Untitled Texas Attorney General Opinion

ArrsTrN 11. ‘TExas
PRICE DANIEL
February 15, 1949
ATTOHNEY GF,NEHA,,
Eon. Jesse James Opinion No, V-773
State Treasurer
Austin, Texas Ret Legality of use of aster
machines in lieu of the
deoaloomania stamps in
stanping the amount of
the tax on packages of
ofgarettes,
Dear Sir:
Your letter requesting our opinion on the
above captioned matter reads as follows:
*Will you please advise whether un-
der the cigarette tax statutes this de-
partment, the Comptroller of Public AC-
counts * and the Cigarette Ta,x Stamp Board
could, without further legislation, 0 0 .,
authorize the use of metering maohfnes in
lieu of the decalcomania stamps now used
fn stamping the amount of the tax paid on
each package of cigarettes,”
We have carefully ravfewed the Cfgarstte
Tax Act, whfoh is codified as Article 7047c-P, Ver-
nonDs Civil Statutas, ,and have arrived at the oonolu-
sion that the Comptroller of Fublfo AeGounts and. the
Cigarette Tax Stamp Board, without further legislation,
cannot authorize the use of a metering machine in lieu
of the deoaloomanfa stamps which ars now used in stamp-
ing the amount of the tax paid on eaqh package of cig-
arettes,
The language used in the afgarette Tux Act
compels the above holding, The following exoerpts
from this Act, as well as the reaafnfng parts of the
entire Act’ as a whole clsarly nagatfve the authority
to use a metering machfne,
nqStampQ shall mean the stamp or
stamps printed, manufaotured or made by
authority of the Board as herefnafter,ds-
fined, and fssued,sold or circu,lat_ed by
the Tre~asurer and by the use of whXoh the
tax levied hereunder is paid. a~* e QC~un-
,
Hon, Jesse James - Page 2 (V-773)
terfeit. Stamp9 shall mean any stamp, label,
print, tag or token which evidences, or
purports to evidence, the payment of any
1tax levied by this Aot 9 and whfch stamp,
label, print, tag or token has not been
$ned, manufactured or maiIe by authority
e Board as hereinafter defined and/or
issued. sold or circulated by the Treasur-
Payment of such tax shall be
iy stamps purohasod from the
,Treasur er and securely afffted to each in-
d~iviaual package of cigarettes covering
the tax thereon as imposed by this Act;
0 Cigarette stam@s shali be sold by
ihi Treasurer in unbroken eheets of on’8
hundrea (100) stamps only and shall be pur-
ctlasea from and sol& only by said Treasur-
ers o e o and the ofreader does not pos-
sess sufrfoient unused stamps to cover his
unstamped stock of cigarettes, then and in
4 that event the ofrender may purchase the
required stamps from any distributor
through a requisition from the Comptroller
in order that his unstamped stock of ‘cig-
arettes may be stamped immf4iately and un-
der the direction of the Ocmptroller, . 0
The Comptroller shall have the power and
authority in the enforcement of this Aot
to reoall any stamps which have been sold
by said Treasurer and whioh have not been
used and it shall be the duty of said
Treasurer upon receipt of such recalled
stamps to issue stsmps of other serial num-
bers therefor. The purohaaer of any stamps
shall be required to surrender My unused
stamps ror exohange upon demand of said
Comptroller. (mphaafs added throughout)
“Sm. 3. A OCigarette Tax Stamp
Board* composed of the Board 0r Control 0r
this State, designated hereafter as the
uBoardPD is hereby created and the said
Hon. Jesse James - Page 3 (v-773)
Board shall be and is hereby regnii%d to
design and have printed ore manufaotured~
new cigarette tax stamps of such sf%e and
denominations and in such quantities as
may be determined by the said Board. The
stamps shall be so manufactured as to ren-
der them easy to be securely attached to
each individual package of c~igarettes; pro-
vided that a different and separate serial
number or combination letter and number may
be assigned to and printed on the margin of
each sheet of stamps, or other methods of
identiffcatfon be adopted as then Board may
decide. The printing or manufacturing of
the stamps shall be awarded by competitive
bid and the contract shall be awarded~ to
the person sutauanittingthe lowest and best
bid that will afford the greatest and best
protection to the State in the enforcement
of the provisions of this Act,
design of stamps authorized to be printed by
the Board to @esignate the date of issue of
such new design, O . e
VProvided that any cigarette tax stamps
may be e:.:changed only when proof satisfpctory
Hon. Jesse James - Page 4 (v-773)
‘to said Treasurer is furnished that any
stamps offered to said Treasurer
~ _ . ex-
in
change were properly puroaasea am pafd
for by the person offering to -exchange
such stamps; provided, further, that
stamps which are effaced OP mutflated fn
any manner may be refused for acoeptanoe
in exchange by s&d Tpeasurer.
“The Treasurer shall keep a record
of all stamps sold by him or under his df-
reotion, or all stamps exchanged by him
and of all refund made on stamps purchased.
WOrders for cigarette tax stems
shall be sent direct to the Treasurer and
it shall be the duty of the Treasurer to
Tlstamps-ordered-to-
er upon a form invoice to be prescribed by
the Treasurer, whfch invofce shall be is-
sued in triplicate and numbered oonsecu-
tfvelg, 0 0 0
Wee. 3B, A distributor my order
stamps shipped with draft attached to the
bank with whfoh distributor regularly trans-
acts business. The Treasurer is hereby au-
thor..ized to ship stamps in comlfanoe with
Snch n?AePS to anv SUCh : bank authorized to
do-bus&es in Texas under the laws of this
n Said report shall also show
the n&b&: denomination and faoe value of
unused stamps on hand at the beginning of
the month covered in the report, the number,
Hon. . ;Tesse James - Page 5 (8-773)
denomination and face mlus of qtamps
purchased and received, the nmbep, ds-
nomination- and face value of stamps
sold, used, lost,, stolen, exohanged, re-
turned to the Treasurer, or disposed of
in any other mame``and the.ntmbeF, Bow.``
nominat5.on and faoe value of stamps an
hand at the end of the month oorered $n
the repor& ,, O~.i
*(b) The Treasureli mrj~@romulgato
rulea an8 regulations hereardrr prerfd-
fng for the refund on stupe whfoh by
reasons of Wnage beoone unfit ior sale
or ~9%~ D O D
“The Direotor ., o d shall o O
personally supe*lse the printing oi man-
nfaaturing of all ofgirette tu staaps
under the oontxaot au awaN& by l&e Beaxd
of ContmL, and. he shall haTo peareb#Qen
and oust&y-of, and..be respmuif?~e ior, all
speaff iaation plans o photogzaph8 a, fiyses-
shm g drriagu B cr;loo+$ l&W, .pzM@g
atamr an4 any ma U. 3h WP
L p~opsl$y or
aqufm6nt that my prafle 9 Wn8 *S repro-
duofng, meamiaoturfng. oe prfrt?lre; of ofgar-
ette tax &s fn the daaiga'selaeW+~Lf
the Gfgatiette Tax Siianp Boar& The s.afd Di-
‘rootor shall also be ohergad wit& the re-
spensfbflftf of ln8peot$ng ,%he stmpr after
suoh stamps hare been.mu#aOtUrod or jmM+
ed and all sheets ef et-6 that (I* net
meet the speoffiortfons requi204 i&the oon-
tract, shall, be re$soted ani tr&troj~d w or
tidsr the Mreot pers?nal 8~ emfrfcy~ of
said Direotor; and the Direr ,e OF .shall h@s ..
oontrol of said strqps and be responrjfble
therefor until ,delfrerr is’ made ‘to the Treae-
UPbT." ” ,,
The ropoaqd plan bf msterfug the stamps on
to the ofgaret e e paokages adrfttedly~would be optional
with the dealer and not all of tile dealers would emr-
.~cis8 the option of thfs ret+ed. : So that there’ rould
neoesearfly be fn use both methods ii the meterfng
method fa permissible. Your speofffo question fs cate-
Lgorfoally answered in the negative.
.
i
Hon. Jesse James - Page 6 (V-773)
We are not unmindful of the classification
of statutory provisions into mandatory and directory
provfsfons. The accepted rule, generally, is that
the provfsfon for the doing of an act within a partic-
ular time or in a particular way merely is a directory
provision pertafning to convenience rather than sub-
stance,.unless such provision is followed by words
clearly importing negation of any other time or method.
City ofCincinnati vs. Board of Education, 27 N.H, (2d)
413: State ex rel Caroenter vs. Barber. 198 So. 49:
Tate vs. State, 141 S,W, (2d) 3518 Application of -Ido-
gang 5 N.W. (2d) 729,
Authorities supporting this general rule
could be multiplied fndefinftely. It is the opinion of
this office that the Act by the meticulous terms of its
provisions as to the method ~of enforcing the cigarette
tax has necessarily negated the adoptfon of any other
method by the Comptroller and the Board. In any event 9
the line of demarcation between mandatory and directory
provisions of statutes is not easily drawn, and no one
may cast an exact form la to govern all questions. Each
case must be governed 1n the final analysis by the con-
text of the entire statute. Even if the present ques-
tion were fairly debatable, nevertheless we would still
be impelled to hold as above stated.
The matter cannot be determined upon a sub-
stantive procedural basis, Substantive statutes are not
necessarily mandatory, nor are procedural statutes neces-
sarily directory. All of our Supreme Court rules are
vrocedural. but nevertheless all of them are generally
mandatory.”
The thin line of demarcation between mandatory
and directory statutes is accentuated by many familiar
situations o
Board of Control, with certain exceptionss
is required to purchase supplies for the different fnstf-
tutfons and departments upon competitive bids after ad-
vertising. (Art. 634, V, C, S,) If such should be pur-
chased without oomplying with such provision, it would
not follow that the provision would ,be classed as a dfree-
tory one0
The Banking Code prohibits excessive loans to
borrowers. (Chap, V, Art. 7), If an excess loan should
be made, it is a valfd, oolleetfble loan, but the statute
is not for that reason a directory one.
. .
Hon. Jesse James - Page 7 (V-773)
Our statutes regulate marriages very fully,
yet a marriage not in compliance with such statutes is
valid. The regulations are mandatory nevertheless~.
Our nepotism statute (P,C, 432) is mandatory,
yet an appointment of one' fn violation thereof is not
invalid.
So here, if the agencies charged with the en-
forcement of the stamp tax provfsion should ignore the
method prescribed and pursue another equally as effec-
tive fn the enforcement of the law, the result would
not be void.
These results, however, would not justify this
office in advising an officer or board to disobey a stat-
ute even though no penalty on the one hand or hurt on
the other would follow.
In the absence of further legislation,
the Comptroller of Public Accounts and the
Cigarette Tax Stamp Board are not author-
ized to permit the use of metering machines
in lieu of the decalcomania stamps now be-
ing used in stamping the amount of the tax
pafd on each package of cigarettes. Art.
7047c-1, v. c, s.
Yours very truly,
ATTOBNIEGENEEUL
Oy TEXM
0S:mw:wb
By&&Assfstan