Untitled Texas Attorney General Opinion

-, EYGENERAL February 21, 1952 Hon. Robert S. Calvert Comptrollerof Public Accounts Austin, Texas Opinion No. V-1410 Fle: Authority of Gatesville State School for Boys to pay skilled laborers engaged in repair work out of the $269,000 re- pair fund in the general appro- priation bill for the biennium Dear Sir: ending August 31, 1953. You have requested the opinion of this of- fice on the legality of drawing warrants in favor of skilled laborers who are engaged in repair work at the GatesvilleState School for Boys. Section 31(b) of Article 11, House Bill 426 (the general appropriationbill), Acts 52na Leg., R.S. 195l, ch. 499, p. 1228, at p. 1300,providesin part: "(b) . there is hereby appropri- ated a fur&e; sum of Two Hundred and Sixty- nine Thousand Dollars ($269,000)for the repair of the GatesvilleState School for Boys at Gatesville,Texas; said money to be appropriatedto the Youth DevelopmentCoun- cil out of the General Revenue Fund for the biennium beginning September 1, 1951, and ending August 31, 1953." Under the heading "General Provisions L(Sec- tion 5 of Article VI of House Bill 426, at p. 1438, states: "Sec. 5. Repairs, Improvementsand Equipment. "The terms 'Repairs,Improvementsand Equipment,' 'Repairs and Improvements'or Hon. Robert S. Calvert, page 2 (V-1410) 'Repairs and Equipment' includes all objects of expendituresin the '4,000' and '5,000' series of the Expenditure Classificationsection of the State Comptroller of Public Accounts publica- tion lClasslficationof Accounts,' re- vised to August 31, 1949, edition." The '15000'1 series of the ExpenditureClassi- fication above referred to, entitled "Acquisitionof Property," relates to improvementsand equipment. The '4000" series, which relates to repairs, is as follows: "4000 - REPAIRS "4100 &G'AIRS 4110 Repairs to Lands, Build- ings & Machinery - Includ- ing Contracts and Materials 4120 Repairs to Office and Plant Equipment 4130 Repairs to Automobiles 4140 Other Repairs." Your problem has arisen because salaries and wages are in the 'UOO" series, which is not included within Section 5, m, and there is no classifica- tion within the repair category labeled "Wages." We have some doubt as to the applicability of Section 5 to an appropriationfor a specific “re- pair," where the type of repair authorized is stated in the appropriationitem itself. However, assuming that Section 5 is applicable,the basic problem pre- sented for decision is whether the statement that re- pairs, etc. " jects of expenditurein the '4,000' and limits the method of using repair appropriationsmade throughout the entire gen- eral appropriationbill to the categories set out in- the Classificationof Accounts Manual. If this is a limiting provision then repair work can be done only by the letting of iump sum contracts for a complete job, not by separatelypurchasing materials and hiring labor- ers. 1/ Emphasis added throughout. Hon. Robert S..Calvert,page 3 (V-1410) The language of the $269,000 repair appro- priation does not indicate that the Legislature in- tended the work to be done only by lump sum bid, but leaves the method to be used to the judgment of the Youth DevelopmentCouncil. In the absence of Sec- tion 5, SUI)PB,the Council would have the authority to purchase the needed materials and also to hire the necessary labor, in effect acting as its own con- tractor, if it found that method more economical or expedient. In the case of e rlessCarbon Bla&Co. v. Sheppard 113 S.W.2d 99%” (‘_ rex. Civ.,Aoo. 19~38.er- ror ref.), ihe court was faced with a decision-asto whether the followingdefinitionwas one of limita- tion: 11 . The term ‘carbon black’ as . . herein used includeg all black pigment produced in whole or in part from natural gas, casinghead,gasor residue gas by the impinging of a flame upon a channel disk or plate and the tax herein imposed shall ,- reach ali products produced in such man- ner.n The court said: ” . . . The words ‘includesand 1including’ are regarded by the authorities as being identical or equivalentto each other; and the authoritiesuniformly hold that unless the context in which such w0rd.g ui eg they are never regarded Bre used as being- rea r i with or eauivalentto identica 1mean and.include,* nor with ‘such less elas- tic words and terms as ‘meant,’ ‘meaning,* or ‘by which is meant.’ . . . In conse- quence, it follows that the use of the word ‘includes t as used in the taxing act under consideraiion, instead of some less elastic word or term, such as ‘meaning,’ ‘meant,’or ‘by which is meant,’ would seem clearly to imply that the Legislaturedid not intend to use the word ‘includes’as one of limitation or of enumeration,but rather of enlarge- ment, or as illustrativeof those intended to be included within the taxing act.” . Hon. Robert S, Calvert, page 4 (V-1410) This same definition of the term "includes" was approved and followed in Calvert v. J. M. Huber Coruoratiog 231 S.W.2d 805 (Tex. Civ. App. 1950, er- ror ref.), &d Houston Bank and Trust Co. v. Lana- prn;,)201 S.W.2d 834 (Tax, Civ. App. 1947, error ref. . . . . The context of Section 5, u, does not require that the phrase "includes all objects of ex- penditures in the '4000' and 150001 series" be con- strued as a limitation on repair expenditures,and on the basis of the above decisionswe are of the opin- tym;$at the categories set out in the '4000' and series are merely enlargementsof, or illustra- tive of, the categoriesincluded within the meaning of the word "repairs." We therefore hold that the Council may hire skilled laborers to carry out the re- pair work at the School, and wages to the laborers are properly payable out of the $269,000 repair fund. SUMMARY The definition of l*Repairs'l in Sec- -. tion 5 of Article VI, H.B. 426 Acts 52nd Leg., R.S. 1951 ch. 499 p. 1328 at p. 1478, is only iilustrati:eof the'cate- gorie,sincluded within the meaning of the term and is not a limitation upon the methods of expenditure of'repair funds. The Gatesville State School for Boys may properly hire skilled laborers and pay them from the $269 000 repair appropria- tion in the general appropriationbill. APPROVED: Yours very truly, C. K. Richards PRICE DANIEL Trial & Appellate Division Attorney General Mary K. Wall Reviewing Assistant By i: w2-u Charles D. Mathews E. Wayn Thode First Assistant Assistant EWT:wb