Untitled Texas Attorney General Opinion

Honorable Wa1ter.L. Bell OpinionsHo. S.-l70
Executive Director " .~ : ,-.
State Board of Control Re: Construction of Section.
Austin, Texas 21 of Article XVI. of the ``
Constitution of Texas a,s
to the purchase offuel
Dear Mr.-Bell: for State departments. i
~Your opinion request reads as follows:
"Section 21 ~ofArticle .XVI of the Constitui
tion of Texas provides in substance, with,,other
provisions not material to this request, that
all :fuel used inthe legislative~,andother de-,. .``
partments of the government shall be furnished ..
under contract to be given to the lowest respon-
sible bidder and under such regulations as'-shall '.
be prescribed by law and all such contracts shall ,.1,:
be subject to the approval of the Governor,
Secretary of State and Comptroller.,
"Under Article .634,of~the Revised Civil Stat- ~:
utes, the Board of Control is made the purchasing
agent for all supplies, except perishable goods,
which are used by the departments and inst.itutions :
of the State. The Board also handles utility con-
tracts for the state ~buildingswhichare in its
custody. In carrying out .these duties it is neces-
sary for us to determine whatcontracts made by
the Board~come withinthis constitutional provi-
sion. We request.your opinion on the following
questions:
"(1) Does the term 'fuel' as used in Section
21 of Article XVI of the Constitution include gas-
oline and other motor fuels which,are purchased
and used exclusively for operating automobiles,
trucks, airplanes, boats or other types of vehi-
cles?
"(2) Do contracts for the purchase of gasoline,
diesel fuel, propane, butane, and similar typesof
fuel for stationary power or heating purposes come
within this provision?
r -.
Hon. Walter L. Bell, page 2 (S-170)
“(3) DO contracts for the purchase of gas
which is furnished by connection with a public
utility system come within this provision?"
Webster's International Dictionary defines fuel as
"any matter used to produce heat or power by burning, as
wood, coal, peat, petroleum, gas." Another definition is
"any matter used to produce heat or power by combustion."
This definition includes all the substances listed in your
inquiry, but we can not conclude that Section 21 applies to
all ~purchases of fuel, regardless of the use to which it is
put. We must examine the full wording of the section and
determine the intended scope of the language "fuel used in
the departments of the government."
The primary rule of interpreting and construing a
constitutional provision is to ascertain the intention of the
people in adopting it; and to give effect to that intention.
Cox v. Robison, 105 Tex. 426, 150 S.W. 1149 (1 12); Williams
v. Castleman, 112 Tex. 193, 247 S.W. 263 (19223 .* The language
of constitutional provisions should be construed as the
voters at the time of its adoption would reasonably have
understood it to be. Orndorff v. State, 108~S.W.2d 206 (Tex.
'Civ.App. 1937, error ref.). In arriving at the intended
-meaning of the language, the history of the time and the con:
ditions prevailing at the time of its adoption may be con-
sidered. Grass.0v. Cannon Ball Motor Freight Lines, 125 Tex.
154, 81 S.W.2d 482 (1935). The fact that new conditions not
known to the framers of the Constitution have arisen since
its adoption does not prevent the application of the terms
used as then intended to new and changed conditions if such
new and changed conditions come within the purpose, meaning
and intent of the framers. Western Co. v. Sheppard, 181
S.W.2d 850 (Tex.Civ.App.~l944 errorref.). But where con-
ditions have changed since thi time of adoption, "it is a
proper inquiry, in ascertaining whether a certain lnterpre-
tation should be given to the language of the Constitution,
to consider whether its framers and the voters by~whom it
was adopted intended the consequences which must follow such
interpretation." Kay v. Schneider, 110 Tex. 369, 378, 218
S.W. 479, 221 S.W. 880 (1920).
To answer your first two questions, we must deter-
mine the scope of the words "fuel used in the departments of
the government"~in the light of the conditions which existed
at the time this provision was adopted in 1876. At that
time the use of fuel by the departments of the state govern-
ment was confined to heating and lighting the buildings in
which the departments were housed. This is the general
nature ~of the use which the language of Section 21 suggests
.Hon. Walter L. Bell, page 3 (S-170),::
and which was within the contemplation of ,its adopters. It
would be unreasonable to assume thatthey envisioned the
time when the departmen~tswould be using-fuel for operating
vehicles or thatthey would have intended Section 21 to
encompass such a use. The problems connected~with refuel-
ing vehicles are so different from those involved in the re-
fueling ~ofequipment,used for.providing light,.heat, and
similar~services at f~ixed,locationsthat the adopters could
not reasonably have Mtended the consequencea which would
follow from an interpretation which would place.fuel ,for
operation of vehicles within the,terms of Section 21. It
should -be noted, further, that Section 2lwas not framed to
include all supplies required by the departments of the
government. - It ~selectedonly a limited number of items..::
,,w
Our research into the extent of governmental activities at,
_,,
tha~tperiod does not reveal whetherany departments of the
government maintained their own transportation.facil,itie,s~‘as
< ., anincident.to carrying out their duties. Whether..they,did
.~. or.not; it is ~evidentthat if the framers of the Constitu-
.tion-had~intendedto regulate the purchase of the commodity
.<’ necessary.for maintaining these facilities they would have
.included feed in the list of items regulated as the horse
..:.furnishedthe motive power for the usual mea:8 of.transpor--
tation known to that era.
It is our opinion that Section 21 should be given
no broader scope than was within the contemplation of its
framers and the voters who adopted it--the purchase'of f.uel
for providing services at the buildings and grounds where
the departments were located. We therefore hold that it
does not apply to the purchase of fuel for operating vehicles.
Prefacing our answer to your second question, it is
not the nature of the substances which are now used as fuel,
but the nature of the conditions and purpose of use which
take fuels used for operating vehicles out of the scope of
Section 21. The development of gasoline, diesel fuel, liqu+
fled gases SUC!~as propane and butane, and similar types of
fuel has taken place largely since the adoption of Section 21
in 1876, but they-nevertheless come within its provisions
when they are used for furnishing stationary power, heat,
light, and similar services at the premises which the depart-
ments occu.py.
In your third question you ask whether contracts
for the purchase of gas from a public utilitp system come
within the provisions of Section 21. This section provides
that contracts to which it applies shall be given to the
lowest responsible bidder and shall be subject to the approval
Of the Governor, Secretary of State and Comptroller. In
Ron. Walter L. Bell, page 4 (S-170)
passin on a related question, Attorney General's Opinion
V-941 1949) states:
"A public utility is usually a monopoly oper-
ating under a franchise with the tgpe'of service
defined and rates controlled. These factors make
purchase of public utility services on the basis
of competitive bids impracticable. The courts
have.recognized these conditions and have held
that purchases of utility services do not come
within the statutes which require 'supplies' to
be purchased by competitive bidding."
The same reasoning is applicable to the present question.
Section 21 embraces only those contracts which are the
proper subject of competitive bidding and on which the re-
quirement for approval would serve as a check against ex-
cessive contract prices. It is our opinion that the pur-
chase of gas from a public utility by connection with a
community system at a price which is within the established
rates charged by the utility does not come within the pro-
visions of this section.
SUMMARY
Section 21 of Article XVI of the Texas Con-
stitution, which regulates the purchase of fuel
used by the departments of the government, does
not apply to the purchase of gasoline and other
motor fuels used for operating vehicles. It
applies to the purchase of fuel, including gas-
oline, diesel fuel, propane, butane, and other
fuels, which is used for furnishing stationary
power, heat, light, and similar services at the
premises which the departments occupy. It does
not apply to the purchase of gas from a public
utility system at a price which is within the
established rate charged by the utility.
APPROVED: Yours very truly,
Davis Grant JOHN BEN SRRPPRRD
Reviewer Attorney General
J. A. Amis, Jr.
Reviewer
Will Davis
Special Reviewer Assistant
Robert S. Trotti
First Assistant
John Ben Shepperd
Attorney General