OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

112 

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 Educrtian meeting, ber 11, 1043, mom conoption PR free textsubtitted by each 

publishers? 

he V% instant readinK as 

--At least thirty 

of the meeting 0C the 

firm or corshall PrIe 

Fublia Xastruction 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 subtit 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 qaalifi%d as 8n eligible biddar, unl%o% disqualiPied 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 Uzxirtrsity i3lbll+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%Epony on sopteeber 13th, 1943, tro days subsequent to the lest legal date for Piliaq. 

0Xou are respeotfully requested to answer 

the r0110King inquiryi 

l iIirs the failure of each Of these publishers to fSlo s.mplee with the State Superintmdent Oi' mblio SnstrUCt~OE Within thQ time r%- 

qulrecl by the Artlols r.?P%rrerl ti>, axi under 

the circwstaacoe strtti, preoludodthe Btate 

Board of Erlucatlon 8t its adaption mating beginn,Lng Oatubcr 11th‘ 1943, from considering 

for aiL*igtion 8s f-r%% textbcrJko the books oubmitted 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 requested, considerable time oan be sared and conf ualoa averted . . 

Article 2846 provides as folles8r 

ë* 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!S ai each book 011 rhlch 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 stateEent of the pabllsher'n oatalogue priae oi' 

the same and speaial edltione,tbereof, together with trade discounts and the cnnditions 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;h a?%% 

ritboet.exohangs. There shall also be 

print& or stas,ped in each hook the n;taivma rholesale pr&co at vbich such book, 

ati special editione tberevF, are sold , 

f. o. b. the shfppine point of' Che publisber 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 maadatory 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 lmguage . 

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 depositing 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 conplied 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 samples, 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. 

Tbha construotlon 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 

mission Js%.?t.S) an aifldavlt ,to the ct’feot that oertain 
I ’ 

Honorable phillip LI. St4venaen - pug0 U 

taxes have been paid, and further coritaiaing certain 

othe;r information, t’ollowml by the language, *lo publisher orbo cannot and does not coatply vaith these proolsioas ahmll bo eli&Ble to bid.. 

It ~111 be seen that Article 28846 makes no 

such eapbatio prorisioa with reapect to the depoelting of assplbs of book3 oCf4r4d. 

The cas4 of Faderal Crude Oil Co. t. TouatLea 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 duties or public offtioero 8Ad specifying tbs 

.timefor their peHorraaoea.re intbatregard generally directory. rbough a rtatute direote a tbi.ng to be done at a particular tiAe, It does not neoeaearil~ fol10~ 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 daties 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 coDeiderled au a 1isdtatioD of the parer of the 

officer." 

What we bare esld abole 1s sufflcisnt to irultoats 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 publlshcr rbo has failed to ocnply ritb the literal. reqtirecent of Article 28&1 of the statutea with raepset to tba 

mabvahsion of samples of books fer the p4rL0d of tiaa there 

m4DtiOAed.