Untitled Texas Attorney General Opinion ( 1943 )

112
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
tlonorable i%illlp L. Stevenson, Presoidmt
State board ot ‘LiZucation (\
Austfn, lexas
Dear Sir:
perlntendent of
on within the tiate
ale 2846, a.c.s.,
ate Board of Educr-
tian meeting, be-
r 11, 1043, mom con-
option PR free text-
subtitted by each
publishers?
he V% instant readinK as
--At least thirty
of the meeting 0C the
firm or cor-
shall PrIe
Fublia Xa-
struction nine copies of each book on rhich
IL bid will be subtzitted, . . .*
113
f tionorable PhilLip P. Ste's'XISOh- page a
intendtnt ot Publfo Ias,truction the required
oopieo of books on which each desires to sub-
tit bids until 8,date subsequent to thirty
dnys prior to the date of,thc scetinx set by
the State board of !&ducatlon fur the purpose
of ado1M.n~ textbooks. Xhe copies of the
books each oompany is offering ar% IIQW on
ill%. 1 presume that arch OQIUpahy has qaali-
fi%d as 8n eligible biddar, unl%o% disquali-
Pied bwause the copies cm% not filed within
the legal time. In the &as% of iloover Brothers,
~ncorporoted, re have a worn statwent mad%
to fuli Clueute IicGuirt, Ctneral lianag%r, w
George L. Tome, President of The Onirereity
~Pubiisbing Coqany, that the samples 0r the
books &tooter I;rotbers, tacorporated, deelres
to s~bpit uore &led to Texas on September
4tII, I%& and that by some queer rata th3st
samples 8ere rtturYIsd to The Uzxirtrsityi3lb-
ll+kiag Coopany, harIng beea sent to Anstin,
Ubtaaesota, instead of Austin, Texas. The
samples reaohed Auustin,Texas, September alst,
loHa, ten days after the lrst legal &at% far
the filing of th% samples. In the oesa of
Johnson EUblishlng Coqany, I do not hare the
fact43 reaitiag reasons for its untimely filing.
1 presume that some extenuatln!: clrcunetanoe
evidently oauaed its rrilure. The requiwd
sampler were i?il%d by Johnson PubMaking C%E-
pony on sopteeber 13th, 1943, tro days subse-
quent to the lest legal date for Piliaq.
0Xou are respeotfully requested to answer
the r0110King inquiryi
liIirsthe failure of each Of these publish-
ers to fSlo s.mplee with the State Superintmd-
ent Oi' mblio SnstrUCt~OE Within thQ time r%-
qulrecl by the Artlols r.?P%rrerlti>, axi under
the circwstaacoe strtti, preoludodthe Btate
Board of Erlucatlon 8t its adaption mating be-
ginn,Lng Oatubcr 11th‘ 1943, from considering
for aiL*igtion8s f-r%% textbcrJko the books oub-
mitted by each 0P those publishers? I
*The fctxtbouk Advisory Comxittee commnoes
its official hearings in Austin, Toraa, on Uon-
114
dsy next, and it crould bcttsr write its
final report to the State BoarU of E&ma-~
tion if your eyin.4.0~upon this Batter sere
srtpplisd to It by Tuesday, Lieptenber 2sth,
1943. Please mail a copy of your opl.nton
to &r. a. A. blase, Director, Textbook
Dirision, and a oopy to me. If you can
supply the opinion within the time request-
ed, considerable time oan be sared and con-
f ualoa averted ..
Article 2846 provides as folles8r
‘* l I).
*At leaetthirty day6 prior to the
date of the seetillg of the sa3.d coadsaioa,
erqry person, fira or corporation desiring
to sub&f bide shall file ritb the State
Superintendent oP Publle Knstruction nine
GOpiC!Sai each book 011rhlch a bfd will bs
s&xl.tted, in each of lrhieh copies there
shall be printed or ataqed 8~st8teaent ef
the prtce at rhicb ua& book and special
editions thereof are sold in other places
under State or county ado,ptions, and the
min&hum quuntitiea in vhiob it vlll be
sold at such prices, and there shall alea
be prlated or stamped in suoh books a state-
Eent of the pabllsher'n oatalogue priae oi'
the same and speaial edltione,tbereof, to-
gether with trade discounts and the cnndi-
tions under rhich, and the purohasers to
IhOSt, cuch discounts are allowed, am3 the
place 0P deiivery. There shall also be
printed or stanpecl in each book the price
at which it is @lYerod to Yeses, f'. D. b.
the i~blisber'e Texas depository, -6il;ha?%%
ritboet.exohangs. There shall also be
print& or stas,ped in each hook the n;tai-
vma rholesale pr&co at vbich such book,
ati special editione tberevF, are sold ,
f. o. b. the shfppine point of' Che pub-
lisber ami tha nam of the shippin point
shall also be stat?dxlg
Bonorabls Pbillip Y. gteveaaou - pages 4
OrdLaarily, whether or not a atatate la maada-
tory ar directory only say be readily 4etcrPinad from &
literal consideration , but sueb is not always the case.
In all statutory eonstmotion tba intention of
the Legislature when dlscorerable &ON the lot as a
rho10 is the controlling consideration in determining
tlie question of marxktory or direotory n+ture of the lm-
guage .
Wen Article 2844 is read in the light of other
pertinent portiona of the statute, we think it ia clear
the requireamnt ef the Artiole with rmpeat to the de-
positing of sample books was inserted ao’lely Per the
benefit of tb8 Cm?dasion, to the end that the atmibsra
could ocqurint theaaelvea rith the books upon whlab the
bids are a&e. To the extent that the Coamlsaion uay
disregard auy bid of one failing te aoaq~ly therewith tbs
statute is auucdrtery. s&me, howwar, t.bs Ceaa&ae@ou baa
bad the privilege of uam.laatian, and has satiai%ed Itself
with rkapect to the oerita of such books, It would appear
the purpose of the requiremat ior esbibition of aaxples
has been set, ati there appears to be no reason why the
Cosniasion doea not hare the power to act upon the bid
precisely aa though the statute had been literally con-
plied ritb by the bidder. The requirmwt of thirty r
daya 6.ubm.baian of ample, the.refore, is to that extent
direotory . In other fords, such subaisalon fop the mull
time imationed la not awaiatory 1x1 the samse that ritbout
it the Comisgion is deprived of porw to conaider the
books and bid.
It ia easily onneeirable that a bidder rho has
failed to comply Uterallp with the requirement of sam-
ples, for even a short tim , way nevertheless submit
books which the Commission after a full exzmlaation and
appraiseisent of their writs wxzld fiad them te be the
sost aoaeptrble, and to deny it the pouw to accept them
would be a dieservios to the Gtoto and aat a set-vice, as
oontcn;plated br the statutes.
Tbhaconstruotlon we hare girea to the statute
is aooentuated by the language of Article 2847, which
cmtains prwlaiona requiring each bidder to file w,itb
the secretary ot” the ComaPisaion on the &IT that the COP
an aifldavlt ,to the ct’feot that oertain
mission Js%.?t.S)
I ’
Honorable phillip LI. St4venaen - pug0 U
taxes have been paid, and further coritaiaing certain
othe;r information, t’ollowml by the language, *lo pub-
lisher orbo cannot and does not coatply vaith these pro-
olsioas ahmll bo eli&Ble to bid..
It ~111 be seen that Article 28846 makes no
such eapbatio prorisioa with reapect to the depoelt-
ing of assplbs of book3 oCf4r4d.
The cas4 of Faderal Crude Oil Co. t. Touat-
Lea Oil Co,, b2 8. 1. (2) 56, illautrates the rule of
ooaatruotlon we hare here e~ounood. It is there sald~
l l a a .
The rula in th is regard is
well stated by Lhr. Sutherland in his fork
OA StatUtQv CoA8trilOtiOA (2d i%d.) 8 SW,
p. 1x171 ~Prmiato~s regulating; tbe du-
ties or public offtioero 8Ad specifying tbs
.timefor their peHorraaoea.re intbatre-
gard generally directory. rbough a rtat-
ute direote a tbi.ng to be done at a par-
ticular tiAe, It does not neoeaearil~ fol-
10~ that it 08y Wit be doAe afterwards.
In atber worda, aa the oases unirersal``
&old, P StdtUtb l
peOifjiDg a tin4 Within
which a publio officer is to parform a~
official act rega?diAg the rights and da-
ties of others is direotoey, unless tb4
nature of the act to be perforsued, or the
phraseology of the Statute, is such that
thS design&tioD Of tiE4 SRISt be coDeider-
led au a 1isdtatioD of the parer of the
officer."
What we bare esld abole 1s sufflcisnt to irult-
oats our opinion that the Board has the power to co~aid4r
and to accept, if it sees fit to do so, the bld of a pub-
llshcr rbo has failed to ocnply ritb the literal. reqtire-
cent of Article 28&1 of the statutea with raepset to tba
mabvahsion of samples of books fer the p4rL0d of tiaa there
m4DtiOAed.