Erxleben v. Horton Printing Co.

Webb Hubbell, Chief Justice. The Arkansas Office of State Purchasing sent to forty-three potential vendors, including Appellee, Horton Printing Company, an invitation to bid on certain printing for the General Assembly, including letterhead, envelopes, and memo pads. Appellee’s bid, the only qualified bid submitted, was then presented to the Legislative Printing Committee for consideration, but the bid was rejected because it was fifty percent higher than the cost of the previous year’s contract. The Committee then asked for and received a proposal to do the printing from the Arkansas Department of Correction Prison Industries. The Correction Department’s representatives quoted a price of $15,920.54 for the letterhead, envelopes, and memo pads, an amount forty-five percent less than Appellee’s bid for the same items. The Committee designated that the printing be obtained from the Correction PrintinguShop without rebidding, and the Office of State Purchasing notified Appellee that its bid was rejected. Appellee then filed its complaint in Pulaski County Chancery Court seeking injunctive and declaratory relief. The printing was delivered by the Prison Industries and was paid by a transfer of funds. Because the printing had been delivered, the issues before the court were limited to a declaratory judgment and were tried on stipulated facts. Appellee claimed that pursuant to Amendment 54 of the Arkansas Constitution the Office of State Purchasing could not obtain printing for the General Assembly from another state agency without competitive bids. The chancellor found that Amendment 54 mandates that printing for the General Assembly can not be obtained from Prison Industries without a competitive bidding and award procedure. We reverse. Prior to Amendment 54 the acquisition of printing used by the State of Arkansas was limited by Article 19, Section 15 of the Arkansas Constitution which required all printing contracts be awarded to the lowest responsible bidder. This court has considered Article 19, Section 15 in several cases. In Ellison v. Oliver, 147 Ark. 252, 227 S.W.2d 586 (1921), the court considered a contract for reprinting of the Supreme Court Reports. The legislature had appropriated funds to continue to pay for printing under a two year contract rather than advertise for bids on a new contract at a higher cost. The court held a contract not approved by the auditor as required by Article 19, Section 15 was void, and the legislature had no power to pay for the work when no bids were taken. We interpreted “printing” in Article 19, Section 15 to permit the state to use office duplicating machines in Parkin v. Day, 250 Ark. 15, 463 S.W.2d 656 (1971). We construed Article 19, Section 15 and Act 452 of 1973 in Gray v. Gaddy, 256 Ark. 767, 510 S.W.2d 269 (1974). Act 452 sought to limit the scope of Article 19, Section 15 by narrowly defining “printing” and “stationery” to permit procurement of some items without bidding. We held Act 452 unconstitutional insofar as it restricted the definitions of “printing” and “stationery” because Article 19, Section 15 addressed “all stationery, printing . . . .” Following the decision rendered in Gray v. Gaddy, supra, Amendment 54 was submitted by the legislature to the voters and was passed in the General Election of 1974. Amendment 54 changed the language in Article 19, Section 15 from “All . . . printing . . . for the use of . . .” to “The printing . . . purchased by the General Assembly . . . .” The chancellor found that Amendment 54 requires all printing “purchased” from any source be based on competitive bids, even if that source is another state agency. This interpretation of Amendment 54 would not effect any change from Article 19, Section 15. If a change occurs in language, a change was intended in the result. 2A Sutherland, Statutory Construction, § 45.12 (4th Ed., 1972); Glover v. Henry, 231 Ark. 111, 115, 328 S.W.2d 382 (1959). When the General Assembly received the printing it ordered, funds were transferred to the Prison Industries Fund Ark. Stat. Ann. § 13-2612 (Supp. 1983). Although the act which requires state agencies under specific circumstances to obtain goods from Prison Industries calls this transaction a purchase (Ark. Stat. Ann. § 46-237 (Repl. 1977), in fact what occurs is that the determined value of the goods is transferred from one state account to another account. A purchase is a transmission of property from one person to another by voluntary act and agreement on valuable consideration. Black’s Law Dictionary 1110 (5th ed. 1981). A purchase is not a bookkeeping entry transferring money from one state account to another. The Arkansas Constitution is a limitation upon and not a grant of power to the legislature. Wells v. Purcell, 267 Ark. 456, 464, 592 S.W.2d 100 (1979); Jones v. Mears, 256 Ark. 825, 510 S.W.2d 857 (1974). Absent the limitation contained in Amendment 54, the legislature would not be required to submit printing contracts for public bids. Amendment 54 limits only purchases by the General Assembly, not transfers of funds from one state agency to another. After a review of the history of legislation and litigation involving Arkansas’ attempts to perform some of its own printing, and after consideration of the change in the language in Amendment 54 form “All . . . printing” to “The printing . . . purchased”, we conclude that Amendment 54 requires competitive bidding for printing purchased from commercial printers, but permits the state to produce its own duplicating and printing without submitting a bid. Our construction of Amendment 54 gives effect to the change in the language from Article 19, § 15 to Amendment 54, and still maintains the safeguards necessary to insure economy of state funds. Our construction is also consistent with opinions from other states. Director of Department of Agriculture and Environment v. Prison Industries Association of Texas, 600 S.W.2d 264 (Tex. 1980); Associated Industries of Alabama, Inc. v. Britton, 371 So.2d 904 (Ala. 1979). Reversed. Hickman and Purtle, JJ. dissent.