OFFXc& OF !IXE&TTORHfXOEpDpRAL OFTEXAB 

BUSTS% 

Cterald C. Mann 

Attorney General 

Honorable C. D. Siolplonrr, Co~~ptrollor 

sttigty 2bartt 

1 op5.nion No. 04938 Dser Slrl~ Ritt oontttruotion of ma- 

~n~e;tFuel compaw : 

. 

We have your lettsr.of February 19, 19433 reqwstlngour oplniorkoonstruiagoertaiapr,rovislcms of 

a oontraat bfotween Tha Mollleater Fuel Company and The 

State of Texas covering the flsael year 1942-43, from 

whleh letter we quoter 

Y 

~%he MoAlester Fuel Capany, dth enoral 

02ftoea et EWlerCter, Oklahcmat and wi %l other 

offlaerr at 3002 sunlus street Dellat, Texas 

and also at R0okiW.e Teas &as the oonWa& 

for iurniehLng lign& to l&e Unlverslty of 

Tsaaars for the fittaal year 194243. In pore 

t&arm la .not a pro er 

dttrunderof;sndingo P 

one aoctordlq to 

theoontraot. Tha q3mpttny has replIed that the aherge Is e 

one In aooordenoe with thc~ a4tntraote 

we have your offloial ad-rho on the 

n * + +,w 
Honorable C. D. Slmnons, Page 2 

Pertinfant provisions 

are the followinga 

of the aontraot ln question 

"The Party oft the First Part hereby oontraota, 

binds and obligates %tself to furnish to 

%%iversity of Tems 6f the State of Texas 

~omftE~ioTtyooitheBeaartdPartt;hroughallt: 

the perlad oovered by this eontreot, 

w*+** 

* + * * All lignite to be of go@ gram 

ta ot.not lass thfl 10 

on 
Honorable C. D. Sialptoas, Page 3 

"The said Uhlverslty of Texas end the Stats 

of Texan agree to pay to The laiilester Fuel 

Company the sum OS One Dollar and Seventy-three 

Cants ($1.73) per ton F.O.B. Austin, Texas f'or 

each and every ton of llgnlte delivered uuder 

this oontreat. The above prlaa of Oua Dollar 

end Seventy-three Cants ($1.73) per ton for 

all Ligtitk deliver&d under~this oontradt shall 

"It la understood end agreed that in the 

*Vent the united States of Awrlaa or the State 

of Teht imposes a .saverenoo hx or other direat 

tax on Lignite during the liie of this ~o&tra&, 

aad the Seller has to 

tax will be added to tEe 

ay the tax, that SW& 

nlte. 

Sellers priae on L+ 

n * * ** 

"It is further oontraoted and agreed that* 

breaah of the terms of this oontraut, 

"1chis aoutraot has bean gntared into by 

authority oi? e~rasolutiou durJI~entered iut@ 

by the Board of Control of the State of Terns, 
Honorable C, D. SImmoas, Page 4 

after celling for bids and advertisements theraEXHIBIT At Conditions of ProwsaL a@ 

sDeaifL'ioationa forllanL* . 

%XHIBIT Bt Id of MoAlester Fuel CO~IJ~Q.~ 

phesis ours) 

Tha pertinent part of the bid referred to In the 

above quoted -p?or;tions of the oontraat reads. 

The general pule 

enuexed to or referred tie 

as e part 0~s the aontraot 

716, 8eoI 29% 

that writings whlah am either. 

in a aontre& will be am&rued 

is well stated In 17 C.J.6. 

A cursory examination of the oontraut, ~from whluh 

wo have quotbd oo ioualy, diaoloaes the feat that almwt 

every provlaion tie rein oontelnad is referable to end 

dependent upon the terms end aondItions of the *%paaifiaations, 

proposals endbid*nhiohare "medee pert" thereofby 

reSinmoe end are enwxed thereta es Erhlbll% With&at 

suah axh%bIts it la crlear that the eontreat is lnaomplete. 

Werower, the aontreqt oontaipa its own 8peaiilo rule 

of construction req&r%ng that the exhibits shell be eonatruad es pert thereoft "the terms of this * * * oontreot 

shell be aonstruad to inoltade spealfiuetlons, bids and 

propose18 oonneoted thercrvith end hereto ettachedW. 
Honorable C. b, Simuons~ Page 5 

It is fundauental that 3.n aonstruing contraots 

effeot ail1 be 

If possible. I f 

iven to all provIsions therein contained, 

is likewise fundamental that the expressed 

inteot of the c6ntraating parties mst be given effeot. 

We think that under the rule of uonstruation laid 

down In the aontract i&elf, the provlslons aontained in 

the specifications bid and proposals mst be given the sam 

*eight, and that &ey are of equal rorae and effeat of any 

other provisions oontalned In the aontraat. Unless thke 3.8 

some ambiguity or eonfliat between the various provisions 

of the aantract, no construatlon is needed. We find no 

such aonfliat and no suah ambiguity es to justiry a aonstruction of the aontract. It is clear and expllait with 

referenae to the matters therein oontalned. 1tspeolf@aUy 

provides that In the event of au lnarease or dearease In 

freight rates or of Federal taxes thereon, that the prioe 

provided for in the eoattiaot shall be increased or deareased 

acoordinglp. 

Vtilel therefore advfae you that if-the frei f 

rate has increased or 1 f the Federal taxes thereon e Y8 

increased the seller ls entitled to add Such Auarease t0 

the priae of the 

Y 

te 

treat ,Ss .obllgated~ 

end the pur&aser uuder this aonveraely,~ if 

pay such additional an&m!&, W 

suoh.rekes or taxea should be dimepjed then 

the purahaaer would be entitled to have the advantage of 

such decmase in the price peld? 

Our ittention Ma been aalled to the cases of 

Johnson V* Grand Fraternity+ 255 Fed. 929 and Delanray ve 

Fefnt%rs Siiate~ ?3enlc, 115 8.8. (26~ 

neither of suuhoeaes la In pain a 

736, We think that 

here, The Jc&xrison 0888 

is authority for the general propesitlon that the statement%hat the exhibit 14 #made a art" of a tm&raati; ir 

not aontrolling, a@ that~ where, &It pZ’OViS$~lN of the ,&antreat and those of the arhlbit are in ednflictt the prbc 

visions of the aontraot will oo&reL Th* Ddla~y O~SI) 

did not involve an exhibit at all but a eneml referenae 

ta oontraots betwen other parties, and fh e ooart h&d 
Honorable C, IL Binanon5, Page 6 

that suuh general zyferenoe oould not have the effect of 

substltutlng the provlslo~ of the oontraot referred to 

Yor the speaifieally expressed provisions of the oontract." 

We have neither of suah f#ltuationn presented here. 

On the aontraryt the contraat before us speolflaally 

ii 

rovldes that it shall be oonstrued to "iAaiUde speoiflcatlona, 

Ids, and proposals eonuected therewlthn. We can no more 

disregard this provision of the ooatraat than we 06~1 disregard any Other prOVhiOA theIWin oontained, 

It has alla0 been suggested that the portion of 

the bid providing for the add%tion to t&e selling prioe of 

.an lnarease,of freight rates or Pederal taxes is %n ao~- 

fllct with that portion of the oontraot whloh provides that 

lf State or Federal %everanae taxes or other direct taxes" 

are levied upon llgnite",~ and seller has to pay such taxes 

the mount so paid shall be added to the selling price because It .ls said that only ~~~evcmnce or other dlreat &es 

on lignite* were %A the m$nds of' the aontraating patiies 

and that such revision superuedeb the said provision In 

thebld. To &a we cannot agree for the reason that it is 

oboioua~that aFederal. tax upon fzelght rates mentioned ln 

the bid is neither a %mveranqe tax" ,nor Is It any "other 

dhwt tax upon llgA%W. 

aAddietiAt?t* 

The two are altogether differen 

Furthermore having lnoluded the provW.en 

for the addltlon of such transportation taxes in the bid 

whiahj under the speclflo lrnguage of the aontraot, must 

be construed ae a part of It, It ,was nelther~neoessary 

nor desirable to reiterate sucrh~provislon in the addltlonal 

writ+& 

Aguln it Is sugge8tea that the Z?OV.tSfOA ~Shat "all 

traces 

OOACL p" 

rtatlon’aharges must be prepaid 4y the geller.,lr In 

at ulth -the provlsian that lnoreased Federal transportation taxas'shall be added to the price, The bid was 

~made.FcO.Bi rtustin, Texa& It dleems fairlyobvloua that 

all partlea to the oontraat, at all times, axpeated mtlLer 

to pey euah izansportotl6n tiger. Thla, however doe8 

not, ia the least Bkilitate agnhUt 0Ur co~~hIsioA iha% 

ther? in no%kfllat In auuh provisions. It ls'equally as 
xonorable C, 9, %BEWSU% Pm 7 

obvious that if the pax-tier, had UoAtemplated paymeAt of 

transportation ehargea by the buyer there would have been 

ho reason and ho jU8tificratioA for adding an increase in 

such charges to the selling prioe, nor would there have 

been any reason for the provision deareaslng the selling 

prlae in the event of a dearease in euah aharges. 

n?usting that the above fully answers your in=- 

quiry, we are 

Very truly yours : 

ATTORWHY OEWSRAL OF TEXAS 

By /is/ Forler Roberts 

i?ow~~ler~tts