Honorable Harry Knox Opinion No. O-2339 Chairman, State Board of Control Re: Approvalby Board of Control Austin, Texas of Expenditure of State Funds for payment of cigarette stamps purchasedunder a requisition not complyingwith Article 16, Section 21 of the Constitution Dear Sir: of Texas.

Your letter of May 7, 1940, and the contract and photostatic copy of a requisition for the purchase of cigarettetax stamps,which you enclosed, reveal the following facts:

On July 6, 1937, a contractwas entered intoby the State of Texas, acting by and through the CigaretteTax Stamp Board (composed of the Board of Control), for the furnishing of cigarettetax stamps for
a two year period beginningMay 15, 1937, and endingMay 15, 1939. On September 19, 1939, subsequentto the expiration of the aforesaid contract, the Board of Control issueda requisition to the Steck Company for One HundredMillion (100,000,000)cigarette tax stamps. In your letter, it is stated that "This order for the printing of stampswas given to the Steck Company without public advertising for bids or competitivebidding,without any contracthaving been awarded, and without the approval of the Governor, Secretary of State, and the Comptroller". It is then shown that after delivering these stamps to the State Treasurer, the Steck Companyhas filed invoices, for the number of stamps printed under this requisition,to the Board of Control for approval; which approval is necessarybefore the State Comptroller can issuewarrants for the payment of said invoices. It is further stated that the Minutes of the Board of Control, since the date of the expiration of the above mentioned contract, do not disclose the declaration of any emergencywhich could permit the purchase of such stampswithout competitive bids, and the award of a contract as is requiredby law.

After presenting these facts, you request our opinion on the following question:

"Can the Board of Control legallyapprove the expenditure of State funds for the payment of the above-mentioned invoices for cigarette tax stamps deliveredunder the terms of the attached requisition,although such stampswere purchasedwithout a contract,without public advertising for bids or competitivebidding, without the approval of the Governor, Secretary of State, and the Comptroller?". -

Honorable Harry Knox, page 2 (O-2339)

Article 16, Section 21, Constitution of Texas, provides:

"All stationery,and printing, except proclamationsand such printing as may be done at the Deaf and Dumb Asylum, paper, and fuel used in the Legislativeand other departmentsof the government, except the Judicial Department, shallbe furnished,and the printing and binding of the laws, J 'ournals,and department reports, and all other printing and binding and the repa'ringand furnishing the halls and rooms used for the meetings cf fho Legislature and its committees, shallbe performedunder contra?, t.o be given to the lowest responsiblebidder,below suchmaximum price, and under such regulations,as shallbe prescribedby law. No member
or officer of any department of the government shallbe in any way interested in such contracts;and all such contracts shall be subject to the approval of the Governor, Secretary of State and Comptroller."

Article 607 to 630b,Vernon's Rev~i.sed Civil Statutes, 1925,
are the regulationspassed by the Legislature for the purpose of effectuating the above quoted provision of the Constitution. A. G. Opinion No. 0~2260, 1940. Article 7047c-1, Section 3, Vernon's Civil Statutes, creates the CigaretteTax Stamp Board (consistingof the Board of Control) and provides that the printing and manufacturing of such stamps shallbe let to the lowest and best bid. In letting the contract of July 6, 1937, the CigaretteTax Stamp Board determined that the furnishing of these was printing,and the contractwas awarded under the terms of, and in compliancewith, Article 607 to 630b,,supra,, and Article 16, Section 21, of the Constitution of Texas. In view of the fact that the CigaretteTax Stamp Board has determined that the furnishing of these stamps is printing and since the courtswill ordinarilyadopt and uphold any reasonable constructionplaced upon a statuteby an exer~utive

officer or department chargedwith the duty of administering the Act, (39 Tex. Jur., Sec. 126, p0 235) we are of the opinion that the furnishing of cigarette tax stampsunder the requisition of September 19, 1939, is printing. Therefore, before a purported contract for these stampswould be binding upon the State, it must have been made in compliancewith the mandates of the Constitution. In our Opinion No. 0-2260, we held that the provisions ofArticle 16, Section 21, of the Constitutionare mandatory; and until such alleged contractsare approved by the Governor, Secretary of the State, and Comptroller,they
are not binding upon the state and are in effect no contract. We follow this opinion and since the purported contract, or requisition, of September 19, 1939,was not approvedby the Gove'rnor, Secretary of State, and Comptroller, there was no contract. See State ex i-e1 State Publishing Company vs* Hogan, Secretary of State (Sup. Ct. of Montana, 1899), 56 Pac. 818; Ellison vs. Oliver (Sup. Ct. ofArkansas, 1929), 227 S. W. 586. In view of the fact that Article 16, Section 21, of our Constitution provides that all printing shallbe performedunder contract, and since these stampswere not furnishedunder contract (becausetheL -

Honorable Harry Knox, page 

### 3 (O-2339)

requisitionwe.6

not approved a8 stipulated in the Constitution), it is the opinion of this Department that you may not properly approve the expenditure of State funds for the payment of the invoices for cigarette stamps deliveredunder the terms of the attached requisition.

In 80 holding (that this purported contract of September 19, 1939, is not binding on the State and that you, therefore, cannot properly approve the invoices for cigarette stampspurchasedunder said requisition),we have not failed to considerArticle 

### 618,Vernon's Revised Civil Statutes, 1925,which, in part, provides:

"Shouldall bide on any contractbe rejected, or the 8ucce88- ful bidder fail to execute bond as providedherein, or should the contractbe abrogated, the Board shall let a new contract in the
manner provided herein. The Board may in its discretionmake such temporary arrangement to meet the emergencyas the public interest may demand." (Underscoringours)

In this connection,we do not pass upon the question of whether
or not an emergency existedwhich would have authorized the Board to make "temporaryarrangement." This is a question of fact to be determined from all the surroundingcircumstances;however, even assuming
an emergency did exist, it is the opinion of this Department that even "temporaryarrangement",made by the Board to meet emergencies, must complywith the mandates of the Constitutionand this is based on the well-settled propositionthat when a statute is susceptibleto two constructions,under one of which itwould be unconstitutional,while under the other it would be valid, the lattermust prevail.

Yours very truly

APPROVED MAY 

### 31, 1940

Is/ Gerald C. Mann

ATTORNEY GENERAL OF TEXAS ATIOPNEY GENERAL OFTEKAS

By /s/Walter R. Koch

Walter R. Koch Assistant

By /s/ Harry A. Shuford

Harry Shuford

HS:ew:lm

APPROVED OPINION COMMITTEE BY /s/ BWB CHAIRMAN