                               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$y or
       aqufm6nt that my prafle          9 Wn8 *S repro-
       duofng, meamiaoturfng. oe prfrt?lre; of ofgar-
       ette tax &amps fn the daaiga'selaeW+~Lf
       the Gfgatiette Tax Siianp Boar&        The s.afd Di-
      ‘rootor shall also be ohergad wit& the re-
       spensfbflftf   of ln8peot$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




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