not greater than two dollars and fifty cents per volume. Conditioned, further, that said publishing company will publish as soon as practicable all volumes of the Arkansas Supreme Court Reports now out of print, not to be annotated, and will sell same to residents of the State of Arkansas at a sum not greater than two dollars per volume, and to the State of Arkansas, for State purposes, at a sum not greater than one dollar and fifty cents per volume. All said books herein referred to, tp be bound in sheep or buckram. Provided, further, that in case the said Lawyers’ Co-operative Publishing Company does not fulfill the conditions of its bond, it is, upon demand of the Secretary of the State of Arkansas, to return all the said plates, to the State; provided, further, the bondsmen will indemnify the State of Arkansas for the loss or destruction or any damage said plates may sustain while in the possession of the Lawyers’ Co-operative Publishing Company. Provided, further, that so long as the conditions of said bond are fulfilled, the said Lawyers’ Co-operative Publishing Company will have the right to sell said reports.” The Lawyers’ Co-operative Publishing Company instituted mandamus proceedings in the Pulaski Circuit ■Court to compel the Secretary of State to deliver the plates to it, and stated in its complaint that it had complied with the provisions of the act by giving the bond required of it, and that it was ready and able, in all respects, to perform the other conditions prescribed by the terms of the act. The Secretary of State filed .answer to the petition, in which he alleged that the act was in conflict with section 15, article 19, of the Constitution. The plaintiff interposed a demurrer to the answer filed by the Secretary of State, which was by the circuit court sustained, and the petition of plaintiff for a mandamus against the Secretary of State was granted. Prom the judgment rendered, the Secretary of State has duly prosecuted an appeal to this court. The only issue raised by the appeal is whether or not the act of the General Assembly, approved April 18, 1913, and above set forth, violates section 15, article 19, of the Constitution of this State. The section of the Constitution is as follows: “All stationery, paper fuel, for the use of the-General Assembly and other departments of government, shall be furnished, and the printing, binding and distributing of the laws, journals, department reports and all other printing .and binding, and the 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 such maximum price and under such regulations as shall be prescribed by law. No member or officer of any department of the Government shall in any way be interested in such contracts, and all such contracts shall be subject to the approval of the Governor, Auditor and Treasurer. ’ ’ In construing section 15, article 19, of the Constitution in the case of Woodruff, Admr., v. Berry et al., 40 Ark. 251, the court said: “The end proposed in the constitutional provision requiring public contracts to be let to the lowest bidder is public economy. And the means provided by the Legislature is an extended notice in the public journals so as to insure publicity and secure competition. The established policy of the State upon this subject is, that public contracts are to be let upon public notice, and to be open to competition upon proposals, and are to be made with the lowest bidder who can give due security. The entire authority of the board to let such contracts is conferred by statute, and the statute prescribes how only they can contract. Any other contract is unauthorized, in excess of the powers vested in the board and voidable at the election of the State.” Our Constitution expressly states that the power of the Government of the State of Arkansas shall be divided into three distinct departments, towit: Executive, legislative, and judicial. The language of section 15, article 19,- is, in substance, that all printing for the use of the General Assembly and other departments of Government, and all other printing, shall be performed under contract to be given to the lowest responsible bidder. The language of the Constitution is plain, and requires all contracts for printing for any of the departments of the State Government to be let to the lowest bidder. The publication of the volumes of the Arkansas reports is a publication of the opinions of the Supreme Court, and falls within the provisions of the section of the Constitution under consideration. It is urged by counsel for plaintiff that the State is not bound to purchase any of the volumes published, and in this respect the act is distinguished from an ordinary contract for printing for the departments of Government. It is necessary that the other departments of the Government have the Supreme Court Reports, and our statutes provide for their distribution. Sections 3358 to 3368, Kirby’s Digest. The latter section provides that whenever any that have been distributed become lost, duplicate reports shall be furnished. The act in question provides that the State shall pay a certain stipulated price for the reports published by it. We are of the opinion that the act is an attempt to evade the section of the Constitution above quoted, and that it has no binding force and effect. It follows that the judgment of the circuit court will be reversed and the plaintiff’s complaint will be dismissed here.