Kegeles v. Ambort

Paul Ward, Justice.

This appeal calls for a decision on the constitutionality of Act 441 of 1967 which created a State Printing Specifications Review Committee (hereafter referred to as Committee), which has the duty to review and classify state printing contracts, etc. The Committee, consisting of three members, is composed as follows:

I. The Purchasing Agent of one of the state supported institutions of higher learning.

2. The Purchasing Director of the State Health Department.

3. The State Purchasing Director.

On September 8,1967, Ernie J. Ambort (a taxpayer and appellee herein) filed a Complaint in Chancery against the Committee and others, alleging that the Secretary of State, pursuant to regulations promulgated by the Committee, is about to take bids on printing contracts in compliance with Act 441; that said Act is unconstitutional, and; that, if the contracts are awarded, plaintiff and other citizens and taxpayers will be irrevocably damaged. The prayer was that said Act be declared unconstitutional and void, and that the Secretary of State and the Commission be enjoined from proceeding further.

The Secretary of State answered that he neither admits nor denies the allegations in the complaint. The Committee, by answer, stated said Act 441 was a valid statute, and asked that the complaint be dismissed. The Attorney General, being permitted to intervene, also asked to have the complaint dismissed.

The matter being presented on a stipulation of facts, the trial court held Act 441 was unconstitutional and void, and enjoined further proceeding under same.

For reversal appellants rely upon one point, stated as follows:

“Act 441 is a valid enactment of our legislature which does not in any way violate Article 19, § 15 of the Arkansas Constitution.”

To clarify the pivotal issue here involved we first quote the portion of the Constitution referred to and abstract briefly Act 441.

Article 19, § 15 reads:

“15. Contracts for Stationery, printing and other supplies — Personal interest in contracts prohibited. —All stationery, printing, binding and distributing 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 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.” (Emphasis ours.)

Act 441 of 1967, in substance and in parts deemed pertinent here, provides.

§ 1. The Secretary of State, with the advice of the Committee, shall prepare specifications of all state printing contracts, etc.

§ 2. Creates the Committee.

§ 3. Relates to when the Committee meets and payment of expenses.

§ 4. The Committee has the following powers: (a) study and review existing contracts contemplated by said Section 15 of Article 19; (b) To evaluate the requirements of various departments relative to costs and services; (c) To assist in developing necessary specifications, rules and regulations.

§ 5. (1) Similar to (c) above — and approve such specifications. (2) Classify and specify the duration of contracts — whether one or two years. (3) Study requirements of state agencies.

$ 6. Secretary of State to supervise the opening and tabulation of bids contemplated under Art. 19, § 15, and specify the time and manner of advertising for bids.

Relates to manner of opening bids.

§ 8. Similar to § 7, and requests contracts to be let to lowest responsible bidder.

§ 9. The Secretary of State, with the Auditor and Treasurer, shall determine sufficiency of bond given by bidder, etc.

§ 10. Secretary of State may investigate sufficiency of bidder to carry out contract.

§ 11. The Secretary of State, with approval of the Committee, has discretion to determine when a contractor is in default, etc.

§ 12. All contracts awarded shall be approved by the Governor, Auditor and Treasurer.

§ 13. Repeals all laws in conflict.

§ 14. If any provision is invalid it shall not affect other provisions.

§ 15. Emergency Clause. Since it is found: that state agencies spend thousands of dollars each year for printing and stationery; that most laws governing such contracts are obsolete, and; there is a need to establish a procedure io. review the contracts now bemg let and in order that new specifications and procedures may be established to promote efficiency and economy in the letting of such contracts, an emergency is declared. (Our Emph.)

A careful examination of that portion of the Constitution copied above and the provisions of Act 441, leads us- to the conclusion that there is nothing in Act 441 which conflicts with the Constitution. We feel it is unnecessary to further belabor this conclusion, because appellee has failed — after being challenged by appellants — to point out any specific conflict or any reasons for an. affirmance of the trial court except those hereafter examined.

One. It is contended by appellee that the case of Ellison v. Oliver, 147 Ark. 252, 227 S. W. 586, is in point and calls for an affirmance here. We do not agree.

In the Ellison case we construed Act 107 of 1889 which selected the Governor, Secretary of 'State, and Auditor as a Board to award the printing contracts, and held said Act 107 invalid because Art. 19, § 15 necessarily meant someone other them the Governor must let or award the contracts. This was based on the fact that the Constitution required the governor to approve the contracts, not to let them. That conflict of interest does not arise under Act 441.

Also, appellee likewise relies on Muncrief v. Hall, 225 Ark. 570, 262 S. W. 2d 92, but that case is distinguished from the case here under consideration on the same principle announced in the Ellison case. This is fully explained at page 575 of the Arkansas Reports.

Two. Attention has been called to certain language used in § 4 (a) of Act 441 which shows the Act is unconstitutional. It states that the Committee shall have the power and duty “To study and review all existing contracts ...” There is no merit in this contention. A casual reading of the Act, and especially the emergency clause, indicates clearly there was no intent of the legislature to change any existing contract but only to procure information helpful in negotiating contracts in the future. Also it is pointed out that if such language violates the Constitution it can be eliminated under § 14 of the Act, and would not render the rest of the Act inoperable.

It is therefore our opinion that Act 441 of 1967 is valid and not unconstitutional, and that the decree of the trial court must be, and is hereby, reversed.

Byrd, J., dissents.