-
42
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
, Q!
ALDc. MANN
r”“n 0mm”AL
2
Honorable Geo. H. Sheppard
Comptroller 02 Pub110 Aooounts
Austin, Texas
Dear Mr* ShapQarU:
or a.~;.
to the State
tion drawn againet
Fund appropriated
oard of Vooatfonal
you advlee this do-
1s olaim require8
tate Board of Control b e-
ie authorized to issue
conneotion With Grant.9Made ror Expenae8 0r
suoh Agenoies Pursuant to Title III 0r the
Sooial Seourlty Aot.”
Artlole 034 of the Revised Civil Statute8 provldesr
c The Board of Control shall purohaee all
the ~uppllee used by eaoh Department of the
State Government, lnoludlng the State Prison
Hon. Gee. H. Sheppard, page 2,
system, and e,aoh eleemoeynaryInstitution,
Normal sohool, AgrIoultural and Yeohanloal
college, University of Texas, and eaoh and
all other State sohools or Departmenta of
the State mvernment heretorore or hereafter
oreated. Suoh supplies to Inolude furniture *
and fixtures, teohnloal Instruments and books,
and all other things required by the dliier-
ent departments or InstItutIons,exoept atrlot-
ly perishable goods."
We have several times held that thla statute
evldenoed a State polloy that supplies, equipment and llko
thlnga required by the different departments or Instltn-
tlons of the State should be purchased upon oontraot made
by the Board 0r Contra?. CopIes,oi theae oplnlons have In
moat Instances been given to you, and, of oourse, are In
your rileso
There Is no ocoasion for departure from this ee-:
tablished rule in the absence of some statutory authority,
either expressly given, or by neoessary implioatlon.
The Legislature by Aats or the 434 Legislature
(1933) 1st. C. S. p. 274, oh. 99, 8 1, has providedr
"The Legislature of Texas does hereby
aooept the provisions and.benefIts of an Aot
or Congress passed June 2, 1920, emended June
5, 1924, entitled: 'An Aot to provide ior the
promotion of Vooational Rehabilitationof per-
sons disabled In Industry or otherwIse, and
their return to 01~11 em.ployment.~
"2. The Treasurer offTexas be, and he Is
hereby authorized and cesn~wered to reoeive the
funds appropriatedunder said Aot of Uongresa,
an4 is authorized to make disbursementsthere-
from upon the order of the State Board or Vo-
oatlonal fiduoatlon. The State Board of Yooa-
tlonal Eduoatlon Is empbwered and Inetruoted
to oo-operatewith the terms and oondItIons
expressed in the Aot or Uongress aforesaid.
Hon. Geo. H. Sheppard, page 3.
Woo. 2-a. The Vocational Rehablllta-
tlon DivisIon;through the Supervisor of
Rehabilitation,is authorized to reoeive '
gifts an4 donations ror rehabilitationwork,
said gifta and donations to be 4eposIted by
thaupervlsor of Rehabilitationin the State
Treasury, subjeot to the matching of same
with llederalFunds up to suoh amount as the
Federal Government may allooate per biennium
to the State ror said work, and whloh has not
already been met with state appropriationa
for said biennium."
This Act, in our opinion, does not repeal the
prior Aot (Artiole 634) above quoted. There has been no
express repeal, and repeals by lmplIoatIonare not favor-
ed and will not be permitted exoept where the two Aots
speak with reapeot to the same subjeot matter, and are so
inconsistentas that both may not stand as the law upon
the subjeot at the same time.
The language of Art1018 2676-1, fi2 most nearly
In conflict with Artlole 634 Is, "the Treasurer or Texas
* I * Is authorized to make dlabursementetherefrom (funds
appropriatedun4er the Aot or Congress) upon the order oi
the State Board for Vooatlonal EduoatIon.* There Is no
real oonrliot, it Is only apparent.
Artiole 634 does not undertake to olothe the
Board of Control with final dlsoretlon In the matter of
need 0r our Institutionsan4 departments ror supplies or
equipment, It merely requires when that need Is shown.to
the Boar4 ofControl by proper request for requisition
the oontraot for the purchase of suoh supplies or equ1p-
ment Is to be made by the Board of Control rather than by
the department or Institutionmaking the requisition.,
This Is espeolallytrue In those oases where, as here, the
f'lnaldlsaretlon as to need Is in the department or lnstl-
tutlon making t,horetisltion.
Both Artiales 0r the statute oan stand, and
should.stand,and be given full roroe an4 etieot. By do-
ing so, the State'6 polloy to require all departmentalan4
--.
45
Hon. Geo. B. Sheppard, page 4.
institutionalsupplies and equipment to be~purohaeed
through the Boar4 of Uontrol ae a oontraot agency is
respeoted,without lessening the power of the State
;;B;dlro; Foatlonal Eduoatlon, a8 provided In Artlole
- , . The oentral purohaslng agenay Is an eoo-
nomIca policy only.
Neither 4oes the holding above Indioated Im-
pair or In anywIse disrupt the harmonious oooperation
between the Ofiloe or Zduoatlon or the United States and
.the.Stateof Texas through its State Boar4 of Vooatlocal
Education. A oareiul reading or Vocational Division
Bulletin No. 113, revised 1938, Issued by the Unite4 States
Department of Interior, oonflrms the aorrectness of our oon-
aluslon aa the question of oooperatlon between the author-
ized agencies Is ooncerned.
That wholesome aooperatlon oontemplatedan4
demanded by the Ofiiae of Eduoation, and expressly granted
and realpmoate4 by the Legislature of Texas, pertains to
the larger an4 humane work or distributingfunds aTpro-
prlated by the Unite4 States for vooatlonal rahabIIItatIono
We will next consider whether or not the Board
of Control whose duty It is as we have seen to make pur- '
ohases for the various state institutionsan4 departments
may by approval of the olalms of persons who have made sai e
or supplies or equipment directly to an institutionor be-
partment without the purohase having been made by the Board
of Control, so that suoh c&aims may be passed by the Comp-
troller ror warrant In any event, an4 If so In what cases
or under what olroumstanoeesuch belated approval by the
Boar4 or Control will authorize the payment of such a olalm. ~
Artlole 034a of the Revised 01~11 Statutes Is as
r0n0w8 f
%eo. 1. The Board of aontrol shall In all
pub110 oontraots to be let or awarded by It In-
vite bids an4 furnish proposals to those deslr-
oua or bidding on suoh rorms as It may deem
proper. Said Boar4 may plaoe any person, firm
or oorporatlon a0 desiring on a State mailing
Hon. Geo. H. Sheppard, page 5*
list which said list shall entitle said holder
to a copy of the proposal on any contract that
Is to be let. To be entitled to reoeive suoh
State mailing list, said holder shall first
pay In advance an annual service oharge to be
determined by the Board of Control which ssme
shall not be less than Five ($5.00{ Dollars
nor more than Seven Dollars and Fifty ($vo50)
Cents.
“Sea. 2. Where any bidder or prospeotlve
bidder, other than those appearing on said
State mailing list, desires to bI4 on any con-
tract to be let by said Board, he shall pay
suoh amount for the proposal or proposals fur-
nished to him, as said Board may determine Is
Just an4 neoessary; provided, however, in the
event said Board rinds that a servioe oharge
may work a hardship on some particular bidder
or olass of bidders, it may forego suah oharge
and shall be authorized to burnish such pro-
pose1so
“Sea. 3. All amounts oolleoted from the
annual servloe charge of’those on the State
mailing list or rrom proposals furnished shall
be deposited In the State Treasury in the name
of the *State Board of Control Speoial Service
Acoount,’ an4 enough or said rws so collected
shall be used by said Board an4 paid out as other
rm4s are to defray all necessary expenses an4
charges In conneotlonwith the making an4 fur-
nishing or said proposals.*
Artlole 631 of the statutes provides for.the ap-
pointment or a ohlef of the division of purohaslng, an4
subsequent articles further regulate the manner of making
purohases by the Boardo
These various statutes make It olear that the
method of purchasing su$plIes and equipment presoribed by
the statutes Is mandatory with the exoeptions contained in
Articles 634, 660 an4 perhaps other pertinent statutes*
In other words, the Boar4 of Control Itself has no author-
ity to make purahases exoept in the manner presoribed by
Hon. Geoo H. Sheppard, page B.
these statuteso
In Sluder vs. City of San Antonio, 2 9. W. (2)
841, the Supreme Court held through an opinion written
by the Commission that a olty having entered Into a con-
tract In a manner not authorized by law which oontract was
therefore void should be held liable upon a quantum merult
where it reoeived the ~benefitof the oontraot; the aontraot
being one which the oity ha4 general power to make lf It
ha4 pursued the required formalities. It was pointed out
this was not making valid the original ~014 oontraot, but
the~lIabIlItywas pre4loated upon the legal oonaeptlonof
an Implied agreement to pay for the value of the perrorm-
anoe by the other party whloh ha4 been aooepted by the
olty.
It Is elementary law that where one without au-
thority so to 40 executes an instrument in the name Or
another that other may by adoption or ratlfloatlonmake the
contraat his own, and will of course be bound by Its terms.
*A void oontraot; however, may not be galvanized Into life
by ratification,approval or adoption whatsoever. There Is
no question of ratification Involve4 In the present situa-
tion slnae th oontraot was not the purported oontraat of
the Board or 50ntrol but was one axeouted by the State Boar4
of Voaatlonal Eduoatlon through Its dlraotor. Suah contraot
Is Invalid and void In that the State Board of Vooatlonal
Eduaatlon ha4 no power to make suoh a oontraot. It oould
not, therefore, have validity imparted to It by any aot or
the Boar4 of Control whatsoever.
In suoh a oase the Board of Control by approving
the purohase an4 sale olalm thus unlawfully attempted makes
the transaatlonIts own purohase within the meaning of :
Artlole 634 of the Statutes where the transactionwas one
the Board Itself 00~14 have made in the manner attempted by
the Institution. The erreot of such approval of the olaia
would be to make the purohase that of the Board of Control
In substantial oompliancewith the requirement of ArtIole
634 of our statutes. The validity of such alaIm would be
predloated upon the aat or the Board In making the purohase
Its own, and not upon any Imparted validity to the original
void undertaking of the institution.
From what we have said it would follow that the
Boar4 of Control would have no authority to approve a olaim
ior a sharr not mado in aooordanoe with the mandatory
prorla p”
ona of ths Btetuto. spaoirloally, the mar4 of
Control muld have no authority to apprwa ouoh a alala
where the puroharo wau one required by the statute8 to be
upun oompetltfre bide, It coula only be efrootiv9 in those
case6 where the puPaham wan one which the goard oi Control
itself oould have made in tim manner attezgtsd by the in&I-
tutlion.
In this oonneotlon we are of the opinion that it
these Item6 0rlqul en;ni ;;p 1108 were 0r ruoh nature aa
that oompetltim bl iif ik~ordbl. the law NOtid
have no applioation to aueh a case, It does not requlro M
impos8iblo thing.
If the itema of puroham In the present oam wre
such aa that the purahase should have been pads upon oom-
petitlve blda, thrn the Soard of Control would have no au-
thority to approve the audit for papaant. If, on the other
hand, the itma were of suoh nature a8 that the mard could
have purohased them without competltivo bids, then the
soar& in lt8 dlsorstlon would have the authority to ap rove
the olallp tho effoot of *p?ioh approval would In our op % ion
‘be a substantial oanpUanoe with the statute8 of purchase
and would entitle the olaim to be passed for a warrant oi
we have not oonsidrrod, and exprem no 0pLaion aa
to a 60sb whet0 the mppliee involved have been oonmmed at
;ydlme the Board ia oalled upon for a apprwal or the
. suoh a oaae 18 not berore uu.