                                                                      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.
